Opinion
No. 11–P–480.
2012-09-26
COMMONWEALTH v. Brian E. FOLEY.
By the Court (CYPHER, KAFKER & KATZMANN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Brian E. Foley, was convicted of assault and battery in violation of G.L.c. 265, § 13A( a ), as a lesser included offense on a complaint charging assault and battery causing serious bodily injury in violation of G.L.c. 265, § 13A( b )(i). On appeal, the defendant argues that (1) the trial judge improperly instructed the jury on the lesser included offense; (2) the trial judge abused his discretion by improperly admitting the Commonwealth's color photographs of the victim's injuries; and (3) the prosecutor injected his personal opinion in the opening statement and improperly commented on witness credibility in his closing argument. We affirm.
Jury instructions. The trial judge's initial charge to the jury on the lesser included offense could have been clearer, but it sufficiently informed the jury of the elements of the lesser included offense. Moreover, in response to a jury question during deliberations, the judge clearly and concisely stated the applicable law. The jury received adequate instruction on the elements of the offense; there was no error and therefore no substantial risk of a miscarriage of justice. See Commonwealth v. Roderiques, 462 Mass. 415, 426–427 (2012). See also Commonwealth v. Delaney, 425 Mass. 587, 595–596 (1997); Commonwealth v. Alphas, 430 Mass. 8, 15 (1999). Admission of the photographs. The contested photographic exhibits were verified through the victim's trial testimony that they were true and accurate representations of her injuries at the time the photographs were taken. See Commonwealth v. Eppich, 342 Mass. 487, 494 (1961). See also Howe v. Boston, 311 Mass. 278, 281 (1942). In a prior motion in limine to disqualify the exhibits, trial counsel had challenged their accuracy, claiming that the printer used to produce them had intensified the color red in the versions being presented. At argument on the motion, counsel apparently had on hand his own printed photographs, of allegedly proper tint. The judge denied the motion in limine, concluding that the defendant was free to use the other printed photographs for impeachment during cross-examination of the verifying witness. The defendant ultimately declined to do so, and simply raised general objections when the Commonwealth's photographs were offered. We conclude that the defendant has failed to show an error of law or an abuse of discretion in the judge's admission of the Commonwealth's photographic exhibits. See Horowitz v. Bokron, 337 Mass. 739, 742–743 (1958); Commonwealth v. Meinholz, 420 Mass. 633, 635 (1995), quoting from Commonwealth v. Ramos, 406 Mass. 397, 406–407 (1990).
The judge also told defense counsel, “You can show these and ... you can persuade me at that point.” The judge thus left the preliminary factual question of verification open for his determination at trial. See Howe v. Boston, 311 Mass. at 281.
The allegedly correctly colored photographs appear not to be part of the record below, and they have not been placed before us on appeal. In any event there is no testimony, or even an offer of proof, that the alternative photographs were themselves accurate depictions.
On appeal the defendant also suggests the exhibits should have been excluded because the probative value of the Commonwealth's exhibits was outweighed by the unfair prejudice of their excessive redness (particularly as to the depiction of blood on the victim). However, neither the motion in limine nor the general objections at trial raised this argument; therefore the defendant's task on appeal is to demonstrate a substantial risk of a miscarriage of justice. He has failed to do so on the record before us. We note that the defendant's record appendix does not include color copies of the exhibits in question and he has not sought transmittal of the original exhibits, which we decline to request sua sponte. See Mass .R.A.P. 9(b), as amended, 378 Mass. 935 (1979); Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997); Iverson v. Board of Appeals of Dedham, 14 Mass.App.Ct. 951 (1982).
The photographs were admitted mainly to prove serious bodily injury. The defendant was acquitted of assault and battery causing serious bodily injury. Therefore, any error would not have caused prejudice.
Prosecutor's statements. The prosecutor's statement during closing argument that two witnesses were honest, taken in context, was a fair comment on the witnesses' candor on the stand rather than impermissible vouching. The prosecutor did not suggest that he had knowledge beyond the evidence, but merely invited the jury to consider the witnesses' admissions of heavy drinking and lack of memory as demonstrating frankness. See Commonwealth v. Sanders, 451 Mass. 290, 297 (2008). The prosecutor's statement during his opening that “I think the defense is going to be a rather unbelievable defense” was error, as the defendant has no obligation to put on evidence or take the stand. However, the defendant did not object, the statement was not repeated, and the jury were properly instructed that counsel's statements are not evidence. Any possible prejudice was adequately cured by the trial judge's instructions. See Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978); Commonwealth v. Kater, 432 Mass. 404, 422–423 (2000).
Judgment affirmed.