Commonwealth v. Tamagnine C. Dossantos.

• Court: Massachusetts Appeals Court
• Decided: April 3, 2024
• Docket: 22-P-1125
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1125

COMMONWEALTH

vs.

TAMAGNINE C. DOSSANTOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions, after a jury

trial, of assault and battery on a police officer (ABPO), G. L.

c. 265, § 13D; assault and battery by means of a dangerous

weapon (ABDW), G. L. c. 265, § 15A (b); and resisting arrest,

G. L. c. 268, § 32B. 1 He raises three issues on appeal. First,

he argues that the prosecutor asked questions on cross-

examination that were designed to elicit opinions about the

credibility of other witnesses. Second, he argues that the

officers improperly offered testimony touching on the ultimate

1 The defendant was charged with two counts of ABPO (Officer Ford and Officer Boehner), ABDW (door; Officer Ford), disorderly conduct, disturbing the peace, threatening to commit a crime, and resisting arrest. He was ultimately found guilty of ABPO with respect to Officer Ford, ABDW, resisting arrest, and disturbing the peace (which was guilty-filed). The defendant was acquitted of ABPO with respect to Officer Boehner and of threatening to commit a crime. issue of the defendant's guilt. Finally, he argues that

unpreserved errors in the prosecutor's closing created a

substantial risk of a miscarriage of justice. We affirm.

Background. We summarize the facts the jury could have

found, reserving additional facts for later discussion. See

Commonwealth v. Hart, 493 Mass. 130, 131 (2023). On February 3,

2013, police responded to the defendant's home after his then-

wife reported that he was unwilling to transfer the couple's

youngest child in accordance with a court-ordered custody

schedule. The defendant did not comply with the officer's

instruction that the child be released to the wife. Instead, an

argument between the officer and the defendant ensued and,

eventually, the defendant "chest bumped" the officer, pushing

him into the railing by the staircase. The officer then told

the defendant, "okay, I've already told you to stop yelling.

Now you've just assaulted me, so you're under arrest." While

the officer was trying to place handcuffs on the defendant, the

defendant closed the apartment door on the officer's arm four or

five times. A physical struggle followed, and the officer

eventually pressed the emergency button on his radio to alert

all available police units and personnel to come to his

location. Eventually, eight other officers arrived, and the

defendant was subdued and handcuffed.

2 Discussion. The defendant argues that the prosecutor

improperly cross-examined him and his mother in a fashion

designed to have them opine on the credibility of the police

officers' testimony. "'[A] witness cannot be asked to assess

the credibility of his testimony or that of other witnesses.'"

Commonwealth v. Alphas, 430 Mass. 8, 17 (1999), quoting

Commonwealth v. Triplett, 398 Mass. 561, 567 (1986). The

defendant argues that a series of questions asking that he

confirm his own version of events or that of the officers was

the functional equivalent of asking him to opine on the

credibility of the officers' conflicting version of what

happened. 2 He makes a similar argument regarding the cross-

examination of his mother, which included questions designed to

have the mother confirm that certain events occurred as either

the defendant or the mother had previously testified. More

specifically, the prosecutor asked the mother to confirm that

she saw a uniformed officer punch the defendant in the nose,

2 The defendant points to the following questions: "You're in the hallway with the officer, and then he just punches you right in the face?"; "Isn't it true you said, 'F-you. This is America. I ain't doing nothing.' Isn't that true? Isn't that more accurate[?]"; "[Y]ou're in the hallway with the officer, and then he just punches you right in the face?"; "So this officer is in full uniform, told you you're under arrest, and you're trying to shut the door on him. Correct?"; and "And even though you're on the ground and you have your arms behind your back, it's your testimony that three uniformed police officers jumped on your back. Correct?"

3 that a "bunch of officers" jumped on top of him, and that an

officer put his hand over her mouth as she was holding a one

year old child and told her "to be quiet."

The defendant argues that this line of questioning was

improper because the "critical issue" before the jury was

whether to accept the version of events given by the officers or

that given by the defendant and his mother. See Alphas, 430

Mass. at 17, quoting Triplett, 398 Mass. at 564. We disagree.

This is not a case where the witnesses were asked to opine

directly on another witness's testimony by asking whether it was

"correct" or whether the other witness had "lied." Contrast

Alphas, supra at 19; Triplett, supra at 566 n.5; Commonwealth v.

Long, 17 Mass. App. Ct. 707, 708 nn.1, 2 (1984).

Instead, the witnesses were merely asked whether certain

events had occurred as previously testified to either by

themselves or another witness. "It was proper for the

prosecutor to point out, through this line of questioning, that

there were inconsistencies between the defendant's testimony and

that of the arresting officer, so long as the defendant was not

asked to assess the credibility of the arresting officer's

testimony." Commonwealth v. Johnson, 412 Mass. 318, 327-328

(1992), citing Commonwealth v. Dickinson, 394 Mass. 702, 706

(1985).

