Opinion
No. 15–P–935.
09-01-2016
COMMONWEALTH v. Alex C. AGOSTINHO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Alex C. Agostinho, was charged in the District Court with assault and battery causing serious bodily injury and larceny. A jury convicted the defendant of the lesser included offense of assault and battery and found him not guilty of larceny. On appeal, he contends that the judge (1) committed reversible error by failing to give a specific unanimity instruction on the count of assault and battery causing serious bodily injury, and (2) erred or abused his discretion in imposing restitution as a condition of probation. We affirm.
Background. We summarize the relevant facts, reserving more detailed discussion in some instances for our analysis. The victim, Zachery Caillouet, was friendly with the defendant until they had a falling out sometime before April 12, 2013. On that date, Caillouet went to the home of his friend, Cody Rego. Rego is also the defendant's cousin. Upon arrival, Caillouet went to the back yard and was struck in the face by the defendant. Caillouet fell to the ground, got up, and ran toward the front of the house. Caillouet testified that the defendant caught up to him, and pushed him off a ledge in front of the house. A witness driving home from work saw Caillouet in the middle of the road, on one knee, and bleeding profusely from his nose, which “was twisted sideways.” The witness called the police. Medical personnel arrived, treated Caillouet, and transported him via ambulance to the hospital. The defendant and Rego denied that the defendant had pushed Caillouet. In either case, Caillouet landed on his left wrist, which “shattered” and required extensive surgery. His medical bills reflected an outstanding balance of $39,660.31 as of the date of a restitution hearing held by the judge. The judge ordered the defendant to pay $13,000 in restitution to Caillouet.
Photographic and testimonial evidence revealed a short distance existed between the back yard and the front of the house.
The Commonwealth contends that Shea is the controlling authority, regardless of the standard of review. Insofar as we determine that the issue was not preserved for appeal, we decline to address this assertion.
Discussion. 1. Specific unanimity instruction. The defendant contends that the omission of a specific unanimity instruction constituted reversible error because the allegations—the punch to the nose and the push off the wall—concerned successive, distinct acts. We disagree.
The present case hinges on whether or not the defendant's request for a specific unanimity instruction on assault and battery causing serious bodily injury was properly preserved for appeal. Indeed, both parties acknowledged at oral argument that if the issue was not properly preserved, Commonwealth v. Shea, 467 Mass. 788 (2014), would control and there would be no substantial risk of a miscarriage of justice. The defendant argues that his counsel took sufficient steps to preserve the issue by requesting an instruction and objecting to the judge's decision not to give it. See Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979); Rotkiewicz v. Sadowsky, 431 Mass. 748, 751–752 (2000) ; Commonwealth v. Vasquez, 456 Mass. 350, 358 (2010). The trial transcript refutes this claim.
Although defense counsel did not actually object, the judge stated that “[y]our objection's note[d].”
During the final charge conference, defense counsel asked whether the judge needed to give the jury a specific unanimity instruction. After some initial discussion, the judge stated that he was not sure if the instruction was “fitting in these circumstances.” Defense counsel responded that “it depends on what the Commonwealth's theory here is and what they're going to argue to the jury.” After further discussion, the judge stated that he would look at the instruction. At this point, defense counsel had neither objected nor requested an instruction. Instead, he specified his concern as follows:
“I would argue that if they want to argue an A & B on the punch in the nose, le[ss]er included offense, they can do that. But if they want to convict him of A & B serious bodily injury, they have to be convinced either that he pushed him off the wall or his actions in chasing him through the yard, resulted in serious bodily injury. I don't think it can be any other way.”
At this time, the judge left the bench to retrieve a copy of the instructions. Upon returning with them, further discussion ensued. The prosecutor volunteered that she would not contend, in her closing argument, that the punch to the nose constituted the serious bodily injury. Rather, her argument would be that the wrist injury, whether from the push or a chain of events that led to the fall from the wall, was the serious bodily injury. After more back and forth, defense counsel stated, in relevant part, “I'm looking at the [specific unanimity] instruction and it really doesn't fit our scenario.” The judge asked, “[w]hat do you want to say about the specific unanimity instruction?” Defense counsel responded:
“What I would like you to say is that you're going to have options to find not guilty, simple assault and battery, assault and battery causing serious bodily injury. If, however, you are—you want to find him guilty of causing serious bodily injury, your verdict must be unanimous as to what the act was that the defendant did to cause that serious bodily injury. That's what I'm requesting .”
