Opinion
14-P-1201
01-06-2016
COMMONWEALTH v. ALVIN PAIGE.
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
Following a jury-waived trial in the Superior Court, the defendant was convicted of assault and battery, violation of an abuse prevention order, and witness intimidation. He was found not guilty of attempted murder. On appeal, he contends that (1) trial counsel should have argued, and the judge should have considered, a theory of self-defense; (2) the evidence was insufficient to establish that he was served with and understood the abuse prevention order; and (3) the defendant was wrongly convicted of witness intimidation because the victim's testimony was not credible and the defendant was too intoxicated to form the intent to intimidate. We affirm.
Background. There was evidence from which the judge could have found that, after a night of heavy drinking on New Year's Eve, the defendant threw his girl friend against the wall of her home, strangled her, and pinned her to the floor. He told her that if she called the police he would "come back and pull an O.J. Simpson on [her] ass." When she tried to leave, he grabbed her by the hair, threw her to the floor a second time, put one hand around her neck, and put the other over her mouth and nose. The attack was interrupted by the appearance of the victim's nine year old daughter which caused the defendant to stop the assault and leave the home. He was arrested shortly thereafter attempting to flee from Newton police officers. The defendant was transported to the police station and booked. The following morning, while still in custody, he was served in hand with a restraining order which, among other things, prohibited any communication with the victim. Thereafter, the defendant telephoned the victim several times; in the first call, the defendant stated that he did not know what had happened the night before and asked her to post bail.
Discussion. 1. Self-defense. Although the defendant did not argue at trial that he acted in self-defense, he now claims error in the judge's failure, sua sponte, to "self-instruct" on self-defense. "A criminal defendant is entitled to an instruction on self-defense if the evidence, viewed in the light most favorable to him, is sufficient to raise the issue." Commonwealth v. Gill, 37 Mass. App. Ct. 457, 461 (1994), quoting from Commonwealth v. Burbank, 388 Mass. 789, 794 (1983). Even if there is no request for a self-defense instruction, a judge should instruct on or consider the issue if there is an "appropriate hypothesis in the evidence." Commonwealth v. Deagle, 10 Mass. App. Ct. 748, 751 (1980). When nondeadly force is used, the defendant is entitled to a self-defense instruction if (1) the defendant had reasonable concern over his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used was reasonable in the circumstances. Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004). "The evidence bearing on self-defense may be contained in the Commonwealth's case, the defendant's case, or the two in combination." Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 699 (2002).
The defendant suggests that evidence of his intoxication, the victim's physical fitness, and a telephone call from an old girl friend earlier in the day were sufficient to warrant consideration of self-defense. We disagree. The weight of the evidence was that the attack was unprovoked and that the defendant was the initial aggressor and remained so throughout the altercation. Thus, even if trial counsel had argued self-defense, the theory lacked evidentiary support and the judge would not have been obligated to consider it. In light of the state of the evidence, trial counsel's failure to argue self-defense, even if error, did not create a substantial risk of a miscarriage of justice. Commonwealth v. Shippee, 83 Mass. App. Ct. 659, 664 (2013). Therefore, the defendant's ineffective assistance claim also fails. See Commonwealth v. Glover, 459 Mass. 836, 845 (2011).
We note the familiar principle that the preferred method for raising a claim of ineffective assistance of counsel is through a motion for new trial, Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), unless the factual basis of the claim appears indisputably in the record, id. at 811. The defendant did not file a motion for new trial, and we cannot say that the factual basis for his claim appears indisputably in the record.
2. Violation of abuse prevention order. For the first time on appeal, the defendant claims that he was wrongfully convicted of violating an abuse prevention order because there was insufficient evidence that he had knowledge of the order. To convict a person of violation of an abuse prevention order, the Commonwealth must prove that (1) a valid order pursuant to G. L. c. 209A was in effect on the date of the violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order. Commonwealth v. Griffen, 444 Mass. 1004, 1005 (2005).
The defendant does not contest that the restraining order was in effect or that his telephone calls to the victim violated the order. He claims only that the evidence of notice was insufficient. We disagree. Officer Umina testified that he served the restraining order on the defendant in hand the morning after the incident while the defendant remained in police custody. Umina read the contents of the order to the defendant, and he acknowledged that he understood its terms. The trial judge, as fact finder, was entitled to credit that testimony.
The defendant also argues that, even if the contents of the restraining order were read to him, he was too intoxicated to understand them. Although there was evidence that the defendant and the victim had been drinking heavily, he was not incoherent. He was able to take his bag and walk away from the victim's home, he was adroit enough to run from the police and reach the top of a ten-foot fence, and he understood why he had been arrested. The following morning, when he was served with the restraining order, he said that he understood its terms and did not intend to go back "there" ever again. Having considered all of this evidence, the trial judge stated at sentencing that "while alcohol was a factor, it was not a disabling factor of specific intent." Thus, it is clear that the judge considered the issue of intoxication, but found that the evidence, taken as a whole, was sufficient to establish the intent to commit the charged offenses. There was no error.
3. Witness intimidation. The defendant claims his conviction of witness intimidation should be vacated because the victim was not credible and he was too intoxicated to form the specific intent to intimidate. This argument is not persuasive. To sustain a conviction, the Commonwealth was required to prove that (1) the defendant wilfully threatened physical injury to the victim; (2) the victim was a witness or a potential witness at any stage of a criminal proceeding; and (3) the defendant did so with the intent to impede, obstruct, delay, or otherwise interfere with the proceeding. G. L. c. 268, § 13B. See Commonwealth v. Valentin V., 83 Mass. App. Ct. 202, 205 (2013). The victim testified that after the first assault, the defendant told her that if she called the police, he would "come back and pull an O.J. Simpson" on her. This evidence, if believed, was sufficient to establish the elements of witness intimidation. The trial judge, sitting as the fact finder, concluded, "I should mention here that I think the Commonwealth proved beyond a reasonable doubt the events transpired as [the victim] described them." This explicit credibility determination is the sole province of the fact finder and not for us to second guess. Commonwealth v. Pugh, 462 Mass. 482, 495 (2012).
The defendant's claim that his "debilitating intoxication also made him incapable of forming the specific intent to influence [the victim]" fails for the same reasons set forth supra.
Judgments affirmed .
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 6, 2016.