Opinion
No. 15–P–642 No. 15–P–737.
08-05-2016
COMMONWEALTH v. Christopher TROVILLE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Christopher Troville, appeals from convictions on three indictments for assault and battery, see G.L. c. 265, § 13A, and one indictment for assault and battery causing serious bodily injury, see G.L. c. 265, § 13A(b ). On appeal, he contends that (1) an unsigned affidavit made in support of a G.L. c. 209A complaint was erroneously admitted as substantive evidence; (2) certain statements in medical records admitted in evidence should have been redacted before going to the jury; (3) the judge erroneously admitted a statement under the spontaneous utterance doctrine; (4) there was insufficient evidence of serious bodily injury to sustain a conviction of assault and battery causing serious bodily injury; and (5) one or more of his convictions of assault and battery are duplicative of his conviction for assault and battery causing serious bodily injury. For the reasons set forth below, we affirm in part and reverse in part.
The defendant was acquitted on an indictment charging assault with intent to murder, see G.L. c. 265, § 15.
1. Affidavit. The defendant contends that it was error to admit an unsigned affidavit that was part of the ex-wife's G.L. c. 209A application, in evidence for its substantive purpose. The Commonwealth offered the affidavit as a prior inconsistent statement. The defendant did not object to its admission; we review for error, and if there is error, for a substantial risk of a miscarriage of justice. Commonwealth v. Dargon, 457 Mass. 387, 397 (2010).
We agree with the defendant that the admission of the unsigned affidavit as substantive evidence was error. See Commonwealth v. Belmer, 78 Mass.App.Ct. 62, 64–67 (2010) (sworn affidavit admissible as substantive evidence where two criteria set out in Commonwealth v. Daye, 393 Mass. 55, 73–74 [1984] are met). It should have been admitted only for impeachment purposes. See Commonwealth v. Scott, 408 Mass. 811, 824 (1990) (“A party may impeach the credibility of his own witness by proving that the witness made prior inconsistent statements”); Mass. G. Evid. §§ 613(a )(1) & 801(d ) (1)(A) (2016). However, there was no substantial risk of a miscarriage of justice where, as here, we may “infer from the record that counsel's failure to object ... was ... a reasonable tactical decision[.]” Dargon, supra at 397 (quotation omitted). Defense counsel used the inconsistent statements to argue to the jury that “[a]ll of these different statements give rise to doubt,” furthering the defense that the victim had fabricated her story. “On this record, we are unable to infer that counsel's failure to object was not simply a reasonable tactical decision.” Commonwealth v. Mejia, 88 Mass.App.Ct. 227, 236 (2015).
Additionally, there is no merit to the defendant's argument that the statement was coerced. As the trial judge observed, “[the victim] never once said ... [that] the actual substance of [the affidavit] was the product of pressure.”
2. Medical records. The ex-wife's medical records were admitted in evidence pursuant to G.L. c. 233, § 79. For the first time on appeal, the defendant argues that it was reversible error for the judge to admit the records without redacting references to “choking,” “assault,” and to the defendant as the perpetrator. We review any error in the admission of those statements for a substantial risk of a miscarriage of justice. See Dargon, supra at 393–394.
“[A] record which relates directly and mainly to the treatment and medical history of the patient, should be admitted, even though incidentally the facts recorded may have some bearing on the question of liability.” Commonwealth v. Cole, 473 Mass. 317, 324 (2015) (quotation omitted). We construe that rule liberally. Dargon, supra at 394. However “[e]ven under our liberal reading, ultimate conclusions concerning the charged crimes must be redacted.” Ibid. (quotation omitted).
The statements referring to “choking” were properly admitted. These statements were “fact-specific references to the reported cause of the ... injuries,” and were “part of her medical history and are relevant to treatment.” Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998).
The references in the records to “assault” and to the defendant as the perpetrator should have been redacted. See Commonwealth v. Dwyer, 448 Mass. 122, 136–138 (2006) (statements naming defendant as perpetrator should have been redacted); DiMonte, supra at 241–242 (statements on hospital intake form that complainant had been “assaulted” should have been redacted). However, there was no substantial risk of a miscarriage of justice where the evidence at issue was cumulative of other properly admitted evidence, specifically the grand jury testimony that was read in evidence. See Commonwealth v. Womack, 457 Mass. 268, 275 (2010).
