Opinion
13-P-383
12-19-2014
COMMONWEALTH v. RODERICK JOHNSON.
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
In this consolidated appeal, the defendant argues error in his conviction of intimidating a witness (in this case, a police officer) on the grounds that (1) the judge failed sua sponte to give a specific unanimity instruction and (2) the judge's supplemental instruction was erroneous in that it failed to repeat the Commonwealth's burden to prove intent. The defendant also appeals from the denial of his motion for new trial on the convictions of assault and battery by means of a dangerous weapon and witness intimidation, arguing that his trial counsel provided ineffective assistance in failing to move to suppress the victim's in-court identification of the defendant. We affirm.
The defendant was also convicted of assault and battery by means of a dangerous weapon, resisting arrest, and disorderly conduct. He was acquitted of a second count of witness intimidation. The charge of disorderly conduct was placed on file. His arguments on direct appeal go only to the conviction of intimidation of a witness. The new trial motion only requested a new trial on the convictions of witness intimidation and assault and battery by means of a dangerous weapon.
1. Specific unanimity. The defendant argues that the judge erred in not giving sua sponte a specific unanimity instruction with respect to the two witness intimidation charges. "A general unanimity instruction informs the jury that the verdict must be unanimous, whereas a specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 138 (2001), quoting from Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987). A specific unanimity instruction is required "only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged . . . ." Zane Z., supra, quoting from Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 366-367 (1991).
Because the defendant did not object to the judge's failure to give a specific unanimity instruction, we review to determine whether there was error and, if so, whether it resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Comtois, 399 Mass. 668, 676-677 (1987).
Here, no such disagreement was possible because each of the intimidation charges was based on only a single specific incident, each involving a different victim: one pertained to the alleged statement made to Jennifer Moran, the second to Sergeant Detective Paul Hamilton. All counsel clearly informed the jury in closing argument that each intimidation count related to a different victim, identifying Moran as the victim with respect to count two and Sergeant Hamilton as the victim with respect to count three. In these circumstances, a specific unanimity instruction was not required.
2. Supplemental jury instruction. After hearing from counsel at sidebar at the conclusion of his instructions to the jury, the judge gave the following additional instruction:
"Ladies and gentlemen, just one caveat the attorneys drew to my attention. When I was reading to you the intimidation of a witness, obviously a police officer who testifies in a proceeding is a witness so it covers that portion of it. But the statute does also specifically say: Whoever directly or indirectly willfully threatens a police officer is also intimidating a witness. And so, if he is doing it under the color of his authority, I should have told you that the statute specifically mentions a police officer and I failed to do that. I'm telling you that now. I hope that is clear to you."The defendant argues that this supplemental instruction would have been understood by the jury to supplant the judge's earlier instructions regarding each element of the crime, effectively relieving the Commonwealth of its burden to prove the defendant's specific intent to interfere with a criminal proceeding.
Although the Commonwealth asserts that the judge used MCLE Model Jury Instructions, it has not provided the model instruction and we have not otherwise been able to verify the Commonwealth's assertion. However, our analysis does not turn on this point.
General Laws c. 268, § 13B(1), as amended by St. 2010, c. 256, § 120, provides, in relevant part: "Whoever, directly or indirectly, willfully (a) threatens, or attempts or causes physical injury . . . to . . . (c) . . . (iii) a . . . police officer . . . ; . . . (v) . . . with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with such a proceeding shall be punished . . . ."
No objection was lodged either to the supplemental instruction or to the full instructions, and so we review to determine whether there was any error and, if so, whether that error resulted in a substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Morales, 70 Mass. App. Ct. 526, 533 (2007). "In doing so, we read the judge's charge as a whole to determine whether there is a 'substantial danger that the jury were misled by the erroneous instruction, and [whether] the instruction may have materially influenced their appraisal of the [evidence].'" Ibid., quoting from Commonwealth v. Gendraw, 55 Mass. App. Ct. 677, 687 (2002). We look "for the interpretation a reasonable juror would place on the judge's words." Commonwealth v. Young, 461 Mass. 198, 207 (2012), quoting from Commonwealth v. Trapp, 423 Mass. 356, 361, cert. denied, 519 U.S. 1045 (1996). "We do not consider bits and pieces of the instruction in isolation." Commonwealth v. Young, supra.
