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Commonwealth v. Sanchez

Appeals Court of Massachusetts, Suffolk

September 5, 2019


          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.

          Tucker Bugbee (Colby M. Tilley, Assistant District Attorney, also present) for the Commonwealth.

          Present: Meade, Agnes, & Englander, JJ.

          AGNES, J.

         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).


         This is 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.


         The jury were warranted in finding the following facts.[1] 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.

         The 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.[2] 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, "[3] with a beauty mark or mole on his right cheek, a goatee, and carrying a Corona beer bottle in his pocket.

         In 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 kid."[4]

         A showup identification procedure was arranged.[5] 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 ...

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