Commonwealth v. Kevin S. Orisma.

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

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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

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(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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