Commonwealth v. Tia Corry.

• Court: Massachusetts Appeals Court
• Decided: April 16, 2025
• Docket: 23-P-0913
• Status: Unpublished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

23-P-913

COMMONWEALTH

vs.

TIA CORRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Tia Corry, was convicted of assault and battery.1 On

appeal, the defendant argues that the Commonwealth failed to

present sufficient evidence to show that the assault and battery

occurred, and that the prosecutor's misstatements during direct

examination of a witness and closing argument created a

substantial risk of a miscarriage of justice. We affirm.

Background. The jury could have found the following facts.

1Prior to the presentation of evidence, the judge dismissed for lack of prosecution a count alleging assault and battery against a different victim. The defendant successfully moved for required findings of not guilty on charges of trespass, disorderly conduct, resisting arrest, and disturbing the peace. 1. The Commonwealth's case. On July 31, 2019, at

approximately 3 P.M., the defendant arrived at the emergency

room at Brockton Hospital with complaints of chest pain, nausea,

and vomiting. While receiving treatment, she suffered two brief

seizures and was admitted to the hospital's critical care unit

for further monitoring. Throughout her stay in both the

emergency room and the critical care unit, the defendant

received a series of medications to alleviate her symptoms,

including Ativan, morphine, fentanyl, and hydromorphone.2

The next day, at around 7:30 P.M., the defendant's heart

rate rose to above 180 beats per minute, triggering an alarm at

the nurse's station. A nurse working in the critical care unit,

responded to the alarm and approached the defendant's hospital

room. When the nurse entered the room, he asked if the

defendant was "okay" and directed her to get back into bed.

According to the nurse, the defendant then shouted, "get the

fuck out of my room," pushed the nurse (hereinafter, victim) in

the chest with both hands, and slammed the door to the room

While it may be concerning that this case was charged and 2

prosecuted given the defendant's medical issues, "judicial disagreement with the Commonwealth's election to prosecute . . . forms no permissible basis for judicial action." Commonwealth v. Sattelmair, 55 Mass. App. Ct. 384, 388 (2002). See Commonwealth v. Manning, 75 Mass. App. Ct. 829, 832 (2009) (art. 30 does not "'permit judges to substitute their judgment as to whom and what crimes to prosecute, for the judgment of those who are constitutionally charged with that duty,' namely, the prosecution" [citation omitted]).

2 closed. The victim received two scratches on his chest that

took about a week to heal. After the encounter, the defendant

was screaming in her room that she had been assaulted and

touched by a male nurse.3

Brockton police Officer David Santos was dispatched to the

hospital. When exiting the elevator to the critical care unit,

the officer heard the defendant yelling for people to "get the

f . . . out of my room" and "he touched my pussy." The officer

then entered the exam room where a doctor was attempting to

remove an IV from the defendant's arm and told her that she was

"free to go." The defendant was on her telephone video chatting

with someone. The officer asked the defendant to leave the room

and she refused. The officer placed the defendant under arrest

for trespass. The officer and another police officer attempted

to handcuff her but the defendant laid on her arms. Both

officers and two hospital security guards could not secure her

arms to arrest her. The testifying officer subdued her with a

taser in order to gain compliance.

The victim testified that Ativan is a benzodiazepine (an

anti-anxiety medication). He also testified that morphine,

3 The defendant was not one of the victim's assigned patients that night. He only responded to the room on an emergency basis. When police later tried to speak to the defendant about her allegation of sexual assault, she refused to elaborate.

3 fentanyl, and hydromorphone are all forms of opiate pain

medications, and that Ativan may have some significant side

effects including confusion, and in some cases, hallucinations.4

2. The defendant's case. The defendant did not call any

witnesses. She introduced her hospital records.

Discussion. 1. Motions for required finding of not

guilty. At the close of the Commonwealth's case-in-chief and at

the close of all the evidence, the defendant filed motions for a

required finding of not guilty on the assault and battery

charge, which were denied. In evaluating the denial of a motion

for a required finding of not guilty at the close of the

Commonwealth's evidence, we view the evidence in the light most

favorable to the Commonwealth to determine whether any "rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt" (citation omitted).

