COMMONWEALTH v. ROSARIO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant, Jorge Arias Rosario, was found guilty of assault and battery on a family or household member, G. L. c. 265, § 13M(a).² He appeals, arguing that some testimony was admitted in error and that the prosecutor's opening statement created a substantial risk of a miscarriage of justice. We affirm.

Background. The jury heard the following evidence. The defendant had been romantically involved with the victim for approximately two years. The two lived together in an apartment with the victim's son, who was sixteen years old at the time of the incident. On March 20, 2016, the victim left the apartment to begin her job as a driver. While she was working, the defendant began to text her; she responded, and eventually the exchange became an argument. When the victim returned home, only her son was there. She “saw the mess that was on the floor. [She] guess[ed that the defendant] started eating, and he threw all the food around on the floor.”

The defendant returned home shortly afterwards and “he started arguing with” the victim. She testified that he smelled like alcohol, and it was her opinion that he was drunk. When she got up to get some water, “that's when he started. He slapped [her] three times.”³

The victim stood up and said, “What are you doing? Are you serious? Can't you see that my son is here? Let's not even go there.” The defendant then hit her three times with his fist. The victim's son tried to intervene. The boy said, “Wait a minute. Wait a minute. That's not how things should be. Let's sit down and talk.” He tried to hold the defendant to stop him from hitting the victim, and then the defendant tried to hit the boy.

The victim “really got aggravated” then, because her son, who was only sixteen “ha[d] never seen things like that.” She tried to get “in between of two very big guys.” The defendant continued to try to hit both the victim and her son and the son then punched the defendant. The punch dislodged one of the defendant's teeth; when the defendant got back up again, “he slipped and hit himself on the wall,” causing a hole in the wall. The defendant was bleeding from the mouth injury and he “started spitting the blood all over [the victim's] face.” The son called an ambulance for the defendant; after taking the defendant's keys, the victim took her son and left to stay at her brother's house.

The victim returned to the apartment the next day, and she testified that, based upon her observations, she could tell the defendant had slept there the night before.⁴ She believed that maintenance personnel had let him into the apartment. The defendant had called her, but she told him that she wanted nothing to do with him and that she wanted him out of her life. She instructed the maintenance personnel to change the locks to the apartment.

The victim also called the police. She testified that she just wanted the defendant to get his possessions out of her apartment and she didn't want any trouble. Boston Police Officer Kenneth Grubbs responded. He observed bruises on the victim's arms and face and arranged to have photographs taken.⁵ The victim's son also had a cut on his hand, and his hand was swollen. Grubbs testified that the victim told him the defendant had caused the bruises. He advised her of her rights pursuant to G. L. c. 209A and “encouraged” her to seek an abuse prevention order.

During the trial, the prosecutor asked the victim if she had obtained a restraining order. When he asked her why she had, she responded, “Because I know what he's capable of, especially when he's drinking.” There was no objection. Grubbs also reiterated for the jury what the victim had told him about the assault. On cross-examination, defense counsel asked the victim if she had obtained a restraining order and also pointed out that the order had since expired. The victim responded that she did not know it had expired and she was planning to seek to reinstate it.

Discussion. 1. 209A testimony at trial. The defendant argues first that it was error to admit testimony regarding the fact that the victim had obtained an abuse prevention order. There was no objection at trial; we therefore review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002), quoting Commonwealth v. LeFave, 430 Mass. 169, 174, 714 N.E.2d 805 (1999) (“A substantial risk of a miscarriage of justice exists when we have ‘a serious doubt whether the result of the trial might have been different had the error not been made’ ”).

The defendant's theory at trial was that the only physical altercation was between the victim's son and him. Counsel sought to impeach the victim's testimony by highlighting the fact that she did not seek medical assistance, and did not call the police on the night of the incident. Further, as noted, she pointed out on cross-examination that the restraining order had lapsed.

