Commonwealth v. Kevin S. Orisma. ( 2023 )

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-853
COMMONWEALTH
vs.
KEVIN S. ORISMA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from his conviction for assault and battery, the
defendant argues that the judge erred in admitting testimony
about the victim's military service and disability, and that a
State police trooper's testimony that a mark on the victim's
chin "looked like somebody hit him" was inadmissible opinion
testimony. Concluding that the judge did not abuse his broad
discretion in admitting both categories of testimony, we affirm.1
Background. We summarize the evidence that the jury could
have found. On the morning of May 27, 2016, the victim left an
appointment with a posttraumatic stress disorder (PTSD)
counselor at a Veterans Administration (VA) hospital in Boston.
1 Our review of the case is hampered by the Commonwealth's
failure to file a brief. See Commonwealth v. Mazzone, 55 Mass.
App. Ct. 345, 346 n.1 (2002).
The victim had served in the military in Iraq, where he had been
injured in an explosion that caused burns, hearing loss, and
nerve damage in his legs and feet. He had a handicap placard
that was hanging from the rear-view mirror of his car.
As the victim was driving westbound on Route 90, in the
right lane, the driver of a Honda was trying to merge onto Route
90 from an onramp, but the victim drove past rather than allow
the Honda to go ahead of his car. The driver of the Honda
pulled behind the victim's car, sped up, swerved around a truck
in the second lane, pulled into the right lane ahead of the
victim's car, and then braked suddenly. The occupants of the
Honda threw trash out of windows on both sides onto the victim's
car. The victim telephoned the State police.
When the victim arrived at the Allston-Brighton toll plaza,
the Honda was stopped there some distance before the toll booth.
The defendant got out of the Honda and came up to the victim's
car, angrily screaming racial epithets. The victim, who was on
the telephone, said, "Say it to the trooper." A woman got out
of the passenger side of the Honda. To the toll collector, the
defendant said, "He's a fucking pussy."
State police Trooper Randall Roach arrived. The victim,
who was visibly shaking, said that the defendant had yelled at
him, thrown trash at his car, and "tried to punch him, hitting
his shoulder." From the toll collector's video, the trooper
2
obtained a description of the Honda, including its registration
number.
The next day, Trooper Roach went to the home of the Honda's
owner, who was the father of the woman passenger; she was the
defendant's girlfriend. As a result of that visit, the
defendant telephoned Trooper Roach. The defendant said that
when he pulled onto Route 90 near Copley Square, the victim
applied his brakes, and that "pissed [the defendant] off." Then
the victim "gave . . . the finger" to the defendant, which
"pissed him off even more." The defendant told the trooper that
he got out of his car at the tollbooth, exchanged words with the
victim, and then drove away.
The defendant and his girlfriend both testified that the
victim was the aggressor. They each testified that, as they
tried to merge onto Route 90 in the Honda, the victim sped up
and cut them off. The defendant beeped the Honda's horn, and
the victim slammed on his brakes, causing the defendant to have
to swerve around the victim's car. Both the defendant and the
girlfriend testified that the defendant and the victim exchanged
words, but it was the victim who used racial epithets. They
each testified that they did not recall throwing anything out of
the Honda at the victim's car. They each testified that when
their Honda reached the tollbooth, the victim pulled up behind
them, and the defendant got out of the Honda. The girlfriend
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testified that the defendant walked towards the victim's car,
but never got close enough to touch the victim; the defendant
testified that he stood near the bumper of the Honda yelling at
the victim. They each testified that the girlfriend got out and
yelled at the defendant to get back into the Honda, and he
complied. The defendant remembered saying something to the
tollbooth worker and driving away. The defendant testified that
there was no physical contact between him and the victim.
The jury convicted the defendant of assault and battery.2
This appeal ensued.
Discussion. 1. Evidence of victim's disability and
military service. The defendant moved in limine to preclude
evidence that the victim "ha[d] a handicapped identification
card hanging from his rear view mirror or that [he] is disabled
or is a disabled veteran or suffers from PTSD and/or
neuropathy." The judge denied the motion, and the defendant
argues that the denial was error. He contends that the
testimony went beyond necessary witness background information
and improperly bolstered the victim's credibility. The
defendant further argues that the testimony about the victim's
military service, disability, and handicap placard was
2 The complaint originally charged assault and battery on a
disabled person causing injury, G. L. c. 265, § 13K (b), but
prior to trial the Commonwealth reduced the charge to assault
and battery.
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irrelevant to the charges and prejudiced him by appealing to the
sympathy of the jury.
"All evidence must meet a threshold test of relevancy such
that it has a rational tendency to prove an issue in the case"
(quotations and citation omitted). Commonwealth v. Yat Fung Ng,
491 Mass. 247, 264 (2023). "A judge has broad discretion in
making evidentiary rulings." Commonwealth v. Martinez, 476
Mass. 186, 190 (2017). See also L.L. v. Commonwealth, 470 Mass.
