Opinion
23-P-620
07-25-2024
COMMONWEALTH v. TIMOTHY P. BERRY.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant was convicted of (1) home invasion, (2) kidnapping, (3) assault and battery by means of a dangerous weapon, (4) carrying a firearm without a license, (5) unlawfully possessing ammunition, and (6) impersonating a police officer. On appeal, the defendant argues that the judge committed prejudicial error by broadening the jury instructions after closing argument to allow the jury to apply a theory of aiding and abetting to all of the charges, as opposed to just the kidnapping charge. We affirm the defendant's convictions for kidnapping, for which the aiding and abetting instruction was proper, and impersonating a police officer. We vacate the defendant's convictions, and remand for further proceedings. To the extent any of the vacated convictions carried criminal penalty enhancements, we vacate those convictions as well. See G. L. c. 279, § 25 (a); G. L. c. 269, § 10G (a).
The jury acquitted the defendant of assault by means of a dangerous weapon.
Because the Commonwealth did not present any evidence at trial that the defendant lacked the proper license to carry a firearm or ammunition, we vacate the conviction and set aside the verdict on the charges of carrying a firearm without a license and unlawfully possessing ammunition pursuant to Commonwealth v. Guardado, 491 Mass. 666 (2023) (Guardado I), and Commonwealth v. Guardado, 493 Mass. 1 (2023) (Guardado II). The defendant may be retried on the charges. Commonwealth v. Sosa, 493 Mass. 104, 120 (2023).
Background.
We summarize the evidence presented to the jury. In February 2016, the defendant and his codefendant, Christopher Covey, knocked on the door of a drug dealer, Thomas Cardona. They were dressed up as police detectives and shined flashlights through the window. At the time, Cardona was home with his friend, Loussi Polanco. Cardona opened the door, and the defendant and Covey forced their way into the home. Cardona testified that the first man was armed with a gun, and that man hit Cardona on the head with it. Cardona and this first man "tussled" for a moment before Cardona ran out of the house. Polanco testified that after Cardona left, the second man hit him with something that "felt like a gun," causing him to fall to the ground. The second man then stood over Polanco, hit him in the head again, and asked him, "Where's the money?" While Polanco was kept on the ground in the living room, he heard the first man running around the house.
Meanwhile, Cardona called the police, and shortly thereafter, Lowell police Officer Buntha Kieng arrived at Cardona's location. After a brief conversation with Cardona, Kieng drove to the home, unholstered his firearm, and approached, opening the storm door. He immediately saw Polanco on the floor and he observed the defendant coming down the stairs with what Kieng perceived to be a firearm. According to Kieng, when the defendant reached the bottom of the stairs, he raised the "firearm" and pointed it at Kieng. Kieng responded by shooting three rounds at the defendant, striking him. After Kieng fired his first shot, Covey ran from the premises. He was apprehended several blocks away. The police recovered one semiautomatic pistol; it was behind the storm door where the defendant was shot and from where Covey fled.
Evidence was presented showing that the firearm was loaded and functional.
At trial, after the parties had rested, the Commonwealth asked the judge to instruct the jury on an aiding and abetting theory with respect to the kidnapping charge because this charge stemmed from Covey's actions, not the defendant's actions; the Commonwealth did not request this instruction in relation to any of the other charged crimes. The defendant objected to this request. The judge overruled the objection and instructed the jury that they could apply the theory of aiding and abetting to the kidnapping charge.
The defendant did not present evidence. Through cross-examination and argument he attempted to cast doubt on the Commonwealth's case. He suggested that he might have been in Cardona's home and the incident might have been a dispute over a drug transaction. He established that the police did not link the defendant to the firearm fingerprints or other forensic evidence. He also emphasized that Cardona testified under a grant of immunity and was a drug dealer with five pounds of marijuana and over twenty thousand dollars in cash in his car. Defense counsel cross-examined Polanco's testimony that he had been "really good friends" with Cardona for six years but did not know he was a significant dealer of marijuana. His attorney also argued that what Kieng saw pointed at him was not a gun but a cell phone.
After approximately one hour of deliberation, the jury sent a note to the judge asking (1) whether "aiding and abetting [could] be used in other charges besides kidnapping," and (2) whether "a flashlight [could] be used as a dangerous weapon." After discussion with the parties, and over the defendant's objection, the judge instructed the jury that they could consider the theory of aiding and abetting in relation to all of the charges. Defense counsel was not given an opportunity to address these expanded instructions with the jury. As indicated, the jury then returned a verdict finding the defendant guilty of all other charges except assault by means of a dangerous weapon.
Neither party challenges the judge's handling of the question, "Can a flashlight be used as a dangerous weapon?"
Discussion.
