Opinion
No. 15–P–353.
08-12-2016
COMMONWEALTH v. John A. SPEZIALI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial in the District Court, the defendant was convicted of three counts of assault and battery in violation of G.L.c. 265, § 13A(a ), two counts of attempt to commit larceny in violation of G.L.c. 274, § 6, and one count of witness intimidation in violation of G.L.c. 268, § 13B. He appeals his convictions, arguing that (1) the prosecutor's closing argument was improper; (2) the judge erred by failing to give a self-defense instruction sua sponte on one of the assault and battery charges; (3) the judge erred by failing to give a defense of property instruction sua sponte on two of the assault and battery charges; (4) the judge erred by failing to instruct the jury sua sponte that a claim of right to the property is a defense to larceny; (5) the judge erred by failing to give a specific unanimity instruction sua sponte on the witness intimidation charge; and (6) his trial counsel was ineffective for failing to object to the closing argument or request any of these instructions. We affirm the convictions.
Background. As this appeal does not primarily concern the sufficiency of the evidence, but rather the defendant's right to various instructions, we summarize the evidence presented by both sides.
1. Before the assaults. The victim testified that as of June 22, 2013, she had known the defendant for around six to eight months and considered him a friend. She had been to his house on a few occasions. She testified that on June 22, she and the defendant had gone to a bar in Pittsfield at around 8:30 or 9:00 P.M. After an hour at the bar, they went to a house party, where they stayed until around 2:30 A.M. The defendant offered the victim a ride home and she accepted.
The defendant testified that as of June 22, 2013, he and the victim had known each other for eight to ten months and were dating. On June 22, he cashed a paycheck for $1,200, and picked up the victim at 7:30 P.M. They were planning on spending the night together. They bought crack cocaine at around 8:00 P.M. and returned to his house to “get[ ] high” and “hang[ ] out.” At around 11:30 P.M., they went out and bought more crack cocaine. They returned at around 12:00 A.M. and got high again. At around 2:00 or 2:30 A.M., they went out to buy more drugs. They were unsuccessful, however, and the defendant tried to convince the victim that they should just go back to his house. In total, they spent around $500 on drugs.
The defendant's roommate testified that “at some point late in June” of 2013, the defendant came to the house with the victim. They arrived at around 7:00 or 8:00 P.M., sat on a pull-out sofa, watched television and talked. Once or twice, they left the apartment and came back. The roommate fell asleep around 10:00 or 11:00 P.M. He did not hear any yelling or screaming at any point during the night.
2. The first assault. According to the victim's account, as the defendant was driving her home, he came to an intersection. A left turn would lead to the victim's house, a right turn to the defendant's house. He took a right turn. The victim told him “this isn't the way to [her] house, and he told [her] he knows that, that [she] wasn't going home, that [she] was going to his house.”
The victim took out her telephone to arrange for a friend to pick her up at the defendant's house. The defendant grabbed the phone. The victim reached for it three or four times and “[they] fought over [it].” At one point, the victim slammed the car's gear into park to force the defendant to stop, but he put the car back in gear quickly and kept driving. She tried opening the door to jump out of the car while it was moving, but “[h]e grabbed [her] arm and pulled [her] back in as he sped up” to sixty or eighty miles per hour. Eventually, she accepted that she would not be able to leave the car and stopped resisting.
According to the defendant's account, after the victim was unable to find a source for more drugs, she began “hitting [him] and things were getting crazy.” She was “trying to kick [the defendant's] car in park, kick [his] windows, jump out....” During that time, the victim's drug dealer kept calling her phone and the victim wanted to talk to him, so the defendant grabbed the phone. Later, he gave it back to her and said she could do whatever she wanted to do.
3. The second assault. According to the victim's account, she wanted to leave the defendant's house as soon as she got there. After about twenty minutes, the defendant went to the bathroom. The victim unlocked the three locks on the door and “made a run for it.” She ran halfway out of his yard before the defendant caught up with her. At that point, “[she] started screaming for help and he put his hands around [her] mouth and then he started to try to pull [her] back into his house.” As he was grabbing at her, he was trying to take her purse and her phone. Eventually, she was able to get loose and run away.
The defendant's roommate testified that there were no working locks on the inside of the door in June, 2013.
