Opinion
10-P-647
08-17-2011
COMMONWEALTH v. STEVEN BANKS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The evidence in the Commonwealth's case-in-chief with respect to whether the defendant acted in self-defense was as follows. Carla Adams, a friend of both the defendant and the victim, testified that on the night in question she introduced the defendant and the victim in front of her house. She further testified that there were cars in the area, but she could not identify the location of the cars other than to state that they were more than an arm's length away from the defendant. A heated argument between the victim and the defendant began almost immediately that, according to the victim's testimony, resulted in the defendant stabbing the victim. The defendant was arrested shortly thereafter with a knife and a towel with red-colored stains. During the booking process, the defendant stated to Officer Brown that the victim said to him: 'You don't want to shake my hand. This will be the last day on earth, bumbleclut.' The defendant told Officer Brown that as the victim made that statement, 'the other gentleman reached in [his pocket] to grab a knife' and only at that point did the defendant withdraw a knife from his own sweatshirt pocket and stab the victim. There was also testimony that the defendant had a paper towel with him during booking and that deoxyribonucleic acid (DNA) testing on the knife found on the defendant was consistent with both the defendant's blood and the victim's blood. The defendant chose to call no witnesses but after the close of evidence sought an instruction on self-defense. His motion was denied.
At that point, the defendant informed defense counsel that he would like to testify (there was no recess at that time). Defense counsel relayed this request to the judge. The judge initially declined to allow the defense to reopen its case but relented when defense counsel explained that 'the defense felt the jury instruction of self-defense would be given. . . . And, now, with the jury instruction not being given, it handcuffs Mr. Banks into the fact that he's already provided evidence on his own behalf that was testified by Mr. Brown that he did do this.' Therefore, defense counsel asserted that the defendant had 'no way out' of this situation 'other than to explain from the [witness stand] what exactly happened.'
As the Supreme Judicial Court has explained, in order to raise the issue of self-defense, '[t]here must be evidence warranting at least a reasonable doubt that the defendant: (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case.' Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).
In light of Commonwealth v. Barber, the judge erred in failing to give a self-defense instruction after the Commonwealth rested. See Commonwealth v. Barber, 394 Mass. 1013, 1013 (1985). Although, as in this case, there was no affirmative evidence that the defendant was unable to retreat in Barber, the court wrote: 'The defendant testified that he drew his knife during a fight with the victim because he feared that the victim was reaching into his back pocket for a weapon. . . . The defendant could have believed that flight was not an option to avoid the conflict, especially if he believed the victim was carrying a dangerous weapon.' Ibid.
The defendant now argues that, in these unusual circumstances, the record makes clear that the judge's erroneous decision on the close question whether the evidence warranted an instruction served to compel the defendant to testify when he otherwise would not have done so. Therefore, the defendant contends that he is entitled to a new trial because his compelled testimony was in some respects prejudicial -- the defendant testified regarding his extensive record of convictions, probation violations, and arrests as well as admitting that he was significantly larger than the victim and had attempted to conceal the knife used in the stabbing from the police.
The defendant, however, was not coerced into testifying by the judge's erroneous decision. The defendant had the option to rest, and to appeal any conviction on the ground that the judge erred in failing to give the instruction on self-defense. Therefore, the introduction of the defendant's harmful testimony was not a result of the judge's ruling, but a result of the defendant's decision to testify rather than to rest. Because the defendant points to no prejudice other than that arising from the introduction of his own testimony, he is not entitled to a new trial on this ground.
Because the defendant was not compelled to testify by the judge's ruling, there was no constitutional error.
Turning to the defendant's second argument, the Commonwealth concedes that the wrong knife was admitted at trial as the knife used by the defendant. The knife was admitted during the testimony of Sergeant MacDonald, the defendant testified that the knife introduced was the one he used, and two other witnesses testified regarding DNA testing on blood found on the knife used in the stabbing while referencing the knife in evidence. Ultimately, the jury took the knife with them to jury room. During the jury's deliberation, the prosecutor informed the judge that the wrong knife had accidentally been introduced during trial. Because defense counsel failed to object to permitting the jury to deliberate with the wrong knife, or to request a mistrial or further instruction from the judge, the defendant concedes that we must review the erroneous admission of the wrong knife under a substantial risk of a miscarriage of justice standard. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
The defendant's primary argument was that he acted in self-defense; he did not contest that he was at the scene of the crime and stabbed the victim. Moreover, the prosecutor and Sergeant MacDonald both represented in an informal colloquy after the verdict that the knife introduced at trial and the knife that the defendant used to stab the victim were identical silver knives. The defendant does not contest those representations on appeal. Instead, he argues that there was a substantial risk of a miscarriage of justice because the knife was an integral part of the Commonwealth's presentation of evidence and the erroneous admission of the knife could have bolstered an argument that the police investigation in this case was mishandled. While the defense did challenge the police's handling of the investigation, the outcome of the trial primarily turned on the credibility of the defendant and of the victim as to whether the victim pulled a knife first. In these circumstances, we conclude that neither the admission of a knife identical to the one used in the assault nor the trial judge's decision not to inform the jury of the mistake created a substantial risk of a miscarriage of justice.
The defendant also argues that defense counsel's failure to object to the jury being allowed to deliberate with the wrong knife without further instruction or other action was ineffective assistance of counsel. Because the 'substantial risk of a miscarriage of justice' standard and the 'otherwise available, substantial ground of defence' prong of the Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), are equivalent, see Commonwealth v. Madera, 76 Mass. App. Ct. 154, 160-161 (2010), we conclude that the defendant's ineffective assistance claim does not entitle him to a new trial.
Judgment affirmed.
By the Court (Kantrowitz, Brown & Rubin, JJ.),