Opinion
14-P-539
02-22-2016
COMMONWEALTH v. JOEY BREWER.
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
In connection with an incident on June 14, 2012, the defendant was charged with assault by means of a dangerous weapon (knife), assault and battery by means of a dangerous weapon (stairs), and larceny from the person. After a District Court jury trial, the defendant was convicted of the lesser included offense of assault and battery, and acquitted of the remaining charges. Before us is the defendant's consolidated appeal from his conviction and from the denial of his subsequent motion for a new trial. We affirm.
Background. The essentials of the Commonwealth's case may be summarized as follows. The defendant and his girl friend lived on the first floor of an apartment building on Dyer Street in Dorchester. On the evening in question, the victim, Dewayne Hampton, entered the building and went upstairs with the defendant's neighbors to their third-floor apartment. The defendant followed and knocked on the neighbor's door. Hampton answered, and the defendant asked to talk with him. When Hampton stepped into the hallway, the defendant began speaking incoherently and pulled out a knife. Hampton pushed the defendant away, and tried to run down the stairs. Hampton then heard someone, presumably the defendant, say "ahhh" (a sound "of somebody lifting something heavy") at which point the defendant threw Hampton over the railing. Hampton felt himself flying down the thirty-foot drop to the bottom of the stairs. As a result of the fall, Hampton suffered multiple injuries, including a broken arm, a broken foot, and a badly injured thumb that had to be reconstructed.
During the defendant's case, the defendant testified that when he approached Hampton to speak with him, Hampton was "extremely arrogant and combative." According to the defendant, despite the fact that he stepped away, Hampton pushed him with both hands. Hampton then went to run down the stairs and, without any touching by the defendant, fell and tumbled to the bottom of the steps. Although the defendant thought that Hampton was "really hurt," he walked past Hampton and left the building to buy cigarettes.
Discussion. The primary focus of the defendant's appeal is the denial of his motion for a new trial, in which he raised three claims of ineffective assistance of trial counsel. After a nonevidentiary hearing, the motion was denied by a judge other than the trial judge.
1. Evidence of defendant's back condition. The defendant briefly mentioned during his testimony that he had a "collapsed vertebra." He now claims that his trial counsel was ineffective for failing to obtain and introduce medical records that, according to him, would have shown that his medical condition precluded him from lifting Hampton over the stair railing or pushing him with any degree of force.
We have independently reviewed the medical records submitted with the defendant's motion and conclude that he has failed to meet his burden of demonstrating that they would have provided him with a substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974); Commonwealth v. Satterfield, 373 Mass. 109, 115 (1997). The records show that the defendant reported low back pain after a car accident in March, 2010, and that he thereafter was given diagnostic tests, physical therapy, prescription medication, and injections. Notably absent, however, is any expert opinion as to the significance of the medical findings contained in the records and whether the condition of the defendant's back would have made him incapable of pushing the victim over the railing. On this state of the record, the motion judge did not abuse his discretion in concluding that the defendant was not entitled to relief.
2. Cross-examination of Hampton. The defendant next claims that trial counsel was ineffective in failing to cross-examine Hampton on "discrepancies" between his testimony and his medical records -- most notably, an alleged discrepancy as to whether Hampton hit his head in the fall. Whether and how to impeach a witness is a tactical decision in which a great amount of discretion is vested in the attorney. Commonwealth v. Knight, 437 Mass. 487, 501 (2002). It was not manifestly unreasonable for counsel to avoid emphasizing the victim's injuries. Furthermore, there is reason to question the existence of any genuine discrepancy.
For example, Hampton's emergency room record refers to a "head injury" in the section entitled "Final Diagnosis," on page three of the June 14, 2012, "Emergency Department Physician Record."
3. Self-defense instruction. The defendant's final argument is that the trial judge erred in failing to give a self-defense instruction and that trial counsel was ineffective in failing to press for one. However, because no such instruction was warranted, there was neither error nor ineffective assistance. Viewed in the light most favorable to the defendant, the evidence established only that Hampton appeared "combative" and pushed the defendant. This alone was insufficient to give rise to a right of self-defense. There was no evidence from which the jury could find that the defendant used all reasonable means to avoid physical combat or that he used only such force as was reasonable in the circumstances. See Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004).
Furthermore, a self-defense instruction would have been entirely inconsistent with the reasonable trial strategy employed by counsel. That strategy, which was supported by evidence that Hampton had been drinking that night, was to argue that the victim was intoxicated and fell down the stairs on his own.
According to trial counsel's affidavit, which the motion judge was entitled to credit, this strategy was formulated in consultation with the defendant.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Katzmann & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 22, 2016.