Opinion
15-P-756
07-27-2017
COMMONWEALTH v. Michael QUINLAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of rape, assault and battery by means of a dangerous weapon (a wall), and three counts of assault and battery. He appeals, arguing that his motion for a required finding of not guilty on count four, charging him with assault and battery on or about June 13, 2013, should have been allowed because the evidence was insufficient. He also argues for the first time that there was insufficient evidence to support his conviction on count three, charging him with assault and battery on or about June 19, 2013. Finally, he argues that the judge should have given the jury a specific unanimity instruction on counts three and four. We affirm.
Specifically, the defendant was convicted on five indictments: rape (count one); assault and battery by means of a dangerous weapon ("to wit: WALL") on or about June 19, 2013 (count two); assault and battery on or about June 19, 2013 (count three); assault and battery on or about June 13, 2013 (count four); and assault and battery on or about May, 2013 (count five).
Background. We summarize the relevant evidence as the jury could have viewed it. The victim and the defendant began dating in February, 2013. In March, 2013, the victim moved into the defendant's apartment, where he was living with a male roommate. Between March, 2013, and June 19, 2013, the defendant and the victim began having verbal arguments that escalated into physical altercations. According to the victim, by May, 2013, the defendant was physically abusing her every week.
On or about June 13, 2013, following an argument at home between the defendant and the victim, the roommate asked them to leave the apartment. They did leave and went to the victim's automobile which was parked outside of the apartment building. The victim testified that, once in the car, the defendant yelled at her, strangled her, and then hit her with a closed fist. The assault ended when the police arrived. The victim testified that she did not tell the police officers what had happened because the defendant made her feel guilty for getting him in trouble; in addition, she loved him and did not want him to go to jail. No arrest was made.
Specifically, the victim testified, "He started yelling at me, telling me it was my fault that we got kicked out, and began hitting me ... many times.... [He hit me in] [m]y head. And I had marks across my face and throat that night too ... [b]ecause when he hit me and then he strangled me, like, grabbed my neck, and I guess his nails dug in."
On or about June 19, 2013, the victim saw the defendant sending text messages to another woman, and informed him that "the relationship was over." She then went into the bathroom to shower and locked the door. The defendant, using a knife, broke into the bathroom and asked to talk with the victim. When the victim refused, the defendant took off his clothes, entered the shower, and "began getting physical," grabbing the victim's hair and then the right side of her head and smashing her head against the shower wall approximately three times. He also hit her three times in the head with a closed fist.
Shortly afterwards, Officer Rogers of the local police department arrived at the defendant's apartment in response to a radio dispatch for a domestic violence incident. Rogers testified that, when the defendant opened the apartment door, he was wet and claimed he had just gotten out of the shower. Rogers then discovered the victim in the bathroom, wet and wearing only a towel. He described the victim as visibly upset and crying. Her left eye and the side of her head were swollen and there were unattached pieces of her hair on her shoulder. Rogers then arrested the defendant.
Discussion. 1. Sufficiency of the evidence. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty only on count four, charging assault and battery on June 13, 2013, and count five, charging assault and battery in May, 2013. He renewed his motion at the close of all the evidence. The judge denied both motions. On appeal, in addition to pursuing his insufficiency argument as to count four, the defendant argues for the first time that there was insufficient evidence to support his conviction on count three as well.
The defendant's brief refers to count five initially, but fails to provide any argument in support of reversal specifically for that count. "Contentions lacking legal authority or reasoned explanation fall short of argument required under Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). The court need not consider them."Howe v. Tarvezian, 73 Mass. App. Ct. 10, 12 (2008).
In reviewing a motion for a required finding of not guilty we look to "whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The weight and credibility of the evidence is the province of the jury." Commonwealth v. Dubois, 451 Mass. 20, 28 (2008).
To prove beyond a reasonable doubt the charge of assault and battery, the Commonwealth must present evidence sufficient to show "the intentional and unjustified use of force upon the person of another, however slight, or the intentional doing of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another." Commonwealth v. Correia, 50 Mass. App. Ct. 455, 456 (2000) (quotations omitted). See Commonwealth v. Campbell, 352 Mass. 387, 397 (1967).
The defendant's argument is essentially the same for both counts three and four. He claims the only evidence the jury could have considered in support of the Commonwealth's burden of proof for assault and battery was the uncorroborated testimony of the victim that the defendant hit or punched her "about every day." We disagree. At least as to those two counts, the victim's testimony, taken in the light most favorable to the Commonwealth, reasonably could have persuaded the jury that the defendant committed those offenses on or about the days stated in the indictments.
