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Appeals Court of Massachusetts.



Decided: October 04, 2021

By the Court (Meade, Shin & Walsh, JJ.1)


After a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon (to wit: shod foot), strangulation or suffocation, assault and battery on a family or household member, assault and battery causing serious bodily injury, stalking, and intimidation of a witness. He raises the following arguments on appeal: the evidence was insufficient to support his convictions of assault and battery by means of a dangerous weapon and intimidation of a witness; the trial judge erred in admitting prior consistent statements of the victim; the prosecutor elicited false evidence; an officer's testimony had no purpose other than to evoke sympathy for the victim; and the instruction on intimidation of a witness effectively directed the jury to find the defendant guilty. We affirm.

Background. We summarize the evidence, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant and the victim were in a relationship for several years. The defendant was verbally and physically abusive to the victim during the course of their relationship, at times hitting her on a weekly basis. The convictions arose from the following incidents.

On November 7, 2014, the defendant was sitting behind the victim in a parked car. They began arguing, and the defendant reached his arm forward and choked the victim. The victim managed to get out of the car, but the defendant followed and hit her in the face repeatedly. The victim's sister drove her to the hospital, where she was admitted with injuries to her nose and neck.

On May 4, 2016, the defendant and the victim were in the car and began to argue. The argument continued after they got out of the car, whereupon the defendant bent the victim over the trunk of the car and punched her in the right eye. The next morning, the victim felt pain in her eye and went to the hospital. There, she underwent surgery to repair her orbital bone.

On August 10, 2016, the victim was talking to her neighbor in his garage when the defendant arrived, grabbed the victim, and dragged her out to the driveway. The victim jumped into the defendant's car trying to escape, but the defendant dragged her out by her hair, threw her to the ground, and repeatedly kicked her.

On November 19, 2016, the defendant was at the victim's house when she asked him to meet the pizza delivery driver. The defendant replied, “Go down and get the pizza, you lazy fuck.” He then grabbed the victim by the back of her neck and shoved her, face first, into the couch. While holding her down, the defendant told the victim to kill herself. The victim went to the police station to obtain an abuse prevention order the next day.

Finally, on an unspecified date, the defendant took the victim's phone from her hand and smashed it after the victim said that she was going to call the police to report his abuse. The defendant then said, “Now call the cops.”

Discussion. 1. Sufficiency of the evidence of use of shod foot as dangerous weapon. The defendant challenges his conviction arising from the August 10, 2016 incident on the ground that the evidence was insufficient to show what, if anything, he was wearing on his feet when he kicked the victim. “The essential question, when an object which is not dangerous per se is alleged to be a dangerous weapon, is whether the object, as used by the defendant, is capable of producing serious bodily harm.” Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984).

The evidence here, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Mendez, 476 Mass. 512, 523 (2017), was sufficient to prove this element. The victim testified that the defendant “was booting me” several times in the stomach, “hard,” and she could tell he was wearing shoes because she “felt it” and it hurt. In addition, the neighbor testified that he was “sure [the defendant] was wearing shoes.” Based on this testimony, the jury could have found that the defendant was wearing shoes and used them as a dangerous weapon. Contrary to the defendant's assertion, the Commonwealth “was not bound ․ to prove exactly what kind of shoes he was wearing.” Commonwealth v. Zawatsky, 41 Mass. App. Ct. 392, 398 (1996). It was enough that the jury could infer that he used a shod foot with “requisite aggression against the victim,” that is, in a manner capable of causing serious bodily injury. Id. at 399. See Commonwealth v. Fernandez, 43 Mass. App. Ct. 313, 315 (1997) (evidence sufficient to show that defendant used sneakers as dangerous weapon, where “defendant, wildly and continuously, kicked both [victims] many times, and administered at least one kick to [a victim's] groin area”).

2. Sufficiency of evidence of witness intimidation. The conviction of witness intimidation stemmed from the incident in which the defendant broke the victim's phone when she said that she was going to call the police. The defendant argues that this conviction cannot be sustained because the evidence was insufficient to show that he “threaten[ed]” the victim with the intent to impede, obstruct, or otherwise interfere with a criminal case or other proceeding. G. L. c. 268, § 13B (b).2

“The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered. Rather, the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances.” Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007), quoting Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001). Here, the evidence permitted the jury to find that the defendant made a threat with the intent to prevent the victim from calling the police. The defendant abused the victim throughout much of their relationship, and she feared him. Given the nature of their relationship, the jury could have found that the defendant's statement, “Now call the cops,” and his act of breaking the victim's phone constituted a threat to harm her if she reported his abuse. See Pagels, supra at 615 (“In light of the abusive nature of the defendant's relationship with his girlfriend and the vehemence and timing of his demands, a rational jury could have concluded that the defendant had endeavored to influence [her] by means of force or threats of force”).

3. Prior consistent statements. Finding that the defendant had raised a claim of recent contrivance, the judge admitted two prior consistent statements of the victim. First, an officer testified that the victim told him after the November 7, 2014 incident that the defendant “put his hands on her neck and pulled her hair” and “strangled” her. Second, the victim's daughter testified that after the May 4, 2016 incident, she overheard the victim telling doctors that the defendant “hit her in the eye.”

“A witness's prior statement that is consistent with that witness's trial testimony is usually inadmissible.” Commonwealth v. Morales, 483 Mass. 676, 678 (2019), quoting Commonwealth v. Novo, 449 Mass. 84, 93 (2007). An exception exists, however, when “a party has claimed that a witness's in-court testimony is the result of recent contrivance or bias, so long as the prior consistent statement was made before the witness had a motive to fabricate or the occurrence of an event indicating a bias.” Morales, supra, quoting Commonwealth v. Caruso, 476 Mass. 275, 284 n.5 (2017). Here, the judge determined that defense counsel had suggested, both in her opening statement and in her cross-examination of the victim, that the victim made up the allegations against the defendant because he was leaving her. We review this determination for an abuse of discretion, and we discern none. See Commonwealth v. Zukoski, 370 Mass. 23, 27 (1976) (“The trial judge has a range of discretion in determining whether a suggestion of recent contrivance exists in the circumstances”).

