Opinion
No. 11–P–2011.
2013-05-7
COMMONWEALTH v. Ronnie R. HEADLEY.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from convictions of malicious destruction of property,
trespass, two counts of threatening,
This offense was charged by a complaint that issued on September 10, 2010 (no. 1007CR5062), alleging a date of offense of July 11, 2010.
intimidation of a witness, and criminal harassment.
The first of two counts of threatening, alleged to have occurred on July 12, 2010, was charged by a complaint that issued on July 13, 2010 (no. 1007CR3877), and also charged three counts of assault and battery by means of a dangerous weapon and three counts of assault. The defendant was acquitted of the six assault-type offenses.
The second threatening count, alleged to have occurred on August 7, 2010, was charged by a complaint that issued on August 10, 2010 (no. 1007CR004485), and also charged trespass and witness intimidation, both as of that later date, and assault and battery, as of August 7, 2010.
He contends that his motion for required findings of not guilty was denied in error and that the judge's failure to give a specific unanimity instruction, sua sponte, was likewise error.
Criminal harassment was charged by a complaint that issued on December 15, 2010 (no. 1007CR6920), and alleged criminal harassment between July 11, 2010, and August 10, 2010.
Additionally, he claims that his trial counsel failed to provide him with effective assistance. We reverse the judgment on the crime of trespassing,
The four complaints, see notes 1–3, were joined for trial.
but affirm the remaining judgments. We address, first, the defendant's contention that there was insufficient evidence to warrant conviction of malicious destruction of property greater than $250. The Commonwealth has the burden to prove, beyond a reasonable doubt that: (1) the defendant destroyed or injured the property of another; (2) the defendant did so wilfully; (3) the defendant did so with malice; and (4) the damage was in an amount greater than $250. G.L. c. 266, § 127. See Commonwealth v. Armand, 411 Mass. 167, 170 (1991). The defendant's claim is that because there was no evidence that clearly showed that this offense was committed on the date alleged in the complaint, namely, July 11, 2010, also identified as the date of offense on the relevant verdict slip, a fatal variance existed between the date alleged and that shown by the evidence. Therefore, the defendant argues, the denial of his motion for a required finding of not guilty on this charge was error. The defendant suggests that the evidence instead shows that the offense occurred on July 12, 2010, one of several dates of flooding that originated in the third-floor apartment occupied by the defendant.
The Commonwealth concedes that the defendant wrongly was convicted of trespass; after reviewing the arguments and authorities offered by the parties, we accept this concession. Consequently, there is no need to address the defendant's claim of ineffective assistance of counsel related to that conviction.
The date of an offense is not usually an element of the offense that the Commonwealth would be required to prove. As explained in Commonwealth v. Knight, 437 Mass. 487, 492 (2002), quoting from Commonwealth v. Campiti, 41 Mass.App.Ct. 43, 50 (1996): “[t]he time alleged for an offense is ordinarily treated as a matter of detail rather than substance.” See G.L. c. 277, § 20 (“The time and place of the commission of the crime need not be alleged [in the complaint] unless it is an essential element thereof”). See also Commonwealth v. Day, 387 Mass. 915, 922 (1983) (“General Laws c. 277, § 35, provides that a variance between the allegations and proof shall not be a ground for the defendant's acquittal ‘if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense’ ”).
The defendant's argument with respect to the offense of intimidation of a witness, here contending that there was no evidence of his conduct that occurred on August 10, 2010, is similarly unavailing.
The defendant also contends that the judge was obliged, sua sponte, to provide the jury with a specific unanimity instruction. This claim, unpreserved by objection or request, is also without merit.
“A [specific] unanimity instruction is required only if there are separate events or episodes and the jurors could otherwise disagree concerning which act a defendant committed and yet convict him of the crime charged.” Commonwealth v. Thatch, 39 Mass.App.Ct. 904, 904, 905 (1995) (“[W]here the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required”). See Commonwealth v. Cyr, 433 Mass. 617, 621 (2001); Commonwealth v. Medina, 64 Mass.App.Ct. 708, 717 (2005). One method to determine whether the absence of a specific unanimity instruction from jury instructions created a substantial risk of a miscarriage of justice is to examine whether the “jury verdict would have been different ... if the judge had given the specific instruction now requested by the defendant.” Commonwealth v. Comtois, 399 Mass. 668, 677 (1987). See Commonwealth v. Lemar, 22 Mass.App.Ct. 170, 173 (1986). The defendant makes no cogent argument that the outcome would have been different had the judge given a specific unanimity instruction, nor do we discern such a likelihood.
