Opinion
18-P-924
11-22-2019
COMMONWEALTH v. Mary BOYD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Boston Municipal Court, the defendant was convicted of assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B (b ). On appeal, the defendant challenges the sufficiency of the evidence and argues that defense counsel provided ineffective assistance at trial. We affirm.
Background. Under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-77 (1979), we view the evidence in the light most favorable to the Commonwealth. On Sunday, June 5, 2016, Selena Parham, Roneisha Parham, Selena's daughter and her daughter's friend, and Mary Boyd (the defendant) entered Regina Boyd's former home in Dorchester using Regina's keys. Roneisha approached and cornered Anike Staples-Martin (the victim). The victim and LaGina Hampton-Boyd, who was present in the home with her, both watched the defendant take a knife out of her sweatshirt pocket and hand it to Roneisha. The victim testified that the defendant "took [the] knife out and gave it to Roneisha and was like, handle that." After Roneisha took the knife, she squirted dish soap into the victim's eyes and then cut her with the knife. Officers noticed several lacerations on the victim's body when they arrived on the scene.
To avoid confusion, to the extent that individuals involved share a surname, we refer to them here by their first names.
Discussion. 1. Sufficiency of the evidence. The defendant asserts that the evidence does not support her conviction of assault by means of a dangerous weapon and, in particular, does not establish that she spoke the words, "handle that" to Roneisha. Viewed through the Latimore lens, the jury could have found that the defendant said, "handle that," upon handing the knife to Roneisha. This is not a case where the prosecutor offered an interpretation of the testimony that was not supported by the evidence nor the common understanding of jurors. Cf. Commonwealth v. Mack, 482 Mass. 311, 323-324 (2019) (jury cannot reasonably infer that "W.g." means "We good"). After the victim testified that the defendant "was like, handle that," the prosecutor asked, "When you say you saw [the defendant] hand Roneisha a knife and say, handle that, what did you take that to mean?" The victim made no correction to this statement, and instead answered, "[f]ight back with the knife," and explained further. Defense counsel and the prosecutor both repeated this interpretation of the victim's testimony in their closing arguments. Those who heard the testimony at trial clearly understood it to reference a verbal statement.
The prosecutor's and defense counsel's understanding of the victim's testimony is supported by modern verbal expression. In today's vernacular, the word "like" is "used to convey a person's reported attitude or feelings in the form of direct speech." Oxford University Press, Lexico.com, https://www.lexico.com/en/definition/like. For example, " ‘like’ is a quotative in ‘He was like, "Oh, no!" ’ " Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/quotative (defining "quotative" as "a function word used in informal contexts to introduce a quotation").
Here, the victim's overall testimony indicates that she adopted this use of the word. Her later testimony included, for example, that someone asked her if she had been stabbed, and she testified, "I was like, I don't know where I'm cut at," and, "[s]he's like, is everything okay? I already called 9-1-1, I'll bring your son downstairs while they come." This pattern of speech expresses statements made by a speaker through introduction with the word "like."
Accordingly, the evidence was sufficient to support a conviction of assault by means of a dangerous weapon.
2. Ineffective assistance of counsel. The defendant also asserts that defense counsel provided ineffective assistance at trial by not objecting to the omission of part of the jury instruction for credibility of witnesses and not requesting that the aiding and abetting instruction be read to the jury in response to a jury question. Confronted with a claim of ineffective assistance of counsel, we look for "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Our review of this claim, raised in the defendant's direct appeal, is limited to what is contained in the trial record, and relief may be afforded only "when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015), quoting Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
The defendant also asserts that defense counsel provided ineffective assistance by not objecting to statements that the defendant had said the words "handle that." In light of our conclusion that the evidence supports this interpretation of the testimony, we need not address this contention further here. In closing, the prosecutor said that the witness said "handle this" instead of "handle that." Defense counsel did not object and this difference does not create a substantial risk of a miscarriage of justice. Commonwealth v. Alvarez, 480 Mass. 299, 310 n.3 (2018).
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The defendant claims that defense counsel should have objected when the judge omitted two sentences from the jury instruction, as follows: "If you do not believe a witness's testimony that something happened, of course your disbelief is not evidence that it did not happen. When you disbelieve a witness, it just means that you have to look elsewhere for credible evidence about that issue." Instruction 2.260 of the Criminal Model Jury Instructions for Use in the District Court (2009). "We evaluate jury instructions as a whole and interpret them as would a reasonable juror." Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). Here, the judge gave the remainder of the witness credibility jury instruction, including that the jury should "determine which witnesses to believe and how much weight to give their testimony" and that they "may believe everything a witness says, or only part of it, or none of it." When we interpret these instructions "as would a reasonable juror," the instructions properly explained the jury's role in assessing credibility. Therefore, defense counsel was not ineffective in failing to object to the witness credibility jury instruction given at trial.
The defendant also asserts that defense counsel should have requested that the judge re-read the aiding and abetting jury instruction in response to a jury question asking "to hear the definition of assault again, in particular, the indirect involvement of a person involved." "The proper response to a jury question [is] within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly." Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998), quoting Commonwealth v. Waite, 422 Mass. 792, 807 n.11 (1996). Here, the judge did exactly what the jury asked by re-reading the entire assault by means of a dangerous weapon instruction. This was well within the judge's broad discretion, and defense counsel was not ineffective for failing to object.
Judgment affirmed.