Opinion
10-P-1969
12-29-2011
COMMONWEALTH v. KARL F. VILSAINT.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Upon review of the briefs, record appendix, and transcript, we find no merit in the defendant's various claims of error. Accordingly, we address each in a summary manner, for the most part relying on the Commonwealth's brief and, where appropriate, citing relevant case law.
1. Prosecutor's remarks. (a) The defendant claims that the prosecutor's single reference to the 'final surrender hearing' during cross-examination requires reversal. During opening and final instructions, the jury were instructed that questions posed by counsel were not evidence and that they were not to consider anything that had been stricken (as was this remark) from the record. Moreover, the prosecutor's reference was fleeting and not mentioned again. See Commonwealth v. Isabelle, 444 Mass. 416, 420 (2005). Contrast Commonwealth v. Fallon, 423 Mass. 92, 95-96 (1996).
In any event, any possible prejudice would have been mitigated when the jury eventually became aware by way of impeachment that the defendant had two prior convictions.
The prosecutor's reference during closing arguments to the defendant's intoxication was not a fatal error. The argument was based on evidence (in addition to his medical records) adduced at trial.
(b) The defendant asserts that the admission of photographs depicting Brennan's wounds and bloody clothing worn by Brennan, Reinfurt, and the defendant, along with testimonial references to the same, deprived him of a fair trial. We do not agree.
The admission of the five photographs depicting Brennan's wounds and the bloody clothing did not unduly prejudice the defendant. They were neither unrelated to the charges, nor were they unduly inflammatory. See Commonwealth v. Keohane, 444 Mass. 563, 573 (2005). Moreover, they were cumulative of other evidence adduced at trial.
In short, the challenged evidence was cumulative of unchallenged evidence concerning the stabbing proferred at trial, including the medical records of Brennan, Reinfurt, and the defendant. See Commonwealth v. Cyr, 433 Mass. 617, 625 (2001).
2. Trial judge's remarks. Neither the trial judge's remarks to defense counsel nor those to the defendant were fatally prejudicial. See Commonwealth v. Haley, 363 Mass. 513, 518-519 (1973). In any event, any possible prejudice was cured by the judge's instructions that the jury were not to let any of his actions or words affect their consideration of the evidence. See Commonwealth v. Meadows, 33 Mass. App. Ct. 534, 538-539 (1992).
3. Identifications. The admission of statements of identification was not error. See Commonwealth v. Adams, 458 Mass. 766, 770 n.4 (2011). See Mass. G. Evid. 801(d)(1)(C) (2011 ed.).
In sum, we think the defendant's conviction may be affirmed based substantially on the reasoning and authorities set out in the Commonwealth's brief.
Judgment affirmed.
By the Court (Berry, Brown & Grainger, JJ.),