Commonwealth v. Isabelle

828 N.E.2d 53, 444 Mass. 416, 2005 Mass. LEXIS 230

• Court: Massachusetts Supreme Judicial Court
• Decided: June 1, 2005
• Status: Published

Opinions

Ireland, J.

A Superior Court jury convicted the defendant of assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A [b}) and assault and battery on a child under the age of fourteen years causing substantial bodily injury (G. L. c. 265, § 13J [£>]). The trial judge sentenced her to five years in State prison for assault and battery by means of a dangerous weapon, and ten years’ probation for assault and battery on a child to run from and after incarceration. The defendant appealed, and the Appeals Court affirmed the defendant’s convictions. Commonwealth v. Isabelle, 60 Mass. App. Ct. 1117 (2004). We granted the defendant’s application for further appellate review to consider only whether the Commonwealth’s elicitation of testimony regarding the defendant’s request for an attorney amounted to reversible error. There was clear error. However, because we conclude, as did the Appeals Court in its unpublished memorandum and order, that the record establishes beyond a reasonable doubt that the improper reference did not contribute to the verdicts, we affirm the defendant’s convictions.

Facts. The victim, the defendant’s daughter, was at the time a twenty-five month old child, who suffered numerous injuries between May 12¹ and May 25, 1999.

On April 30, 1999, the victim was returned to the defendant’s home after having been removed by the Department of Social Services (department) on April 16, 1999, due to concerns over domestic violence between the victim’s mother and father.² Jacqueline Green, the social worker assigned to the case, attempted to see the victim three days after her return, but the defendant refused to let her see the victim. Green attempted to see the victim numerous times by going to the defendant’s apartment and sending the defendant letters. The defendant never responded, and between April 30 and May 24, Green was unable to see the victim. During this time, the defendant told Green and Lisa Sullivan, an investigator with the department, that the victim was at her maternal grandfather’s home in Rhode Island.³ At trial, however, the defendant testified that the victim was at Heidi Niemic’s⁴ home from May 12 until May 25, when Green and the defendant picked her up.

Niemic testified that the victim was in her care from May 20 until the morning of May 23, 1999, when she returned her to the defendant, and then again from the evening of May 23 until Green and the defendant picked her up on May 25. On May 20, Niemic had noticed a bruise on the victim’s face and teeth marks on her inner thighs. She contacted the department but did not file a report because she did not want to “get involved.” On May 23, when Niemic again picked up the victim from the defendant, she noticed blisters and bruises on the victim and a red mark in one of the victim’s eyes. Niemic also noted that the victim was sluggish, wanted to sleep, and was drooling.

Green testified that when they picked up the victim on May 25 for a meeting with the defendant’s attorney, she noticed some of the injuries. When questioned by Green, Niemic said the victim “took a digger.”⁵ The injuries included various bruises that were in different stages of healing⁶; a subdural hemorrhage⁷; a subconjunctival hemorrhage⁸; petechia (red marks on the skin) and traction alopecia along the victim’s hairline, indicating that the victim’s hair had been pulled out; and nine lesions consistent with cigarette bums.

Green further testified that the defendant exhibited no reaction to the victim’s injuries until Green told the defendant that they were taking her to a hospital.⁹ When they arrived, Green had to take the victim into the emergency room herself because the defendant did not move out of the car. Detective Kelly Teves testified that the defendant told her that she wanted to leave the hospital.¹⁰

Discussion. Before trial, the defendant filed a motion in limine to prohibit references to the defendant’s request for an attorney during her interrogation by the police.¹¹ The judge allowed the motion and instructed the prosecutor not to elicit the information. The prosecutor relayed that instruction to the police officers. However, at trial, Detective Teves testified that when asked “if she knew what happened to her baby or if she harmed her baby,” the defendant “said she wanted her lawyer.” The judge sustained the defendant’s objection to the testimony and struck the answer but did not give a curative instruction. The defendant argues that this testimony violated her State and Federal constitutional rights. We agree. This testimony should not have been given, particularly in light of the defendant’s motion in limine, which identified the very subject that would elicit the impermissible answer. See Doyle v. Ohio, 426 U.S. 610, 613-619 (1976); Commonwealth v. Beauchamp, 424 Mass. 682, 690-691 (1997).¹²

In order for the defendant’s convictions to stand, we must be satisfied that the record establishes beyond a reasonable doubt that this improper reference did not contribute to the verdicts. Commonwealth v. Peixoto, 430 Mass. 654, 660 (2000), and cases cited. In making this determination and assessing the impact of a Doyle error, we consider the following factors: “(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions” (footnotes omitted). Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983).

Here, although the prosecutor was the one who elicited the erroneous testimony, this was the only reference to the defendant’s request for her attorney. Once the detective’s response was struck, the Commonwealth did not refer to it again. In addition, the defendant, herself, stated twice during cross-examination that she consulted with her attorney. Moreover, the jury heard other testimony that the defendant currently had an attorney who was representing her in the matter of regaining custody of all of her children. Specifically, the jury heard testimony that the defendant was on her way to a meeting with her attorney when Green decided they were going to the hospital rather than the meeting. Thus, it is likely that the defendant’s reference to her attorney was not as significant to the jury as in the ordinary case where there is no evidence that an attorney is currently representing the defendant.