The restraining order itself was not offered in evidence; nor was the affidavit that the victim had submitted to obtain it, or any testimony about any restraining order hearing. For this reason, Commonwealth v. Foreman, 52 Mass. App. Ct. 510, 512, 515, 755 N.E.2d 279 (2001), is clearly distinguishable. In Foreman, “the Commonwealth introduced the 209A complaint, affidavit, and order arising out of the incident, which included printed statements regarding the court's determination that there was a substantial likelihood of immediate danger of abuse and its order that the defendant stay away from the victim and turn in his weapons.” Id. at 511, 755 N.E.2d 279. In Foreman, we were particularly concerned that the face of the order included language indicating that the court had found the plaintiff's allegations credible, that there was an explicit finding that the order was “issued without advance notice because the Court determined that there is a substantial likelihood of immediate danger of abuse,” and that the affidavit recounted that the defendant had a nine millimeter handgun. Id. at 512, 755 N.E.2d 279. In subsequent cases, it has been the language indicating some “judicial imprimatur” on the plaintiff's credibility that has caused the most concern. See Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 110, 5 N.E.3d 1254 (2014), quoting Foreman, 52 Mass. App. Ct. at 515, 755 N.E.2d 279 (“The ‘judicial imprimatur’ on the finding and on the victim's credibility provide them ‘significant weight’ ”). See also Commonwealth v. Fitzgerald, 380 Mass. 840, 846, 406 N.E.2d 389 (1980) (“the effect on the jury of whatever a judge says or does may be significant”).

Nothing of the kind occurred here; the testimony surrounding the 209A order was fleeting. In addition, as the Commonwealth argues, in Foreman, there was no other evidence to corroborate the victim's testimony. See Foreman, 52 Mass. App. Ct. at 511, 517, 755 N.E.2d 279. Here, there were photographs of the victim's bruises and also of the damage in her apartment.

Moreover, even if we were to agree there was error, we see no risk of a miscarriage of justice. See Randolph, 438 Mass. at 298, 780 N.E.2d 58, quoting Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21, 490 N.E.2d 1195 (1986) (“Where evidence of guilt is strong and one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice”). The Commonwealth presented substantial evidence of the defendant's guilt. In addition to the photographs of the victim's bruises, Officer Grubbs testified about the victim's physical and emotional state when he responded to her 911 call. The defendant argued only that he was very drunk and that the struggle had occurred only between him and the victim's son (who did not testify).

2. Commonwealth's opening statement. The defendant challenges several portions of the Commonwealth's opening statement. There was no objection at trial, and again, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Sylvia, 456 Mass. 182, 188, 921 N.E.2d 968 (2010). Specifically, the defendant challenges what he describes as the prosecutor's “narrative style,” recounting the evidence that the jury would hear; and his reference to what the defendant describes as “hearsay statements,” including the statement that the victim's family told her not to stay in her apartment because they didn't know when the defendant would return, and, also, a statement that the officers made a decision “that they needed to place [the defendant] under arrest.”

“[A] claim of improper [opening statement] by the prosecutor must be judged in light of the entire [statement], the judge's instructions to the jury, and the evidence actually introduced at trial.” Commonwealth v. Barbosa, 477 Mass. 658, 669, 81 N.E.3d 293 (2017), quoting Commonwealth v. Jones, 439 Mass. 249, 260-261, 786 N.E.2d 1197 (2003).

First, the judge instructed the jury at the beginning of the trial that opening statements were not evidence. He reiterated that instruction in his final charge. See Commonwealth v. Simpson, 434 Mass. 570, 584, 750 N.E.2d 977 (2001). We presume the jury understood and followed this instruction. Commonwealth v. Thomas, 429 Mass. 146, 158, 706 N.E.2d 669 (1999).

