COMMONWEALTH v. DAGRACA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Dorchester Division of the Boston Municipal Court, the defendant was found guilty of trespass pursuant to G. L. c. 266, § 120, and assault and battery on a police officer (ABPO) pursuant to G. L. c. 265, § 13D.² He appeals, arguing that (1) various statements made by witnesses or during closing argument unfairly prejudiced him or created a substantial risk of a miscarriage of justice, and (2) his motion for a required finding of not guilty should have been allowed regarding his trespass charge. We affirm the defendant's ABPO conviction but agree that the evidence of trespass was insufficient.

Background. The jury could have found the following facts. Boston Police Officers Ryan Schain and Ciro Feliciano were dispatched to a liquor store, where they saw the defendant apparently intoxicated. There was a “no trespassing” sign in the store's parking lot. The officers transported the defendant away from the scene in their cruiser, warning him that he would be arrested for trespassing if he returned. Later that day, the officers responded to another call at the same liquor store and saw the defendant “being escorted away from the parking lot.”

The defendant was then arrested for trespassing and disturbing the peace. While being taken to a police station, the defendant “started violently kicking the divider glass in the cruiser, harder than [Schain had] ever seen anyone do it. The whole car was shaking, and he was screaming obscenities ․ and just threatening [the officers] verbally throughout the entire transport back” to the station. At the station, Feliciano's fingers became caught in the defendant's handcuffs, and then the defendant intentionally twisted the handcuffs around Feliciano's fingers, hurting him. (This conduct was the basis of the ABPO charge.) Later, the defendant threatened Feliciano and other officers, saying, “If I ever see you in my 'hood, I'm going to hit you with a brick.”

Discussion. 1. Challenges to testimony and closing argument. The defendant argues that he is entitled to a new trial due to various preserved and unpreserved errors in the admission of testimony and the Commonwealth's closing argument. Preserved errors, if any, do not require reversal if they did not influence the jury or had but very slight effect. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Unpreserved errors, if any, are reviewed for whether they caused a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).

The defendant asserts that two preserved errors involving testimony and argument regarding his allegedly violent conduct influenced the jury's verdict.³ First, on redirect examination, Feliciano testified that he had responded to the second call “at the liquor store ․ because it was alleged that [the defendant] had physically assaulted someone on that scene.” The defendant argues that this testimony was unfairly prejudicial and constituted impermissible propensity evidence. We are not persuaded.

The judge did not abuse her discretion in allowing the testimony. She ruled that it was permissible because defense counsel had opened the door by asking on cross-examination whether Feliciano had “serious[ly]” or “really” feared that the defendant would hurt him. Because the defendant was also on trial for (although ultimately acquitted of) threatening to commit an assault against Feliciano himself, Feliciano's awareness of the allegation that the defendant had just physically assaulted someone else was relevant to the charge of threatening Feliciano.⁴ The testimony's potential prejudicial effect was limited by the judge's requirement that the Commonwealth frame the question as requiring only a yes or no answer, so that Feliciano would not give any details of the assault allegation.

The defendant observes, however, that the judge did not provide a limiting instruction for this testimony, leaving the jury free to consider it as showing not merely Feliciano's state of mind, but also the defendant's propensity for engaging in assaults. But the defendant requested no limiting instruction, and “the law does not require a judge to give limiting jury instructions regarding the purpose for which evidence is offered unless so requested by the defendant.” Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992). Accordingly, the evidence could be considered for all purposes. Commonwealth v. Roberts, 433 Mass. 45, 48 (2000).

The second claimed preserved error involves the Commonwealth's statement in its closing argument that the defendant “was being violent when [the police officers] came back” to the store and “had assaulted somebody.” The defendant asserted that Feliciano's testimony about why he returned to the store merely related an allegation of an assault and could not be used to argue that such an assault actually occurred. The judge declined the defendant's request to give a curative instruction on this issue, and we see no error or abuse of discretion in that decision.