169, 185 n.27 (2014). "When prejudice . . . is possible, the
judge must weigh the probative value of the evidence against
such danger." Commonwealth v. Spencer, 465 Mass. 32, 51 n.22
(2013). See also Mass. G. Evid. § 403 (2022). "The weighing of
the prejudicial effect and probative value of evidence is within
the sound discretion of the trial judge, the exercise of which
we will not overturn unless we find palpable error."
Commonwealth v. Bonds, 445 Mass. 821, 831 (2006).
The judge could conclude that the victim's testimony that
he was a disabled veteran who had just left an appointment at a
VA hospital was relevant as basic background information to
present as full a picture as possible to the jury as to who the
victim was and why he was driving on Route 90 at that time. See
Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982) ("The
prosecution [is] entitled to present as full a picture as
possible of the events surrounding the incident itself").
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Further, evidence of the victim's disability was relevant in
evaluating evidence before the jury -- for example, whether the
victim drove aggressively and initiated the confrontation. See
Mass. G. Evid. § 401 (2022). It was also within the judge's
discretion to conclude that the evidence of the handicap placard
hanging from the rear-view mirror of the victim's car was
relevant to other issues presented by the evidence -- for
example, the defendant's state of mind as to whether he could
approach the victim and accost him without fear of reprisal.
Contrary to the defendant's argument, while the victim's
military status and disability were relevant as background
information to consider in determining his credibility, the
prosecutor did not impermissibly use this testimony to "bolster"
the victim's credibility. During her closing argument, the
prosecutor did not even mention the victim's disability, his
handicap placard, or his military status. Contrast Commonwealth
v. McCoy, 59 Mass. App. Ct. 284, 295-297 (2003) (prosecutor's
closing argument improperly urged jurors to trust police
witnesses "who had long protected those streets").
The defendant characterizes the victim's military status
and disability as prejudicial because it painted the victim in a
sympathetic light and improperly appealed to the jurors'
emotions. However, this line of testimony "cuts both ways."
Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 258 (1999).
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Although the victim's military service may have portrayed him
positively to some jurors, the evidence of the disability to his
feet might be seen to corroborate the defendant's testimony that
the victim braked suddenly, and the PTSD diagnosis might be seen
to corroborate the defendant's testimony that the victim behaved
aggressively. Cf. Yat Fung Ng, 491 Mass. at 265-266 & n.18
(evidence of defendant's military record as sharpshooter showing
prowess with firearms was balanced by evidence of his honorable
discharge and medals awarded).
The judge did not abuse his discretion in admitting
evidence of the victim's disability and military history.
2. Trooper's testimony describing injury to victim. The
defendant also argues that the judge erred in refusing to strike
the trooper's testimony that a mark on the victim's chin "looked
like somebody hit him." The defendant contends that the
trooper's testimony was an improper lay opinion and went to the
ultimate issue in the case.
After relating the victim's statement that the defendant
had punched the victim, the trooper testified:
TROOPER ROACH: "I think I did notice a mark on his chin.
But I'm not a doctor. I didn't know if it was a nick, or a
pimple, or anything. I didn't make an assumption. But it
looked like -- looked like somebody hit him."
DEFENSE COUNSEL: "Motion to strike."
THE COURT: "No. I'm going to allow that."
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The trooper's testimony that the mark on the victim's chin
"looked like somebody hit him" was lay testimony based on
observation that the judge could admit in his discretion. See
Commonwealth v. Burgess, 450 Mass. 422, 436 n.8 (2008)
("experienced police officer, or possibly even a lay witness,
could opine whether a scene was suggestive of a struggle, just
as a lay witness may testify regarding another person's
sobriety"). It was not an opinion based on "scientific,
technical, or other specialized knowledge," necessitating an
expert. Cf. Commonwealth v. Dobbins, 96 Mass. App. Ct. 593, 597
(2019) (grandmother's testimony about victim's learning
disability was "statement of observed fact," not lay opinion).
See also Mass. G. Evid. § 701 (c) (2022).
Nor did the trooper's testimony express an opinion on the
ultimate issue -- that the defendant punched the victim. The
trooper's testimony that the mark on the victim's chin "looked
like somebody hit him" did not identify the defendant as the
culprit. While "[i]t is an opinion that does help to prove the
ultimate issue, . . . it is not the witness's opinion concerning
who is the perpetrator." Commonwealth v. Cortez, 438 Mass. 123,
129 (2002).
Further, even if the trooper's statement were deemed
improper, it was so equivocal that its prejudicial impact was
minimal. See Commonwealth v. Melendez, 490 Mass. 648, 664
8
(2022). See also Commonwealth v. Colon, 49 Mass. App. Ct. 289,
293 (2000). The trooper prefaced his statement that it "looked
like somebody hit him" by conceding that he was not a doctor and
that the mark could have been a result of something else, such
as a nick or a pimple.
The judge did not abuse his discretion in denying the
defendant's motion to strike the trooper's testimony that "it
looked like somebody hit [the victim]."
Judgment affirmed.
By the Court (Englander,
Grant & Brennan, JJ.3),
Clerk
Entered: February 28, 2023.
3 The panelists are listed in order of seniority.
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