Commonwealth v. Carlos Garcia-Parejo.

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

23-P-1240

COMMONWEALTH

vs.

CARLOS GARCIA-PAREJO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the District Court, the

defendant was convicted of assault and battery stemming from an

altercation with his then girlfriend. As we discuss in more

detail below, he raises a number of issues on appeal, none of

which entitle him to a new trial. Accordingly, we affirm.

Background. On May 1, 2021, the defendant and his

girlfriend were staying at a motel in Framingham when they began

to fight over the defendant's use of marijuana and playing video

games. The manager of the motel called the police, and

ultimately both the defendant and the girlfriend were arrested.

The girlfriend was charged with assault and battery with a

dangerous weapon and assault and battery on a family household

member, and the defendant was also charged with (1) assault and

battery with a dangerous weapon and (2) assault and battery on a
family household member. The two appeared in court with counsel

for trial on the same day. The girlfriend's case was called

first. The defendant, who was the alleged victim in that case,

invoked his Fifth Amendment right not to testify and, as a

result, the case against the girlfriend was dismissed.

Immediately thereafter, the defendant's case was called for

trial. At that point, the Commonwealth informed the judge that

the girlfriend, the victim in the case against the defendant,

likewise intended to assert her Fifth Amendment privilege not to

testify. The judge conducted a colloquy with the girlfriend and

concluded that she had a valid Fifth Amendment privilege and,

consequently, would not be required to testify. In this

instance, however, the Commonwealth represented that it had

additional evidence and would proceed without the girlfriend's

testimony. The defendant then waived his right to a jury trial

and trial commenced.

Two police officers, Julie Volk and Zachary Winkleman, both

of whom responded to the motel, testified for the Commonwealth.

Volk explained that she was dispatched to the Red Roof Inn

located on Cochituate Road at about 11 A.M. On her arrival,

Volk knocked on the door of Room 147. The defendant opened the

door. Volk described the defendant as calm and surprised to see

the police. The defendant told the officers that he had a

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verbal argument with his girlfriend. The girlfriend was not in

the room and the defendant did not know where she was.

Within minutes, another officer located the girlfriend next

door at a Dunkin' Donuts. Volk then left the motel room and

spoke with the girlfriend in the parking lot. Volk described

the girlfriend as "disheveled" and noted that she had a small

cut to the left side of one eye and some bruising on the right

side of her other eye. Volk testified that, based on her

"knowledge and experience," the bruise looked "fresh." More

specifically, Volk stated that the bruise "was still red. The

purplish and bluish color of a bruise had not set in yet."

Meanwhile, Officer Winkleman, who had stayed with the

defendant, and another officer advised the defendant of his

Miranda rights and had a further conversation with him. The

defendant admitted that during the argument with the girlfriend,

he pushed her away with a pillow, to create distance, then tried

to walk away. According to the defendant, while walking away,

the girlfriend threw a Sprite bottle at him. He then turned

around, took the pillow, and punched the girlfriend through the

pillow, causing her to fall and hit her head on the wall.

Winkleman further testified that he observed a mark on the

defendant's back which he believed was caused by being struck

with the Sprite bottle. He also related that the defendant said

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he left the room after pushing the girlfriend for a second time

with the pillow and that the girlfriend punched him in the face.

The defendant did not testify. At trial, through cross

examination and closing argument of counsel, he did not deny

that the altercation became physical and that he pushed the

girlfriend with a pillow twice. He claimed, however, that the

girlfriend hit him first and that he acted in self-defense.

In announcing the verdict, the judge indicated that he

accepted the defendant's version of events in part. After

considering "the evidence of the officers and, again, the

respective size of the parties," the judge was persuaded that

the defendant acted in self-defense with respect to the first

charge of assault and battery with a dangerous weapon and found

him not guilty. With respect to the second charge, the judge

rejected the defendant's claim of self-defense and found the

defendant guilty of simple assault and battery.1 The judge

explained that with respect to the events underlying the second

charge, the defendant was the "initial aggressor" and had

"better means available to him." In other words, the defendant

could have retreated but failed to do so.

1 The judge previously had allowed the defendant's motion
for a required finding of not guilty on so much of the complaint
that alleged the victim was a member of the defendant's family
or household.

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On appeal the defendant argues that the judge erred by

considering the physical differences between the defendant and

the girlfriend because the Commonwealth did not introduce any

evidence of the girlfriend's physical characteristics, and that

this error was exacerbated when the prosecutor commented on

these differences in closing argument. The defendant further

argues that Volk's testimony about the girlfriend's bruise was

inadmissible because it improperly undercut his claim of self-

defense. We address each argument in turn.

To begin with, there is no doubt that the judge considered

the difference in the defendant's and the girlfriend's height

and weight. The judge noted that he had the opportunity to

observe the girlfriend in the court room and believed he was

entitled to rely on those observations in evaluating the

defendant's claim of self-defense. Assuming without deciding

that the judge erred under the circumstances presented, the

error was not prejudicial.2 An error is not prejudicial only if

it "did not influence the [fact finder], or had but very slight

effect" (citation omitted). Commonwealth v. Flebotte, 417 Mass.

348, 353 (1994). Here, as the judge made clear, he rejected the

2 The Commonwealth argues that the applicable standard of
review is whether the error created a substantial risk of a
miscarriage of justice. In view of our conclusion that there
was no prejudice, we need not decide whether the less stringent
standard of review apples here.

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defendant's theory of self-defense as to the second charge

because the defendant was the first aggressor and failed to

retreat and not because he was "influenced" by the fact the

defendant was taller and larger than his girlfriend. For the

same reason, we discern no substantial risk of a miscarriage of

justice resulting from the prosecutor's two comments in closing

argument regarding the size difference between the defendant and

the girlfriend.

The defendant's last argument fares no better. The

defendant did not object to Volk's testimony and therefore our

review is limited to determining whether there was an error,

and, if so whether it caused a substantial risk of a miscarriage

of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

It is well settled that bruising is a matter that lies within

the realm of common experience. See Commonwealth v. Junta, 62

Mass. App. Ct. 120, 127-128 (2004). Thus, to the extent that

the defendant argues that the testimony amounted to an expert

opinion that Volk was not qualified to give, there was no error.

Moreover, given that the testimony was properly admitted, we

discern no basis for concluding, as the defendant requests, that

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a substantial miscarriage of justice occurred because the

testimony was harmful to his defense.

Judgment affirmed.

By the Court (Vuono, Neyman &
D'Angelo, JJ.3),

Clerk

Entered: October 28, 2024.

3 The panelists are listed in order of seniority.

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