4 The defendant next argues that the police officers

improperly testified on the ultimate question of the guilt of

the defendant. "[W]e have long recognized that '[n]o witness,

including a police witness, may testify as to a defendant's

guilt or innocence.'" Commonwealth v. Canty, 466 Mass. 535, 540

(2013), abrogated on other grounds by Commonwealth v. Doughty,

491 Mass. 788 (2023), quoting Commonwealth v. Hamilton, 459

Mass. 422, 439 (2011). The defendant's argument rests on two

pieces of testimony. The first came from the first responding

officer, who testified on direct examination that, after the

defendant chest bumped him, he told the defendant, "I've already

told you to stop yelling. Now you've just assaulted me, so

you're under arrest." The second piece of testimony came from

the second officer, who testified that he told the defendant

that "he was going to be placed under arrest and not to resist,"

that the defendant went into a "noncompliant handcuffing

position," and that "[a] compliant person would just put their

hands behind their backs, and you could apply the handcuffs."

The defendant argues that the jury, having heard this testimony,

would conclude without examining the totality of the evidence

that the defendant had committed an assault and resisted arrest.

See Commonwealth v. Wardsworth, 482 Mass. 454, 477 (2019),

quoting United States v. Meises, 645 F.3d 5, 17 (1st Cir. 2011)

("The usurpation problem that arises when a witness testifies to

5 opinions based on evidence that was also available to the jurors

is compounded when the witness is a government agent whose

testimony -— as here -— is effectively a judgment on the

question of guilt or innocence"). Because there was neither an

objection nor a motion to strike, we review for whether the

testimony, if admitted in error, created a substantial risk of a

miscarriage of justice. See Commonwealth v. Saulnier, 84 Mass.

App. Ct. 603, 607 (2013).

It is generally advisable for a witness not to refer to an

incident as an "assault" when the defendant is on trial for

assault and battery. See Commonwealth v. Duarte, 97 Mass. App.

Ct. 268, 276 (2020). Additionally, it is generally preferable

to avoid the use of the word "resisting" when describing a

defendant's actions during a trial for resisting arrest. See

Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 470 (2006).

However, we discern no risk that the isolated references by the

officers in this case created a substantial risk of a

miscarriage of justice. To begin with, the jury knew that the

defendant was on trial for assault charges and for resisting

arrest. Accordingly, the fact that the police witnesses

testified that they told the defendant at the scene that he was

being arrested on such charges added little, if anything, to the

mix. To be sure, the second officer should have steered away

from offering a conclusory opinion as to what "compliant people"

6 do when being arrested, but the officer's testimony did not

directly offer an opinion on the defendant's guilt. See

Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 458 (2006),

quoting Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 581

(1998) ("Expert testimony must be explanatory, and not

'presented in conclusory form . . . in terms of whether [the]

defendant did or did not commit a particular offense,' to avoid

infringing on the defendant's right to a fair trial"). See also

Canty, 466 Mass. at 543, citing Commonwealth v. MacDonald, 459

Mass. 148, 163 (2011) ("Provided that a witness does not

directly offer an opinion regarding the defendant's guilt or

innocence in a criminal case . . . we have no rule in

Massachusetts prohibiting an opinion that touches on an ultimate

issue"). Moreover, the evidence on the charges was strong, the

defendant's and his mother's countervailing versions of events

were at odds with each other and bore signs of inherent

implausibility, and neutral evidence corroborated the officer's

testimony. In these circumstances, there is little reason to

think the jury would have substituted the officer's testimony

for their own independent assessment of the evidence as a whole.

We consider further that the judge correctly instructed the jury

that the Commonwealth bore the burden to prove beyond a

reasonable doubt the elements of each of the offenses, as well

7 as on the law of self-defense. See Commonwealth v. Dufresne,

489 Mass. 195, 208 (2022).

Finally, the defendant argues that the prosecutor made

improper arguments during closing, resulting in a substantial

risk of a miscarriage of justice. See Commonwealth v. Sanders,

101 Mass. App. Ct. 503, 511 (2022). An error during closing

argument creates a substantial risk of a miscarriage of justice

"if we have a serious doubt whether the result of the trial

might have been different had the error not been made."

Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 91 (2019),

quoting Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). We

have no such doubt here.

First, the defendant argues that the prosecutor improperly

vouched for the police's credibility by stating,

"I mean, you have uniformed police officers, veterans on the force, midday, full uniform. . . . And these people are going to risk their livelihoods by punching the defendant in the nose with absolutely no provocation? Does that make any sense to you whatsoever? And if they're not telling the truth about that, if you found that, how much can you trust the rest of what they say?"

"Improper vouching occurs if 'an attorney expresses a personal

belief in the credibility of a witness, or indicates that he or

she has knowledge independent of the evidence before the jury.'"

Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting

Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). The

prosecutor offered no such personal belief here; instead, he

8 pointed to facts and assumptions that tended to bolster the

credibility of the officers' testimony while undermining the

plausibility of the defendant's countervailing version of

events. Indeed, the prosecutor introduced this portion of his

closing by stating, "[n]ow, [the defendant and his mother] both

kind of share the story, and respectfully it doesn't make any

sense whatsoever." In this sense, the prosecutor's statements

were arguably "within the prosecutor's right of retaliatory

reply" given that defense counsel had argued that the officers

should not be believed during his closing argument. Kee, supra,

quoting Commonwealth v. LeFave, 407 Mass. 927, 939 (1990).

That said, the argument was arguably improper because it

asked the jury to credit the officers' credibility based on an

assumption that police officers will not engage in conduct that

endangers their livelihood. There was no evidence to support

this statement. See Commonwealth v. Zuluaga, 43 Mass. App. Ct.

629, 647-648 (1997). However, the statement was not objected to

and we see no substantial risk of a miscarriage of justice

flowing from it. Among other things, the verdict shows that the

jury were not tempted to credit the officers' testimony

wholesale. See Commonwealth v. Howell, 49 Mass. App. Ct. 42, 48

(2000), quoting Alphas, 430 Mass. at 13 ("[T]he jury's acquittal

of the defendant on three indictments . . . persuades us that

9 the error did not 'materially influence[]' the guilty

verdicts").

The defendant also argues that the prosecutor misstated the

evidence when he stated that the wife "was out on th[e] porch

for ten to twenty minutes, and it's kind of an explanation as to

why she didn't see anything going on at that time." The

defendant argues that this statement is at odds with the wife's

testimony because (a) the wife did not testify to the amount of

time she was on the porch, (b) she heard the police say "F-U" to

the defendant, (c) she heard an officer tell the mother to "shut

up," and (d) she saw the police on top of the defendant "[w]hen

[she] was going up the stairs." The defendant's argument is not

fair to the transcript. To begin with, when asked whether she

was on the porch for ten or twenty minutes, the wife testified

"Probably. Something around there." To be sure, the wife also

testified that she could not tell how long she was on the porch.

But that does not mean that the prosecutor's argument was not

supported by the evidence. In addition, because the

prosecutor's statement was limited to what the wife saw while

she was on the porch, there is no contradiction with the wife's

testimony as to what she heard, or as to what she saw while she

was on the stairs.

The defendant next argues that the prosecutor improperly

disparaged the self-defense claim and wrongly shifted the burden

10 to the defense when he argued that "you can't trust that self-

defense claim." See Commonwealth v. Walters, 485 Mass. 271, 289

(2020). Read in context, however, the statement clearly refers

to the theme that the prosecutor was then developing, which was

that the defendant had not done what was reasonably necessary to

avoid physical contact. For this reason, the prosecutor argued,

the self-defense claim could not be trusted. We see no error.

See Walters, supra, quoting Commonwealth v. Simpson, 434 Mass.

570, 586 (2001) ("The realm of appropriate 'forceful' advocacy

includes commentary on the relative merits of the defendant's

arguments"). Compare Commonwealth v. Gentile, 437 Mass. 569,

581 (2002) (improper for prosecutor to label defense's strategy

of accusing three other people of committing the crime

"despicable").

Finally, the defendant argues that the prosecutor misstated

the law when he told the jury that "an assault and battery is

just [an] intentional touching," and by failing to mention that

the defendant was permitted to use reasonable force to protect

himself if unreasonable or excessive force was used during the

arrest. See Commonwealth v. Ridley, 491 Mass. 321, 328 (2023),

quoting Commonwealth v. Bins, 465 Mass. 348, 367 (2013) ("In

closing argument, '[l]awyers shall not and must not misstate

principles of law'").

11 The fact that the prosecutor did not elaborate on all of

the elements of the offenses and defenses did not amount to a

misstatement of law. To begin with, the prosecutor informed the

jury that the judge would instruct them on the law. In

addition, the prosecutor was permitted to focus his argument on

the aspects of the applicable law to which he wished to draw the

jury's attention in particular. See Commonwealth v. Feroli, 407

Mass. 405, 409 (1990). Moreover, even were we to assume

otherwise, there is no claim that the judge did not properly

instruct the jury. 3 We presume that the jurors followed the

judge's instructions, see Commonwealth v. Anderson, 445 Mass.

195, 214 (2005), and accordingly see no risk of harm flowing

from the fact that the prosecutor did not fully detail the law

in his closing.

Judgments affirmed.

By the Court (Wolohojian, Englander & Brennan, JJ. 4),

Assistant Clerk

Entered: April 3, 2024.

3 The defendant suggests that the judge should have repeated the instructions when answering the jury's targeted questions, but cites to no case imposing such a duty on the judge. To the contrary, "[t]he necessity, extent, and character of supplemental instructions in response to a jury request are matters within a trial judge's discretion" (citation omitted). Commonwealth v. Johnson, 429 Mass. 745, 753 (1999). 4 The panelists are listed in order of seniority.