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). In

4 The defendant suggests in her brief that the transcript of the victim's testimony contained an error by mistakenly indicating that another side effect of Ativan is "a correction," rather than "aggression." The Commonwealth in response does not credit the victim as testifying "aggression" as a side effect of Ativan. We are "bound by the record as [we] receive[] it, the traditional rule being that errors in the record must be corrected before argument, normally in the trial court under the procedure set forth in Mass. R. A. P. 8 (e), as amended, 378 Mass. 934 (1979)" (citations omitted). Commonwealth v. James, 30 Mass. App. Ct. 490, 494 n.6 (1991). Absent a proper motion, we take the transcript as we find it. Given the testimony that Ativan may cause confusion and hallucinations, this is not material to the result here.

4 evaluating such a motion filed at the close of all the evidence,

we "consider the state of the evidence . . . to determine

whether the Commonwealth's position as to proof deteriorated

after it closed its case." Commonwealth v. Semedo, 456 Mass. 1,

8 (2010), quoting Commonwealth v. Sheline, 391 Mass. 279, 283

(1984).

Viewed in a light most favorable to the Commonwealth, the

evidence in this case was sufficient to prove assault and

battery on the nurse victim. "[A]ssault and battery is the

intentional and unjustified use of force upon the person of

another, however slight." Commonwealth v. McCan, 277 Mass. 199,

203 (1931). The victim testified that when he entered the

hospital room, the defendant yelled for him to leave, pushed

him, and slammed the door. He also stated that the

confrontation resulted in lacerations on his chest that lasted

for about a week. In sum, the victim's testimony went directly

toward proving that the defendant intentionally and

unjustifiably touched him, see Commonwealth v. Travis, 408 Mass.

1, 8 (1990) ("Offensive physical contact, such as a push . . .,

undertaken without consent, constitutes a battery in the

Commonwealth"), and is sufficient evidence to prove assault and

battery beyond a reasonable doubt, see Commonwealth v. Santos,

100 Mass. App. 1, 6 (2021) (a "victim's testimony alone,

5 believed . . . by the jury, [can] suffice[] to support the

defendant's convictions").

The Commonwealth's case did not deteriorate after the

defendant introduced her medical records. The defendant argues

that either the victim sexually assaulted the defendant or her

belief that she had been sexually assaulted was reasonably

mistaken in light of the medicines that she had been

administered. For purposes of a motion for a required finding,

we resolve all credibility issues in favor of the Commonwealth.

Commonwealth v. Platt, 440 Mass. 396, 401 (2003). Thus, we

credit the victim's testimony that he did not assault the

defendant. As for the defendant's belief she had been sexually

assaulted, "[o]nce self-defense is put in issue, the

Commonwealth must prove that the defendant did not act in self-

defense." Commonwealth v. Kamishlian, 21 Mass. App. Ct. 931,

932 (1985). Specifically,

"the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant did not act in self- defense, by establishing that at least one of the three factors did not exist (i.e., that the defendant did not have reasonable concern for [her] safety, that [she] did not use all reasonable means to avoid physical combat, or that the force that was used was greater than necessary in all the circumstances of the case)."

Commonwealth v. King, 460 Mass. 80, 83 (2011), citing

Commonwealth v. Glacken, 451 Mass. 163, 167 (2008). Moreover,

"[i]f the defendant's apprehension of grievous bodily harm or

6 death, though mistaken, was reasonable, [her] actions in self-

defense may be justifiable." Commonwealth v. Pike, 428 Mass.

393, 396 (1998).

The core of the defendant's self-defense claim relies on

the assertion that she had a reasonable but mistaken belief that

her personal safety was in danger. Specifically, the stress of

her health condition and the numerous medications that she was

administered over the course of her treatment at the hospital

contributed to her mistaken belief and ultimate decision to push

the victim. However, as the Commonwealth proved in its case,

this was not enough to show that the defendant had a reasonable

concern for her personal safety. There was no evidence that the

defendant's health episode or medication caused her to

experience a mental lapse that would lead to such a mistaken

belief. The victim's testimony that the medications that the

defendant was administered during her stay at the hospital could

cause side effects such as mood swings, confusion, and

hallucinations, went to the weight of the evidence rather than

providing conclusive proof of the defendant's mistaken belief.

