Opinion
No. 12–P–644.
2013-09-17
COMMONWEALTH v. Yustina P. BALL.
By the Court (GREEN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Yustina P. Ball, was convicted of assault and battery after a jury trial in the District Court. She appeals, arguing that she was improperly cross-examined about her statements to the police, portions of the prosecutor's closing argument were inflammatory, trial counsel was ineffective for failing to request a jury instruction on parental discipline and safety, and the trial judge incorrectly instructed the jury regarding witness credibility. For the reasons outlined infra, we affirm.
The defendant was acquitted of the charge of assault and battery by means of a dangerous weapon, to wit, a shod foot.
Background. The jury heard the following evidence. The defendant and her husband were standing with their four year old daughter outside an Au Bon Pain restaurant (restaurant) on Massachusetts Avenue in Cambridge on an August evening in 2010. A passerby heard the defendant screaming vulgarity at her daughter with “uncontrollable rage,” yelling something about not getting the money or the change. The defendant then grabbed the child by her hair, threw her onto the cement sidewalk, and began kicking her “[f]orcefully” as the child was lying on the ground. The husband, though “rocking, cradling himself, freaking out, [saying,] ‘Oh, my God. Oh, no. Oh, no,’ “ did nothing to intervene.
When the passerby intervened, the husband chased her away, telling her to mind her own business and using vulgarity. The police arrived soon afterwards. A second witness heard the husband screaming and yelling, and also heard the defendant send the child into the restaurant alone to “[relay] a message.” Concerned for the young child being ordered to do “adult business,” the second witness remained standing only a few feet from the husband near the door of the restaurant. She did not see the defendant grab the child by the hair or kick her.
Cambridge police officer Michael Cherubino arrived and spoke with the witnesses; he instructed the husband to sit on a nearby wall. Cherubino spoke with the defendant for “maybe like a minute, two minutes.” He testified that he had seen her yelling at her husband and that she remained angry during the time that Cherubino spoke with her. Cherubino told the defendant what the first passerby had related to him, and the defendant responded that “she has some anger issues” and that she was “unstable,” but she denied assaulting the child.
The defendant was the sole defense witness. She testified that, on the day she was arrested, she had been discussing with her husband the fact that she was frustrated with her living situation and wanted to return to Indonesia. After buying bagels in the restaurant and receiving the wrong change, the three then began walking home, crossing Massachusetts Avenue. The defendant was holding the child's hand, but when they got to the curb the child “let go of [the defendant's] hand and tried to run away.” The defendant grabbed the child's shoulder, “yelling at the same time when [she] was doing that,” and swung the child around farther onto the sidewalk. The defendant then “kick[ed] around to make a noise ... hoping that the noise will somehow get rid of the frustration.” She kicked “[t]he ground, the wall, everything else”; however, she specifically denied kicking her child.
The defendant testified that she spoke to four different police officers on the scene; she said she had been asked by “[a] couple of them” if she had kicked the child, and she told them she had not. The defendant described her shoes as open-toed rubber sandals with a strap around the ankle. She agreed, without objection, that it might have been important to tell the police officers during questioning at the scene that she had kicked the wall during the incident; however, she added that the police never asked her that specific question. The defendant also testified that she never grabbed the child's hair, but only grabbed her shoulder, and that the child was never lying flat on the sidewalk, instead she was squatting to avoid the defendant's “next grab.” The defendant testified that she kicked the wall “long after” this because she wanted “to let go of [her] anger, and it actually worked.” She stated that a scuffmark was left on the wall; however she did not take a picture of the mark nor did she show it to any of the police officers on the scene.
During his closing argument, defense counsel told the jury that the first passerby's testimony that she saw the defendant grab the child by her hair “[was not] credible.” After an apparent objection by the prosecutor, the judge gave a curative instruction. The jury found the defendant guilty only of assault and battery.
Counsel said that he thought “that this witness became very involved, very excited, and believes what she saw was ... [the defendant] grabbing her child by the hair, but I don't think that's—Yustina Ball credibly told you that's not what happened.”
The judge told the jury, “The defense attorney, in his closing, on a few occasions, made reference to the credibility of some witnesses.... That's going to be your job. That's not for the defense attorney or the district attorney to tell you who's credible.”
