Opinion
13-P-1458
09-11-2015
COMMONWEALTH v. ASHIA C. BARROWS (and nine companion cases).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Ashia C. Barrows and Christine Collins (who are sisters) appeal from their convictions following a joint jury trial in the Dorchester Division of the Boston Municipal Court. Each defendant was convicted on the same five charges: one count of malicious damage to a motor vehicle, in violation of G. L. c. 266, § 28(a); two counts of assault and battery (one on Chaneese Brown and another on Joy Horton), in violation of G. L. c. 265, § 13A; and two counts of assault and battery by means of a dangerous weapon (one on Brown and another on Horton), in violation of G. L. c. 265, § 15A(b). The complaints alleged that the dangerous weapon Barrows used on each victim was a meat tenderizer and that the dangerous weapon Collins used on each victim was a baseball bat. The verdict slips were consistent with the corresponding complaints. The defendants each raise a number of claims, which we address in turn.
The judge sentenced each defendant to concurrent sentences of one year in a house of correction on each charge, except the count of assault and battery by means of a dangerous weapon naming Horton as the victim, for which he imposed three years of probation to commence immediately upon the date of sentencing.
Barrows argues (1) the judge erred in denying her motion for a required finding of not guilty on the charge of assault and battery by means of a dangerous weapon on Brown, and (2) her convictions of assault and battery and assault and battery by means of a dangerous weapon were duplicative. Both Barrows and Collins argue (1) the judge erred by failing to instruct the jury that proof of knowledge that the principal was armed is an essential element of assault and battery by means of a dangerous weapon by joint venture, (2) the admission of each codefendant's recorded statement to police violated each defendant's right to confrontation, and (3) the admission of the detectives' statements as part of each defendant's recorded statement was error. With the exception of Barrows's motion for a required finding, these claims were not preserved, so we review them only for a substantial risk of miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 296-298 (2002).
Background. We summarize the facts as the jury could have found them, reserving some details for discussion below. On December 3, 2011, Horton held a birthday party for Brown (her daughter). At the party, Brown and Horton were involved in a physical altercation with Collins, who attended the party as a guest of Angela Cauley (Horton's half-sister). The following morning, Brown and Horton drove to Cauley's home to retrieve a centerpiece from the party. While Horton was on the porch, Collins stepped out of a room in a first floor apartment. Horton told Collins, "You need to get some manners," and Collins responded from inside the house, "FUB. I got something for you. You just wait here."
The details of the altercation are not relevant to this appeal.
Brown and Horton began walking to Brown's motor vehicle, at which point Cauley pulled up in her vehicle. Horton asked her where the centerpiece was, and Cauley pointed to a trash barrel next to the building and said, "Right there." Cauley then drove away. Horton retrieved the centerpiece and began walking toward Brown's vehicle.
Brown was standing next to her vehicle when she saw Barrows running down the street, approaching the house, holding a shiny silver object and saying, "Who's Joy? Who's Joy?" Brown grabbed a crowbar from the trunk of her vehicle but Barrows ran past her to the house, where she met with Collins. Brown yelled for Horton to hurry up. Horton placed the centerpiece on the back seat of Brown's vehicle, and the two started getting into the vehicle.
There was some conflicting evidence about the sequence of events throughout the remainder of the incident, but the exact order is not relevant to the issues on appeal.
The words "crowbar" and "tire irons" appear to be used interchangeably throughout the trial.
According to the defendants, they saw the crowbar in Brown's hand, and after a brief verbal exchange with Brown, Barrows "charged" at Brown; Barrows was holding a meat tenderizer. Brown hit Barrows in the head with the crowbar. Brown and Horton rushed into Brown's vehicle, and Brown immediately started pulling out of the parking spot.
Around this same time, a group of approximately six women came running down the street, some of them carrying weapons such as crowbars and baseball bats. One of the women smashed the front driver's side window of Brown's vehicle with a bat; Collins smashed the front passenger window with a bat. Barrows jumped on the hood of Brown's vehicle and smashed the windshield with the meat tenderizer. Brown stepped on the gas, and Barrows fell off the vehicle. Brown drove a few feet before she lost control of her vehicle, and it bounced onto the sidewalk and crashed into a sign post. The airbags deployed, resulting in debris and smoke.