This was not deterioration that required a finding of not

guilty. See Commonwealth v. Nhut Huynh, 452 Mass. 481, 485

(2008) (for purposes of motion for required finding,

deterioration occurs "if, after the defendant's case, the

Commonwealth's prima facie case has been shown to be 'incredible

7 or conclusively incorrect,' . . . . Deterioration does not occur

simply because the defendant presented evidence that

contradicted the Commonwealth's case").

2. Prosecutor's misstatements. a. The defendant argues

that the prosecutor erred in referring to the defendant's push

as an "assault and battery" during his direct examination of the

victim.5 As the defendant did not object to this statement at

trial, our review is limited to whether any alleged error

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Leary, 92 Mass. App. Ct. 332, 339 (2017).

The Commonwealth should not have used the conclusory phrase

"assault and battery" when questioning the witness when the

defendant was on trial for that exact charge. See Commonwealth

v. Duarte, 97 Mass. App. Ct. 268, 275-276 (2020) (noting that it

is "regrettable" that both prosecutor and witnesses used term

"assault" when referring to alleged incident where defendant was

on trial for assault and battery). However, here, this lone

mention does not rise to the level of a substantial risk of a

miscarriage of justice. It was not disputed here whether the

defendant pushed the victim. The issue was whether she did so

in self-defense or based on a mistaken belief. Moreover, the

5 Specifically, the prosecutor asked the victim, "You mentioned that you went to the emergency room that evening as a result of the assault and battery; is that correct?"

8 phrase was used in a question that did not solicit the victim's

opinion. The judge also instructed the jury on this issue,

stating that "[a] question put to a witness is never evidence."

See Commonwealth v. Dufresne, 489 Mass. 195, 208 (2022) (judge's

instructions are presumed to be followed by jury).

We also conclude that the defendant was not deprived of

effective assistance of trial counsel by counsel's failure to

object when the prosecutor referred to "assault and battery" in

questioning the victim. "[W]hen a defendant alleges that his

failure to preserve an issue for appeal stems from ineffective

assistance of counsel, as this defendant has, we do not evaluate

the ineffectiveness claim separately." Commonwealth v.

Randolph, 438 Mass. 290, 296 (2002). Instead, "ineffectiveness

is presumed if the attorney's omission created a substantial

risk, and disregarded if it did not." Id. See Commonwealth v.

Curtis, 417 Mass. 619, 624 n.4 (1994) (explaining that "if an

omission of counsel does not present a substantial risk of a

miscarriage of justice . . . there is no basis for an

ineffective assistance of counsel claim").

b. The defendant further contends that during closing

argument, the prosecutor misstated that the victim cleaned his

wounds with alcohol, rather than with soap and water as he

testified. Defense counsel did not object. An error made

during closing argument creates a substantial risk of a

9 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.

A prosecutor should not "misstate the evidence or refer to

facts not in evidence." Commonwealth v. Kozec, 399 Mass. 514,

516 (1987). However, the prosecutor's erroneous reference to

how the victim cleaned his wound in this case was not material.

Moreover, any erroneous statement by the prosecutor was cured by

the judge's instructions that closing arguments are not evidence

and that "[t]he attorneys are not permitted to refer to facts

that are not in evidence in this case. If based on your memory

and understanding of the evidence a lawyer does this, you should

disregard that comment." These instructions were sufficient to

cure any prejudice, however slight, from the prosecutor's

erroneous statement. Silvelo, 96 Mass. App. Ct. at 91. Given

the immaterial nature of the misstatement, lack of any

objection, and instructions of the judge, the prosecutor's error

did not result in a "substantial risk of a miscarriage of

justice." Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

c. Finally, the defendant contends that the prosecutor

improperly played to the jury's sympathy by saying that the

victim was "doing his job" and "responded to his duty by going

10 to room 12" when responding to the alarm at the desk. These

statements are not an example of "obscur[ing] the clarity with

which the jury would look at the evidence," Commonwealth v.

Niemic, 483 Mass. 571, 591 (2019), and did not result in a

substantial risk of a miscarriage of justice.

Judgment affirmed.

By the Court (Henry, Desmond & Englander, JJ.6),

Clerk

Entered: April 16, 2025.

6 The panelists are listed in order of seniority.