Commonwealth v. Mendi Perry. ( 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-386
COMMONWEALTH
vs.
MENDI PERRY
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A grand jury returned murder indictments against the
defendant, Mendi Perry, and her codefendant, Scott Rodrigues, in
connection with the October 1, 2017, killing of Dennis Cousineau
in Fall River. Evidence at trial showed that Rodrigues struck
Cousineau, knocked him to the ground, and continued to beat him.
The defendant kicked Cousineau when he was down. Cousineau died
days later. A jury found Rodrigues guilty of murder in the
second degree and found the defendant guilty of involuntary
manslaughter (G. L. c. 265, § 13). On appeal, the defendant
claims that the verdict was not supported by sufficient
evidence, the judge erred by admitting prior consistent
statements on redirect examination of a witness, and the
prosecutor misstated facts. We affirm.
Sufficiency of evidence. In reviewing a claim that the
verdict was not supported by sufficient evidence, the "question
is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319
(1979). "Because Massachusetts has not defined manslaughter by
statute, its elements are derived from the common law."
Commonwealth v. Levesque, 436 Mass. 443, 447 (2002).
"Involuntary manslaughter is an unlawful homicide
unintentionally caused by an act which constitutes such a
disregard of probable harmful consequences to another as to
amount to wanton or reckless conduct" (citation omitted).
Commonwealth v. Ridley, 491 Mass. 321, 330 (2023). Wanton or
reckless conduct "involves a high degree of likelihood that
substantial harm will result to another." Commonwealth v.
Welansky, 316 Mass. 383, 399 (1944).
Viewed in a light most favorable to the Commonwealth, the
evidence showed that the defendant accompanied Rodrigues when he
confronted the victim on the street at about 11 P.M. Rodrigues
yelled at the victim, who was about sixty-two or sixty-three
years old and heavily intoxicated. Rodrigues screamed at the
victim, "I told you not to fuck with me. I told you don't fuck
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with me." The defendant joined in the yelling and warned,
"Don't fuck with us." Rodrigues then struck the victim, knocked
him to the ground, and rendered him unconscious. Rodrigues
continued "pounding, pounding, pounding on him," and repeatedly
screamed, "I told you not to fuck with me." A witness called
out from a nearby apartment, "Hey, hey, he's out. Coward, you
[fucking] coward." Both the defendant and Rodrigues responded,
"Mind your fucking business." The defendant "kicked [the
victim] in the head," and said, "I told you not to fuck with
me." The defendant and Rodrigues left the scene and
subsequently told a police officer that they were inside an
apartment, heard an argument, went to investigate, and found the
victim. Days later, the defendant died from blunt force trauma
to the head. Through photo arrays, eyewitnesses identified the
defendant and Rodrigues as the perpetrators, and the victim's
blood matched blood found on Rodrigues's footwear.
Contrary to the defendant's claim, this evidence presented
ample support for the verdict of involuntary manslaughter based
upon wanton or reckless conduct. The defendant kicked the
victim in the head while he lay helpless on the ground, told an
intervening witness to mind her business, and walked away into
the night. Especially given the victim's evident vulnerable
condition after being struck multiple times by Rodrigues, the
defendant knew or should "have realized the gravity of the
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danger" posed by kicking the victim in the head and leaving him
to suffer. Welansky, 316 Mass. at 398-399. The defendant's
liability is grounded in her "intent to engage in the reckless
conduct, and not [her] intent to bring about the harmful
result." Levesque, 436 Mass. at 452. Apart from the
defendant's liability as a principal, jurors could also infer
that the defendant "knowingly participated" with Rodrigues in
the attack where they followed the victim down a driveway,
confronted the victim, yelled similar profanity-laced warnings,
kicked the victim, and misled the police who arrived at the
scene. Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). The
evidence shows that the defendant was not a mere bystander to an
unanticipated fight as she now suggests on appeal; she was a
knowing participant in a brutal attack that rendered a man
senseless. Thus, the Commonwealth presented sufficient evidence
for the jury to reach a verdict of involuntary manslaughter.
Latimore, 378 Mass. at 677.
Redirect examination of witness. We discern no prejudicial
error from the prosecutor's redirect examination of Karen
Waring. Commonwealth v. Smith, 403 Mass. 489, 498 (1988). On
direct examination, Waring testified that through her apartment
window she saw the defendant "kicking." On cross-examination,
Waring admitted that her "testimony on two other occasions"
indicated that she did not see the defendant kicking, and she
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further admitted that an excerpt of her statement to the police
did not indicate kicking by the defendant. On redirect, over
objection, the prosecutor explored details of Waring's prior
testimony and statement to the police: she testified before the
grand jury, "I saw her kick" she testified in a prior court
hearing that she "saw her kicking"; and she told the police that
she "saw they were kicking." This redirect examination was
proper because the very "purpose of redirect examination is to
explain or rebut adverse testimony or inferences developed
during cross-examination." Commonwealth v. Hoffer, 375 Mass.
369, 375 (1978). The subjects of Waring's prior testimony and
statement to the police were "'opened up in cross-examination,
and therefore an exploration of them on redirect was clearly
within' the judge's discretion." Commonwealth v. Reed, 397
Mass. 440, 444 n.6 (1986), quoting Hoffer, supra at 375. For
the same reason, the judge also properly denied the motion to
strike Waring's testimony on redirect. See Commonwealth v.
Dominico, 1 Mass. App. Ct. 693, 718 (1974) (motion to strike
properly denied where defense counsel "had raised the issue of
threats on cross-examination, [and] it was proper to seek
clarification on redirect"). To the extent Waring provided
conflicting testimony, "it is for the jury to determine where
the truth lies." Commonwealth v. Amazeen, 375 Mass. 73, 81
(1978).
