Opinion
No. 15–P–434.
06-13-2016
COMMONWEALTH v. Michael HALLOCK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael Hallock, was convicted by a jury of the lesser included offense of armed assault with intent to kill, and assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW–SBI). He was sentenced to a prison term of not less than six nor more than eight years for the ABDW–SBI, and a from-and-after term of three years' probation for the armed assault with intent to kill. On appeal, he contends that: (1) the judge erred in failing to give an instruction on self-defense as applied to the ABDW–SBI count; (2) the judge erred in instructing the jury that he could be found guilty of armed assault with intent to kill as a joint venturer; (3) the judge's instruction on excessive force in self-defense constituted reversible error; and (4) the judge erroneously excluded certain records offered by the defendant pursuant to Commonwealth v. Adjutant, 443 Mass. 649 (2005). For the following reasons, we reverse the defendant's conviction for ABDW–SBI, but otherwise affirm.
The jury found the defendant not guilty of armed robbery.
Background. We summarize the facts as the jury could have found them, reserving some facts for later discussion. On the evening of January 5, 2012, the defendant and his friend, Josh Thibodeau, traveled from Vermont to Worcester in search of “crack” cocaine. The defendant, who was driving a red pickup truck, had a multi-tool knife on his person, as well as a large hunting knife attached to a set of brass knuckles stored in the pocket of the driver's door. The defendant and Thibodeau headed toward the downtown Worcester area where they encountered a pedestrian, Richelle Soderman, to whom they promised a small amount of cocaine in exchange for her assistance in locating a large quantity to purchase. Soderman agreed and climbed into the rear seat of the truck.
We delineate the defendant's version of events in the discussion on self-defense, infra.
After Soderman led the defendant and Thibodeau to an apartment building in an unsuccessful first attempt to find cocaine, the group drove to a BP gas station. In the BP parking lot, Soderman introduced the defendant and Thibodeau to a large man known to her as “Don” or “Dee,” who told them that he could help them purchase “three eight balls.” Don telephoned the victim, Craig Davis, whom he called “Miami,” and directed the group to the parking lot of a nearby grocery store on Main Street. They drove to and waited at the grocery store lot. Davis arrived, and spoke with the defendant and Thibodeau while standing outside of the truck. After Davis provided a small amount of cocaine for Soderman to test and validate its authenticity, the defendant and Thibodeau told Davis that they wanted to weigh the cocaine, but they did not wish to continue the transaction in the parking lot.
An eight ball is a common street term for 3.5 grams of cocaine.
Davis reluctantly entered the front passenger seat of the truck and mentioned that he “didn't even bring [his] knife with [him].” The foursome drove to nearby Beacon Street and pulled over. The defendant placed a scale on the center console, and Davis put the cocaine, weighing approximately seven grams, on the scale. The defendant turned to Thibodeau and nodded to indicate his approval.
At this point, the defendant was in the driver's seat, Davis was located in the front passenger seat, Soderman was seated in the left rear passenger seat behind the defendant, and Thibodeau was located in the right rear passenger seat, directly behind Davis.
Thibodeau asked Davis whether he had two more eight balls, to which Davis replied that he did not. Thibodeau then reached over Davis's seat, around his body, and placed a knife to his throat. Thibodeau looked at the defendant, nodded, and stated, “[w]e're ready,” and that they were going to “kill him and leave him.” Thibodeau brought the knife up and touched it to Davis's neck. Davis responded by reaching for the knife, and in a struggle with Thibodeau, placed his fingers between the blade and his neck. At the same time, the defendant began punching Davis in the head and “all over,” approximately ten times in total, with the hunting knife attached to a set of brass knuckles. During the attack, someone repeatedly told Davis to “drop it, drop it,” ostensibly referring to the cocaine, to which Davis responded that he did not “have it.”
Davis reached for the passenger door with one hand and pushed it open to exit the truck. Thibodeau had already exited the back seat, opened Davis's door, and blocked Davis's exit from the truck. Thibodeau directed Davis to remove his clothes, and as Davis began to take off his jacket, the defendant stated, “I got it,” referring to the cocaine that Davis had left on the center console. Upon hearing this, Thibodeau let go of Davis's jacket, but then placed his hand on Davis's shoulder, stabbed Davis in his right triceps, and stated, “[n]ow get the fuck out of here, you fucking nigger.”
Thereafter, Thibodeau reentered the truck, and they asked Soderman “how to get to [Route] 146.” Soderman provided them inaccurate directions so that they would not find the highway. Davis, despite his serious injuries, informed a responding officer that he had been attacked and robbed by two men in a red pickup truck with Vermont plates. Davis was transported to UMass Memorial Hospital and received emergency treatment for his injuries. The defendant and Thibodeau were apprehended shortly thereafter.
