Commonwealth v. Beatrice Gloria Solivan-Rodriguez.

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-61

COMMONWEALTH

vs.

BEATRICE GLORIA SOLIVAN-RODRIGUEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from the defendant's conviction in the

Springfield District Court, following a jury trial, of one count

of violating a harassment prevention order, G. L. c. 258E, § 9.1

On appeal, she argues that (1) she was denied a fair trial

because the Commonwealth repeatedly referenced accountability

and made other impermissible statements in its opening remarks

and closing argument, and (2) the trial judge erred in denying

her motion for a mistrial after spontaneous prejudicial

statements by a witness. Although there were errors below, we

conclude that they did not by themselves or in toto cause a

1 The defendant was originally charged with one count each of
violating a harassment prevention order, G. L. c. 258E, § 9,
disorderly conduct, G. L. c. 272, § 53, and witness
intimidation, G. L. c. 268, § 13B. She was acquitted of the
latter two charges.
substantial risk of a miscarriage of justice and affirm the

judgment.

Discussion. 1. Prosecutor's statements. The defendant

argues that the Commonwealth made several impermissible

statements during opening remarks and closing argument that

resulted in a substantial risk of miscarriage of justice.2 She

further asserts that the Commonwealth appealed to the jury's

sympathy, and misstated evidence not in the record during its

summation.3 "Because there was no objection to the admission of

the challenged remarks, we review the defendant's claim[s] under

the substantial risk of a miscarriage of justice standard."

Commonwealth v. Rivera, 97 Mass. App. Ct. 285, 289 (2020).

"Remarks made during closing argument are considered in the

context of the entire argument, together with the evidence

presented at trial and the judge's instructions to the jury."

Commonwealth v. Huang, 489 Mass. 162, 180 (2022). "[P]rior

cases have suggested that holding the defendant accountable is

2 In the Commonwealth's opening statement, it told the jury "this
case is about accountability or taking the consequences of one's
own actions," "[t]oday [the defendant is] held accountable," and
"I'm going to ask you to hold the defendant accountable and
return a verdict of guilty." During its closing argument, it
stated "[t]his morning I told you that this case was about
accountability. Well now I'm asking you to hold the defendant
accountable and return a verdict of guilty."
3 During its closing argument, the Commonwealth stated "[t]his

event has been stressful for [the complaining witness]. [She]
testified that she's sick." It further stated that the
defendant "was violently upset."

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improper language." Commonwealth v. Jenkins, 458 Mass. 791, 797

(2011). See Huang, 489 Mass. at 181. We therefore conclude,

and the Commonwealth concedes, that the references to

accountability were improper.

However, under our substantial risk of a miscarriage of

justice standard, we look further and consider whether the error

"materially influence[d] the verdict" (citation omitted).

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We discern no

such material influence here. At the outset, we note that the

judge stated in his jury instructions that "[t]he opening

statements and the closing arguments of the lawyers are not a

substitute for the evidence. They are only intended to assist

you in understanding the evidence and the contentions of the

parties." Furthermore, Officers Michael Rivas and Jonathan

Torres testified that they saw the defendant address the

complaining witness directly, and, irrespective of the

Commonwealth's prohibited remarks, the jury were free to credit

that testimony.4 See Commonwealth v. McGann, 484 Mass. 312, 326

(2020). The defendant did not contest that testimony.

Violation of an anti-harassment order is a criminal offense

"punishable by a fine of not more than $5,000, or by

4 Officer Rivas testified that the defendant said to the
complaining witness "[y]ou fucking stupid bitch. You're the
reason I called. Fuck you."

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imprisonment for not more than 2 1/2 years in a house of

correction, or both." Seney v. Morhy, 467 Mass. 58, 60 n.5

(2014), quoting G. L. c. 258E, §§ 4, 9. The defendant's anti-

harassment order instructed her, inter alia, "[not to contact

the plaintiff] . . . in person." In light of the sound jury

instructions and evidence so directly suggesting that the

defendant violated the harassment prevention order, we are

constrained to conclude that there was no substantial risk of a

miscarriage of justice. See Alphas, 430 Mass. at 13-14.

