Following a jury trial, the defendant was convicted of armed assault with intent to murder, assault and battery by means of a dangerous weapon, and armed robbery. This is an appeal from those convictions. The defendant raises three issues on appeal, namely whether (1) the trial judge erred by admitting in evidence two knives found by police officers at the scene of the defendant’s arrest ten weeks after the criminal events, (2) whether the judge erred by personally questioning the victim-witness concerning his ability or inability in the courtroom to identify his assailant, and (3) whether the prosecutor impermissibly vouched for the credibility of the only witness who identified the defendant as the assailant. The Appeals Court reversed the convictions, reasoning that “the cumulative effect of what occurred at trial was potentially so prejudicial to the defendant as to require a new trial.”
For background purposes, we briefly state the facts the jury could have found. Then, as we consider each issue raised by the defendant, we shall recite such additional facts as are especially pertinent to that issue. On the evening of September 4, 1987, Scott Nicholson, a thirty-four year old man, was at a café in East Boston at which he ate dinner and drank twelve bottles of beer. At approximately 11:30 p.m., Nicholson left the café in the company of Veronica Surface, Lori Heil, and a man. They got into Heil’s automobile. The automobile stopped at an abandoned area near the waterfront, and Nicholson, Surface, and the man walked toward the water. The man grabbed Nicholson from behind, held a knife to his throat, and pushed him to the ground. Surface emptied Nicholson’s pockets, and then the man stabbed Nicholson three times in the neck, as a result of which Nicholson was hospitalized.
We come now to the first issue: Did the judge err by admitting in evidence knives found near the defendant at the time of his arrest ten weeks after Nicholson was assaulted? Prior to the presentation of evidence, counsel discussed with
After several witnesses had testified, the prosecutor told the judge that his next witness would be Officer John Mer-curio. Mercurio was one of the arresting officers. The judge repeated what he had said before, that the jury were not to hear the evidence proposed by the prosecutor as bearing on consciousness of guilt. Then the following occurred: The judge: “Now, it is my understanding from you [defense counsel], that you do not want the knives admitted into evidence.” Defense counsel: “That’s right, Your Honor.” The judge: “Okay. But you would have agreed, am I correct, that the District Attorney can say, during the course of the arrest knives were retrieved in the immediate vicinity of the defendant outside the car?” Defense counsel: “That’s right, as long as it is made clear that there were two other people who were outside the car at that point so it was not under the immediate control of the defendant.” The prosecutor: “That may be the defendant’s evidence, Judge. I don’t know that to be my evidence.”
Defense counsel asked the judge to instruct the jury that “they can’t make a logical connection [between the knives at the scene of the arrest and the weapon by which the victim
Officer Mercurio testified, among other things, that on November 19, 1987, which was approximately ten weeks after the stabbing, he and another officer, having received some information about the defendant, went to a parking lot at 434 Border Street in East Boston, where a certain vehicle was parked. According to Mercurio’s testimony, there were three or four persons in the vehicle in the front and back seats, the defendant was in the back seat, and Mercurio asked the defendant to step out of the vehicle and put his hands on it. The prosecutor then asked Mercurio, “And, Officer, when you placed the defendant under arrest outside of the motor vehicle, did you observe any objects in the vicinity of his person? Were there any objects on the ground when you placed him under arrest?” Mercurio answered, “Yes. There were two knives.” Following a question and answer of no import here, the following occurred: The prosecutor: “Now, did you find these two knives on the ground, sir?” The witness: “I did, yes.” The prosecutor: “If I may approach the witness, Your Honor.” The prosecutor: “I show you an object, sir, and ask if you can identify that object.” The witness: “Yes. That’s the — one of the knives that were at the scene on the ground at 434 Border Street.” The prosecutor then offered the knife as an exhibit, defense counsel objected, and the knife was admitted as an exhibit. The officer then testified without objection that a second object he was shown by the prosecutor was the other knife found at 434 Border Street on the ground, and that knife was offered and admitted in evidence without objection. On cross-examination, defense counsel brought out that, at some point, while the vehicle was parked, all the occupants got out of it. There was no evidence that, when the officer first saw the knives on
As the recitation above demonstrates, the jury heard about the knives and saw them, without objection, and one of the two knives marked as exhibits was marked without objection. In those circumstances, even if the one knife that was marked as an exhibit over objection was admitted erroneously, it is difficult to see how the defendant could have been harmed by that error.