Discussion. 1. Self-defense instruction as to ABDW–SBI. The defendant argues that the judge erred by not instructing the jury that self-defense could apply to the count of ABDW–SBI. “A defendant is entitled to have the jury at his trial instructed on the law relating to self-defense if the evidence, viewed in its light most favorable to him, is sufficient to raise the issue.” Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). “In order to raise the issue of self-defense, ‘[t]here must be evidence warranting at least a reasonable doubt that the defendant: (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case.’ “ Commonwealth v. Barber, 394 Mass. 1013, 1013 (1985), quoting from Harrington, supra. “In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true.” Commonwealth v. Pike, 428 Mass. 393, 395 (1998).
The defendant did not object to the proposed self-defense instructions, and did not properly preserve the issue for appeal. See Commonwealth v. Barton, 367 Mass. 515, 517 (1975) (counsel's failure to object or take exception to charge at trial typically constitutes waiver of issue on appeal). That notwithstanding, the failure to give the instruction constituted reversible error for the reasons stated below.
The parties disagree as to whether the issue of self-defense was properly preserved. Although we reach the issue regardless, the record reflects that the judge initially advised that he intended to give a self-defense instruction. Subsequently, the judge advised, three times, that he would provide a self-defense instruction, but only as to the count of armed assault with intent to murder. The defendant did not object, despite myriad opportunities and invitations to do so, and only equivocally voiced concern regarding the absence of the instruction as to ABDW–SBI, after the trial judge concluded his charge to the jury. See Commonwealth v. Vickery, 82 Mass.App.Ct. 234, 237 (2012) (noting that counsel failed to preserve issue for appeal where counsel did not object, despite numerous opportunities to do so).
The judge does not shoulder the blame for this error, as discussed at note 5, supra.
At the outset of the trial, defense counsel advised the court that “self-defense is the issue here. Identification as to who started it is the crux of this case.” Defense counsel pursued this defense throughout trial. After the defendant's videotaped statement was played for the jury, the judge determined that the statement, although self-serving, warranted a self-defense instruction. Thereafter, the evidence of self-defense only grew stronger, as the defendant testified to the following. While seated in the truck, Davis accused him and Thibodeau of being “cops.” Davis then stated “[w]here's my knife,” and “starts reaching into his jacket.” Davis pulled out a knife. Thibodeau, from the rear seat, “leaned” and grabbed Davis by the wrist and told Davis to let go of the knife. The defendant saw that Davis held a fixed-blade knife, probably five inches long, in his hand. While Thibodeau grabbed the blade of the knife with his hand and struggled with Davis to “retract” the knife from Davis's hand, the defendant grabbed his own knife from the “truck pocket.” As the defendant told Davis to “[j]ust let go of the knife,” the defendant “caught him in the hand,” although he intended to stab Davis in his left shoulder to disarm him. The defendant testified that he thought that Davis was going to harm him; that he felt threatened by the fact that Davis had pulled a knife; that he “just wanted [Davis] to get out of the truck. He wanted to neutralize the threat, make sure [Davis] let go of the knife, and then after that [he] just wanted [Davis] to leave.” Viewed in the light most favorable to the defendant, sufficient evidence of self-defense existed to warrant an instruction on self-defense as applied to ABDW–SBI. See Pike, supra. As the defendant did not properly preserve the issue for appeal, we analyze whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Defense counsel contended in closing argument that the defendant acted in self-defense, and the Commonwealth appropriately devoted portions of its closing argument to refute that claim.
Here, the Commonwealth's case against the defendant was strong. However, the defendant's case hinged upon his claim of self-defense. Indeed, the defendant's trial testimony and admission that he stabbed Davis were predicated on that very defense. Furthermore, the defendant did not file a bill of particulars, did not seek a specific unanimity instruction, and the Commonwealth did not argue that certain conduct applied to the armed assault with intent to murder count, while separate and distinct conduct applied to the ABDW–SBI count. Thus, this is not a case in which the failure to pursue a self-defense instruction on the count of ABDW–SBI can be deemed a reasonable tactical decision. Accordingly, in the unique circumstances of this case, we hold that the absence of the self-defense instruction as to ABDW–SBI deprived the defendant of his main defense, and thus created a substantial risk of a miscarriage of justice. See Commonwealth v. Franchino, 61 Mass.App.Ct. 367, 376 (2004).
We disagree with the Commonwealth's contention that there was no evidence that “no reasonable means of escape was available” to the defendant. See Pike, 428 Mass. at 399. Viewed in the light most favorable to the defendant, Davis's sudden brandishing of the knife, within the confines of the truck, and in the chaos of the moment, provided sufficient evidence that escape was not reasonably available. See Commonwealth v. Little, 431 Mass. 782, 785–787 (2000) ; Commonwealth v. A Juvenile, 17 Mass.App.Ct. 988, 989–990 (1984).
