Opinion
19-P-253
10-14-2020
COMMONWEALTH v. ALVIN PAIGE, JR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a jury trial, the defendant, Alvin Paige, Jr., was convicted of assault and battery on a family or household member, in violation of G. L. c. 265, § 13M (a). On appeal, the defendant argues that (1) the trial judge erred in dismissing the only African-American juror for sleeping, while permitting another sleeping juror to participate in deliberations, (2) the Commonwealth made numerous improper statements during its closing argument, and (3) the judge should have given a specific unanimity instruction to the jury. We affirm.
The jury acquitted the defendant of two counts of strangulation or suffocation and one count each of kidnapping, threatening to commit a crime, and intimidation of a witness.
Background. The jury could have found the following facts at trial. The defendant and Pamela Schilling attended first grade through high school together in Longmeadow, Massachusetts. When Schilling was twenty-four years old, she relocated to Florida. She did not have any contact with the defendant until approximately 2017 when they reconnected on Facebook. Schilling and the defendant began talking via Facebook messenger, and eventually exchanged daily telephone calls and text messages. A long-distance romantic relationship developed between the defendant and Schilling. In May of 2017, Schilling returned to Massachusetts with her four year old daughter and rented a home in Springfield. Two weeks later, the defendant moved in with Schilling and her daughter.
On June 24, 2017, Schilling and the defendant brought Schilling's daughter to Boston to celebrate her birthday. In Boston, they went to the aquarium, got lunch, and saw a movie at the IMAX theatre. They left Boston at approximately 4 P.M. and, on their way home, stopped at a liquor store to pick up a six pack of beer for the defendant and something for Schilling. They returned home at approximately 6 P.M., and Shilling's daughter opened her birthday presents.
Later in the evening, while Schilling and the defendant were watching television, Schilling noticed that the defendant was acting strange. Seemingly out of nowhere, the defendant began to curse at Schilling and tell her that he could not trust her. The defendant got up from the couch and went down the basement stairs while Schilling followed. The defendant continued to yell at Schilling and eventually pushed her into the wall.
Schilling returned up the stairs and the defendant followed. The defendant placed both of his hands around Schilling's neck, and began to choke her. She recalled waking up and asking the defendant if he choked her until she passed out, and he responded, "[Y]eah, I did, bitch; get up." Schilling got up and went out to the back porch, and the defendant yelled at her to come back inside.
When Schilling returned inside the house, the defendant grabbed her by the hair and pushed her to the ground. He then placed his hand over her face, covering her mouth and nose, so that Schilling could not breathe. Suddenly, the defendant stopped "like a switch was flipped," got off of Schilling, and sat on the couch, where the defendant, Schilling, and her daughter sat for the remainder of the evening until they went to bed.
Discussion. 1. Sleeping jurors. a. Juror no. 4. The defendant first claims that the judge erred in dismissing the sole African-American juror from the jury (juror no. 4). We disagree.
While Schilling was testifying on direct examination, the judge called the prosecutor and defense counsel to sidebar. At sidebar, the judge informed them that "[t]he person in seat number 1 appears to have been asleep throughout the entirety of this crucial testimony." At this time, the judge, the prosecutor, and defense counsel all observed juror no. 4, who was seated in seat number 1, to be asleep. The judge stated that he would address the issue at the nearest opportunity that made sense and allowed the Commonwealth to continue its questioning.
At the next break, the judge conducted a voir dire of juror no. 4 at sidebar and the juror denied sleeping. When the judge asked juror no. 4 what he recalled from Schilling's testimony about the events following the visit to the aquarium, the juror stated that they got lunch, saw a movie, and Schilling's daughter opened her birthday presents. Although he briefly mentioned the word "strangulation," juror no. 4 did not describe any of the specific acts of violence by the defendant at the house that Schilling had recounted. After voir dire, the defendant requested that the judge ask the juror some additional, more targeted questions. The judge declined to do so and dismissed juror no. 4.
While the juror told the judge he was listening and taking notes, he also stated that he was "just resting [his] eyes" and had a little one at home.
"When a judge observes that a juror is asleep, or is provided reliable information to that effect, the judge is required to intervene to protect both the rights of the defendant as well as those of the Commonwealth, as each enjoys the right to decisions made by alert and attentive jurors." Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 543 (2012). "Typically, the next step is to conduct a voir dire of the potentially inattentive juror, in an attempt to investigate whether that juror remains capable of fulfilling his or her obligation to render a verdict based on all of the evidence." Commonwealth v. Villalobos, 478 Mass. 1007, 1008 (2017), quoting Commonwealth v. McGhee, 470 Mass. 638, 644 (2015). "The judge has 'substantial discretion in this area,' and on appeal, '[t]he burden is on the defendant to show that the judge's response to information about a sleeping juror was arbitrary or unreasonable.'" Villalobos, supra, quoting McGhee, supra.
