Commonwealth v. Perry
| Docket Number | 22-P-386 |
| Decision Date | 25 May 2023 |
| Parties | COMMONWEALTH v. MENDI PERRY |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), 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).
A grand jury returned murder indictments against the defendant, Mendi Perry, and her codefendant, Scott Rodrigues, in connection with the October 1, 2017, killing of Dennis Cousineau in Fall River. Evidence at trial showed that Rodrigues struck Cousineau, knocked him to the ground, and continued to beat him. The defendant kicked Cousineau when he was down. Cousineau died days later. A jury found Rodrigues guilty of murder in the second degree and found the defendant guilty of involuntary manslaughter (G. L. c. 265, § 13). On appeal, the defendant claims that the verdict was not supported by sufficient evidence, the judge erred by admitting prior consistent statements on redirect examination of a witness, and the prosecutor misstated facts. We affirm.
Sufficiency of evidence.
In reviewing a claim that the verdict was not supported by sufficient evidence, the "question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "Because Massachusetts has not defined manslaughter by statute, its elements are derived from the common law." Commonwealth v. Levesque 436 Mass. 443, 447 (2002). "Involuntary manslaughter is an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct" (citation omitted). Commonwealth v. Ridley, 491 Mass. 321, 330 (2023). Wanton or reckless conduct "involves a high degree of likelihood that substantial harm will result to another." Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).
Viewed in a light most favorable to the Commonwealth, the evidence showed that the defendant accompanied Rodrigues when he confronted the victim on the street at about 11 P.M. Rodrigues yelled at the victim, who was about sixty-two or sixty-three years old and heavily intoxicated. Rodrigues screamed at the victim, The defendant joined in the yelling and warned, "Don't fuck with us." Rodrigues then struck the victim, knocked him to the ground, and rendered him unconscious. Rodrigues continued "pounding, pounding, pounding on him," and repeatedly screamed, "I told you not to fuck with me." A witness called out from a nearby apartment, Both the defendant and Rodrigues responded, "Mind your fucking business." The defendant "kicked [the victim] in the head," and said, "I told you not to fuck with me." The defendant and Rodrigues left the scene and subsequently told a police officer that they were inside an apartment, heard an argument, went to investigate, and found the victim. Days later, the defendant died from blunt force trauma to the head. Through photo arrays, eyewitnesses identified the defendant and Rodrigues as the perpetrators, and the victim's blood matched blood found on Rodrigues's footwear.
Contrary to the defendant's claim, this evidence presented ample support for the verdict of involuntary manslaughter based upon wanton or reckless conduct. The defendant kicked the victim in the head while he lay helpless on the ground, told an intervening witness to mind her business, and walked away into the night. Especially given the victim's evident vulnerable condition after being struck multiple times by Rodrigues, the defendant knew or should "have realized the gravity of the danger" posed by kicking the victim in the head and leaving him to suffer. Welansky, 316 Mass. at 398-399. The defendant's liability is grounded in her "intent to engage in the reckless conduct, and not [her] intent to bring about the harmful result." Levesque, 436 Mass. at 452. Apart from the defendant's liability as a principal, jurors could also infer that the defendant "knowingly participated" with Rodrigues in the attack where they followed the victim down a driveway, confronted the victim, yelled similar profanity-laced warnings, kicked the victim, and misled the police who arrived at the scene. Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). The evidence shows that the defendant was not a mere bystander to an unanticipated fight as she now suggests on appeal; she was a knowing participant in a brutal attack that rendered a man senseless. Thus, the Commonwealth presented sufficient evidence for the jury to reach a verdict of involuntary manslaughter. Latimore, 378 Mass. At 677. Redirect examination of witness. We discern no prejudicial error from the prosecutor's redirect examination of Karen Waring. Commonwealth v. Smith, 403 Mass. 489, 498 (1988). On direct examination, Waring testified that through her apartment window she saw the defendant "kicking." On cross-examination, Waring admitted that her "testimony on two other occasions" indicated that she did not see the defendant kicking, and she further admitted that an excerpt of her statement to the police did not indicate kicking by the defendant. On redirect, over objection, the prosecutor explored details of Waring's prior testimony and statement to the police: she testified before the grand jury, "I saw her kick" she testified in a prior court hearing that she "saw her kicking"; and she told the police that she "saw they were kicking." This redirect examination was proper because the very "purpose of redirect examination is to explain or rebut adverse testimony or inferences developed during cross-examination." Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978). The subjects of Waring's prior testimony and statement to the police were "'opened up in cross-examination, and therefore an exploration of them on redirect was clearly within' the judge's discretion." Commonwealth v. Reed, 397 Mass. 440, 444 n.6 (1986), quoting Hoffer, supra at 375. For the same reason, the judge also properly denied the motion to strike Waring's testimony on redirect. See Commonwealth v. Dominico, 1 Mass.App.Ct. 693, 718 (1974) (). To the extent Waring provided conflicting testimony, "it is for the jury to determine where the truth lies." Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978).
Given the allegations of recent contrivance, Waring's testimony on redirect was also admissible as prior consistent statements. Prior consistent statements are admissible "where a trial judge makes a preliminary finding (1) that the witness's in-court testimony is claimed to be the result of a recent fabrication or contrivance, improper influence or motive, or bias; and (2) that the prior consistent statement was made before the witness had a motive to fabricate, before the improper influence or motive arose, or before the occurrence of the event indicating a bias." Commonwealth v. Caruso, 476 Mass. 275, 284 (2017). Trial judges have "broad discretion" to admit such statements, and the preliminary finding may be "implied." Id. at 284-285.
Defense counsel repeatedly challenged Waring's testimony that she saw the defendant kicking. On cross-examination, defense counsel asked Waring if her testimony about the kicking "was clearly not the truth" and was in fact a "lie." In addition, defense counsel repeatedly implied that the prosecution had coached Waring before the trial to testify about the kicking: "Did they tell you something to say in the last couple weeks . . . that you didn't say before?"; ...
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