2. Joint venture on armed assault with intent to kill. The defendant argues that there was no evidence that the defendant and Thibodeau, in the midst of the attack on Davis, mutually assented to kill him. Therefore, he contends, the judge erred by instructing the jury that the defendant could be found guilty of assault with intent to kill as a joint venturer. We are unpersuaded. The defendant construes too narrowly the time frame through which shared intent can develop. Mutual assent for a joint venture need not be formed immediately preceding the charged crime, but can be formed beforehand, when the participants embark upon their joint venture. See Commonwealth v. Pasteur, 66 Mass.App.Ct. 812, 818 (2006) (quotation omitted) (“The jury need not consider the defendant's intentions solely at the time of the crime itself, but rather may consider the whole transaction of which the crime was a part”). See also Commonwealth v. Tracy, 27 Mass.App.Ct. 455, 457–458 (1989). Furthermore, there was ample evidence in the present case to support the formation of the mutual assent required for joint venture, including testimony that Thibodeau held a knife to Davis's neck, looked at the defendant and nodded, and stated “[w]e're ready,” prior to attacking and stabbing Davis, and stealing his cocaine. See “Background,” supra. Accordingly, the judge's instruction applying joint venture to the lesser included charge of the assault with intent to kill was proper.
3. Excessive force in self-defense. The defendant argues that the judge erred by instructing the jury that they “must find the defendant guilty of assault with intent to kill” if they found that the defendant had used excessive force in self-defense. We disagree.
In reviewing a challenge to a jury instruction, we must “evaluate the charge as a whole, looking for what meaning a reasonable juror could put to the words of the trial judge.” Commonwealth v. Waite, 422 Mass. 792, 804 (1996). Viewing the instruction in its entirety, the judge correctly instructed the jury as to each element of the Commonwealth's burden of proof with respect to armed assault with intent to murder, and the impact of potential mitigating factors, including self-defense. The judge also tracked the language of the model Superior Court jury instruction as to self-defense. See Massachusetts Superior Court Criminal Practice Jury Instructions § 3.06 (Mass. Cont. Legal Educ.1999 & Supp.2003). Presuming, as we must, “that a jury follow all instructions given to it, [and] the law does not require repetition of the same thought at each turn,” Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) (citation and quotation omitted), we discern no error in the judge's instruction.
Here again, the parties disagree as to whether the issue was properly preserved for appeal. We need not resolve the issue, as we conclude that there was no error.
4. Adjutant motion. The defendant argues that the judge erred in refusing to consider the merits of his motion to admit certified copies of District Court criminal dockets regarding Davis's prior charges and convictions, pursuant to Commonwealth v. Adjutant, 443 Mass. 649 (2005). The record demonstrates that the judge exercised his discretion in declining to admit the proffered Adjutant evidence, and thus the claim is unavailing.
The judge had before him the defendant's motion in limine, which sought to introduce criminal court dockets, complaints, and applications for criminal complaints from three alleged incidents. The scant motion contained the conclusory claim that the information was probative as to whether the victim was the “first aggressor” in the present case. The judge reviewed both parties' written submissions and the proffered certified records, heard argument from both parties prior to the commencement of trial, and questioned both parties regarding the motion and the specific evidence that counsel anticipated would establish the required foundation. The judge deferred action on the motion until after such foundational evidence was admitted. When defense counsel subsequently attempted to put the court dockets in evidence, the judge sustained the Commonwealth's objection and denied the request.
The defendant concedes that the certified dockets pertaining to two of the three incidents likely “were an improper form of evidence” because the accusations of the alleged victims constituted inadmissible hearsay. Moreover, the certified docket and application for criminal complaint in the remaining case, which involved an assault by means of a firearm, failed to demonstrate that Davis had initiated the violence in that situation. In addition, defense counsel did not cross-examine Davis in connection with the prior acts while he was on the stand, declined to recall Davis to the stand after defense counsel re-raised his motion, and failed to call any witnesses in connection with Davis's alleged history of initiating violence or lay any foundation to support the admission of such evidence. Contrast Commonwealth v. Pring–Wilson, 448 Mass. 718, 730–731, 736–737 (2007) (defendant sought aggressively and repeatedly to introduce evidence of victim's history of violence, including cross-examination of witnesses regarding victim's history of fights and specific violent acts). The judge did not abuse his discretion in denying the admission of the dockets and court records.
Conclusion. For the foregoing reasons, the defendant's conviction on the count of armed assault with intent to kill is affirmed, and the conviction on the count of ABDW–SBI is reversed. The case is remanded to the sentencing judge who may resentence the defendant on the count of armed assault with intent to kill, provided the new sentence does not violate double jeopardy principles. See Commonwealth v. Sallop, 472 Mass. 568, 570 (2015), quoting from Commonwealth v. Cole, 468 Mass. 294, 310 (2014) (“Under double jeopardy principles, the new sentence on a conviction must not ‘increase the “aggregate punishment” imposed under the original sentence’ ”). See also Commonwealth v. Scott, 86 Mass.App.Ct. 812, 816–817 (2015) (judge may resentence defendant on count on which he has not completed his sentence).
In a letter to this court, written pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), appellate defense counsel (who was not trial counsel) acknowledged that this court may remand the case to the trial judge for resentencing on the surviving conviction, and that the sentencing judge may reconsider the entire sentencing structure.
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So ordered.