Opinion
14-P-326
02-24-2016
COMMONWEALTH v. MIGUEL YANEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of aggravated assault and battery by means of a dangerous weapon. He appeals, arguing that, during her closing argument, the prosecutor encroached upon his right to remain silent by improperly asking rhetorical questions and commenting on postarrest complaints he had made about his injuries from the altercation. Because the defendant did not object at trial, we review for error and, if there was error, whether the error gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 461 (2004).
The defendant was acquitted of the charge of armed assault with intent to murder; the prosecutor filed before trial a nolle prosequi on a charge of carrying a dangerous weapon.
There was evidence that the defendant walked into a bar in Chelsea, and immediately began insulting other patrons, allegedly because they were of Mexican or Puerto Rican descent. It was evident to one of the patrons, the victim, Alfredo Calderas, that the defendant had been drinking. The defendant left the bar, saying that he was going to get a weapon; he returned a short time later, saying that he had killed people "before." The victim began arguing with the defendant and then said, "Well, fine. If you want to fight, let's start." The victim testified that "while [they] were arguing with [their] hands, [he] felt the stab" in his "stomach." The victim managed to throw the defendant to the ground, but the defendant stabbed him several more times. At some point, the police arrived and an ambulance took the victim away on a stretcher.
The jury also saw a recording taken at the bar that evening, admitted as exhibit number 8. The record from the ambulance company was admitted as exhibit number 19. The defendant's medical record from the Cambridge Health Alliance, admitted as exhibit number 20, indicated that the defendant was treated for "Assault, struck in face, c/o pn L side of mouth [complained of pain, left side of the mouth]; teeth feel loose; [no] other injuries."
While the defendant offered no evidence and did not testify, his counsel argued that he had acted in self-defense, based upon the recording from the bar. In response, the prosecutor stated, "If Mr. Yanez was injured while he was on the ground and that's why he stabbed Mr. Calderas, wouldn't that be reflected in his medical records? Wouldn't he have complained about that to the ambulance? Wouldn't he have complained about that injury when he got to the hospital? Look at the medical records. Struck in the face. Complained of pain, left side of mouth, teeth felt loose. Zero other injuries." After closing arguments, the judge gave a self-defense instruction.
"What you see at that point is Mr. Calderas come forward and land a right to Mr. Yanez's chin. You don't see him backing up like you might be avoiding a swing or punch from Mr. Yanez. He's just standing there. . . . He initiated the physical contact that happened here. [Counsel then argued that the defendant's facial injuries were a result of that blow.] . . . So you have Mr. Calderas, 200-something pounds he had said. You can see -- he certainly is getting the best of Mr. Yanez during that night. The large majority of the time, he's on top. He is on top of him. He has his hand around his throat at one point. He has his forearm across his throat at another point. He has his 200-something pounds of body weight grinding into him at another point. All of this going on for about five and a half minutes. The people who were in the bar stand there and circle around and they are looking. Nobody's helping. Nobody stepped in to do anything. This is Mr. Calderas's home-court bar. He is there all the time. . . . He didn't need any help because nobody jumped in to help him. But Mr. Yanez needed some help, and how do you know that? Corroboration. . . . When you see -- you see his legs kicking around and he's flailing, fighting for his life. He is trying to get away. Nobody's helping him for five and a half minutes. And at some point, he has a knife and he uses it because he didn't have any other options."
The defendant now argues that the prosecutor's argument could have been interpreted by the jury as shifting the burden of proof to the defendant as to why he did not provide, postarrest, more details of the incident to his care providers, rather than invoke his right to remain silent. We are not persuaded.
The defendant was under arrest at the time that he was receiving care.
"Viewed in context, the prosecutor's rhetorical question was merely an attempt to illustrate the point that the defendant['s] conduct could not be reconciled with [his] defense. It was a 'fair, unemotional response to defense counsel's argument,' grounded in both the evidence and its reasonable inferences. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). There was no improper burden shifting." Commonwealth v. Johnson, 470 Mass. 300, 318 (2014). See Commonwealth v. Nelson, 468 Mass. 1, 11 (2014) ("It is not improper for a prosecutor to make an argument presented by way of reasonable inferences that could be drawn from the evidence").
Specifically, here, the prosecutor's comments were a proper response to the self-defense argument raised by the defendant. She rightly was permitted to "marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting from Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). "Those inferences need only be reasonable and possible." Ibid. Furthermore, the judge twice instructed the jury that closing arguments are not evidence. See Commonwealth v. Johnson, supra. Finally, the judge properly instructed the jury on the presumption of innocence and the Commonwealth's burden of proof.
We see no error and therefore no substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Green, Rubin & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 24, 2016.