Although the defendant argues that the prosecution deliberately elicited the defendant’s request for her attorney, the record makes clear that the prosecutor did not foresee the erroneous testimony. Moreover, while a curative instruction was not immediately given, the defendant did not request one. See Commonwealth v. Qualls, 440 Mass. 576, 584 (2003), citing Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992) (no requirement that judge give curative instruction sua sponte). Additionally, when charging the jury, the judge instructed: “[Y]ou may not consider any answers that I struck from the record and told you to disregard. Do not consider such answers.” The jury are presumed to follow instructions to disregard testimony. See Commonwealth v. Qualls, supra, citing Commonwealth v. Cortez, 438 Mass. 123, 130 (2002).

In addition, the premise of the defense was that Niemic or another person injured the victim while she was in Niemic’s care. The defendant argues that the case came down to a test of credibility between her and Niemic, and the request for counsel stood out as the only “inculpatory” statement the defendant made. The defendant further argues that her statement had the potential to suggest consciousness of guilt, and therefore struck at the heart of the defendant’s story. However, we agree with the Appeals Court that the single reference to her wanting her attorney, followed by the fact that she subsequently gave statements to the police, did little to erode her credibility.

Moreover, in order to find the defendant credible, the jury would have had to disbelieve not only Niemic, but many other witnesses. There were multiple instances where jurors were required to decide between the defendant’s testimony and that of witnesses other than Niemic. First, the defendant denied telling the department that the victim was with her maternal grandfather in Rhode Island, but both Green and Sullivan testified that the defendant told them this. Next, the defendant testified that as soon as she saw the victim at Niemic’s house, she began yelling at Niemic for beating the victim. However, Green testified that the defendant showed no emotion until Green said they were taking the victim to the hospital. The defendant also testified that she had given all of her perishable food to her neighbor but this neighbor testified that she never received any food. Last, the defendant testified that she left the hospital because the department had obtained a court order barring her from seeing the victim and she was told to leave, but Detective Teves testified that the defendant said she wanted to leave even when told how seriously the victim was injured.

Furthermore, “[t]he defendant’s ultimate decision to give a statement to the police also mitigates any impermissible inference the jury may have drawn from [her] initial hesitation to speak with them.” Commonwealth v. Peixoto, supra at 661. Following her request for her attorney, the defendant proceeded to state that she did not know how the victim was injured because the victim had been with Niemic since May 12. As the Appeals Court noted, this is not a case where the jury were left to speculate as to why the defendant asked to speak with her attorney. Thus, her request to see her attorney did not “convey[] to the jury the impression that [she] was hiding relevant information from the police.” Id. at 658.

Finally, contrary to the defendant’s argument, this is not a case where the evidence tends equally to sustain either of two inconsistent propositions. Rather, there was substantial evidence of the defendant’s guilt. In addition to the challenges to the defendant’s version of events, there was other evidence that the jury could have considered. For example, after the victim was returned to her, the defendant refused to let employees of the department see the victim until a court ordered her to produce the victim. There was also evidence that the defendant smoked cigarettes but no evidence that Niemic or anyone in her house did, which may have had some relevance to the cigarette bums on the victim. The defendant testified that she was unable to keep her household together as she had no electricity and no food. Additionally, both the police and department’s employees testified that the defendant had no interest in the victim’s injuries.

Conclusion. Because we conclude that the record establishes beyond a reasonable doubt that the improper reference to the defendant’s request to speak with her attorney did not contribute to the verdicts, we affirm her convictions.

So ordered.

1 On May 12, a detective with the Fall River police department, at the defendant’s apartment on an unrelated matter, observed the victim, and testified that she was “a very interactive little girl,” talking and running around the apartment. The victim was wearing a “onesie” that exposed the skin of her arms and legs, and the detective did not observe any injuries to the victim.

2 The department originally became involved with the defendant’s family in September, 1998, because of allegations of substance abuse by the defendant, poor home conditions, and lack of supervision. At that time, the victim and the defendant’s other children were placed in foster care. All three children were again removed from the defendant’s home in April, 1999. Only the victim was returned to the defendant on April 30; the other two children remained in foster care.

3 The defendant denied this at trial, claiming that Green and Sullivan were lying.

4 Heidi Niemic is the niece of the victim’s father.

5 Niemic testified that she lied when she said this because she “was trying to cover” for the defendant.

6 Reddish bruises indicated injuries inflicted two to three days before a physical examination on May 25, and brownish and fading bruises were approximately seven to ten days old.

7 This bleeding between the brain and the skull resulted from a violent shaking episode that tore blood vessels in the victim’s brain one to two weeks before an MRI examination on May 27.

8 This red spot on the white of the victim’s eye resulted from a violent shaking episode less than one week before the examination.

9 The defendant denied this, testifying that she immediately began yelling at Niemic for abusing her child. Detective Teves testified that the defendant told her she was so upset that she vomited, a claim that Jacqueline Green’s testimony disputed.

10 The defendant testified that she was told to leave the hospital because the department had obtained a court order barring her from seeing the victim. No evidence of a court order was introduced at trial.

11 Specifically, the defendant requested that the Commonwealth be precluded from inquiring of the police witnesses the question they asked of the defendant immediately before she requested to speak with her attorney: “I asked her if she ever harmed [the victim].”

12 We allow the Commonwealth’s motion to expand the record and consider portions of the detective’s report and the prosecutor’s affidavit. The prosecutor’s affidavit states that she directed the detective to make no reference to the defendant’s request. We have no affidavit from the detective.