According to the defendant's account, when they first got to his house, he took off his pants and put on shorts, leaving his wallet in the pocket of his pants. The pants contained the remaining $600 to $700 in cash that he had not spent on drugs. After changing, he went outside to the car to get cigarettes. When he returned, the victim said she was going to leave and he let her do so. Just after she left, he checked his wallet and realized that $200 was missing. He followed the victim, went up to her “to try to stop her,” and said, “[C]an I get my money[?]” She said “no” and ran away.
4. The third assault. According to the victim's account, the defendant pulled up in front of her as she was running down the street, exited his car, and started running after her. He caught up to her, grabbed her arm and her purse, and tried to pull her towards the car. When she resisted and did not let go of her purse, he pushed her down, pressed her face into the pavement with his knee, and started hitting her. After about ten minutes, a passing motorist stopped and got out of her car. The defendant got in his car, turned around, and left.
According to the defendant's account, after the victim ran away from him in the yard, he decided to try to recover his money a second time. He drove his car to where she was walking on the side of the street, stopped, and exited. He asked for his money back. She refused, so he “grabbed at her pocketbook and tried to pull on it, and then she fell backwards, landed, and [he] just tried to grab the pocketbook.” After a car “came by,” he got in his car, turned around, and went back to his house.
Three witnesses also saw or heard parts of the third assault. At some point during the assault, the victim started screaming very loudly. Her screams awakened two persons who lived across the street, Nancy Tunnicliffe and Fran Mickle. Kayla Bedford, the motorist who stopped her car and interrupted that assault, testified that she saw the defendant “on top of” the victim in the middle of the road while the victim was screaming, and that he “was basically pulling her back to his car” by her arm. Mickle testified that he saw someone “on top of a girl, dragging her up the street a little bit” by her pocketbook, which was up in the air. After Bedford stopped her car, the screaming stopped, and a car left the scene.
5. Afterward. Bedford drove the victim to the house of one of her friends, Nikki Eng. There, the victim called the police. A police officer went to the house and took photographs of bruising on the victim's arm. After the police left, Eng drove the victim to the hospital. While they were at the hospital, at around 4:00 A.M., the defendant called Eng and told her that he knew that her car was not at her house, that he knew she was at the hospital, and that he knew she was there with the victim. After leaving the hospital, Eng brought the victim to the police station.
Discussion. We address each of the defendant's arguments in turn.
1. Prosecutor's closing argument. In closing, the prosecutor argued:
“I suggest to you that [the defendant's] testimony was not credible. That he was able to listen to the testimony of all the other witnesses and say I need something to fit. What could fit? So he listens and formulates a plan.
“He comes up and says well, somebody might've heard me on the front yard, so I have to say something happened in the front yard. Somebody saw me in the street, so I have to say something happened in the street. What can I say that's going to sound like maybe it happened? He said oh, she took $200 from me, that's what I'll say, that's what I'll testify to.
“I suggest to you that that is not credible testimony. That's self-serving and he's testifying because of his own interest.”
“[A] prosecutor's statement that the defendant was present at trial and therefore had the opportunity to tailor his testimony is error.” Commonwealth v. Alphonse, 87 Mass.App.Ct. 336, 338 (2015). Defense counsel, however, did not object to this argument.
The defendant argues both that the unpreserved claim of error created a substantial risk of a miscarriage of justice, and that trial counsel was ineffective for his failure to object.
“In analyzing a claim under the substantial risk standard, ‘[w]e review the evidence and the case as a whole,’ Commonwealth v. Azar, [435 Mass. 675,] 687 [ (2002) ], and ask a series of four questions: (1) Was there error? Id. at 682–684.(2) Was the defendant prejudiced by the error? Id. at 687–688.(3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? Id. at 687–688. Commonwealth v. Alphas, 430 Mass. 8, 13–14 (1999). Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 21 (1986) (‘Where evidence of guilt is strong and one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice’). (4) May we infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision? See Commonwealth v. Johnson, 374 Mass. 453, 464–465 (1978). See also Commonwealth v.. Miranda, supra at 22. Only if the answer to all four questions is ‘yes' may we grant relief.” Commonwealth v. Randolph, 438 Mass. 290, 297–298 (2002).
To prevail on a claim of ineffective assistance of counsel, a defendant must show that there has been a “serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” and that counsel's poor performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Turning first to the ineffective assistance claim, there clearly was a serious error in the prosecutor's closing. But “a claim of ineffective assistance of counsel raised on direct appeal, rather than through a motion for a new trial, is a claim in its weakest form because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.” Commonwealth v. Ogden O., 448 Mass. 798, 807 n. 8 (2007) (quotation marks and citations omitted). We are unable to determine on this record whether there may have been a tactical reason for the failure of defense counsel to raise an objection to this portion of the closing. Therefore, we think the ineffective assistance claim is best raised in the first instance by way of a motion for a new trial.
