Commonwealth v. Gaudette

808 N.E.2d 798, 441 Mass. 762, 2004 Mass. LEXIS 285
CourtMassachusetts Supreme Judicial Court
DecidedMay 24, 2004
StatusPublished
Cited by18 cases

This text of 808 N.E.2d 798 (Commonwealth v. Gaudette) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gaudette, 808 N.E.2d 798, 441 Mass. 762, 2004 Mass. LEXIS 285 (Mass. 2004).

Opinion

Marshall, C.J.

In Commonwealth v. Person, 400 Mass. 136, [763]*763139, 142 (1987), we held that a prosecutor’s closing argument that a defendant who “sat through” all of the Commonwealth’s evidence “was able to fabricate a cover story tailored to answer every detail of the evidence against him” was improper and (in the circumstances of that case) “require[d] reversal” of the judgment. We are asked by the Commonwealth to reconsider that ruling in fight of Portuondo v. Agard, 529 U.S. 61, 64-65, 75-76 (2000), in which the United States Supreme Court held that a substantively similar remark by a prosecutor did not offend a defendant’s Federal constitutional rights.

In this appeal, the defendant also claims that the prosecutor’s argument that a witness’s testimony was credible because it was consistent with her prior statement to the police was improper because her statement was not in evidence. Finally, the defendant claims that testimony of the victim’s sister concerning the victim’s injury was irrelevant and prejudicial, and should not have been admitted. We granted the Commonwealth’s application for direct appellate review.

We reaffirm that “a prosecutor may not argue that the jury should draw a negative inference from the fact that the defendant remained silent until he testified,” Commonwealth v. Person, supra at 140, but conclude that there was no violation of the Person prohibition in this case. Because we also reject the defendant’s other claims of error, we now affirm the judgment.

1. Background. On December 20, 2001, the defendant was convicted by a Superior Court jury of assault and battery by means of a dangerous weapon.1 The charge arose from an early morning altercation, the denouement of a series of arguments among several individuals throughout the evening of September 10, 2000. Reviewing the record in its fight most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, [764]*764676-677 (1979), a reasonable jury could have found the following facts.

That evening, the victim, Joseph Dunn, was a patron at a bar where he was friendly with a bartender, JoAnne Sayers. Sayers is the defendant’s former girl friend. Sayers and the defendant had a “rocky,” “on and off” relationship. Their relationship was “off” on September 10, 2000, and that afternoon, they had an argument. Later, the defendant went to the bar where Sayers worked. When she asked him to leave, he refused to do so. An argument ensued, there was a brief physical confrontation between the two, and the defendant then left. As the evening progressed, the defendant made numerous threatening and harassing telephone calls to Sayers. On one such occasion, Dunn answered Sayers’s telephone for her and told the defendant to leave Sayers alone.

Cognizant of the defendant’s behavior toward Sayers that night, Dunn and another patron, Kevin Matte, stayed at the bar until it closed, sometime before 2 a.m. on September 11, 2000. They walked with Sayers to her vehicle, where they encountered the defendant sitting on the hood. Sayers said, “Get off my car” and told the defendant that she had “nothing to say” to him. The defendant and Dunn engaged in an argument, the two yelled at each other, and Dunn knocked the defendant’s hat off his head. Sayers then left in her car.

Matte, who apparently was not involved in the argument, entered his vehicle, a Ford Bronco, and persuaded Dunn to let him drive him home. As they drove away, the defendant followed in his pickup truck. Matte eventually pulled into a parking lot and stopped his vehicle. The defendant followed and drove his pickup truck into the back of the Bronco. Dunn stepped out of the Bronco, again yelling at the defendant. As Matte was getting out of his vehicle, the defendant drove toward Dunn and struck him with his truck. Matte saw Dunn “bouncing off the hood of [the defendant’s] truck and landing on the ground”; he testified that the sound was “like a bat cracking.” A resident of the neighborhood testified that he heard “tires squealing and people screaming” and saw the pickup truck bump Dunn. The truck then backed up, accelerated, and “went right after [Dunn],” dragging him several feet. The defendant then immediately drove away at high speed. Matte attempted to [765]*765follow him, but soon returned to assist Dunn, who was unconscious and bleeding profusely. Matte telephoned the police and Sayers. A few minutes later Sayers received a telephone call from the defendant, who said to her, “Is that the biggest dude you got, because I just took care of him.” It was later determined that the victim suffered multiple fractures to his skull, and extensive bleeding and swelling in the brain, consistent with “massive blunt force trauma.”