As to count four, "[w]e assess the sufficiency of the evidence at the close of the Commonwealth's case-in-chief. See Commonwealth v. Kelley, 370 Mass. 147, 149-150 & n.1 (1976). See also Kater v. Commonwealth, 421 Mass. 17, 20 (1995)." Commonwealth v. McCauliff, 461 Mass. 635, 639 n.6 (2012). As to count three, "[b]ecause the defendant did not make a timely motion for a required finding at the close of the Commonwealth's case, we consider whether the evidence during the entire trial[,] ‘viewed in a light most favorable to the Commonwealth, is sufficient so that the [fact finder] "might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law...." ’ Commonwealth v. McGovern, 397 Mass. 863, 868 (1986), quoting Commonwealth v. Chappee, 397 Mass. 508, 519 (1986)." Commonwealth v. Dustin, 476 Mass. 1003, 1004-1005 (2016). On the facts of this case, the different nature of the sufficiency analysis as to each count makes no difference in the result.
Specifically, the victim's testimony regarding the incident alleged to have occurred on June 19, 2013 (count three) was corroborated by the testimony of the responding police officer. Although the victim could not recall during her testimony the exact date of the assault in the shower, Rogers testified that, on June 19, 2013, when he responded to the victim's apartment, the defendant came to the door wet and stated he had been in the shower. Then, when speaking with the victim who was in the bathroom wrapped in a towel, Rogers observed that she was visibly upset and crying, her eye and the side of her head were swollen, and there were detached pieces of her hair on her shoulder. Clearly, Rogers's testimony pins the shower incident to count three and the prosecutor so argued to the jury. In addition, in her final instructions, the judge charged the jury as to count two, assault and battery by means of a dangerous weapon, also alleged to have occurred on June 19. In so doing, the judge explained that the weapon at issue was "specifically the shower wall," thus making it clear that the shower incident formed the basis for the charges from June 19.
With regard to count four, alleged to have occurred on June 13, 2013, both the victim and the defendant testified that they were told to leave the apartment and ended up sleeping in the victim's car. Again, although the victim could not recall the exact date of this incident (testifying instead that it had occurred sometime in May or June, 2013, possibly a few weeks before the June 19, 2013, assault in the shower), her testimony itself was sufficient to establish the elements of assault and battery on or about June 13, and, as the Commonwealth correctly argues, the date was not an element of the offense. See Commonwealth v. Sineiro, 432 Mass. 735, 737 (2000) ("The precise dates and times of the assaults are not elements of the crimes charged").
As to any possible jury confusion about the date, the prosecutor made it clear in her closing argument that count four related to the incident in the car. In addition, although he denied any abuse, the defendant testified specifically that the incident in the car, where the police responded, had occurred on June 13, 2013.
In sum, based on the victim's corroborated testimony, the jury reasonably could have found that the defendant committed an assault and battery on the victim on June 13, 2013, and did so again on June 19, 2013.
Moreover, even as to count five, which charged no particular date in May, the prosecutor argued to the jury, "Now, [the victim] says that during the time period of May[,] 2013, this defendant was hitting her almost daily. Now, you'll notice in the complaints that the dates—you may consider the dates somewhat vague. It[ ] says May[,] 2013. Now, if you all find unanimously that even on one occasion in May of 2013 this happened, that he struck her, then he is guilty of assault and battery during May of 2013" (emphasis supplied).
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2. Unanimity instruction. The defendant also argues that a specific unanimity instruction was "warranted sua sponte." "[A] specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Shea, 467 Mass. 788, 798 (2014), quoting from Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995). "An instruction on specific unanimity is warranted ‘when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged. There, in order to find the defendant guilty of the charged offense, the jury must all agree as to at least one, specific incident.’ " Shea, supra, quoting from Commonwealth v. Santos, 440 Mass. 281, 284–285 (2003). See Commonwealth v. Accetta, 422 Mass. 642, 646 (1996) ("[W]here there is evidence of separate incidents, each of which could warrant a guilty verdict, the jury must be instructed that specific unanimity is required at least as to one incident").
In this case, the defendant did not request a specific unanimity instruction or object to its absence, and he indicated that he was content with the judge's instructions and the verdict slips submitted to the jury. "Because the defendant did not object to the jury instruction at trial, we review his claim to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). "A substantial risk of a miscarriage of justice exists when we have ‘a serious doubt whether the result of the trial might have been different had the error not been made.’ " Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
We see no error and certainly no substantial risk of a miscarriage of justice. Ample evidence was presented as to both counts three and four to prove that assaults occurred on the dates specified in the indictments. No specific unanimity instruction was required.
Judgments affirmed.