In her opening statement, defense counsel asserted, “[Y]ou want to look at the credibility of the witness,” followed with, “But relationships don't always end happily and accusations happen.” She also asked the victim during cross-examination: “And at this point [on November 19, 2016], [the defendant] told you ․ that it was over; correct?” The judge permissibly found that these mentions of the defendant's leaving the victim raised a claim of recent contrivance. To the extent the defendant argues that the claim must be explicitly raised for prior consistent statements to be admissible, his argument is foreclosed by Morales, 483 Mass. at 678. There, the court held that it was proper for the judge to admit prior consistent statements of a witness after defense counsel suggested during his opening statement and cross-examination that the witness was lying to secure a plea deal. See id. Rejecting the defendant's arguments that defense counsel “barely mentioned” the plea deal and did not expressly raise a claim of recent contrivance or motive to lie, the court concluded that “[d]efense counsel's references to [the] plea agreement ․ served no other purpose than to establish that [the witness] was motivated to fabricate his testimony.” Id. at 679. Similarly in this case, the judge found that, “It could not be more clear that the purpose of ․ that cross examination [was] to suggest that [the victim was] lying, that she made it up because he said he was leaving her.” This was within the judge's discretion. See id.

4. Prosecutorial misconduct. The Commonwealth called an eyewitness to the November 7, 2014 incident, who proved reluctant to answer questions.3 When she professed not to recall the incident, the prosecutor showed her a photograph, already in evidence, depicting the victim after the May 4, 2016 incident. With no question before her, the witness volunteered, “Oh, yes. Yes, I do remember her being hit.” The prosecutor immediately asked, “Is that what [the victim] looked like in terms of her general facial ․ appearance back around the time that you remember this incident happening? Do you recognize that as [her], is what I'm asking.” The witness responded, “Yes,” and the prosecutor ended her examination.

Based on this exchange, the defendant argues for the first time on appeal that the prosecutor committed intentional misconduct by eliciting false evidence. “The Commonwealth may not present testimony at trial ‘which [it] knows or should know is false.’ ” Commonwealth v. Forte, 469 Mass. 469, 490 (2014), quoting Commonwealth v. Sullivan, 410 Mass. 521, 532 (1991). In this case, however, the defendant has not shown that the testimony of the eyewitness amounted to false evidence. Nor has the defendant shown that the prosecutor acted intentionally to elicit false evidence. The prosecutor took care after the eyewitness's unprompted statement to clarify her intent in showing the photograph. Also, during her closing argument, the prosecutor explained that the photograph was “not a photograph of when [the eyewitness] saw her, that's a photograph from a different incident. I did not put it on the monitor ․ to trick her. I put it on the monitor and asked her if that's what [the victim] looked like around that time period, not referring to her injuries.” Given the lack of any showing that the testimony elicited was false, there is no basis on this record to reverse the conviction.

5. “Sympathy” evidence. A detective testified that, when he observed the victim in 2016, she was “scared and afraid,” as the detective spoke to the victim she “began to cry,” and “at one point I actually saw her hands were shaking.” When later asked whether there was “anything different about [the victim's] appearance or demeanor today,” the detective testified, “She doesn't seem to be as scared and afraid. She's more open and outgoing and more happy.” The defendant objected to the latter testimony without specifying the grounds for the objection.

The defendant now argues that the judge erred in admitting the detective's testimony because it was inadmissible “sympathy” evidence. But to the contrary, the detective was testifying as to his “firsthand observations of the victim's demeanor,” which can “play[ ] an integral role in assessing credibility.” Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 801 (2011). The judge also instructed the jury that they “may not decide the case based on sympathy for any party or witness or anyone else.” We discern neither error nor any prejudice.

6. Jury instruction. The defendant argues, again for the first time on appeal, that the instruction on witness intimidation improperly mirrored the facts of the case and thereby directed the jury to find him guilty. Specifically, the defendant challenges the following portion of the instruction: “For example, if a person was attempting to call the police, and the defendant did an action to prevent that person from calling, you can consider that as evidence of an intent to impede, obstruct, or otherwise interfere.”

“[W]e evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words.” Commonwealth v. Young, 461 Mass. 198, 207 (2012), quoting Commonwealth v. Trapp, 423 Mass. 356, 361, cert. denied, 519 U.S. 1045 (1996). “We do not consider bits and pieces of the instruction in isolation.” Young, supra. Here, while it may have been preferable to use an example with fewer similarities to the evidence, the instruction did not direct the jury to make any specific finding or inference. A reasonable juror would not have understood the example used -- which was prefaced by the word “if” and framed in terms of evidence that the jury “can consider” -- as a directive to find the defendant guilty of witness intimidation. This is especially so in light of the judge's other instructions that the jury were to disregard any “express[ion] or even hint[ ] of any opinion” he might have given about the evidence and that the jury were “solely” responsible for “[d]eciding the facts and what [the] verdict ought to be.”

Judgments affirmed.


2.   Although G. L. c. 268, § 13B (b), lists several acts that can qualify as the predicate for witness intimidation, the jury instruction in this case referred only to “threat[s].”

3.   The eyewitness's testimony was relevant to one charge of assault and battery causing serious bodily injury.

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Docket No: 19-P-1177

Decided: October 04, 2021

Court: Appeals Court of Massachusetts.

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