Commonwealth v. Sanchez, 18-P-56

• Decision Date: 05 September 2019
• Docket Number: No. 18-P-56,18-P-56
• Citation: 96 Mass.App.Ct. 1,132 N.E.3d 998
• Parties: COMMONWEALTH v. Mario SANCHEZ.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 1
132 N.E.3d 998

COMMONWEALTH
v.
Mario SANCHEZ.

No. 18-P-56

Appeals Court of Massachusetts, Suffolk.

Argued December 14, 2018
Decided September 5, 2019.

Meredith Shih for the defendant.

Tucker Bugbee (Colby M. Tilley, Assistant District Attorney, also present) for the Commonwealth.

Present: Meade, Agnes, & Englander, JJ.

AGNES, J.

96 Mass.App.Ct. 2

It is a cardinal rule of evidence that a witness cannot be asked to give an opinion about whether another witness should be believed. In this case that rule was violated when the defendant was asked if his accuser was a liar. Such an error may be so significant that a new trial is required. But not all such errors have the same impact on a trial. The test for prejudicial error requires that we consider the error in the

132 N.E.3d 1002

context of the evidence as a whole. An error will not be considered prejudicial if it "did not influence the jury, or had but very slight effect ...." Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445, 446 N.E.2d 117 (1983), quoting Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). When, as in this case, we are confident that there is no reasonable possibility that the error contributed to the verdict, we affirm. Commonwealth v. Alphas, 430 Mass. 8, 23, 712 N.E.2d 575 (1999) (Greaney, J., concurring).

Background. This is defendant Mario Sanchez's direct appeal from his 2017 convictions, after a trial by jury, of assault by means of a dangerous weapon in violation of G. L. c. 265, § 15B (b ), and an attempt to commit a crime, namely larceny from a person, in violation of G. L. c. 274, § 6. The defendant raises three issues on appeal: first, whether the judge erred in overruling his objections to certain questions put to him by the prosecutor; second, whether the judge erred in admitting the contents of an unredacted 911 telephone call made by the victim; and third, whether certain statements made by the prosecutor in his closing argument were improper. For the reasons that follow, we affirm.

Facts. The jury were warranted in finding the following facts.¹ On the morning of July 28, 2016, at approximately 5:45 A.M. , the victim was walking with her two young daughters, ages eight and five, in the Hyde Park section of Boston. She was following her

96 Mass.App.Ct. 3

usual routine by bringing her children to her aunt, who provided daycare so that the victim could then take public transportation in order to arrive to work in Quincy by 6:45 A.M. The victim and her children walked past a man and then heard him say, "Excuse me?" She turned around and said, "Yes." The man, later identified as the defendant, asked, "Can you tell me where Geneva Ave. is?" The defendant then pulled out a "big silver gun with a tan bottom" and told the victim "to give him what [she] had." The victim identified an item as the "gun" pointed at her by the defendant. It was "a replica toy gun," and was later received in evidence. The defendant was very close to her -- "He was in my face." After shielding her children, she "told him that there was nothing here for him, that he's being a coward," and that he should leave. The defendant responded but she could not understand what he said. He then struck himself on the head with the gun a few times, mumbled something, and walked away.

The victim made a 911 call to the Boston police and was still talking with the 911 operator when she arrived at her aunt's house. She remained on the line until police officers arrived. After leaving her children with her aunt and giving the officers a description of her assailant, she left for the next leg of her trip to work. The victim identified an audio recording of her 911 call, and that audio recording was played for the jury.² In her 911 call, the victim provided the police with the location of the incident, the basic facts as described above, the direction in which her assailant was walking after the incident, and a detailed description of the man who pulled the gun on her: a Hispanic male, thin build, about five feet, two inches tall, wearing blue jeans, a white T-shirt, and "a black Scully,"³ with a beauty mark or mole

132 N.E.3d 1003

on his right cheek, a goatee, and carrying a Corona beer bottle in his pocket.

