Opinion
14-P-1194
04-05-2016
COMMONWEALTH v. JULIAN FOX.
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
The defendant, Julian Fox, appeals from his conviction of assault and battery, in violation of G. L. c. 265, § 13A(a). The defendant maintains that his conviction should be reversed for three reasons. First, the defendant argues that evidence of his prearrest conduct was improperly admitted. Second, the defendant contends that the judge erred when he instructed the jury on self-defense. Third, the defendant argues that the prosecutor's remarks in summation were improper.
Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving certain details for our analysis of the issues raised on appeal. See Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
The defendant's adult daughter, Brittany Fox-Blackwood (Fox-Blackwood), resided with her father at 89 Hollingsworth Street in Mattapan. On the evening of December 20, 2013, Fox-Blackwood, while laughing, asked the defendant what he was doing because he called for one of the dogs that was standing behind him. The defendant asked what she was "talking about" and Fox-Blackwood repeated her question. This provoked the defendant to come after her and wrestle her to the ground. While the two were on the ground, the defendant told Fox-Blackwood that "I'm not going to do anything. The dog is going to do it." The dog then began to attack the defendant.
The dog had previously attacked Fox-Blackwood.
After the incident, Fox-Blackwood called her sister and told her what had happened. Fox-Blackwood's sister then came to the residence and confronted the defendant. The defendant closed the door on the sister's foot, which prompted her to tell Fox-Blackwood to telephone the police.
Discussion. 1. Prearrest conduct. The defendant argues that the judge violated the defendant's right against self-incrimination when he allowed the responding police officer to testify about the defendant's prearrest conduct. However, in certain instances, the defendant's prearrest silence may be properly admitted. See Commonwealth v. Hart, 455 Mass. 230, 238-239 (2009) (allowing prearrest silence for impeachment purposes where fundamental requirements met). Evidence of the defendant's uncooperative behavior was properly admitted in the instant case to explain the police investigation. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting from McCormick, Evidence § 249, at 734 (3d ed. 1984) ("[A]n arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct"). The evidence admitted is akin to postarrest silence being used to explain the course of the police investigation. See Commonwealth v. Waite, 422 Mass. 792, 797-799 (1996). "At no time did the Commonwealth use the defendant's statement as evidence of his guilt, or to impeach an explanation subsequently offered at trial." Commonwealth v. Habarek, 402 Mass. 105, 110 (1998). The Commonwealth's questions were posited to explain the course of the police investigation. See Commonwealth v. Ye, 52 Mass. App. Ct. 390, 396 (2001), quoting from Commonwealth v. Waite, supra at 799 n.5. ("[S]uch testimony regarding silence is not used against a defendant because it is not logically linked up with any contention or inference that harms the defendant"). Importantly, the Commonwealth did not mention the defendant's failure to answer police questions after the testimony of the police officer or during closing arguments. The unobjected-to testimony regarding the defendant's prearrest conduct did not rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 686 (2002).
We note that the defendant, during cross-examination of the police officer, strategically used the defendant's conduct now in question when he asked, "[H]e really didn't answer any of your questions, right?" which eliminated the risk of prejudice to him. See Commonwealth v. McCoy, 456 Mass. 838, 851-852 (2010).
2. Self-defense instruction. The defendant contends that the trial judge erred because he gave an incomplete self-defense instruction. Because the defendant did not object to the instructions given at trial, or request specific instructions, we limit our review to determining whether the instructions given created a substantial risk of a miscarriage of justice. Commonwealth v. Comtois, 399 Mass. 668, 675-676 (1987). "A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present." Commonwealth v. Pike, 428 Mass. 393, 395 (1998).
"In a case like this where nondeadly force is used, a defendant is entitled to an instruction on self-defense 'if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present,' Commonwealth v. Pike, [supra], to wit: (1) the defendant had 'a reasonable concern over his personal safety,' Commonwealth v. Baseler, 419 Mass. 500, 502-503 (1995); (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness. Commonwealth v. Harrington, 379 Mass. 446, 450 (1980)."Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004).