In any event, we are satisfied that the judge acted within the limits of his lawful discretion when he admitted in evidence the testimony about the presence of the knives at the scene of the arrest and the knives themselves. “Whether evidence is relevant in any particular instance and whether the evidence is so inflammatory in nature as to outweigh its probative value and thus preclude its admission are questions addressed to the sound discretion of the trial judge. . . . The test of relevancy is ‘a matter on which the opinion of the trial judge will be accepted on review except for palpable error.’ ”
Commonwealth
v.
Booker,
The defendant suggests that the judge admitted the evidence about the knives merely to show the defendant’s bad
Turning to the second issue, our question is whether, by interrogating Nicholson, the victim-witness, concerning his ability to identify his assailant, the judge impermissibly “put his thumb on the scale,” as the defendant asserts he did. Nicholson lost his hearing when he was three years old. He was unable to hear or speak. His testimony was presented through two interpreters. One of the interpreters explained to the jury how the testimony would be presented: “My colleague, Linda Harris, is a deaf person who is a certified interpreter and . . . there will be a three-way conversation between — to interpret his testimony to the court. A question will be asked by an attorney. As an interpreter who is hearing, I will hear the question and interpret that to my colleague, Linda who is deaf. She will then, in turn, interpret that to the witness who is testifying. When the reverse happens, the witness will make a statement, my colleague, Linda, will interpret that to me, and I will voice for the record and the court his answer, but all of the interpretation is his own words. It is not the interpreter answering for him. It
On direct examination, Nicholson testified that, on the evening he was attacked, he did not get a good look at his assailant. The prosecutor did not ask for an in-court identification. On cross-examination, defense counsel asked the witness “to look around the courtroom . . . and tell me, do you see the man who robbed you and stabbed you on September 4, 1987?” Nicholson answered, “No,” and the cross-examination ended. On redirect, the prosecutor asked, “Is your answer that the man who stabbed you is not here or is your answer that you don’t remember the man who stabbed you?” Over defense counsel’s objection, the witness replied, “There’s two guys that were walking out in the hallway. He didn’t look like that.” The prosecutor asked, “When you looked around inside this courtroom, Mr. Nicholson, did you recognize the person who stabbed you?” Over objection, the witness said, “No. I wanted to see who it was that did it to me, yes.” Then the judge inquired, “Mr. Nicholson, are you saying the person who stabbed you is definitely not in this courtroom?” The witness’s answer was, “I saw the guy three times in the bar that night but I don’t think he is here.” Then, in response to a question put by the prosecutor, the witness testified that he thought he would recognize the assailant if he were in the courtroom.
After a further question and the sustaining of an objection, a side bar conference took place which we repeat in relevant part. The judge observed, “The problem is, there was apparently an incident outside this courtroom, out in the corridor with these two gentlemen who are sitting in the back row. As I read one of his answers, I’m not sure if he is referring to the people inside the enclosure or outside the enclosure.” The prosecutor replied, “My feeling is that he is confused which is why I would specifically like to ask him, are you positively
The judge addressed the witness as follows: The judge: “Mr. Nicholson, I would like you to look at this young man sitting next to the attorney, Ms. Donovan, the young man sitting here with the white pullover jersey at this table, and I would ask you this, are you able to say that he is not the man who stabbed you, he is the man who stabbed you, or you do not know or anything else you would like to say.” The witness: “My mind is blank — let me check.” The judge: “Do you understand, sir, the question that I am asking you? I am asking you whether or not you can say he is the man, he is not the man or you cannot say whether or not he is or is not the man?” The witness: “He looks similar. He looks familiar.” The judge: “Well, that doesn’t answer my question, Mr. Nicholson. Can you say he is the man, he is not the man or you cannot say whether he is [or] not?” The witness: “Yes, I think so.” The judge: “I will ask the question again to you, Mr. Nicholson. Can you say he is, he is not, or whether you are not sure?” The witness: “Yes, I think he is.” The judge: “What’s the answer? I think he is?” The
The judge gave both counsel an opportunity to explore the subject further. The prosecutor had no further questions. Defense counsel asked Nicholson, “[Y]ou are not sure whether this is the man who robbed you or stabbed you, is that right,” and Nicholson answered, “Yes, I’m not sure.”
It is true that “the effect on the jury of whatever a judge says or does may be significant,”
Commonwealth
v.