As to the underlying claim of error, on this record we do not find a substantial risk of a miscarriage of justice. The paper record does not demonstrate that the error materially influenced the verdict.
We do not foreclose the defendant bringing this claim in a motion for a new trial should he choose to do so. The evidence with respect to the third assault is very strong, the evidence with respect to the other claims is somewhat weaker. Unlike us, the trial judge who heard the testimony will be able to evaluate the consequence of the error in light of all the facts and circumstances at trial, including the witnesses' demeanor and credibility.
2. Self-defense instruction. The defendant argues that he was entitled to a self-defense instruction as to the charge arising from the first assault. He did not request such an instruction at trial. However, if “there was an evidentiary basis for a self-defense instruction, the judge should have instructed the jury on self-defense, sua sponte, even absent a request by defense counsel.” Commonwealth v. Galvin, 56 Mass.App.Ct. 698, 701 (2002). Thus we review to determine if there was such a basis and, if so, whether the failure to give the instruction created a substantial risk of a miscarriage of justice. See Commonwealth v. Eberle, 81 Mass.App.Ct. 235, 240–241 (2012).
“Where nondeadly force is used, a defendant is entitled to a self-defense instruction if the evidence, viewed in the light most favorable to the defendant without regard to credibility, supports a reasonable doubt that (1) the defendant had reasonable concern for 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, with proportionality being the touchstone for assessing reasonableness.’ “ Commonwealth v. King, 460 Mass. 80, 83 (2011), quoting from Commonwealth v. Franchino, 61 Mass.App.Ct. 367, 368–369 (2004). “The evidence bearing upon self-defense may be contained in the Commonwealth's case, the defendant's case, or the two in combination.” Commonwealth v. Galvin, supra at 699, citing Commonwealth v. Rodriguez, 370 Mass. 684, 688 n. 5 (1976).
Even viewed in the light most favorable to the defendant, he was not entitled to a self-defense instruction because he did not use all reasonable means to avoid physical combat. He could have avoided the fight about the phone by giving it back. Assuming there was a fight over the victim's attempt to get out of the car—though neither testified to such a fight—he could have avoided it by stopping and letting her leave. The failure to request a self-defense instruction thus could not have created a substantial risk of a miscarriage of justice. This disposes as well of the defendant's claim that the failure to request one amounted to ineffective assistance of counsel. Where there is no substantial risk of a miscarriage of justice, there can be no ineffective assistance of counsel. See Commonwealth v. Randolph, 438 Mass. at 296 (“[W]hen a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel ... ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not”).
3. Defense of property instruction. The defendant argues that he was entitled to a defense of property instruction as to the second and third assaults, which occurred outside his house. He did not request such an instruction at trial. He again raises both the unpreserved claim of error and a claim of ineffective assistance.
A defendant is entitled to an instruction on defense of property if any view of the evidence would support a reasonable doubt as to whether the prerequisites of defense of property were present, which are: “(1) the defendant used only nondeadly force, and (2) the force used was ‘appropriate in kind and suitable in degree, to accomplish the purpose.’ “ Commonwealth v. Haddock, 46 Mass.App.Ct. 246, 248–249 (1999), quoting from Commonwealth v. Goodwin, 57 Mass. 154, 158 (1849). See also Commonwealth v. McArthur, 55 Mass.App.Ct. 596, 600 (2002).
On the facts summarized above, there was an evidentiary basis for a defense of property instruction as to both the second and third assaults. As to both, it is possible to view the evidence to establish that the defendant grabbed at the victim and her purse and attempted to wrest the purse away in order to recover his money, and that the injuries to the victim were caused by her falling rather than by the amount of force he used. Viewed in the light most favorable to the defendant, the evidence could support an inference that he used nondeadly force that was appropriate in kind and suitable in degree to his purpose.
There is no authority establishing whether, as with self-defense, a defendant is entitled to a defense of property instruction sua sponte when there is an evidentiary basis for it. Both parties have assumed that the same rules govern defense of property and self-defense. In light of the way in which we resolve the defendant's claim, though, we need not and do not reach the issue.