The prosecutor's argument essentially asked the jury to infer from Feliciano's testimony about a report of an assault that the assault occurred. Had Feliciano's testimony been admitted only for limited purposes, the argument might well have been improper. See Commonwealth v. Rosa, 412 Mass. 147, 156 (1992) (“A prosecutor may not present to the jury evidence admitted for a limited purpose as if it were substantive evidence”). But, as explained above, the evidence was admitted for all purposes, and thus it was permissible for the prosecutor to invite the inference.⁵

Having dealt with the preserved issues, we now turn to the defendant's claims of error in the admission of several other passages of testimony to which he did not object at trial. Specifically, there was police testimony that officers returned to the same liquor store “for the same male,” that the defendant was “acting disorderly,” that he “had bloody wounds on ․ both of his hands,” and that he “was placed under arrest for ․ disturbing the peace.” We conclude that this testimony would have had little impact on the jury's decision. In light of the other, properly admitted evidence of the defendant's conduct on the day of the incident -- including in particular his violent, threatening behavior directed toward the officers in the cruiser -- any error in allowing the testimony would not have created any substantial risk of a miscarriage of justice as to the ABPO conviction. We need not determine the testimony's effect on the trespass conviction, because that conviction must in any event be reversed on the separate ground to which we now turn.

2. Trespass. The defendant argues that the judge erred in denying his motion for a required finding of not guilty on the trespass charge. We agree. In reviewing the denial of such a motion, we examine the evidence in the light most favorable to the Commonwealth and ask whether it “was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt.” Commonwealth v. Rivera, 460 Mass. 139, 141 (2011). See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). “An inference, if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable.” Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). But “[i]f, upon all the evidence, the question of the guilt of the defendant is left to conjecture or surmise and has no solid foundation in established facts, a verdict of guilty cannot stand.” Commonwealth v. Salemme, 395 Mass. 594, 599-600 (1985), quoting Commonwealth v. Fancy, 349 Mass. 196, 200 (1965).

A person is guilty of trespass if he “enters or remains” on the property of another “after having been forbidden to do so by the person who has lawful control of said premises, whether directly or by notice posted thereon.” G. L. c. 266, § 120. Here, regardless of whether the defendant was given proper notice, the evidence was insufficient to establish that he had entered or remained on the liquor store's property at the time he was arrested for trespass. The only evidence on the point was Feliciano's testimony that, upon returning to the store, he saw the defendant “being escorted away from the parking lot” to the side of the building. The jury heard nothing about the defendant actually being in the parking lot at or immediately before the time the officers returned to the area.⁶ Thus, the conclusion that the defendant trespassed depended on conjecture. Put differently, if Feliciano's testimony led the jury to infer that the defendant was trespassing on the property, such an inference was not “of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.” Latimore, 378 Mass. at 677, quoting Commonwealth v. Cooper, 264 Mass. 368, 373 (1928).

Conclusion. The judgment on the charge of assault and battery on a police officer is affirmed. As to the charge of trespassing, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.

So ordered.

Affirmed in part; reversed in part and set aside.

FOOTNOTES

2.   The defendant was acquitted of threatening to commit a crime. Two other charges, of disturbing the peace and of assault and battery on a person aged sixty or older or with a disability, were dismissed before trial at the Commonwealth's request.

3.   The defendant also mentions two other brief references in testimony to other alleged misconduct by him on the day in question. But, in response to the defendant's objections at trial, the judge struck those references from the record and instructed the jury to disregard them. “Ordinarily such instructions are deemed to cure any prejudice resulting from the jury's exposure to prior crimes or conduct of the accused.” Commonwealth v. Hogan, 12 Mass. App. Ct. 646, 650 (1981), quoting Allen v. Snow, 635 F.2d 12, 15 (1st Cir. 1980), cert. denied, 451 U.S. 910 (1981). The defendant offers no persuasive reason for us to depart from that general rule here.

4.   That charge required proof, among other things, that the defendant's threat occurred “in circumstances that would justify apprehension on the part of the recipient of the threat,” i.e., Feliciano. Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 524 (2002), quoting Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). The defendant's brief concedes that the testimony at issue was relevant to this point.

5.   Even if we were to assume that the judge's failure to give a sua sponte limiting instruction regarding the evidence were error, and thus that it was also error to decline to give a curative instruction when the prosecutor's closing argument used the evidence for broader purposes, we would be hard pressed to see any substantial risk of a miscarriage of justice. The challenged portion of the closing argument concerned only the charge of threatening to commit a crime, of which the defendant was acquitted. The prosecutor did not state or imply that the reported assault at the liquor store demonstrated any propensity for violence that showed the defendant's guilt of the ABPO charge. If the jury were nevertheless inclined to consider any of the defendant's earlier conduct for such a purpose, then the defendant's violent behavior toward the officers while in the cruiser would have carried significantly more weight on the ABPO charge than Feliciano's passing reference to an earlier assault on an unidentified person at the liquor store.

6.   The Commonwealth does not argue that there was sufficient evidence that the defendant trespassed by entering the store itself.