Heard: December 14, 2018.
Complaint received and sworn to in the Dorchester Division of
the Boston Municipal Court Department on July 28, 2016. The
case was tried before James M. Stanton, J.
Meredith Shih for the defendant.
Bugbee (Colby M. Tilley, Assistant District Attorney, also
present) for the Commonwealth.
Present: Meade, Agnes, & Englander, JJ.
It is a
cardinal rule of evidence that a witness cannot be asked to
give an opinion about whether another witness should be
believed. In this case that rule was violated when the
defendant was asked if his accuser was a liar. Such an error
may be so significant that a new trial is required. But not
all such errors have the same impact on a trial The test for
prejudicial error requires that we consider the error in the
context of the evidence as a whole An error will not be
considered prejudicial if it "did not influence the
jury, or had but very slight effect" Commonwealth v
Peruzzi, 15 Mass. App Ct 437, 445 (1983), quoting
Kotteakos v. United States, 328 U.S. 750, 764 (1946)
When, as in this case, we are confident that there is no
reasonable possibility that the error contributed to the
verdict, we affirm Commonwealth v. Alphas, 430 Mass.
8, 23 (1999) (Greaney, J, concurring).
defendant Mario Sanchez's direct appeal from his 2017
convictions, after a trial by jury, of assault by means of a
dangerous weapon in violation of G. L. c. 265, § 15B
(b), and an attempt to commit a crime, namely larceny from a
person, in violation of G. L. c. 274, § 6. The defendant
raises three issues on appeal: first, whether the judge erred
in overruling his objections to certain questions put to him
by the prosecutor; second, whether the judge erred in
admitting the contents of an unredacted 911 telephone call
made by the victim; and third, whether certain statements
made by the prosecutor in his closing argument were improper.
For the reasons that follow, we affirm.
jury were warranted in finding the following
facts. On the morning of July 28, 2016, at
approximately 5:45 A.M., the victim was walking with her two
young daughters, ages eight and five, in the Hyde Park
section of Boston. She was following her usual routine by
bringing her children to her aunt, who provided daycare so
that the victim could then take public transportation in
order to arrive to work in Quincy by 6:45 A.M. The victim and
her children walked past a man and then heard him say,
"Excuse me?" She turned around and said,
"Yes." The man, later identified as the defendant,
asked, "Can you tell me where Geneva Ave. is?" The
defendant then pulled out a "big silver gun with a tan
bottom" and told the victim "to give him what [she]
had." The victim identified an item as the
"gun" pointed at her by the defendant. It was
"a replica toy gun," and was later received in
evidence. The defendant was very close to her -- "He was
in my face." After shielding her children, she
"told him that there was nothing here for him, that
he's being a coward," and that he should leave. The
defendant responded but she could not understand what he
said. He then struck himself on the head with the gun a few
times, mumbled something, and walked away.
victim made a 911 call to the Boston police and was still
talking with the 911 operator when she arrived at her
aunt's house. She remained on the line until police
officers arrived. After leaving her children with her aunt
and giving the officers a description of her assailant, she
left for the next leg of her trip to work. The victim
identified an audio recording of her 911 call, and that audio
recording was played for the jury. In her 911 call, the victim
provided the police with the location of the incident, the
basic facts as described above, the direction in which her
assailant was walking after the incident, and a detailed
description of the man who pulled the gun on her: a Hispanic
male, thin build, about five feet, two inches tall, wearing
blue jeans, a white T-shirt, and "a black Scully,
" with a beauty mark or mole on his right
cheek, a goatee, and carrying a Corona beer bottle in his
response to the victim's 911 call, at approximately 6
A.M., two Boston Police Officers were dispatched to the area
of Draper and Longfellow Streets. They were operating an
unmarked police cruiser and were dressed in civilian clothes.
Because the description they were given by the dispatcher was
limited (a man with a gun), they responded to the house where
the victim had dropped off her children. There they met the
victim who repeated the detailed description she had given in
her 911 call. The officers returned to the area where the
incident occurred, and as they turned right onto Ditson
Street from Arcadia Park, they saw a Hispanic male wearing a
black knit hat, blue jeans, and a white T-shirt. The man
appeared to be unsteady on his feet. They exited their
cruiser, drew their weapons, and asked the man to show his
hands. The man, later identified as the defendant, did not
comply, and instead was reaching for something as the
officers put him to the ground. A patfrisk revealed a replica
firearm tucked inside his briefs, which matched the
description given by the victim, and a Corona beer bottle in
his right pocket. When he was handcuffed, the defendant
stated in English, "[I]s this about that lady and her
showup identification procedure was arranged. Another police
officer picked up the victim at the train station as she was
on her way to work. He drove through Dorchester and
eventually came through Arcadia Park. The victim was seated
in the rear seat of the cruiser. The police officers who were
with the defendant had relocated to a different position.
When the police cruiser in which the victim was seated turned
the corner to the ...