Opinion
12-P-649
06-24-2014
COMMONWEALTH v. VICTOR FIGUEROA.
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 appeals from convictions, after a jury trial in the Superior Court, for mayhem, G. L. c. 265, § 14, and assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A(c)(i). He contends that the trial judge (1) unlawfully denied his request to represent himself, (2) improperly permitted him to be shackled during trial, (3) failed to provide instruction to the jury that his being shackled is not evidence of guilt, (4) erroneously denied his motion to suppress a letter that was taken from him at booking, and (5) improperly denied him an opportunity to cross-examine a court interpreter who translated that letter from Spanish to English. Finally, the defendant also contends that the charge of assault and battery by means of a dangerous weapon causing serious injury was a lesser included offense of mayhem (second theory). For the following reasons, we affirm the convictions.
He was acquitted by the jury of the charge of armed assault with intent to murder, G. L. c. 265, § 18(b).
Denial of self-representation. There was ample support for the judge to determine that the defendant waived his right to represent himself by repeatedly engaging in uncontrolled outbursts, interruptions, and epithets directed at the judge. He also refused to take direction or follow the judge's orders. Indeed, after failing to take heed of warnings, he was removed several times during pretrial proceedings. As was noted in Commonwealth v. Means, 454 Mass. 81, 92 n.18 (2009):
'[T]he right to self-representation is 'not a license to abuse the dignity of the courtroom'; forfeiture or waiver by conduct of that right is justified by the judge's powers to ensure safety and control throughout the proceedings. Faretta v. California, 422 U.S. 806, 834-835 n.46 (1975). Even though 'the right of self-representation has been recognized from our beginnings,' a trial judge 'may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.' Id.'Given the defendant's behavior, which repeatedly disrupted court procedures, we discern no abuse of discretion. See 454 Mass. at 92 ('[J]udges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case').
Shackling of the defendant during trial. The judge had ample reasons to believe that security measures were necessary for courtroom safety given her extensive experience with this defendant during pretrial proceedings. Addressing this issue in Commonwealth v. Brown, 364 Mass. 471, 479 (1973), the Supreme Judicial Court stated:
'If the judge in [her] discretion decides that special precautions are to be taken, [s]he should try to find the least drastic and conspicuous measures reasonably available that will meet the particular need. . . . And the judge should assist the jury with an emphatic charge warning against bias and against inferring guilt of a defendant from the fact that security precautions were taken.'Further, '[t]he burden is on a defendant to show that the judge's decision [regarding restraints] was wrong, and an appellate court, acknowledging that the judge has a range of discretion, will not reverse [her] decision and vacate a conviction unless [s]he is shown to have been arbitrary and unreasonable.' Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 276 (2012), quoting from Commonwealth v. Brown, supra at 476.
Here, the judge's order that the defendant be shackled (but not handcuffed) was not an abuse of discretion, especially given her consideration of the issue in advance of the order, together with reasonable steps that were also taken to eliminate or lessen prejudice to the defendant, including a skirt placed around the table to conceal the shackles, and that no one would rise when the jurors entered or left the court room. Accordingly, the judge instructed the jury that they could not rely or draw any unfavorable inferences regarding the defendant's restraints. Moreover, during jury empanelment, the judge made appropriate inquiry of prospective jurors concerning the security measures and the fact the defendant wore prison clothing. Because the judge was aware of the requirements for additional security measures and followed all necessary steps, we discern no abuse of her discretion. See Commonwealth v. Martin, 424 Mass. 301, 308 (1997).
The defendant's unpreserved claim that the judge should have given further instruction to the jury that the security measures, including shackling, do not constitute evidence of guilt is without merit. In relevant part, the judge instructed the jury that 'the fact that the defendant is - has some restraints on him in the courtroom, in addition, may not be relied upon you in any way and may - you may not draw any inferences against the defendant as a result of those circumstances. He is presumed innocent and that presumption of innocence stays with him unless and until you the jury find that the Commonwealth has proved guilt beyond a reasonable doubt.' In our view, the judge's instruction conveyed the necessary cautions that are required under the circumstances.
The defendant insisted on wearing prison garb.
Motion to suppress letter. We also discern no error with the judge's denial of the defendant's motion to suppress a letter taken from him at the time of his booking at the police station on the basis that it was in plain view and the incriminating nature of the letter was immediately apparent. For the incriminatory character of seized evidence to be 'immediately apparent,' police must have probable cause to believe that the items observed were evidence of a crime. Commonwealth v. King, 67 Mass. App. Ct. 823, 828 n.14 (2006), cert. denied, 546 U.S. 1216 (2006).
Here, the defendant's reliance upon Commonwealth v. Sullo, 26 Mass. App. Ct. 766, 767-769, 772 (1989), and Commonwealth v. Vuthy Seng, 436 Mass. 537, 548- 549 (2002), cert. denied, 537 U.S. 942 (2002), is misplaced. Considering all the attendant circumstances, there was ample support in the evidence for the judge's finding that the letter was addressed to the victim of this vicious slashing and that its incriminating nature was immediately apparent. See Commonwealth v. Lee, 2 Mass. App. Ct. 700, 702-703 (1974) (plain view seizure of papers); Commonwealth v. Cullen, 62 Mass. App. Ct. 390, 399-400 (2004)(plain view seizure of coins during a pat-frisk).
The defendant also here takes issue with an asserted denial of a right to cross-examine the interpreter who translated the letter seized from the defendant at booking, a claim that was not made below. Even if an objection was made at the time the interpreter finished her translation, this claim is without merit.
Lesser included offense of mayhem. Finally, the defendant contends that his conviction for assault and battery by means of a dangerous weapon, causing severe injury, must be dismissed as duplicative. As suggested by Commonwealth v. Martin, 425 Mass. 718, 721-723 (1997), assault and battery committed by means of a dangerous weapon may be a lesser included offense of second-theory mayhem. However, 'convictions of both the greater and lesser offenses are permitted as long as they 'rest on separate and distinct acts." Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 273 (2013), quoting from Commonwealth v. King, 445 Mass. 217, 225 (2005). Compare Commonwealth v. Ogden O., 448 Mass. 798, 808 (2007) (conviction held duplicative in light of single act of throwing and igniting flammable liquid on victim). Indeed, in Commonwealth v. Page, 42 Mass. App. Ct. 943, 944-945 (1997), we determined that an allegation of an assault and battery by means of a dangerous weapon was not duplicative of mayhem as it was based on separate acts. See Commonwealth v. Hamm, 19 Mass. App. Ct. 72, 81 (1984). Contrast Commonwealth v. Sullivan, 20 Mass. App. Ct. 802, 809-810 (1985) (convictions were duplicative where the judge did not instruct the jury that the convictions must be based on separate acts); Commonwealth v. Sanchez, 405 Mass. 369, 381 (1989)(same).
Here, the judge followed the recommended practice to instruct the jury specifically that the convictions had to be based on separate acts. Commonwealth v. Maldonado, 429 Mass.
502, 509 (1999). See Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 753 748 (2008). No error is seen.
Judgments affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),