Opinion
No. 11–P–1145.
2012-10-4
COMMONWEALTH v. Fernando FONSECA.
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault by means of a dangerous weapon in violation of G.L. c. 265, § 15B( b ), and larceny in an amount less than $250 in violation of G.L. c. 266, § 30. On appeal, he makes two claims that do not merit relief. As such, we affirm.
1. Prior bad acts. The defendant claims the admission in evidence of Maria Semprit's testimony that the defendant threatened to “burn and kill” her daughter, Jacqueline Correa, and that Semprit was frightened and took precautions to warn her if the defendant broke into her house (where Correa also lived), created a substantial risk of a miscarriage of justice. He claims the same is true for the evidence of the defendant's specific threats against Correa. We disagree.
The defendant maintains the evidence was not relevant to the offenses being tried where the victim was Manuel Santiago. However, to put this in context, Correa is the defendant's former girlfriend and the mother of his child, the victim is Correa's cousin, and Semprit is the victim's aunt. In the judge's ruling on the Commonwealth's motion in limine, he stated that he would permit testimony on the contentious elements of the defendant's relationship with Correa as a prelude to her testimony regarding the threats the defendant made against her family. The threat evidence was highly probative of the defendant's pattern or course of conduct. See Commonwealth v. Chartier, 43 Mass.App.Ct. 758, 760–761 (1997). Without this evidence, and the defendant's statement that the defendant would make Correa “pay” for choosing her family over him,
the defendant's assault of the victim would appear to be an inexplicable act of violence. See Commonwealth v. Bradshaw, 385 Mass. 244, 269–270 (1982). The defendant also takes issue with Semprit's nonresponsive testimony, elicited on cross-examination, where she testified that Correa was having problems with the defendant and that Correa was in danger. However, there was no risk that justice miscarried where defense counsel diverted this testimony by refocusing Semprit with a clarifying question regarding whether she let the defendant into her home. See Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 100 (2010). This challenged testimony was also cumulative of Correa's testimony about the defendant's threats, and was not used in the prosecutor's closing argument.
The defendant also claims error in the admission of the specifics of his threats, i.e., to harm Correa, to “kill,” and “burn” her. The defendant's threats were admissible as admissions of a party opponent and relevant to his state of mind. See Commonwealth v. Marshall, 434 Mass. 358, 365–367 (2001); Mass. G. Evid. § 801(2)(A) (2012). In addition, these threats gave meaning and context to the defendant's motivation and state of mind for his actions due to Correa's choice of her family over him. See Commonwealth v. Cutts, 444 Mass. 821, 834 n. 12 (2005).
The defendant's claim that the prosecutor's closing argument regarding a “web of threats and coercion” exacerbated the prejudice of Semprit's testimony is without merit. This argument was properly grounded in the evidence and the fair inferences therefrom.
The defendant also faults the judge for permitting Semprit to testify on cross-examination that the defendant was not permitted to visit her home if he had a gun, and that she needed to warn her son about the defendant's threats because of the defendant's gun. But, as the defendant concedes, the evidence that the defendant possessed a gun and showed it to Correa was properly admitted. Semprit's gun testimony was either relevant to the defendant's motive and ability to carry out his threats or it was cumulative of Correa's testimony. See Commonwealth v. Otsuki, 411 Mass. 218, 235–236 (1991). In either case, there is no risk of a miscarriage of justice, especially given the judge's limiting instructions on the use of bad act evidence.
The judge was not required to give, sua sponte, a contemporaneous limiting instruction.
Finally, the defendant claims the evidence that Semprit was afraid of the defendant, and that she took precautions to prevent the defendant from gaining access to her home, was unfairly prejudicial. The judge sustained the defendant's objection and ruled that Semprit's fear was not relevant. However, Semprit did testify about the defendant's threat regarding her son, her feeling “[v]ery threatened,” and the precautions she took should the defendant break into her home. Although Semprit's fear and her reactions caused by that fear were not relevant, it also made little difference in the Commonwealth's case, which contained far stronger—if not overwhelming—indicators of the defendant's guilt, including his admissions of guilt, the victim's identification of the defendant, and the defendant's possession of the victim's cell phone. See Commonwealth v. Cutts, 444 Mass. 821, 835 (2005).
Because there is no substantial risk of a miscarriage of justice, there is no merit to the defendant's claim that counsel was ineffective for failing to object and to move to strike the bad act evidence. See Commonwealth v. Curtis, 417 Mass. 619, 624 n. 4 (1994); Commonwealth v. Farnsworth, 76 Mass.App.Ct. at 100.
2. The jury's verdict. The defendant claims the jury's verdict was coerced in violation of G.L. c. 234, § 34, because the judge sent them back to deliberate a second time without their consent. We disagree. Simply enough, the jury were not sent out a second time within the meaning of the statute. Although the judge initially determined that the jury had conducted “due and thorough deliberation” on the charges, and that he would give the jury a Tuey–Rodriquez instruction
the next day, he changed his mind by the next morning. Upon further reflection, the judge decided not to give the full Tuey–Rodriquez instruction. He instead gave the ABA-approved charge, which is less emphatic than the full charge. See Commonwealth v. Rodriquez, 364 Mass. 87, 102 (1973) (Appendix B). Upon review of the record, the jury's question that prompted the issue appears to have been an indication of confusion over unanimity rather than an announcement of a deadlock.
See Commonwealth v. Rodriquez, 364 Mass. 87, 98–101 (1973).
Thus, we cannot conclude the judge adhered to his initial view regarding the status of deliberations, especially given his explicit change of course in the morning. In this posture, when the jury indicated in a fourth note that they were deadlocked,
The note, addressed to the judge, read, “[W]e the jury cannot come to a unanimous agreement regarding the four charges for” the defendant.
the judge was not required to seek the jury's consent before he gave them the full Tuey–Rodriquez instruction and sent the jury out again.
This note read, “We the jury members have determined we cannot come to a unanimous agreement regarding any of the four charges brought against [the defendant] at this time.”
This was not an abuse of the judge's discretion. See Commonwealth v. Bacigalupo, 49 Mass.App.Ct. 629, 638 (2000).
Judgments affirmed.