Fitzgerald,
We are also satisfied that there is no merit to the defendant’s argument, presented on appeal for the first time, that the judge erred by instructing the jury that “both counsel in their arguments have conceded that the victim has not made an identification of the defendant as the person who allegedly assaulted and robbed him on the day in question. On the basis of his evidence, at best, he is saying he is unsure.” Ordinarily, a judge should not usurp the jury’s function by instructing them with respect to how particular testimony should be construed. Here, however, despite defense counsel’s emphasis in her closing argument on the victim’s unequivocal answer, “no,” to her question whether the assailant was in the courtroom, the judge was not put on notice that there was any real question concerning whether the victim had finally adhered to the position that he was unsure whether the defendant was the person who had attacked him. Indeed, the failure of counsel to object to the instruction tends to confirm that there was no question about how the witness had left it with the jury.
The last issue to be addressed is whether the prosecutor impermissibly vouched for the credibility of either Lori Heil, the only witness who identified the defendant as the assailant, or of the victim, Nicholson. During Heil’s direct examination, the prosecutor elicited testimony that Heil was then under indictment on three charges stemming from the robbery and stabbing of Nicholson, and that she had agreed with the Commonwealth “to testify truthfully” against the defendant in return for which the Commonwealth would
Specifically, the defendant points to the following language in the prosecutor’s summation: “Lori Heil, when she told you that it was the defendant and Veronica Surface that left her car on that evening, Lori Heil told you the truth. Lori Heil told you the truth, and how do you tell if someone is telling the truth? None of you ever met Lori Heil before this trial began. You don’t know what she is all about. How do you measure if someone is telling the truth from that witness stand? Well, one way is to look at the story that you know is true, Scott Nicholson’s story. Look at his story. How does it match up? How does it dovetail with Lori Heil’s story? And if they match up, and if they dovetail and fit together, isn’t that another way of Scott Nicholson saying, well, hey, they match up, Lori Heil is telling you the truth, specifically with respect to the identifications in this case and that’s the crux of this whole case.” Immediately following that quoted portion of his argument, the prosecutor attempted to show the “matching” or “dovetailing” of Heil’s and Nicholson’s testimony, and he attempted to explain away any divergence in their accounts. Then followed another portion of the argument the defendant characterizes as impermissible vouching: “What motive? What motive did Lori Heil have to lie against this defendant? The only evidence you heard is that the defendant was an acquaintance of hers for approximately two months. There is no evidence at all why she would have any single reason to frame this defendant, if it is a frame-up.
The prosecutor had earlier argued to the jury that “there is no evidence at all in this case that Scott Nicholson lied.” The defendant directs our attention to the argument that came next: “Scott Nicholson told you the truth. . . . Scott Nicholson was telling you the truth when he said that the man took that knife, after they had taken his money, and that that man then got on top of Scott Nicholson and stuck the knife into his throat, not once, not twice, but three times, and then the man went back to the car.”
Also, the defendant asserts that elsewhere in his argument, the prosecutor argued that Nicholson • “told you the truth” and “didn’t lie.” We insert the context in which those statements were made. The prosector argued that “[i]t is no mystery” why Nicholson could not identify the man who attacked him, but could identify Veronica Surface. He argued: “Scott Nicholson told you, he told you the truth, he is an alcoholic. He drank at least twelve beers that night. Scott Nicholson is a man, he has some severe disabilities, but a man who is an alcoholic, who has twelve beers, who goes to that bar that he had never gone to before. What does he go there for? To watch television, to have dinner, he goes to talk to two women. He goes to talk to women. Scott Nicholson is a man and what did he do at the bar? In that dimly lit bar, what did he do? Was he paying attention to the defendant who he had never met before? Of course not. He was paying attention to the two young women that he had met there. He was trying to teach sign language, speak sign language with them, having some drinks with them.
“It was Veronica Surface who kept taking his hand and eventually took him out of the bar. Is that so unreasonable to believe? Scott Nicholson was paying attention to the two women. He told you he wasn’t paying attention to the defendant. That’s why Scott Nicholson was unsure if this is the man that stabbed him. Scott Nicholson was honest when he told you he is unsure. He didn’t lie. You saw him struggle on the stand.”
Judgments affirmed.
Notes
It is arguable that defense counsel’s statement, “Well, I have no objection to you asking the question, Your Honor,” was only an agreement that, if the question were to be asked, which it should not be, it was all right for the judge, rather than the prosecutor, to ask it.