Opinion
12-P-794
04-08-2015
COMMONWEALTH v. JAMAL W. EVANS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of mayhem, assault and battery causing serious bodily injury, and intimidation of a witness. We stayed the defendant's appeal to allow him leave to file a motion for a new trial. That motion was denied. The defendant's direct appeal and his appeal from the denial of his motion for a new trial were then consolidated in the instant matter.
1. Appeal from denial of motion for new trial. The defendant argues that the judge erred in refusing to grant a new trial on the ground of ineffective assistance of counsel. The defendant points to trial counsel's failure to object to inadmissible evidence and the submission to the jury, along with the victim's redacted medical records, of two unredacted pages. The unredacted pages were found after trial in the back of a 300-page trial exhibit. Portions that were meant to be redacted were covered by yellow post-it notes that might have drawn the jurors' attention and that could readily have been removed by the jurors, revealing the material that should have been redacted. The judge did not make a determination whether these unredacted pages went to the jury, but he assumed that they did and so, for purposes of this appeal, we make that same assumption.
With respect to each failure to object to inadmissible evidence, trial counsel asserted in his affidavit that his failure to object had been deliberate and tactical. A single unobjected-to piece of testimony by a police officer, that the defendant was at the time of the crime "known to" the police, raises a concern. But we cannot say that trial counsel's tactical decision not to object to that statement was manifestly unreasonable. The motion judge, who was the trial judge, found that it was not, and that determination is given due deference. "A reviewing court extends special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The remainder of the items of unobjected-to evidence, even taken together and even if counsel's failure to object fell below what might have been expected from an ordinary fallible lawyer, was not significant enough to deprive the defendant of an otherwise available, substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (an ineffective assistance of counsel claim must have "likely deprived the defendant of an otherwise available, substantial ground of defence").
As to the unredacted medical records, the first of the two pages was labeled "Nursing Discharge Note." The unredacted section read, "pt. is a 29 years old female who is s/p fall from 10 foot balcony by pt. ex-boyfriend." We understand the defendant's argument that this might look to a jury like a conclusion reached by the nurse that the defendant caused the victim to fall from the porch. We may assume it therefore should not have been submitted to the jury, and, assuming defense counsel allowed it to be, also assume without deciding that counsel's conduct would meet the first prong of the Saferian test. As to the second prong, we do not think it is as prejudicial as the inclusion of a conclusion of "sexual assault" within the "diagnosis" portion of a medical record to which the defendant compares it, citing Commonwealth v. Baldwin, 24 Mass. App. Ct. 200 (1987). In light of the strong evidence of the defendant's guilt and the deference due the motion judge's determination in this case, it has not been shown that its submission to the jury deprived the defendant of an otherwise substantial ground of defense, a standard that in this context amounts to a conclusion that it did not create a substantial risk of a miscarriage of justice. Commonwealth v. Madera, 76 Mass. App. Ct. 154, 161 (2010) (stating "we equate depriving the defendant of an otherwise available, substantial ground of defence, with a substantial risk of a miscarriage of justice") (internal quotation marks and citations omitted).
The second unredacted page was labeled "Clinical Social Work Note." The note states that its author "[m]et with patient who provided details of February event in which her boyfriend of 10 years threw her off a balcony." The defendant relies on three successive sentences in the note. "Boyfriend had reportedly been verbally abusive for many years but had never physically hurt her before this event. Patient believes that this new violent behavior was due to boyfriend befriending a troubled new friend. Boyfriend is incarcerated and has been denied bail because of the extent of patient's injuries."
We agree with the motion judge's assessment of the issues presented by the quoted language. The first and second sentences provide evidence of prior bad acts, though nothing approaching that which led to the charges in this case, and the final sentence contains a problematic statement that indicates that a judge determined that the defendant caused the victim's injury.
This last sentence obviously should not have gone to the jury. The question with which we are left, again, is essentially whether it created a substantial risk of a miscarriage of justice. The motion judge concluded it did not. While, as the judge recognized, the exposure of the jury to this final sentence was problematic, in light of our review of the record, we are not persuaded that the judge abused his discretion in denying the motion. Commonwealth v. Grace, 397 Mass. at 307.
2. Direct appeal. The defendant argues that the evidence was insufficient to support a finding of a specific intent to maim as required by the mayhem statute. The statute covers acts made with "reasonable appreciation on the assailant's part that a disabling or disfiguring injury would result." See Commonwealth v. Ogden O., 448 Mass. 798, 800 (2007), quoting from Commonwealth v. Davis, 10 Mass. App. Ct. 190, 196 (1980). Viewing the evidence in the light most favorable to the Commonwealth, including the evidence that the defendant pushed the victim over a porch railing from which she fell about nine feet to the icy ground below, while saying "I'm not playing," and "Die, bitch!," we conclude that it suffices to support the jury's finding that the defendant had the requisite specific intent.
The defendant next argues that at sentencing the judge relied on a fact not in evidence. The judge spoke about the life-long disability suffered by the victim and her pain, as well as the fact that the defendant was wearing a GPS bracelet and at home when he engaged in this criminal activity, but he also said, "The court is very much struck by the fact that there is more than one victim here, which is the child of both [defendant and victim]. And the court is aware that every day that child will get up and look at his mother [the victim], and realize his mother has a disability that appears to be something that was done by his own father. The facts are dreadful."
The defendant argues that the judge had no evidence before him that the child was aware of how the injury had been caused to his mother, and that, in fact, her testimony was that the child, then seven, "doesn't know the extent of what happened."
It was proper for the judge to consider the child as a victim. See G. L. c. 258B, § 1. See also Commonwealth v. Banker, 21 Mass. App. Ct. 976, 978 (1986) (stating "it would have been proper for the judge, when weighing the sentences, to consider facts learned in the course of the victim's testimony about the seriousness of the crime and also to consider the physical or psychological difficulties that the victim had suffered, and would continue to suffer, as a result of the crimes themselves"). We read the judge's statements to reference two types of harm, the harm from having a disabled mother (who testified that she could no longer play with him "the way [she] used to be able to") and the additional harm from the knowledge that despite his denial, his father was found guilty of causing this very injury. Only the reliance on this latter harm is at issue.
Given the likelihood that this child will learn the cause of his mother's disability at some point during the father's incarceration -- he was sentenced to ten to fifteen years on the mayhem count -- the harm of any possible error here was diminished. But in any event, given the fact and circumstances before the judge at the time of sentencing, we think any possible error in the judge's assumption that the child knew the cause of his mother's disability is de minimis.
The defendant's final argument is that the defendant's convictions of mayhem and assault and battery causing serious bodily injury are duplicative. The Commonwealth agrees, as do we. See Commonwealth v. Butler, 86 Mass. App. Ct. 197, 202-203 (2014).
On the indictment charging assault and battery causing serious bodily injury, the judgment is reversed, the verdict is set aside, and that indictment is dismissed. The remaining judgments are affirmed. The order denying the motion for a new trial is affirmed.
So ordered.
By the Court (Rubin, Milkey & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: April 8, 2015.