Further, we see no error in the “narrative style” of the prosecutor's opening statement. The proper function of an opening is to “outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence.” Commonwealth v. Brown, 477 Mass. 805, 818, 81 N.E.3d 1173 (2017), quoting Commonwealth v. Fazio, 375 Mass. 451, 454, 378 N.E.2d 648 (1978). While “[a] prosecutor may not express a personal opinion as to the credibility of a witness or assert personal knowledge of the facts in issue ․ [h]e may in general state in his opening anything that he ‘expects to be able to prove by evidence.’ ” Commonwealth v. Francis, 432 Mass. 353, 357, 734 N.E.2d 315 (2000), quoting Fazio, 375 Mass. at 454, 378 N.E.2d 648. Here, as in Francis, the prosecutor did not vouch for the witnesses, but “merely predicted what the witness would say.” Id. It is true that some of the language would have been better left for closing argument (for example, the statement that the defendant “without any right in the world, placed his hands on [the victim]”). However, as to the “narrative style” itself, the prosecutor did tell the jurors that they were going to “hear from the people that first saw it firsthand, and the officers who investigated the incident firsthand,” clearly emphasizing that the evidence would come from the witnesses. On balance, we see no error.

The defendant next argues the prosecutor's opening statement included hearsay. Some of the examples are not significant. For example, the prosecutor told the jury that, when the victim arrived at home, she had “heard that the defendant was intoxicated.” The victim herself testified that, when she saw him, she concluded that the defendant was drunk and the defense emphasized that he was intoxicated both on cross-examination and in closing argument. The statement that the victim's family was concerned for her safety and wanted her to leave probably would have been better left unsaid, but, in fact, was harmless, in light of the clearly admissible testimony that the victim's brother came to the apartment and took her and her son back to his home in Randolph; his concern for her safety is a fair inference from those actions.

The defendant also argues that the prosecutor's statement that police officers “did make the decision that they needed to place [the defendant] under arrest” after speaking with the victim and viewing her injuries and the apartment, implied that they believed her and violated the defendant's right to a fair trial. We disagree and, even if this statement were error, we are persuaded that, in light of the entire trial, and the evidence presented, the statement does not put in “serious doubt whether the result of the trial might have been different had the error not been made.” Randolph, 438 Mass. at 297, 780 N.E.2d 58, quoting LeFave, 430 Mass. at 174, 714 N.E.2d 805.

3. Victim's out-of-court statement. The defendant now asserts that it was impermissible hearsay to allow Grubbs to testify to the conversation between the victim and himself. The testimony included her description of the incident and her statement that she feared for her safety. Again, we review for a substantial risk of a miscarriage of justice. Randolph, 438 Mass. at 297, 780 N.E.2d 58.

Grubbs testified that, when he arrived at the victim's apartment, she told him that “she had an altercation with her ex-boyfriend [and] [h]er son had to break it up.” Grubbs also told the jury that the victim told him that she “feared for her safety.”⁶ This testimony should not have been admitted. However, Grubbs's testimony about the statements was simply cumulative. It did not add to the victim's testimony; nor did it corroborate that testimony in any meaningful way. See Commonwealth v. Galicia, 447 Mass. 737, 747-748, 857 N.E.2d 463 (2006) (“The victim's statements to the officers, which should not have been admitted, that her husband punched, choked, and kicked her, only corroborated the properly admitted evidence -- her report of abuse at the hands of her husband and officers' subsequent observations”). Again, we see no risk of a miscarriage of justice.

Judgment affirmed.

FOOTNOTES

2.   The defendant was sentenced to eighteen months' probation, and ordered to stay away from and to have no contact with the victim, to remain alcohol free and to submit to random testing, and to complete a certified batterer's intervention program.

3.   She testified, “He was getting his point across of very controlling [sic], very controlling -- how should I put it, ‘you need to learn how to respect.’ ”

4.   She had stripped the bed because, after the defendant spit blood at her, he “laid on the bed, facing down. So there was blood” on the pillow and the sheets. When she returned, the bed was made with the same sheets.

5.   Photographs of the victim's injuries and the apartment were admitted in evidence.

6.   Obviously, Grubbs's testimony that he observed bruises was properly admitted. In addition, the jury viewed photos of the victim's bruises.