Thus, defense counsel specified that he wanted an instruction that would give the jury three potential options: (1) find the defendant not guilty; (2) find the defendant guilty of simple assault and battery; or (3) find the defendant guilty of assault and battery causing serious bodily injury. However, in order to find the third option, defense counsel wanted the jury to specify which act (the punch or the push) caused the serious bodily injury. The judge declined to instruct as defense counsel suggested and noted the objection to his refusal to give the requested instruction.
The judge's proposed instruction, stated at sidebar, was as follows:
“If the Commonwealth has proved beyond a reasonable doubt that the defendant's actions ... in punching the victim's nose, if believed, was an assault and battery—If the Commonwealth has proved beyond a reasonable doubt that the defendant's actions in punching the victim's nose was an assault and battery, you may not find the defendant guilty of assault and battery serious bodily injury, as the injury to the nose is not, as a matter of law, a serious bodily injury.”
In closing argument, both defense counsel and the prosecutor argued that the serious bodily injury was the damage to Caillouet's wrist. Neither contended that the punch and ensuing injury to the nose was the serious bodily injury. Immediately following closing arguments, defense counsel raised the specific unanimity issue again at sidebar, and showed the judge some notes relating to a supplemental model jury instruction. Defense counsel then specified his continued concern, by stating, “[i]f [the jury] want to find him guilty of A & B serious bodily injury, they should be unanimous about which act it was that he committe[d] that resulted in serious bodily injury.” The prosecutor and the judge opined that it was clear from the prosecutor's closing that the serious bodily injury was the injury to Caillouet's wrist caused by pushing him off the wall. Defense counsel stated that he “didn't find it that clear,” and said, “[t]hat's all that I would like clarified.” The judge responded that he could instruct the jury that “serious bodily injury nose ... is off the table. I could tell [the jury] that.” Defense counsel responded, “[o]kay. That sounds good.” The lawyers and the judge discussed specific language to address defense counsel's stated concerns. The judge reviewed the language of this proposed instruction on the record. Defense counsel responded, “[t]hat's agreeable, judge.” Defense counsel also agreed to the verdict slip. The judge instructed the jury as discussed at sidebar. Asked if he wanted any corrections to the final instructions, defense counsel stated, “[n]othing. It's good.”
We also note that the defendant did not file a motion for a bill of particulars.
The record demonstrates that defense counsel was concerned with the instructions on assault and battery causing serious bodily injury; defense counsel sought an instruction that required the jury to determine which specific act, if any, caused serious bodily injury; the judge worked with defense counsel to craft an instruction that specified that the injury to Caillouet's nose was not, as a matter of law, a serious bodily injury; defense counsel explicitly approved the instruction; and defense counsel did not object to the instruction given. The defendant argues that defense counsel's initial statement to the judge—in which he asked whether a specific unanimity instruction issue was needed—preserved the issue on appeal. He further contends that he should not be punished “for having a trial counsel who both respects a trial court's initial ruling and defends his client's interest zealously by narrowing his argument after the court's rejection of his opening argument.” The argument is unavailing.
As detailed above, defense counsel's initial concerns were expressed as an invitation to the judge to discuss and explore the issue of how to properly instruct the jury. Moreover, defense counsel objected to the judge's failure to give an instruction that required the jury to specify which act caused serious bodily injury. The judge ultimately did just that. Far from punishing defense counsel, the judge addressed the precise concern that he raised. Had defense counsel also wished to object to the failure to give a specific unanimity instruction on the count of simple assault and battery, he could have done so. As counsel chose not to do so, our review is limited to whether the alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Keevan, 400 Mass. 557, 566 (1987).