In response to the victim's 911 call, at approximately 6 A.M. , two Boston Police Officers were dispatched to the area of Draper and Longfellow Streets. They were operating an unmarked police cruiser and were dressed in civilian clothes. Because the description they were given by the dispatcher was limited (a man with a gun), they responded to the house where the victim had dropped off her children. There they met the victim who repeated the detailed description she had given in her 911 call. The officers returned

96 Mass.App.Ct. 4

to the area where the incident occurred, and as they turned right onto Ditson Street from Arcadia Park, they saw a Hispanic male wearing a black knit hat, blue jeans, and a white T-shirt. The man appeared to be unsteady on his feet. They exited their cruiser, drew their weapons, and asked the man to show his hands. The man, later identified as the defendant, did not comply, and instead was reaching for something as the officers put him to the ground. A patfrisk revealed a replica firearm tucked inside his briefs, which matched the description given by the victim, and a Corona beer bottle in his right pocket. When he was handcuffed, the defendant stated in English, "[I]s this about that lady and her kid."⁴

A showup identification procedure was arranged.⁵ Another police officer picked up the victim at the train station as she was on her way to work. He drove through Dorchester and eventually came through Arcadia Park. The victim was seated in the rear seat of the cruiser. The police officers who were with the defendant had relocated to a different position. When the police cruiser in which the victim was seated turned the corner to the street where the defendant stood, she immediately said, without any prompting, "that's him, that's him."

Discussion. 1. Improper cross-examination of defendant. The defendant testified at trial that on July 27, 2016, he was living in Dorchester and working at a restaurant called "Tray" near South Station in Boston from 3 P.M. until 11 P.M. On that evening, he left work at 11:15 P.M. and took a train home. Sometime thereafter, a friend came by and drove the defendant to the friend's house where the two men smoked and drank beer for about three hours. At approximately 6 A.M. , the defendant left his friend's house and began to walk to his uncle's house on Geneva Avenue. He recalled walking through Ronin Park where he picked up a toy handgun from a trash barrel. The defendant testified that he was lost. He saw the victim walking ahead of him and approached her to ask for directions to Geneva Avenue. He said he never raised the gun above his waist and never demanded money from the

96 Mass.App.Ct. 5

victim. He said he spoke to the victim in Spanish, trying to explain that the item in his hand was a toy. He then said he turned around, distanced himself from the victim, and apologized in English. The next thing he knew, he encountered police officers who had their guns drawn and who detained him.

On cross-examination, the prosecutor, over objection, asked the defendant if the victim had "lied" when she testified during

132 N.E.3d 1004

the Commonwealth's case. There were a total of five such questions. On four occasions the defendant replied, "yes," and in one instance he explained what he had done during the brief encounter with the victim.⁶

The prosecutor's questions were improper and the judge should have sustained the defendant's objections. Commonwealth v. Long, 17 Mass. App. Ct. 707, 708-710, 462 N.E.2d 330 (1984). A witness should not be asked and is not permitted to comment on the credibility of another witness because "[t]he fact finder, not the witness, must determine the weight and credibility of testimony." Commonwealth v. Triplett, 398 Mass. 561, 567, 500 N.E.2d 262 (1986). Accord Commonwealth v. Dickinson, 394 Mass. 702, 706, 477 N.E.2d 381 (1985). "Such questioning transforms the interrogation stage of the trial into the phase traditionally reserved for argument and summation." Long, supra at 709-710, 462 N.E.2d 330. Further, this tactic "implies to the jury that differences in the testimony of the witness and any other witness could only be the result of lying and not because of misrecollection, failure of recollection or other innocent reason" (quotation and citation omitted). Commonwealth v. Ward, 15 Mass. App. Ct. 400, 402, 446 N.E.2d 89 (1983).

We apply the standard of review applicable to preserved, nonconstitutional error. Under this standard, an error will be regarded as nonprejudicial only if we are convinced that it "did not influence the jury, or had but very slight effect ...." Commonwealth v. Graham, 431 Mass. 282, 288, 727 N.E.2d 51 (2000), cert. denied, 531 U.S. 1020, 121...