When reviewing a jury instruction, "[w]e look to the charge as a whole to determine whether it fairly instructs the jury." Commonwealth v. Raymond, 424 Mass. 382, 386 (1997). The instructions the judge gave mirror the model jury instructions and correctly informed the jury of the three predicates necessary to find that the defendant was not justified in his actions. See Instruction 9.260 of the Model Jury Instructions for Use in the District Court (2009). The judge also told the jury twice that they must acquit the defendant if they found that the defendant acted in self-defense and also properly instructed the jury that it was the Commonwealth's burden to prove the defendant did not act in self-defense. The judge's instructions to the jury about self-defense were appropriate in this case because it explained the applicable law to the jury. See Commonwealth v. Johnston, 467 Mass. 674, 702 (2014) ("A judge must carefully explain the applicable law to the jury, but the method and extent of the charge lies in her discretion").
The judge's instruction to the jury provided, in relevant part:
"Now, a person is allowed to act in self-defense. If evidence of self-defense is present the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense. In other words, if you have a reasonable doubt whether or not the defendant acted in self-defense, your verdict must be not guilty. Self-defense, your verdict must be not guilty. . . . To prove that the defendant did not act in self-defense, the Commonwealth must prove one of the following things beyond a reasonable doubt. First, that the defendant did not reasonably believe he was being attacked or immediately about to be attacked and that his safety was in immediate danger. Second, that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force; or third, that the defendant used more force than necessary to defend himself than was reasonably necessary in the circumstances."
3. Prosecutor's summation. The defendant claims that the prosecutor's closing argument violated his right to a fair trial because it improperly referenced excluded bad act evidence and unfairly attacked defense counsel's use of bias evidence. The defendant did not object to either part of the prosecutor's summation that is now challenged so we review the challenges to determine if they give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 160 (2010). See also Commonwealth v. Lyons, 426 Mass. 466, 471 (1998) ("Although not dispositive, we consider the fact that the defendant did not object to the statements at trial as some indication that the tone [and] manner . . . of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial" [quotation omitted]). "In analyzing a claim of improper argument, 'the prosecutor's remarks must be viewed in light of the entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.'" Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990), quoting from Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984).
Neither the defendant's argument that the prosecutor's closing argument improperly referenced excluded prior bad act evidence nor his contention that the prosecutor unfairly attacked defense counsel's use of bias evidence have any merit. First, the prosecutor's use of the word "pinning" was a fair inference from the evidence presented at trial. See Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). Further, even if we were to deem this statement improper, it did not rise to a substantial risk of a miscarriage of justice because it was a fleeting one-word reference in a closing argument that spanned three pages in the transcript, see Commonwealth v. Ramirez, 46 Mass. App. Ct. 925, 928 (1999), the judge had struck the prior bad act response from the record, and the judge clearly instructed the jury to "disregard the testimony regarding any previous conduct." See Commonwealth v. Helfant, 398 Mass. 214, 228 (1986) ("The judge's instructions were clear and we must presume the jury followed them"). Second, the prosecutor's statement that "defense counsel is trying to distract you with other family issues" was a fair response to the argument that the defendant posited. See Commonwealth v. Smith, 404 Mass. 1, 7 (1989). See also Commonwealth v. Simmons, 20 Mass. App. Ct. 366, 370 (1985) ("The prosecutor ha[s] the right to make a fair response to the defendant's obviously proper argument on . . . credibility . . .[and] also comment on the trial tactics employed by the defense" [quotation omitted]). The prosecutor's remarks were characteristic of "enthusiastic rhetoric, strong advocacy, and excusable hyperbole," and did not cross the line between fair and improper argument. Commonwealth v. Sanna, 424 Mass. at 107.
Judgment affirmed.
By the Court (Trainor, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 5, 2016.