We acknowledge that the supplemental instruction would have been clearer had the judge specifically told the jury that it did not supplant his earlier instructions regarding the Commonwealth's burden of proving the various elements of the crime of witness intimidation. However, even were we to assume weakness in the supplemental instruction, we discern no substantial risk of a miscarriage of justice resulting from it. Sergeant Hamilton testified that after he told the defendant he was under arrest, the defendant replied, "That's okay. I'll get you, mother fucker," which Hamilton took to be a threat. When the defendant testified in his own defense, he did not deny or in any other way attempt to refute Sergeant Hamilton's testimony -- a point that is all the more significant when compared with his strong and explicit denial of making any threat to Moran. Similarly, counsel's closing offered the jury no explanation with respect to the charge of intimidating the officer, although counsel argued (successfully) against the charge involving Moran. In essence, the crime as it pertained to Sergeant Hamilton was uncontested.
3. Ineffective assistance of counsel. The defendant argues that trial counsel's failure to file a motion to suppress Moran's in-court identification of the defendant constituted ineffective assistance of counsel. The judge below concluded that the defendant failed to demonstrate a likelihood that a motion to suppress would have been successful, and therefore denied the defendant's motion for new trial. "In reviewing the judge's denial of the defendant's motion for a new trial, we first consider, as did the judge, whether a motion to suppress the identification likely would have been granted had it been filed." Commonwealth v. Walker, 460 Mass. 590, 599 (2011), citing Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
An in-court identification should be excluded only "if it is tainted by an out-of-court confrontation arranged by the Commonwealth that is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Commonwealth v. Carr, 464 Mass. 855, 877 (2013), quoting from Commonwealth v. Choeurn, 446 Mass. 510, 520 (2006). It is the defendant's burden to prove by a preponderance of the evidence "that the witness was subjected by the State to a pretrial confrontation . . . 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to deny the defendant due process of law." Commonwealth v. Odware, 429 Mass. 231, 235 (1999), quoting from Commonwealth v. Otsuki, 411 Mass. 218, 232 (1991).
Whether a showup identification procedure was unnecessarily or impermissibly suggestive involves determining "whether good reason exists" for the police to use such a procedure. Commonwealth v. Austin, 421 Mass. 357, 361 (1995). Exigent or special circumstances are not a prerequisite. Ibid. Instead, relevant factors are "the nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track." Id. at 362.
Here, the witness observed the crime, had a verbal exchange with the defendant, and observed the defendant and his coassailants flee and the direction they took. See Commonwealth v. Phillips, 452 Mass. 617, 628 (2008) (Phillips). Although the witness's description to the police was not extremely detailed, it did describe the defendant's clothes and his race. See ibid. (witness's "ability to provide a description of [the suspects] permitted the inference that he had had ample time to view them"). The defendant was stopped near the park (to which the witness said they had fled), dressed as she had described. The showup identification occurred within minutes of the assault and battery. See Commonwealth v. Meas, 467 Mass. 434, 441-442, cert. denied, 135 S. Ct. 150 (2014) (Meas) (showups taking place within minutes and just over an hour after crime were permissible). The prompt identification helped police to ascertain whether the defendant was the person observed by the witness, id. at 442, and she stated she was "a hundred percent" certain of her identification. See Phillips, supra (identification was made "without hesitation"). Finally, the showup took place during a chaotic scene in which both the assault victim and the defendant had been unruly and violent and a large group of people, including the defendant, were continuing to yell and scream, creating public safety concerns. See Meas, supra at 441-442 (noting public safety concerns).
The defendant argues that the judge incorrectly found that the witness stated she had a "good opportunity" to see the defendant. Although it is true that this specific phrase was not in the witness's trial testimony, she testified that she witnessed the crime from about fifteen feet away, and she was able to provide a description of the defendant. Thus, it may be inferred she had a good opportunity to observe him.
Contrary to the defendant's argument, the fact that the defendant was viewed while in handcuffs and with officers nearby does not necessarily "create a level of unfairness that violates due process." Id. at 442. See also Phillips, supra. Nor are we persuaded by the defendant's argument that the motion judge improperly discounted the suggestiveness of Officer Foley's statement prior to the identification. "A showup is not necessarily impermissibly suggestive because police advise the witness that someone matching the description he or she has given has been apprehended." Meas, supra. "A witness ordinarily expects to be asked to make an identification of someone who either fits the description of a suspect or is suspected to have been involved in the reported crime." Phillips, supra.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Green, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: December 19, 2014.