"The judge's decision can best be assessed if the judge makes a record of his or her findings . . . as to whether the juror in question was indeed asleep or inattentive, and what portions of the evidence the juror may have missed." McGhee, 470 Mass. at 644. The judge here did just that. After personally observing juror no. 4 sleeping, at the next break, the judge called the juror to sidebar and conducted a voir dire. Because the judge himself witnessed juror no. 4 sleeping for at least twenty minutes, he did not find credible the juror's statement that he was not sleeping. Further, the judge was not confident that the juror heard critical evidence that required his attention in order to assess Schilling's credibility regarding the specific acts of violence recounted in her testimony. As a result, the judge's decision to excuse juror no. 4 was well within his discretion, and was neither arbitrary nor unreasonable. As the judge noted, it is unfortunate that juror no. 4 was the sole African-American juror on the jury. However, this "did not require that he remain on the jury given the judge's findings." See Lawton, 82 Mass. App. Ct. at 544 (judge properly excused juror who was member of racial minority for sleeping during trial).
In his colloquy with defense counsel, the judge stated, "The issue of his race is not a factor and it's the conclusion I would draw whether he was white or female or some other race. And so that's too bad on the scale of things, because we all want to see a diverse jury, but I can't, at this point in good consci[ence], let him remain on the jury having concluded that he was asleep during the key portion of the testimony despite the things he -- despite his denials, but very much considering what he did tell what he heard and in my own observations."
b. Juror no. 35. The defendant next argues that the judge acted improperly in failing to dismiss juror no. 35 for sleeping. When the judge first informed the attorneys that juror no. 4 was sleeping, they told the judge that they saw the juror "in the green shirt" asleep earlier in the day during opening statements. Later in the trial, during the defendant's cross-examination of Schilling, the court officer alerted the judge that "it looks like [juror no. 35] could use a break," because he was beginning to fall asleep.
We note that the judge was not required to conduct a voir dire at this time. There were two jurors on the jury wearing a green shirt and it was not specified which one may have been sleeping. Further, the prosecutor told the judge that he thought that the juror "might just close his eyes when he's listening." See Commonwealth v. Alleyne, 474 Mass. 771, 778 (2016) ("Where a judge has only tentative information that a juror may be sleeping, it is sufficient to note the report and monitor the situation").
The judge then asked the jury if any of them needed a break, and defense counsel requested a sidebar to determine how long the juror had been sleeping. The judge did not believe that juror no. 35 was asleep longer than ten to thirty seconds, but agreed to conduct a voir dire of the juror. During voir dire, juror no. 35 admitted to falling asleep. When the judge asked what he recalled about the most recent testimony, juror no. 35 accurately stated, "[T]he defense attorney was going over text messages with the witness." The judge, determining that the juror was mostly up to date on the evidence, asked defense counsel if he believed that the juror missed anything significant, and if so, if it could be corrected by re-asking the last few questions on cross-examination. Defense counsel agreed that the issue could be corrected, and did not request that the juror be dismissed.
Defense counsel did not take the opportunity to ask the witness any of the prior questions when he resumed cross-examination.
At this point, the prosecutor informed the judge that juror no. 35 was the individual in the green shirt whom they believed was sleeping during opening statements, and the judge called the juror back to sidebar for another voir dire. Juror no. 35 denied falling asleep during opening statements, and the judge allowed him to remain on the jury and participate in deliberations.
Here, when the judge received reliable information from the court officer that juror no. 35 was sleeping, the judge conducted a voir dire of the juror as required by Villalobos, 478 Mass. at 1008. Confident that he caught the sleeping juror quickly, the judge determined that juror no. 35 remained capable of fulfilling his obligation to render a verdict based on all of the evidence. "Considerable discretion" is afforded to the trial judge to determine if the "removal of a juror is merited." Commonwealth v. Ray, 467 Mass. 115, 138 (2014). Where the trial judge conducts a voir dire and is satisfied that the juror can "fairly participate in the deliberations," there is no error or abuse of discretion. Id. at 139. Accordingly, it was not improper to permit juror no. 35 to participate in deliberations.
In his determination, the judge considered the fact that any evidence the juror missed could easily be recovered by cross-examination about the text messages. The text messages were also entered as an exhibit at trial and were present during jury deliberations.
2. Closing argument. The defendant makes both preserved and unpreserved claims that the Commonwealth's closing argument caused prejudicial error or a substantial risk of a miscarriage of justice requiring reversal of his conviction. "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Felder, 455 Mass. 359, 368 (2009).
