Opinion
18-P-1718
12-07-2020
COMMONWEALTH v. ALEXI SAEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a jury trial in the Superior Court, the defendant was convicted of aggravated assault and battery (on a pregnant person), stalking, stalking in violation of a restraining order, indecent assault and battery, three counts of assault and battery, and threatening to commit a crime. On appeal he argues that the judge erred in (1) admitting certain gun evidence; (2) fashioning a remedy for the possible violation of a sequestration order; and (3) excluding evidence of the victim's hostile state of mind towards the defendant's girlfriend. We affirm.
Background. The victim met the defendant in early 2004 and the two quickly began a romantic relationship. However, after about two months the relationship changed when the defendant hit the victim for the first time. A few months later, in late 2004, the defendant moved in with the victim and her parents. There, arguments between the two led to beatings at the hands of the defendant, including kicking and slapping the victim across the face as well as punches to the back of the head. These incidents often took place while the victim's parents were home. In one instance, the victim's mother ordered the defendant to leave the house after observing the victim's injuries, but the defendant later returned.
In October 2006, the defendant and the victim moved out and into an apartment of their own. The beatings escalated, becoming an everyday occurrence of smacking, hair pulling, and punching. Seven months into living with the defendant, the victim called her parents to come to the apartment after the defendant began to hit her and break objects in their home.
In 2007, the victim moved out and learned that she was pregnant with the defendant's child. Upon telling the defendant about the pregnancy, they got back together. During her pregnancy, the beatings continued. When the victim was six or seven months pregnant, the defendant punched her in the face and gave her a black eye. The defendant also threatened to kill the victim.
After the child was born, the defendant would visit his son and the victim's parents would help with childcare. In the fall of 2008, the defendant argued with the victim over child care. The defendant smacked the defendant in the face, pulled her hair, and dragged her across the floor. The police were called and the victim obtained a restraining order.
Not long after, the two began to see each other again. The same type of hitting resumed and the defendant would occasionally threaten to take their son away. On at least two occasions, after a beating, the defendant attempted to engage in sexual intercourse with the victim without her consent.
The defendant was acquitted of a charge of rape, stemming from one of these incidents.
In June 2010, the victim ended her relationship with the defendant. The defendant would call the victim and threaten to hurt her, her family, and their son and to take their son from her. Despite the victim obtaining another restraining order in August 2010, the defendant continued to threaten her. During one telephone call, the defendant threatened to come to the victim's apartment, "shoot out" the windows of her car, shoot her in the face, and take their son. In another incident, the defendant threatened the victim and made a gun signal with his hand.
In early November 2010, the defendant confronted the victim's parents at a Walmart. He followed the victim's father through the store, insulting him. He pursued the victim's parents into the parking lot as they tried to ignore him. The defendant got into his car, pulled out a gun, and told the victim's mother, "[L]ook, this is for you." The victim's mother collapsed and the victim's father rushed to her aid. The defendant drove away, yelling "this is not the end of it."
Discussion. 1. Gun evidence. The defendant claims that the judge erred in admitting, over objection, the victim's mother's testimony that he displayed a firearm to her and said "this is for you" (hereinafter, the gun evidence). He contends that the gun evidence was not relevant to the charged offenses and that any such relevance was outweighed by the prejudicial effect of this bad act evidence. We review the judge's evidentiary ruling for an abuse of discretion. See Commonwealth v. Denton, 477 Mass. 248, 250 (2017).
At trial, the Commonwealth sought to admit the Walmart incident, including the gun evidence, as evidence relevant to the charge of stalking. To prove stalking, the Commonwealth was required to show, among other things, that the defendant "willfully and maliciously engage[d] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarm[ed] or annoy[ed] that person and would cause a reasonable person to suffer substantial emotional distress." G. L. c. 265, § 43 (a) (1). See Commonwealth v. Walters, 472 Mass. 680, 689 (2015).