In addition to the factors stated in Commonwealth v. Alphas, supra, “[w]hen considering a failure to instruct on self-defense, a substantial risk of a miscarriage of justice occurs when the defendant was deprived of his primary argument of defense, or where the lack of the instruction relieved the Commonwealth of its full burden of proof.” Commonwealth v. Eberle, supra at 241 (citations omitted). Applying the same standard to failure to instruct on defense of property we conclude that, whether or not a judge is required to instruct on it sua sponte, the failure to give such an instruction did not create a substantial risk of a miscarriage of justice.
There were no other witnesses to the second assault; according to the defendant, it never occurred. We cannot “infer from the record that counsel's failure to object or raise a claim of error” in the failure to give the defense of property instruction with respect to the second assault “was not a reasonable tactical decision,” and therefore we cannot find a substantial risk of a miscarriage of justice. Randolph, supra at 298. Although the defendant could have argued both that he did not assault the victim and that, if he did, it was in defense of property, “it was not manifestly unreasonable to conclude that doing so would have diminished the force” of the first argument. Commonwealth v. Glover, 459 Mass. 836, 844 (2011). For the same reason, we cannot conclude that counsel was ineffective for his failure to request this instruction.
As to the third assault, even though there was evidence that would have warranted a defense of property instruction, Mickle, a disinterested witness, said that the he saw the defendant dragging the victim up the middle of Route 7 by the purse to which she was clinging. Viewing the evidence in the light most favorable to the defendant, the use of such force is not “appropriate in kind and suitable in degree, to accomplish the purpose,” Commonwealth v. Goodwin, 3 Cush. 154, 158 (1849), of recovering $200 taken from an individual at least by someone he knows. Given that this was the testimony from the disinterested witness most favorable to the defendant's claim, we again find no substantial risk of a miscarriage of justice in the failure to give, and no ineffective assistance in defense counsel's failure to ask for, a defense of property instruction.
4. Honest belief instruction. The defendant also argues that he was entitled to an instruction that he could not be found guilty of either count of attempted larceny unless the Commonwealth proved beyond a reasonable doubt that he did not honestly believe that the money in the victim's purse belonged to him. He did not request such an instruction at trial. However, a defendant who meets the burden of production for the affirmative defense that he honestly believed he had a right to the property he allegedly stole is entitled to such an instruction sua sponte. See Commonwealth v. Vives, 447 Mass. 537, 542 (2006) (“Once the defendant has met his burden of production, the jury must be charged with the honest and reasonable belief instruction”); Commonwealth v. Liebenow, 470 Mass. 151, 161–162 & n. 15 (2014).
The defendant was not charged with attempting to steal money; he was charged with attempting to steal the victim's purse. The jury charge, consistent with the complaint, stated that the attempted larceny counts concerned “two attempts to take [the victim's] purse .” The gravamen of the defense was not that he mistakenly believed his money was in the victim's purse (or that he mistakenly believed the purse was his), but that his only goal was to retrieve his own money from the victim's purse. The judge instructed the jury that “larceny ... is stealing, taking property that doesn't belong to you with the intent of depriving the rightful owner of that property” and that to prove an attempt to commit larceny, the Commonwealth had to prove “that the defendant had a specific intent to commit ... larceny.” We think these instructions would have been understood by the jury to require an acquittal if the jury believed that the defendant was seeking only to retrieve his money, because he would lack the intent to “steal[ ]” the victim's purse. That is the essence of his defense, not that there was evidence of an honest but mistaken belief about ownership of the money in the purse. We therefore see no error in the failure to give (or ineffective assistance in counsel's failure to request) an honest but mistaken belief instruction, and we conclude that, even if it were error, it did not create a substantial risk of a miscarriage of justice.
5. Specific unanimity instruction. Finally, the defendant argues that he was entitled to a specific unanimity instruction as to the witness intimidation charge. Again, he did not request such an instruction at trial. “[W]hen a defendant does not request a specific unanimity instruction or timely object to its absence, ‘no substantial risk of a miscarriage of justice’ exists where ‘the evidence satisfies each element of the statute and is sufficient to defeat a motion for a required finding of not guilty.’ “ Commonwealth v. Julien, 59 Mass.App.Ct. 679, 686 (2003), quoting from Commonwealth v. Keevan, 400 Mass. 557, 567 (1987).
The defendant argues that there was evidence of three separate events, each of which the jury may have believed was the basis for the intimidation of a witness charge. First, he took the phone away from the victim when she was trying to call a friend for a ride. Second, the victim tried to scream for help during the second assault and the defendant put his hand over her mouth. Third, Eng received the 4:00 A.M. telephone call from the defendant. The defendant argues on appeal that the evidence of the first and third events was insufficient to support a conviction for witness intimidation.