The defendant first claims that the prosecutor improperly appealed to the sympathies of the jurors by asking them to place themselves in the victim's position. In his closing argument, the prosecutor stated:
"And with regard to the kidnapping, you heard, oh, the kidnapping just stopped in the morning. The kidnapping stopped because he went to work. He was gone. He had no way to enforce it. And of course, she was kidnapped: I will kill you and your daughter if you go to the police. Would you feel safe leaving the house?"
Because the defendant made a timely objection at trial, we review for prejudicial error. See Commonwealth v. Garcia, 75 Mass. App. Ct. 901, 901 (2009). To determine whether prejudice resulted from a prosecutor's closing argument, "we consider (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury that may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 807 (2009), quoting Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000).
It is generally improper for the jury to be asked "to put themselves 'in the shoes' of the victim, or otherwise be asked to identify with the victim." Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011). When the defendant objected at trial, the judge recognized that the statement was improper and promptly instructed the jury that, when deliberating, they should not consider what they would do in those circumstances. The judge also instructed the jury before deliberations that closing arguments are not evidence. Finally, this statement was made in relation to the charge of kidnapping, of which the defendant was acquitted. See note 1, supra. We discern no prejudice. See Commonwealth v. Rock, 429 Mass. 609, 616 (1999).
For the first time on appeal, the defendant contends that the prosecutor improperly (1) vouched for the witness's credibility, (2) emphasized dramatic details to appeal to the jurors' emotions, and (3) posed rhetorical questions to the jury that, in effect, shifted the burden of proof to the defendant. As the defendant did not object at trial, we "determine if the statements were error, and, if so, whether they created a substantial risk of a miscarriage of justice." Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 9 (2019).
Prosecutors may "argue forcefully for the defendant's conviction." Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). Prosecutors, however, are "not permitted to vouch for a witness's credibility." Sanchez, 96 Mass. App. Ct. at 10. "Improper vouching occurs when 'an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.'" Id., quoting Wilson, supra at 352.
During closing argument, the prosecutor highlighted certain details from Schilling's testimony, including the defendant's choking her and drooling on her. He indicated that, based on the detailed nature of her testimony, it was unlikely that Schilling was fabricating her story. He further posed rhetorical questions to the jury asking whether Schilling was sophisticated enough to manufacture such a plot, and whether she would "make up something so disgusting." "[A] prosecutor may address the witness's lack of motive to lie and do so by asking rhetorical questions relying on the evidence presented." Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018). Based on the defendant's defense that Schilling was lying, "it [was] certainly proper for [the prosecutor] to argue from the evidence why [Schilling] should be believed." Commonwealth v. Degro, 432 Mass. 319, 327 (2000). Taken in context, these statements did not improperly vouch for Schilling's credibility, appeal to the jury's emotions, or shift the burden to the defendant. Rather, the prosecutor made an evidence-based argument that was directed at rebutting the defendant's claim that Schilling was lying. See Commonwealth v. Polk, 462 Mass. 23, 40 (2012). Because we conclude there was no error, there was no substantial risk of a miscarriage of justice.
3. Jury instruction. The defendant contends, for the first time on appeal, that he was entitled to a specific unanimity instruction. He claims that the jury could have convicted him of assault and battery on a household or family member based on Schilling's testimony about being pushed, choked, having her hair pulled, or the defendant covering her nose and mouth, and that there is no way to determine whether the jury were unanimous in finding guilt based on any one of these acts. As he did not request such an instruction, and did not object to the jury instructions as given, our review is limited to whether the error, if any, created a substantial risk of a miscarriage of justice. Commonwealth v. Erazo, 63 Mass. App. Ct. 624, 630 (2005).
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 (1995). Such an instruction is not warranted "where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents." Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 329 (2002). In other words, where a defendant's conduct amounts to a single episode "where the spatial and temporal separations between acts are short," a specific unanimity instruction is not necessary. Commonwealth v. Shea, 467 Mass. 788, 798 (2014), quoting Commonwealth v. Santos, 440 Mass. 281, 285 (2003).
The facts at issue here show a continuing course of conduct. The defendant first pushed the victim in the basement, followed her up the stairs, and placed his hands around her neck. When she went outside, he called her back in, pulled her by the hair, and placed his hand over her nose and mouth. These actions occurred over a short period of time, and were all inside of their home and against the same victim. Compare Shea, 467 Mass. at 797-798 (two acts in violation of restraining order were spatially and temporally separated within short period of time against one victim), with Commonwealth v. Palermo, 482 Mass. 620, 630 (2019) (two distinct threats, "although proximate in time," were made to two different victims). A specific unanimity instruction was not required here and the lack of such an instruction did not give rise to a substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Desmond, Ditkoff & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: October 14, 2020.