Although the parties did not brief the relevance of the gun evidence to the stalking charge on appeal, we nevertheless consider it, as the issue is apparent on the record. See Commonwealth v. Simpson, 428 Mass. 646, 648-649 (1999). Because we conclude that the gun evidence was admissible on the defendant's intent to stalk the victim, we need not determine whether it was properly admitted as evidence of a course of conduct, consciousness of guilt, or a direct threat to the victim.
Though the victim was not present during the Walmart incident, it reasonably could be inferred that the defendant's behavior in harassing the victim's parents was conduct directed at the victim. The defendant was aware that the victim was close to her parents, relied on them for emotional support, and would very likely learn of the incident. Indeed, the defendant had earlier made specific threats to the victim to harm her family. Moreover, the victim's father called her during the Walmart incident to summon help. See Commonwealth v. Cullen, 79 Mass. App. Ct. 618, 621-622 (2011) (totality of defendant's behavior is proper consideration on question of intent). Under the circumstances, it reasonably could be inferred that the Walmart incident, in particular the gun evidence, was likely to alarm the victim and cause her to suffer substantial emotional distress. See Commonwealth v. Gupta, 84 Mass. App. Ct. 682, 687 (2014) (stalking statute "aims to protect victims of stalking from fear itself, and not merely ultimate physical harm"). As the gun evidence was relevant to the stalking charge, we discern no abuse of discretion in its admission.
2. Sequestration order. The defendant next contends that he was prejudiced by the judge's resolution of the possible violation of a sequestration order. "Both the sequestration of witnesses and the remedy for violating a sequestration order lie within the sound discretion of the trial judge." Commonwealth v. Pope, 392 Mass. 493, 506 (1984). We therefore review for an abuse of that discretion.
The defendant's aunt, who was not scheduled to testify as a witness, appeared at trial and watched a portion of the victim's testimony. At some point, she approached the defendant's counsel and stated that she wished to testify as to an incident where the victim threatened the defendant with a pair of scissors. Defense counsel told the prosecutor what had taken place and that he intended to call the aunt as a witness. The prosecutor objected and the judge conducted a voir dire of the aunt. After hearing, the judge found that the aunt had sat in on a small portion of the victim's testimony, she had limited understanding of English, and her proposed testimony would concern only the scissor incident. She allowed the aunt to testify.
The aunt briefly testified before the jury concerning the scissor incident. On cross-examination, the prosecutor questioned her regarding the sequestration order. The aunt indicated that she was not aware of any sequestration order, and that she did sit in on about five minutes of the victim's testimony but she didn't understand much English. She initially indicated that she had no discussion with defense counsel about testifying until after she heard the victim's testimony in court. Later, she indicated that she told defense counsel that she wanted to testify when she arrived at court, before she heard the victim's testimony. The prosecutor moved to strike the aunt's testimony, on the basis that she was "perjuring" herself. Defense counsel moved to withdraw on the basis that the issue raised by the prosecutor -- whether the aunt told defense counsel she wanted to testify before or after she sat in the courtroom -- made him a witness in the case.
The judge ruled that the issue of whether the aunt knowingly violated a sequestration order was not a relevant consideration for the jury. Rather, the issue was whether her exposure to the victim's testimony impacted her own. She therefore instructed the prosecutor to refrain from any further questions regarding the sequestration order, but allowed the prosecutor to question and present additional evidence regarding the aunt's exposure to the victim's testimony. Defense counsel moved to strike the aunt's testimony regarding the sequestration order, but the judge denied the request. Additionally, while she allowed defense counsel to briefly redirect to clarify, she prohibited counsel from going into any detail concerning the sequestration issue. When the aunt's trial testimony resumed, the prosecutor attempted to establish that the aunt, after indicating to defense counsel that she wanted to be a witness in the case, refused to speak to the police regarding her proposed testimony. The aunt, however, testified that she did not go to the police station to give a statement because she was sick and there was a blizzard. No further mention was made of a sequestration order before the jury during the remainder of the trial.