There is also no merit to the defendant's purported constitutional claims. See Denehy, 466 Mass. at 738 (“[A] judge has the authority to conduct restitution hearings and, in so doing, make factual determinations relevant to the restitution award. As long as the proper procedural mechanisms are employed in the restitution hearing, we see no violation of the Sixth Amendment or art. 12 in this approach”).
Having determined that Shea controls, we turn now to the rules articulated therein. A jury verdict in a criminal trial must be unanimous. Shea, 467 Mass. at 797. “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.’ “ Id. at 798, quoting from Commonwealth v. Santos, 440 Mass. 281, 284–285 (2003). “However, ‘[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required .’ “ Shea, supra, quoting from Santos, supra at 285.
Applying these rules, we conclude that there was no substantial risk of a miscarriage of justice. In Shea, the defendant was charged with one count of violating a restraining order, but the prosecutor argued that there were two violations: one inside the court room, and another at a stairwell outside the court room. Shea, supra at 797. The Supreme Judicial Court held that the absence of a specific unanimity instruction was not an error that created a substantial risk of a miscarriage of justice, because “[t]he spatial and temporal separations between the two incidents were short. The two incidents were spatially separated by the short distance between the aisle of the court room and the stairwell outside the court room, and temporally separated by ‘probably not even a minute.’ “ Id. at 798. This case presents a similar situation. The facts showed a continuing course of conduct, the time between the incidents involved a matter of seconds, and the distance between the incidents involved a matter of feet. These facts, combined with the judge's instruction addressing the defendant's specific stated concerns, compels the conclusion that the alleged error did not create a substantial risk of miscarriage of justice.
2. Restitution. The defendant contends that the judge abused his discretion by basing his restitution order “on facts that contradict the facts the jury found.” He further couches his claim as a violation of his right to a jury trial under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The claim is unavailing.
In Commonwealth v. Denehy, 466 Mass. 723, 737 (2014), the Supreme Judicial Court explained that a judge's power to order restitution is “unquestionable,” not limited by statute, and that judges have “significant latitude” in imposing restitution. The “scope of restitution is limited to loss or damage [that] is causally connected to the offense and bears a significant relationship to the offense.” Commonwealth v. McIntyre, 436 Mass. 829, 835 (2002), quoting from Glaubius v. State, 688 So.2d 913, 915 (Fla.1997). “[W]e look to the underlying facts of the charged offense, not the name of the crime [of which the defendant was convicted, or] to which the defendant entered a plea.” McIntyre, supra (quotation omitted). See Commonwealth v. Williams, 57 Mass.App.Ct. 917, 918 (2003) (“[T]he purpose of restitution ... is not only to compensate the victim for his or her economic loss tied to the defendant's conduct, but also to make the defendant pay for the damage he or she caused as a punitive and rehabilitative sanction”). The Commonwealth bears the burden of proving the amount of the loss by a preponderance of the evidence. McIntyre, supra at 834.
Here, the judge found, inter alia:
“[t]he victim testified that the defendant caught up with him during the chase and pushed him off a stone wall, causing a serious arm fracture that required surgery. The defendant essentially testified that he never pushed the [victim], but rather that the [victim] fell of[f] the wall and injured himself. Regardless as to how the jury may have assessed the evidence, there was sufficient evidence of a causal connection between the victim's injury and the defendant's conduct that would permit this [c]ourt to order restitution.”
This finding is supported by the trial record, as Caillouet's injuries stemmed from the assault and battery of which the defendant was convicted. The causal connection between the defendant's conduct and Caillouet's damages was sufficiently established by a preponderance of the evidence. See Denehy, supra at 739 (noting that causal connection standard “is a broad test that requires a holistic assessment of the facts surrounding the crime, not merely those facts establishing the elements of the crime”). Where, as here, the judge considered “all the factors, including the facts of the case, the serious nature of the victim's injuries, and the defendant's present ability to pay restitution,” we discern no abuse of discretion.
The panelists are listed in order of seniority.
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Judgment affirmed.