Horton tried to get out of the vehicle, but Collins was punching her through the window. Eventually, Horton got out of the car; she was either dragged out by the mob of women or came out on her own. The group of women punched, kicked, and hit Horton. Barrows attacked and, at some point, Horton collapsed to the ground and "blacked out." The attack on Horton continued. Barrows hit Horton in the head with the meat tenderizer, Collins hit her in the legs with a baseball bat, and someone banged her head on the concrete.
During this altercation, Brown got out of the vehicle and picked up a crowbar from the sidewalk. She saw Collins and another woman standing over Horton, attacking her. Brown hit both women with the crowbar. Collins fought with Brown and hit her in the legs with a baseball bat. A separate group of women joined in, throwing Brown to the ground and kicking her. Brown eventually got up off the ground and tried to run to her vehicle but someone came from behind and hit her with a baseball bat. This knocked Brown to the ground for a second time, and she "passed out." Horton awoke and saw Brown lying in the street, but someone kicked Horton in the eye and she "went black" again. Horton heard Barrows laughing and saying, "Take a picture." She then heard a man yell, "Get away from those girls. I'm calling the police." The attackers ran down the street and piled into a sport utility vehicle, which sped off.
Within days of the incident, Detective Chris Carroll of the Boston police department interviewed each defendant and victim individually, as well as additional witnesses. Each defendant waived her Miranda rights before her interview, which both took place at the police station. The audio recordings of the defendants' interviews were played for the jury at trial and admitted in evidence. The defendants did not request a limiting instruction related to the statements, and the judge did not give one. Neither defendant testified at trial.
Certain irrelevant portions of the interview with Barrows were omitted.
Discussion. 1. Sufficiency of evidence. In reviewing a sufficiency claim, we examine the record to determine "whether the evidence, in the light most favorable to the Commonwealth, 'is sufficient to permit the jury to infer the existence of the essential elements of the crime charged; and, whether the evidence and the inferences permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt.'" Commonwealth v. Donovan, 395 Mass. 20, 25 (1985), quoting from Commonwealth v. Grant, 391 Mass. 645, 648 (1984). Even viewed in this light, we agree with Barrows that the evidence was insufficient to support her conviction of assault and battery by means of a dangerous weapon, to wit: a meat tenderizer, on Brown.
To prove the charge of assault and battery by means of a dangerous weapon, the Commonwealth must establish beyond a reasonable doubt that (1) Barrows intentionally touched Brown, however slightly; (2) the touching was unjustified; and (3) the touching was done by means of a dangerous weapon. See G. L. c. 265, § 15A(b); Commonwealth v. Appleby, 380 Mass. 296, 306 (1980). The record contains no direct evidence that Barrows actually touched Brown with the meat tenderizer; rather, the Commonwealth argues that the evidence permits a reasonable inference of such a touching. The Commonwealth's argument essentially rests on Barrows's statements to Detective Carroll that when she saw Brown standing next to the car with a crowbar, Barrows was "willing to fight" and "charged" Brown while holding the meat tenderizer. In our view, the resulting inference that she then hit Brown with the meat tenderizer "may be plausible, but cannot bear the weight of proof beyond reasonable doubt." Commonwealth v. Rodriguez, 456 Mass. 578, 583 (2010).
The jury were instructed only on the theory of intentional assault and battery by means of a dangerous weapon. Also, because the Commonwealth did not argue the charge was based on indirect contact, we do not address that theory.
The Commonwealth does not argue that there was evidence presented that anyone other than Barrows used the meat tenderizer in the fight. It further clarified at oral argument that the assault and battery by means of a dangerous weapon charges were not based on a joint venture theory but were limited to each defendant's own use of the specific weapon indicated on the corresponding complaints and verdict slips. The complaint and verdict slip at issue identified a meat tenderizer as the dangerous weapon Barrows allegedly used on Brown.