On rebuttal, the prosecutor called a victim-witness advocate, who testified that she saw the aunt sit in on approximately forty-five minutes to one hour of the victim's testimony.
On rebuttal, the prosecutor called a police officer, who testified that the aunt declined to speak with the officer, stating that she had to check with a lawyer first.
On appeal, the defendant contends that the judge erred in the resolution of the situation because it "created a danger that the jury would conclude that she had deliberately violated the sequestration order and fabricated her testimony accordingly," and thereby prejudiced the defendant's case. Yet, the trial judge was faced with a dilemma. If she had stricken the aunt's testimony concerning the sequestration order, she risked giving the possible violation of the order more attention than was warranted. If she allowed defense counsel to redirect concerning when the aunt approached counsel about testifying, she risked putting counsel's credibility at issue.
As it was, what was before the jury was the aunt's denial of any awareness of a sequestration order and an ambiguous statement of when she first spoke to defense counsel about testifying. We agree with the judge's assessment that it was "sufficiently unclear [to the jury] as to what [the aunt] understood and when because she doesn't speak English," such that they were "likely to infer that [the aunt] did not know [about] or understand [the sequestration order]." Under the circumstances, the decision to direct the parties to move away from the potential violation of the sequestration order and focus instead on the aunt's opportunity to hear the victim's testimony in advance of her own, was well within the judge's discretion.
3. Evidence of hostile relationship. At trial, the defendant presented the testimony of his live-in girlfriend to support his theory that the victim fabricated claims against him due to jealousy. The girlfriend testified about an incident in the lobby of a court house where the victim made insulting remarks and threatening gestures to her. On appeal, the defendant contends that the judge erred in certain evidentiary rulings, impinging on his right to present a defense. We review for abuse of discretion. See Commonwealth v. Chicas, 481 Mass. 316, 319 (2019).
When asked to describe the victim's demeanor at the time of the court house incident, the girlfriend testified that the victim called her a "slut" and a "home wrecker." After sustaining the prosecutor's objection, the judge instructed the girlfriend not "to say what other people said." While the girlfriend's testimony was not hearsay, it was nonresponsive to the question; the objection was sustainable for that reason (but should have been followed by a motion to strike). See Commonwealth v. Womack, 457 Mass. 268, 272-273 (2010). In any event, the girlfriend had earlier testified, without drawing an objection, that the victim had called her a "home wrecker" and a "slut."
When again asked to describe the victim's demeanor and attitude, the girlfriend stated, "Her attitude, she was swinging her head back and forth and putting her fist against her arm and telling me -- like telling me she's going to hit me." The judge again sustained the prosecutor's objection and struck the testimony, noting that the "gestures [were] fair game" but what the victim said was not. To the extent that the girlfriend went beyond describing the victim's behavior and instead interpreted the behavior as an assertion, the testimony was properly excluded. See Commonwealth v. Gonzalez, 443 Mass. 799, 802-803 (2005). In any event, later, the girlfriend was permitted to testify that the victim "was swinging her head back and forth and she was putting her fist against her arm like indicating that she was going to hit [the girlfriend]."
At a later point, the girlfriend was asked to describe the victim's emotion. The girlfriend responded, "She was angry. She wanted to attack me, but she knew we were in court, so she --." After sustaining the prosecutor's objection, the judge struck "that last portion," indicating that it "speculates what is somebody else's state of mind." The girlfriend's testimony as to what the victim wanted to do was properly stricken, as she could have no personal knowledge of what the victim actually wanted. See Mass. G. Evid. § 602 (2020).
Thus, the judge did not abuse her discretion in ruling as she did. Moreover, any error did not prejudice the defendant because he was otherwise able to present ample evidence about the victim's jealousy and her insults and threats to the girlfriend.
Judgments affirmed.
By the Court (Massing, Singh & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 7, 2020.