At the trial, the defendant admitted that his vehicle had hit the Bronco and had hit the victim. He claimed, however, that this was an accident, as he responded to what he said were aggressive, threatening actions by the driver of the Bronco. He also admitted that he had left the scene. His principal theory at trial was that he did not possess the requisite state of mind for the charge of armed assault with intent to murder or assault and battery by means of a dangerous weapon.

2. The defendant’s opportunity to tailor his testimony to the evidence. The defendant testified at trial. Relying on Commonwealth v. Person, 400 Mass. 136, 139 (1987), the defendant argues, for the first time on appeal, that the prosecutor’s statement in his closing argument to the effect that the defendant had been able “to shape” his trial testimony to conform to the evidence against him requires reversal of his conviction of assault and battery by means of a dangerous weapon.2, 3 We review [766]*766the claim for a substantial risk of a miscarriage of justice, noting that “[t]he remarks at issue must be judged within the context of the entire argument, the facts of the case and the rationale underlying the Person principle.” Commonwealth v. Sherick, 401 Mass. 302, 303 (1987).

The United States Supreme Court has held that such comments do not offend a defendant’s Federal constitutional rights to be present at his trial, to confront witnesses, to testify in his own behalf (Fifth and Sixth Amendments to the United States Constitution), or to due process (Fourteenth Amendment to the United States Constitution). Portuondo v. Agard, 529 U.S. 61, 65, 74-75 (2000). The defendant does not argue that the prosecutor’s statements violated his rights under our State Constitution, so we need not, and do not, consider any such claim.4 The defendant relies solely on Commonwealth v. Person, supra, where a prosecutor’s comments were deemed prejudicial and required reversal, a ruling that was not constitutionally based. Id. at 142 n.7 (“Because the prosecutor’s remarks were prejudicial, we do not reach the question whether they are errors of constitutional dimension”). Cf. Portuondo v. Agard, supra at 73 n.4 (court’s decision is “addressed to whether the comment is permissible as a constitutional matter, and not to whether it is always desirable as a matter of sound trial practice”); Commonwealth v. Martinez, 431 Mass.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Bruno Lopes.
Massachusetts Appeals Court, 2025
State v. Stephanie U.
206 Conn. App. 754 (Connecticut Appellate Court, 2021)
State v. Weatherspoon
212 A.3d 208 (Supreme Court of Connecticut, 2019)
Commonwealth v. Mendez
476 Mass. 512 (Massachusetts Supreme Judicial Court, 2017)
Commonwealth v. Hatzigiannis
88 Mass. App. Ct. 395 (Massachusetts Appeals Court, 2015)
Commonwealth v. Ashley
978 N.E.2d 576 (Massachusetts Appeals Court, 2012)
Commonwealth v. Misquina
971 N.E.2d 833 (Massachusetts Appeals Court, 2012)
Mendoza v. State
93 So. 3d 441 (District Court of Appeal of Florida, 2012)
State v. Wallin
269 P.3d 1072 (Court of Appeals of Washington, 2012)
Martinez v. People
244 P.3d 135 (Supreme Court of Colorado, 2010)
Commonwealth v. Ocasio
27 Mass. L. Rptr. 188 (Massachusetts Superior Court, 2010)
State v. Martin
151 Wash. App. 98 (Court of Appeals of Washington, 2009)
Mustapha v. DaimlerChrysler Co.
23 Mass. L. Rptr. 480 (Massachusetts Superior Court, 2008)
Commonwealth v. Broomhead
855 N.E.2d 413 (Massachusetts Appeals Court, 2006)
State v. Swanson
707 N.W.2d 645 (Supreme Court of Minnesota, 2006)
State v. Daniels
861 A.2d 808 (Supreme Court of New Jersey, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
808 N.E.2d 798, 441 Mass. 762, 2004 Mass. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gaudette-mass-2004.