Discussion. Arguments and cross-examination. The defendant first argues that the prosecutor's cross-examination of her as well as the prosecutor's closing argument created a substantial risk of a miscarriage of justice when she pointed out that the defendant had failed to tell the police at the scene that she had kicked a nearby wall instead of her daughter, and also that the defendant had not shown the police the scuffmark she testified she left on the wall when she kicked it. The defendant argues that this was an impermissible comment on her exercise of her right to remain silent. We disagree.
While cross-examining the defendant, the prosecutor asked, “So when you kicked the wall, didn't you hurt your toes? ... And did it leave any kind of a scuffmark of rubber on the wall? ... Did you look?” To this last question, the defendant answered, “No.” The prosecutor also asked, “Did you think that might have been important to tell the police when they asked you if you kicked your daughter and you told them you kicked the wall?” There was no objection.
In her closing argument, the prosecutor said that the defendant had testified that she “[k]icked the wall with an open-toed sandal, rubber-soled, and there was a scuffmark, but she never thought to bring Officer Cherubino, who is placing her under arrest for pulling her child's hair and kicking her child, she never thought to bring him over to the wall just a few feet away and show him, ‘Look, I didn't kick my daughter. That's what I kicked. There's the evidence. There's the evidence, the scuffmark.’ “
First, “[t]he defendant's claim that the prosecutor's remarks impermissibly infringed on [her] right to remain silent fails for the simple reason that the defendant did not exercise [her] right to remain silent.” Commonwealth v. Martino, 412 Mass. 267, 283 (1992). See Commonwealth v. Robidoux, 450 Mass. 144, 160–161 (2007). Second, in the circumstances of this case, the prosecutor's point was a fair one. Told that a witness had accused her of kicking her daughter, the defendant denied it, while admitting that she had anger issues. It was reasonable to expect that she would have continued to explain that she, in fact, had kicked something else instead, particularly if, as she testified, she had left a mark on the wall that would have corroborated her version of the facts. “The defendant had a constitutional right to silence, not a right to tell a story and then avoid explaining crucial omissions by stating they were an exercise of the right to silence.” Commonwealth v. Sosa, 79 Mass.App.Ct. 106, 113 (2011). Cf. Commonwealth v. Gonzalez, 68 Mass.App.Ct. 620, 631 (2007) (“[W]henever [such impeachment] is undertaken, it should be prefaced by a proper demonstration that it was ‘natural’ to expect the defendant to speak in the circumstances”), quoting from Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982).
The defendant's argument that counsel was ineffective for failing to request an instruction regarding admission by silence fails for the same reason; that is, this evidence was not offered as an admission by silence, but as impeachment with a prior inconsistent statement. Mass. G. Evid. 613(a)(2) (2013).
Next, the defendant argues that the prosecutor impermissibly asked the jurors in her opening statement, “What would it take for you to intervene in a situation like that as these witnesses did?” Although there was no objection, we agree that this was improper; the prosecutor should not have asked the jurors to put themselves in the shoes of the eyewitnesses. See Commonwealth v. Grinkley, 75 Mass.App.Ct. 798, 809 (2009). However, the judge informed the jury that “opening statements by the attorneys ... are an overview of the evidence that the lawyers expect you will hear. They are not evidence.” In addition, this was an isolated statement and, viewed in context, cannot be said to have created a substantial risk of a miscarriage of justice.
Finally, we have considered all of the defendant's remaining arguments about the prosecutor's closing, including the repeated references to the child's age, and we see no error.
Ineffective assistance. The defendant next argues that trial counsel was ineffective for failing to request a jury instruction on parental discipline and safety. However, the judge carefully instructed the jurors on the elements of assault and battery, including, specifically, that the Commonwealth must prove that the defendant touched the person of the victim without having any right or excuse for doing so. We see no error, and therefore no risk of a miscarriage of justice.
Witness credibility. Finally, the defendant argues that the judge incorrectly instructed the jury to disregard defense counsel's argument concerning the relative credibility of the eyewitnesses and the defendant. On the contrary, the judge gave an appropriate curative instruction based on defense counsel's statement about what testimony he thought was credible. An attorney cannot “express his personal belief in the testimony ... or vouch for ... the credibility of a witness.” Commonwealth v. Sanders, 451 Mass. 290, 296–297 (2008). “The weight and credibility of the evidence is the province of the jury,” as the judge properly instructed. Commonwealth v. Dubois, 451 Mass. 20, 28 (2008). There was no error.
Judgment affirmed.