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Given the allegations of recent contrivance, Waring's
testimony on redirect was also admissible as prior consistent
statements. Prior consistent statements are admissible "where a
trial judge makes a preliminary finding (1) that the witness's
in-court testimony is claimed to be the result of a recent
fabrication or contrivance, improper influence or motive, or
bias; and (2) that the prior consistent statement was made
before the witness had a motive to fabricate, before the
improper influence or motive arose, or before the occurrence of
the event indicating a bias." Commonwealth v. Caruso, 476 Mass.
275, 284 (2017). Trial judges have "broad discretion" to admit
such statements, and the preliminary finding may be "implied."
Id. at 284-285.
Defense counsel repeatedly challenged Waring's testimony
that she saw the defendant kicking. On cross-examination,
defense counsel asked Waring if her testimony about the kicking
"was clearly not the truth" and was in fact a "lie." In
addition, defense counsel repeatedly implied that the
prosecution had coached Waring before the trial to testify about
the kicking: "Did they tell you something to say in the last
couple weeks . . . that you didn't say before?"; "Did the
prosecutor ever say anything to you about how important this
testimony was in connection with this case against my client:
You've got to tell the jury that you saw her kicking. Did
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anyone say anything like that to you?"; "So the first time it
came into your mind is when you were specifically asked within
the last week by a prosecutor a leading question such as: Did
you see the female kick?" Waring repeatedly denied that she had
been told what to say. Defense counsel also probed Waring's
potential bias: "[D]id you periodically call up the district
attorney's office and find out the status of this case?"; "Is it
important to you that this case come out a certain way?"; and "I
mean you're not here to help the Commonwealth win this case, are
you?"
Because defense counsel repeatedly suggested Waring
recently contrived her testimony about seeing the defendant
kicking due to pressure from the prosecution as well as Waring's
own bias, the Commonwealth "was entitled to rebut that
suggestion" by introducing her prior consistent statements.
Caruso, 476 Mass. at 285. Contrast Commonwealth v.
Hatzigiannis, 88 Mass. App. Ct. 395, 400 (2015) (error to admit
prior consistent statement where "suggestion was only that
[witness's] perception was faulty"). Where, as here, Waring's
cross-examination is replete with defense insinuations that she
changed her testimony on the eve of trial at the request of the
prosecution, explicit findings by the judge on that point are
not required. Caruso, supra at 284. We also note that the
trial judge's final instructions obviated any potential
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prejudice from this evidence by providing a limiting instruction
regarding the proper use of prior consistent statements.
Misstatements by prosecutor. For the first time on appeal,
the defendant claims that the prosecutor made "repeated material
misstatements throughout the criminal process." The defendant
contends that the prosecutor made two misstatements to the trial
judge during arguments on a motion for a required finding of not
guilty, and repeated the misstatements during closing argument,
at the sentencing hearing, and at the postconviction motion
hearing. We agree that the prosecutor misstated the evidence,
but we discern no "substantial risk of a miscarriage of
justice." Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
During closing argument, the prosecutor attributed two
statements to the defendant during the attack on the victim.
The prosecutor argued that as the victim lay on the ground, the
defendant yelled, "See, you stupid fucking ass." The testimony,
however, indicated that the defendant told Rodrigues, "I don't
know why you did him like that." The prosecutor also argued
that the defendant told an intervening witness to "[m]ind [her]
own fucking business or [she will] be next." The testimony,
however, showed that the defendant said, "mind your fucking
business. . . . Fuck you."
A prosecutor should not "misstate the evidence or refer to
facts not in evidence." Commonwealth v. Kozec, 399 Mass. 514,
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516 (1987). The prosecutor's summation of the testimony was
inaccurate but immaterial. The erroneous reference to "stupid
ass" appeared, based on the testimony, a reference to a
statement the defendant directed to Rodrigues. It may have
actually helped the defense because it suggested that the
defendant did not share an intent to commit a crime with
Rodrigues. Notably, neither counsel for the defendant nor
Rodrigues noted any error, and the judge did not discern any
impropriety. "A certain measure of jury sophistication in
sorting out excessive claims on both sides fairly may be
assumed." Kozec, supra at 517. Also, the judge specifically
instructed jurors about the limitations of arguments: "Evidence
is also not the opening statements of counsel or the closing
arguments of counsel. The attorneys weren't there. They don't
know themselves what went on. . . . [T]hey are not sources of
evidence themselves." Given the immaterial nature of the
misstatement, the lack of any objection, and the instructions of
the judge, the prosecutor's error did not result in a
"substantial risk of a miscarriage of justice." Freeman, 352
Mass. at 564. We also discern no risk of a miscarriage of
justice from the prosecutor's arguments to the judge. There is
"nothing in the record to indicate that the judge relied on" the
prosecutor's misstatements when deciding the motion for a
required finding of not guilty, imposing the sentence, and
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deciding the motion for postconviction relief. Commonwealth v.
Rosadilla-Gonzalez, 20 Mass. App. Ct. 407, 415 (1985). The
defendant's "[c]onclusory assertions are insufficient" to show a
substantial risk of a miscarriage of justice. Commonwealth v.
Guerro, 14 Mass. App. Ct. 743, 746 (1982).
Judgment affirmed.
By the Court (Vuono, Hand &
Hodgens, JJ.1),
Clerk
Entered: May 25, 2023.
1 The panelists are listed in order of seniority.
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