We agree with the Commonwealth that "[a] conviction may be based on circumstantial evidence alone, as long as that evidence is sufficient to find the defendant guilty beyond a reasonable doubt." Commonwealth v. Platt, 440 Mass. 396, 401 (2003). However, we also recognize that "no essential element of the crime may rest in surmise, conjecture, or guesswork." Commonwealth v. Kelley, 359 Mass. 77, 88 (1971). One cannot infer that Barrows struck Brown with the meat tenderizer simply because Barrows charged at Brown with a willingness to fight. Ibid. This also not a situation in which the inference of a touching could be drawn from the nature of the injuries inflicted. Despite the many wounds Brown suffered, no evidence specifically tied them to a meat tenderizer, nor does the Commonwealth make this claim. Contrast Commonwealth v. Liakos, 12 Mass. App. Ct. 57, 60-61 (1981) (use of dangerous weapon, though not found or testified to, inferable from nature of victim's wounds). Accordingly, we reverse Barrows's conviction of assault and battery by means of a dangerous weapon (meat tenderizer) on Brown. Accord Commonwealth v. Armand, 411 Mass. 167, 171 (1991) (reversing conviction for wilful and malicious destruction of personal property where evidence consistent only with participation in wanton destruction of property).
2. Duplicative convictions. Barrows next argues that her convictions of assault and battery were duplicative of those of assault and battery by means of a dangerous weapon because the judge failed to instruct the jury that these offenses must be based on separate and distinct acts. Because her claim is unpreserved, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Gouse, 461 Mass. 787, 799 (2012).
It is well established that assault and battery is a lesser included offense of assault and battery by means of a dangerous weapon and, therefore, that convictions for both charges "are permitted only where they 'rest on separate and distinct acts.'" Id. at 798, quoting from Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 529 (2011). Where both the greater and lesser included offenses are charged, "[w]hether the Commonwealth has presented facts to support each charged crime beyond a reasonable doubt is a matter for the jury, and the judge must instruct the jury on separate and distinct acts." Commonwealth v. Suero, 465 Mass. 215, 222 (2013).
Contrary to Barrows's argument, the evidence was sufficient to support a finding that she engaged in at least two distinct batteries, with and without the meat tenderizer, on Horton. The jury heard testimony that Brown saw Barrows hit Horton in the head with a meat tenderizer. They also heard testimony that someone kicked Horton in the eye and someone banged her head on the concrete, and there was sufficient evidence that Barrows participated in either or both of these acts, at least as a joint venturer.
In Commonwealth v. Kelly, 470 Mass. 682, 701 (2015), the Supreme Judicial Court announced that "consistent with the substantial risk of a miscarriage of justice standard of review," "[t]he appropriate inquiry is whether there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act." Here, when instructing the jury on the elements of the two crimes, the judge repeatedly explained that each defendant was charged with two counts of each charge in question and instructed the jury that their decision on each count must be unanimous. He also told the jury that to keep track of each defendant's charges, they should reference the verdict slips, and that each verdict slip for the assault and battery by means of a dangerous weapon charges listed the specific defendant, alleged victim, and alleged weapon used in that particular allegation. However, these admonishments did not sufficiently apprise the jury of the distinction they were required to make of separate acts. See ibid. ("That the judge instructed the jury several times that they must consider each indictment separately did not equate to informing the jury that these two charged offenses must be factually based on separate and distinct acts"). At no point throughout trial did either the judge or prosecutor "describe with particularity which alleged acts supported which charges" and "neither the [complaints] nor the verdict slips received by the jury identified the respective conduct for each charge." Id. at 701-702. Contrast Commonwealth v. Maymay, 407 Mass. 412, 418-419 (1990); Commonwealth v. Gouse, 461 Mass. at 799; Commonwealth v. Black, 50 Mass. App. Ct. 477, 479 (2000). The judge's instructions and verdict slips clearly indicated that the use of a weapon -- in this instance, a meat tenderizer -- was a necessary element for the assault and battery by means of a dangerous weapon charge in question. It is plainly possible for a jury to think that the same act (hitting the victim with a meat tenderizer) also supported a conviction for assault and battery. The error was particularly problematic here, where the charges resulted from a melee involving approximately eight people, and where there were two defendants tried jointly for charges against two victims. Under these circumstances, we are bound to conclude that the judge's failure to properly instruct the jury on separate and distinct acts created a substantial risk of a miscarriage of justice. Accordingly, we reverse Barrows's conviction for assault and battery on Horton.
