Opinion
No. 15–P–1019.
12-13-2016
COMMONWEALTH v. Rills H. CACIQUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Rills H. Cacique, appeals from his convictions of assault and battery by means of a dangerous weapon, (shod foot), assault by means of a dangerous weapon (knife), and intimidation of a witness. On appeal, the defendant challenges the validity of the jury's verdict on his conviction of assault and battery by means of a dangerous weapon and argues that the judge erred when he reinstructed the jury on the offense of intimidation of a witness. We affirm.
Background. The details of the incident from which the charges arose are not relevant to the issues raised on appeal, and we therefore do not recite the facts. It suffices to note that the jury could have found that on March 5, 2014, the defendant, the victim, and the victim's son attended a court hearing in District Court in connection with a civil suit the defendant had filed against the victim's son. The victim and her son returned home and were in the driveway when the defendant arrived and attacked both of them. The defendant punched and kicked the victim and then, while armed with a knife, he threatened to kill her.
Discussion. 1. The verdict. The defendant argues that his conviction of assault and battery by means of a dangerous weapon should be reduced to assault and battery because the session clerk who took the verdict from the jury omitted the language "by means of a dangerous weapon," when she read the verdict in open court. We disagree.
In support of his argument, the defendant relies on the principle that "[t]he only verdict which can be received and regarded, as a complete and valid verdict of a jury, upon which a judgment can be rendered, is an open and public verdict, given in and assented to, in open court, as the unanimous act of the jury, and affirmed and entered of record, in the presence and under the sanction of the court." Commonwealth v. McCarthy, 37 Mass.App.Ct. 113, 116–117 (1994), quoting from Lawrence v. Stearns, 11 Pick. 501, 502 (1831). However, the rule is not without exception. We have confirmed convictions where, as here, the evidence, arguments, and instructions matched the charges set forth in the verdict slip, even though the clerk referred to a different offense when reading the verdict in open court. In Commonwealth v. McCarthy, supra at 117–118, we affirmed a conviction for breaking and entering in the daytime with intent to commit a felony therein where the clerk referred to the abbreviated version of the offense. See Commonwealth v. Andino, 34 Mass App.Ct. 423, 427 (1993) ; Commonwealth v. Evans, 42 Mass.App.Ct. 618, 626–627 (1997). The Supreme Judicial Court reached the same result in Commonwealth v. Rivera, 429 Mass. 620, 625–626 (1999). There, the defendant was convicted of trafficking in 200 or more grams of cocaine, but the verdict slip read by the clerk omitted the weight of the cocaine. In rejecting the claim that the conviction should be reduced to reflect possession of the lesser quantity of cocaine, the court noted that the weight of the cocaine was not a live issue at trial and the judge emphasized the weight element in her instructions.
2. Jury instructions. During their deliberations, the jury requested reinstruction on the elements of the crimes charged. The judge gave essentially the same instructions but with respect to the charge of intimidation of a witness, he omitted any references to the fact that the witness or potential witness who is the subject of the alleged intimidation could be a witness in a civil proceeding. The defendant did not object, thus our review is limited to whether there was an error and, if so, whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
The judge provided the following instruction regarding witness intimidation before the jury began its deliberations:
"The fourth charge is intimidating a witness. And in order to prove Mr. Cacique guilty of this offense, the Commonwealth must prove three things beyond, first, a reasonable doubt. First, that the Defendant directly or indirectly threatened another person. Second, that the other person was a witness or a potential witness at any stage in a criminal proceeding or was aware of information, records or documents of, relating to a criminal proceeding or furthering a civil proceeding of any type and that, those are the elements that the Commonwealth must prove. Now, the def, Defendant must also do so will, willfully with a specific intent to impede, obstruct, delay or otherwise in, interfere with the investigation of this matter. Alright. So that's the fourth charge."
Later, when he reinstructed the jury, the judge stated:
"Intimidating a witness, the Commonwealth must prove that the Defendant directly or indirectly threatened, attempted to cause physical injury or economic injury to another person, that the person was a witness or potential witness in any stage of a criminal investigation, grand jury proceeding, criminal proceeding of any type; that the person or the person was aware of information, records, documents or objects related to the violation of a criminal statute; and that, that's what the intimidation of a witness, those are the elements that the must prove for intimidation of a witness."
The defendant is correct that the judge should have included the phrase "civil proceeding" when he reinstructed the jury. However, because the evidence clearly established that the defendant had filed a civil suit against the victim's son and there was no basis in the evidence from which the jury could assume that the intimidation occurred in the context of a criminal proceeding, we discern no possibility of a substantial risk of a miscarriage of justice.
Judgments affirmed.