In opening, the prosecutor argued that the first and second of these events formed the basis for the witness intimidation charge. In closing, the prosecutor argued only the second.
General Laws c. 268, § 13B, as amended by St.2010, c. 256, § 120, provides, insofar as relevant here: “Whoever, directly or indirectly, willfully ... (c) ... intimidates or harasses ... (i) a witness or potential witness at any stage of a criminal investigation ... [or] (ii) a person who is or was aware of information ... that relate[s] to a violation of a criminal statute ... with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with [a criminal proceeding of any type] shall be punished....”.
This statute uses the word “intimidate” broadly. “Words do not need to be expressly intimidating, threatening, or harassing” to fall within the meaning of intimidation. Hrycenko v. Commonwealth, 459 Mass. 503, 511 (2011). “[T]he jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances.” Commonwealth v. Pagels, 69 Mass.App.Ct. 607, 613 (2007), quoting from Commonwealth v. Sholley, 432 Mass. 721, 725 (2000). Furthermore, it is not “necessary to establish that the intimidation was successful in the sense that the target of the intimidating conduct was actually frightened and made reluctant to testify.” Commonwealth v. Rivera, 76 Mass.App.Ct. 530, 535 (2010).
The statute also defines the word “harass” broadly. As it is defined in the section, it means “to engage in any act directed at a specific person or persons, which act seriously alarms or annoys such person or persons and would cause a reasonable person to suffer substantial emotional distress.”
In addition, “[u]nder the plain language of the statute, there is no requirement that there be a pending criminal proceeding.” Hrycenko v. Commonwealth, 459 Mass. at 509. Nor is there a requirement that the potential witness be furnishing information at the time of the intimidation, or even on the same day. “It is enough that the jury reasonably conclude from the surrounding circumstances that it was likely that the victim would furnish to an official investigating authority information pertaining to the crime and that the defendant intended to discourage such communication.” Commonwealth v. King, 69 Mass.App.Ct. 113, 121 (2007).
While Commonwealth v. King interpreted a prior version of the statute, all the subsequent amendments have expanded the reach of the statute. See St.1996, c. 393, §§ 2–4; St.2006, c. 48, § 3; St.2010, c. 92, § 11; St.2010, c. 256, § 120. When it rewrote the section with the 2006 amendment, “the Legislature expressly expanded the scope of the statute.” Commonwealth v. Rivera, 76 Mass.App.Ct. 530, 534 (2010).
Viewing the first event in the light most favorable to the Commonwealth, the evidence was sufficient to convict the defendant of this charge. As soon as the defendant turned towards his house rather than the victim's house and told her that “[she] wasn't going home, that [she] was going to his house,” the victim was aware of information that related to a violation of a criminal statute. The jury could have concluded that the defendant's behavior, preventing the victim from leaving his car and taking away her sole means of communicating with the outside world, was intimidating. The jury could also conclude that if the victim had been able to arrange for a friend to pick her up at the defendant's house, she would have gone to the police or that the friend she called would have done so. The fact that she called the police after arriving at Eng's house supports this conclusion. See Commonwealth v. King, supra at 121–122 (“Here, the jury could rationally find that the victim, once assured that the defendant had left, would report the robbery, thus qualifying under the statute as a ‘person “furnishing information” to a criminal investigator’ ”). See also Commonwealth v. Belle Isle, 44 Mass.App.Ct. 226, 230 (1998) (evidence of witness intimidation was sufficient where defendant ripped telephone cord from wall after victim said she was going to call police).
Viewing the third event in the light most favorable to the Commonwealth, the evidence was sufficient to convict the defendant of witness intimidation. Once Eng had brought the victim to the hospital, she was a potential witness and was aware of information that related to a violation of a criminal statute. The jury could have concluded that the defendant intimidated or harassed Eng by calling her at 4:00 A.M. and making statements that implied that he had gone to her house, that he had followed her to the hospital, and that he had been watching her. The jury could have concluded, also, that he did so in order to discourage her and the victim from going to the police, which was the very next thing they did. See Commonwealth v. King, supra.
Accordingly, the failure to give a specific unanimity instruction did not create a substantial risk of a miscarriage of justice, nor did the failure to request such an instruction amount to ineffective assistance of counsel.
Conclusion. The judgments of conviction are affirmed.
So ordered.