Because we have already reversed Barrows's assault and battery by means of a dangerous weapon conviction upon Brown on sufficiency grounds, there is no danger of a duplicative assault and battery conviction as to Brown.
3. Admission of codefendants' statements. Each defendant also argues that the admission of the other's recorded statement to the police violated her confrontation rights. See Bruton v. United States, 391 U.S. 123, 137 (1968); Commonwealth v. Vasquez, 462 Mass. 827, 841 (2012). We review for a substantial risk of a miscarriage of justice, see Commonwealth v. Dias, 405 Mass. 131, 137 (1989), and conclude that there was none.
Without reaching whether the statements were admissible as statements in furtherance of a joint venture, see Commonwealth v. Santos, 463 Mass. 273, 290-291 (2012), we see no substantial risk of a miscarriage of justice of the jury convicting either Barrows or Collins on the basis of the other's statements. See Commonwealth v. Horton, 376 Mass. 380, 389 (1978). With the exception of Barrows's assault and battery by means of a dangerous weapon against Brown, see supra, the jury heard sufficient evidence independent of the codefendant's out-of-court statements to convict each defendant of each charge. This evidence included the eye witness testimony, the victims' testimony, photographs, medical reports, and each defendant's own admission as to her own willingness and involvement in the fight.
4. Admission of detective's interview statements. We also see no merit to each defendant's additional unpreserved claim that it was error to admit each of their audio interviews without editing them for impermissible officer opinions, accusations, and references to third-party accusations. On the recordings, the detective does not claim the defendants are "lying." Nor does the detective state that he or any other witness "knew" what happened. Contrast Commonwealth v. Womack, 457 Mass. 268, 272 (2010) ("Extrajudicial accusatory statements made in the presence of a defendant, which [she] has unequivocally denied, are hearsay and inadmissible as evidence of guilt in the Commonwealth's case-in-chief") (footnotes omitted). In addition, the defendants, who confessed involvement in the incident, did not unequivocally deny possessing or using a weapon. Compare Commonwealth v. Spencer, 465 Mass. 32, 48 (2013) ("Opinions of the interrogating detectives that the defendant is guilty and lying, . . . and police reiteration of accusations by third parties that the defendant has denied, are not admissible). Moreover, even if the judge erred in admitting evidence of the detective's interview statements, we fail to see that it created a substantial risk of a miscarriage of justice. The detective was subject to cross-examination and, furthermore, the jury heard overwhelming evidence of each defendant's guilt independent of the detective's recorded comments. See Commonwealth v. Womack, supra at 275.
Because of the Commonwealth's clarification that the four assault and battery by means of a dangerous weapon charges were not prosecuted on a joint venture theory (and because of our disposition on Barrows's sufficiency claim), we need not address the defendants' additional claim of error as to the aiding and abetting jury instruction on these charges. Furthermore, even if the judge did err, we see no substantial risk of a miscarriage of justice, as there was sufficient evidence to convict each of the defendants as principals on the remaining assault and battery by means of a dangerous weapon charges. See Commonwealth v. Housen, 458 Mass. 702, 706-708 (2011) (evidence sufficient to support conviction as either principal or joint venturer). Cf. Commonwealth v. Britt, 465 Mass. 87, 99 (2013) (no substantial likelihood of miscarriage of justice from omission of instruction on knowledge of weapon under joint venture theory where no dispute that defendant had weapon and defense was self-defense).
Conclusion. To summarize, as to Collins, the judgments are affirmed. As to Barrows, on the count charging assault and battery by means of a dangerous weapon on Brown, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. On the count charging assault and battery on Horton, the judgment is reversed and the verdict is set aside. The remaining judgments against Barrows are affirmed.
So ordered.
By the Court (Kafker, C.J., Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 11, 2015.