We disagree with the defendant's assertion that the

Commonwealth impermissibly appealed to the jury's sympathy and

misstated evidence not in the record during its closing

argument. "It is well settled that '[a] prosecutor can address,

in a closing argument, a witness's demeanor, motive for

testifying, and believability, provided such remarks are based

on the evidence, or fair inferences drawn from it, and are not

based on the prosecutor's personal beliefs.'" Commonwealth v.

Leach, 73 Mass. App. Ct. 758, 767 n.10 (2009), quoting

Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999). See

also Commonwealth v. Matos, 95 Mass. App. Ct. 343, 354 (2019)

(prosecutors entitled "to marshal the evidence and suggest

inferences that the jury may draw from it" [citation omitted]).

4
The Commonwealth's remarks in this respect did not exceed

permissible bounds.5 See Huang, 489 Mass. at 180; Matos, supra.

2. Spontaneous testimony. The defendant further argues

that the trial judge erred by denying the defendant's request

for a mistrial following spontaneous prejudicial statements made

by the complaining witness. During cross-examination, the

complaining witness testified three times that the defendant had

been in or recently released from jail. After the first and

second occurrences, which were in rapid succession, the

Commonwealth objected, and the court held a discussion at

sidebar.6 The defendant's attorney said at the end of that

discussion that he had nothing to put on the record, then he

continued cross-examination, during which time the complaining

witness stated for a third time, this time without objection,

that the defendant had been released from jail. Following a

recess that occurred shortly after these statements were made,

counsel for the defendant stated that he could not hear the

witness's answers at the time they were given and moved for a

mistrial based on the statements referencing the defendant's

5 Even assuming without deciding that the statements
characterizing a witness's demeanor and evidence in the record
were error, we would nevertheless discern no substantial risk of
a miscarriage of justice, pursuant to our analysis supra. See
Alphas, 430 Mass. at 13-14.
6 Portions of the sidebar discussion were not included in the

record before this court because they were inaudible to the
court reporter.

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time in jail. The trial judge inquired of the defendant whether

she would like a curative instruction if he declined the motion

for a mistrial, and the defendant stated that she did not want

such an instruction. The judge denied the motion for a

mistrial. We discern no error.

"Where a party seeks a mistrial in response to the jury's

exposure to inadmissible evidence, the judge may correctly rely

on curative instructions as an adequate means to correct any

error and to remedy any prejudice to the defendant."

Commonwealth v. Gamboa, 490 Mass. 294, 297-298 (2022), quoting

Commonwealth v. Bryant, 482 Mass. 731, 740 (2019). Because the

defendant did not object at the time the statements were made,

the issue was not preserved for review. As we explained in

Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 692-693 (2015),

"[w]e have a contemporaneous objection rule, not a retroactive

objection rule. Order in the administration of criminal justice

requires that if a defendant is aggrieved by what transpires

during his trial, [she] must assert a timely objection or claim

of error" (quotations and citation omitted). Although defense

counsel stated he could not hear the witness's statements at the

time they were made because of a hearing deficiency, he did not

put that on the record during the sidebar discussion of the

Commonwealth's objection, and he did not claim to have missed

any of the witness's other answers. "Because the defendant's

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claim was not preserved, we review to determine whether an error

occurred and, if so, whether that error created a substantial

risk of a miscarriage of justice."7 Id.

Here, at a minimum, the trial judge could have addressed

the jury's exposure to inapposite testimony by providing an

instruction to disregard it. The defendant was offered the

opportunity to have such a curative instruction provided to the

jury but declined. Although unsuccessful, her strategy8 was

reasonable in light of the significant evidence against her.

That the strategy may have failed, while unfortunate for the

defendant, does not create a substantial risk of a miscarriage

of justice. See Alphas, 430 Mass. at 13-14.

Judgment affirmed.

By the Court (Meade,
Desmond & Hand, JJ.9),

Clerk

Entered: May 18, 2023.

7 Because the judge denied her motion for a mistrial, the
defendant argues that this court should review the denial of her
motion for abuse of discretion. However, the cases cited by the
defendant in support of her proposition are unavailing. See,
e.g., Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 8-10 (2000).
Even if we were to review for abuse of discretion, we would
discern none here. See Gamboa, 490 Mass. at 297-298.
8 By declining a curative instruction, the defendant apparently

hoped to avoid drawing additional attention to her previous
incarceration.
9 The panelists are listed in order of seniority.

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