Our discussion also disposes of the defendant's claim that his counsel was ineffective for having failed to request a specific unanimity instruction.
Not only was no specific unanimity instruction requested, the defendant does not contend that some charges were duplicative or lesser included offenses of others;
nor does he claim that the evidence was insufficient to support these convictions. Moreover, the defendant made no request for a bill of particulars, in which the date, time, manner, and means of the offenses could have been made more clear and could have limited the prosecution. See G.L. c. 277, § 35.
That the offenses of threatening, intimidation of a witness, and criminal harassment each have elements uncommon to the others indicates a lack of basis to contend a duplicative or lesser included charge.
Specifically, and to the extent that this contention refers to the offense of malicious destruction of property, of the five episodes of flooding alluded to by the victim, one of which occurred around the time of the defendant's first arrest, on or about July 11 or 12, 2010 (when a second-floor tenant reported water leaking from the third floor causing partial ceiling damage and collapse), the next day, the victim and a bank representative entered the defendant's apartment, discovering the clogged toilet and bathtub and the five-gallon bucket. A second flooding incident was described as occurring shortly after the date on which a court-issued eviction order was effectuated, i.e., August 10, 2010; apparently three other incidents occurred in the meantime. Any doubt that may have existed prior thereto that this flooding was accidental was eliminated and its nature as a single, continuing offense was revealed when it culminated on this latter date, on or about which the defendant was arrested. We discern no risk that the jury agreed on its verdict but were not in agreement on when it occurred.
Similarly with respect to the witness intimidation charge, the offense was not charged until August 10, 2010. Although the victim described several episodes of intimidating conduct by the defendant that preceded the issuance of this complaint and which followed the defendant's first arrest on July 12, it was not until August 10, when his intentions became more clear, culminating when the defendant issued a spoken threat coupled with a gesture indicating the victim's involvement with the court system. While the defendant's conduct towards the victim also may have been viewed as independent of the victim's status as a witness to a criminal proceeding and, instead, motivated generally by the defendant's intentions to intimidate anyone he viewed as seeking his removal from the building, given the judge's instructions as to the substantive elements of this offense, there was no confusion about which events would allow the jury to base a conviction.
The defendant also makes a similar argument with respect to the criminal harassment and threatening charges, suggesting that the multiple events described presented too confusing an assortment to allow the jury to fairly decide them without a specific unanimity instruction, risking a division of agreement over which events applied to which offenses.
“Our established rule is that, when tried in a single proceeding, a defendant may be convicted of and punished for multiple crimes based on the same act or on a single course of conduct ‘provided that each [crime] requires proof of an element that the other does not.’ Commonwealth v. Arriaga, 44 Mass.App.Ct. 382, 385 (1998). Thus, if a defendant is charged with two offenses and neither is a lesser included offense of the other, ‘convictions on both are deemed to have been authorized by the Legislature and hence not duplic[ative].’ Id. at 386.” Commonwealth v. Niels N., 73 Mass.App.Ct. 689, 697 (2009).
First, with respect to the two counts of threatening to commit a crime, G.L. c. 275, § 2, this offense has been defined as “an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat.” Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001), quoting from Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). Realistically, the two complaints for threatening, the first issued on July 13, and the other on August 10, only could relate to the defendant's shooting gesture in July, and the defendant's spoken threat in August that he was “going to teach” the victim, respectively. We see no risk here of jury confusion or of an agreed verdict that was divided by events.
In order to prove that the defendant committed the crime of criminal harassment under G.L. c. 265, § 43A( a ), the Commonwealth must prove conduct that is (1) wilful and malicious, (2) in a pattern or series (which is construed to mean at least three acts), (3) directed at a specific person, (4) causing serious alarm to that person, and (5) which would cause a reasonable person to suffer substantial emotional distress. See Commonwealth v. Welch, 444 Mass. 80, 89–90 (2005); Commonwealth v. McDonald, 462 Mass. 236, 242 (2012). Here, there was an abundance of distressing and alarming conduct on the part of the defendant, all clearly part of a single pattern of wilful and malicious harassment of the victim.
Consequently, for the reasons discussed, we discern no risk of a miscarriage of justice by the absence of a specific unanimity instruction.
On the count of complaint no. 1007CR4485 charging trespassing, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. The remaining judgments are affirmed.
So ordered.