Relying on rule 24 (b) of the Massachusetts Rules of Criminal Procedure (rule 24 [b]), the defendant argues that the judge's belated instruction to the jury that a theory of aiding and abetting could be applied to all charges, even if justified by the evidence, prejudiced him unfairly. See Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1979). We agree.
Because the defendant timely objected to the broadened instructions, we review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005) (prejudicial error "requires a two-part analysis: [1] was there error; and [2] if so, was that error prejudicial"). "An error is not prejudicial if it 'did not influence the jury, or had but very slight effect'; however, if we cannot find 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,' then it is prejudicial." Id., quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
The defendant objected to the expanded instructions: "So I would ask that you deny and say that [aiding and abetting] only applies to the kidnapping and to nothing else. I think this would be an appellate issue if Your Honor were to allow this." Accordingly, we reject the Commonwealth's argument that we should review for a substantial risk of a miscarriage of justice because the defendant did not ask for supplemental argument after the objected-to instruction was amended. See Commonwealth v. Allen, 474 Mass. 162, 168 (2016).
First, we agree with the defendant that the judge erred by instructing the jury, after closing arguments, that a theory of aiding and abetting could apply to all charges. Rule 24 (b) "requires that a trial judge inform counsel as to his proposed instructions before final argument. The purpose of the rule is to enable counsel to argue intelligently to the jury." Commonwealth v. Thomas, 21 Mass.App.Ct. 183, 186-187 (1985). Here, the judge did not inform counsel that he would be instructing the jury to consider aiding and abetting in connection with all charges until after defense counsel had delivered her closing argument. See Commonwealth v. Thayer, 418 Mass. 130, 134 (1994). The judge did not afford counsel an opportunity to re-open and argue the issue of aiding and abetting as it relates to the charges other than kidnapping. See United States v. Ayeni, 374 F.3d 1313, 1321 (D.C. Cir. 2004) (Tatel, C.J., concurring) ("where a jury's legal question leads the judge to give supplemental instructions, supplemental arguments may be appropriate if the instructions introduce legal theories or concepts about which the parties never had a chance to argue"). This was error under rule 24 (b).
As to prejudice, "[t]he question to be decided is whether . . . the defense was undermined by the supplemental instruction because 'the critical role of good argument was vitiated.'" Thomas, 21 Mass.App.Ct. at 187, quoting United States v. Viserto, 596 F.2d 531, 539 (2nd Cir. 1979), cert. denied, 444 U.S. 841 (1979). "We examine, therefore, the course the defendant had pursued at trial up to the point of final argument." Thomas, supra. Where the theory of defense was that the defendant did not possess the gun and where the defense was unable to rebut the knowledge element of a joint venture theory, see Commonwealth v. Britt, 465 Mass. 87, 100 (2013), the instruction on aiding and abetting completely undermined the defense. Cf. Thomas, supra. The prejudice here is exemplified by the jury's second question to the judge about "whether a flashlight [could] be used as a dangerous weapon," which suggests that the jury might not have believed that the defendant ever possessed a firearm. This is entirely consonant with the fact that the jury's acquitted the defendant of assault by means of a dangerous weapon. Several pieces of evidence support this view, including Polanco's testimony that it was Covey, not the defendant, who struck him with a firearm. Considering that Covey did not have a firearm in his possession when he was apprehended, and only one firearm was recovered from the house, the jury may have reasonably concluded that the only person in possession of the single firearm was Covey. This would permit an inference that the defendant struck Cardona with something other than a firearm, such as a flashlight, and never possessed a firearm. In fact, the evidence was that a cellphone was found on the staircase near where the defendant was shot. The acquittal is consistent with the jury concluding that Kieng mistook the cellphone for a firearm before shooting the defendant.
If the jury did not think the defendant used a firearm, they could not have found him guilty of (1) home invasion, (2) assault and battery by means of a dangerous weapon, (3) possession of a firearm, or (4) possession of ammunition, unless they applied a theory of aiding and abetting to those charges. We are not persuaded that these convictions were not substantially swayed by the judge's erroneous instruction. See Cruz, 445 Mass. at 591.
The judge told the jury to apply the aiding and abetting instruction to counts where two or more persons may have participated in the commission of a crime. While it would have been the better practice to specifically identify the counts to which this instruction could or could not have applied, based on this record, we discern no prejudice to the defendant on count 7, impersonating a police officer.
Conclusion.
For the reasons set forth above, we vacate the convictions for home invasion (count 1), assault and battery by means of a dangerous weapon (count 3), possession of a firearm (count 5), and possession of ammunition (count 6); set aside those verdicts; and remand in part for further proceedings as to those counts. Accordingly, we vacate the subsequent "habitual offender" convictions. We affirm the convictions for kidnapping (count 2) and impersonating a police officer (count 7).
So ordered.
The panelists are listed in order of seniority.