3. Spontaneous utterance. The defendant next contends that the trial judge erroneously admitted a statement made by the defendant's three year old daughter as a spontaneous utterance (“daddy hit mommy and mommy's bleeding”), over his objection. We review for prejudicial error, Commonwealth v. Mulgrave, 472 Mass. 170, 176 (2015), recognizing the trial judge's “broad discretion” in determining whether an utterance meets the tests of admissibility, Commonwealth v. Carter, 54 Mass.App.Ct. 629, 631 (2002) (quotation omitted). “Only in clear cases ... of an improper exercise of discretion should [the judge's] ruling be revised.” Ibid. (quotation omitted).
The daughter was in the back seat of the car when the defendant repeatedly punched his ex-wife, her mother, who was driving. She saw her mother's injuries and saw the defendant strike the mother again when she got out of the car during a brief stop. The daughter then made the statement to a family friend approximately fifteen minutes after the defendant left the car. The daughter, who appeared to be “jittery,” made the statement to the mother's friend—the first person she encountered after the defendant left the car—as soon as the daughter saw the friend. The daughter repeated the statement over and over. “Particularly when the declarant is a young child who remains in the company of the alleged perpetrator after a traumatic event, precise contemporaneousness is not required .” See Commonwealth v. Crawford, 417 Mass. 358, 362 (1994). There was no error in admitting the statement as a spontaneous utterance.
4. Sufficiency of the serious bodily injury evidence. “We review the denial of a motion for a required finding to determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ “ Commonwealth v. Beal, 474 Mass. 341, 345 (2016), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant argues that there was insufficient evidence of serious bodily injury to sustain a conviction for assault and battery causing serious bodily injury. To sustain a conviction, “[t]he Commonwealth may prove that a defendant caused bodily injury that resulted either in (1) a permanent disfigurement; (2) loss or impairment of a bodily function, limb, or organ; or (3) a substantial risk of death.” Commonwealth v. Scott, 464 Mass. 355, 357 (2013).
In the light most favorable to the Commonwealth, see Latimore, supra, a rational juror could have reasonably concluded that the defendant caused injury that resulted in a substantial risk of death. The defendant repeatedly punched his ex-wife in the face, jabbed her in the head, and resumed again after they had stopped at her home. Then, at the home, he “grabbed [the victim] by the throat and pinned [her] up against the fence.... [He] squeezed and squeezed so hard [that she] couldn't get any air in at all.” While being choked, she lost consciousness and control of her bladder. It is this choking (strangulation) on which we rest our decision, and which resulted in a substantial risk of death.
The defendant argues that this was not a matter for lay opinion. See Scott, supra at 363–364. However, we have held in other contexts that “a reasonably prudent person would have recognized a plain and strong likelihood of injury or death as a consequence of strangling.” Commonwealth v. Delaney, 418 Mass. 658, 667 (1994). See Commonwealth v. Mendes, 441 Mass. 459, 475 (2004). We think it clear that “the evidence of the injuries presented here ... was within the ordinary, common experience of a reasonable juror.” Beal, supra at 347.
The defendant also argues that there was insufficient evidence of choking to sustain the conviction on the indictment charging assault and battery by choking because it was based exclusively on uncorroborated inconsistent extrajudicial testimony, i.e., the grand jury testimony. However, the responding officer saw “a red mark on either side of her neck.” This was enough to corroborate the extrajudicial testimony. See Belmer, 78 Mass.App.Ct. at 69. “To the extent that more was required, the ... medical records, which were admitted without objection, included the [ex-wife's] report that [she was choked].” Ibid.
5. Duplicative convictions. The defendant's conviction of assault and battery, to wit: choking, is a lesser included offense of his conviction of assault and battery causing serious bodily injury. See G.L. c. 265, § 13A. There was only one choking incident. We therefore vacate the defendant's conviction of assault and battery, to wit: choking, and affirm the conviction of assault and battery causing serious bodily injury. See Commonwealth v. Bennett, 424 Mass. 64, 69–70 (1997) (“The appropriate remedy for duplicative convictions is to vacate both the conviction and sentence on the duplicative offense, and to affirm the conviction on the more serious offense”). See also Commonwealth v. Valliere, 437 Mass. 366, 371–372 (2002) (same).
Indictment ESCR2013–1163–004.
Indictment ESCR2014–562.
The judgment on indictment ESCR2013–1163–004, charging assault and battery, to wit: choking, is vacated, and the verdict is set aside. All remaining judgments are affirmed.
So ordered.