Opinion
20-P-478
05-07-2021
COMMONWEALTH v. Thomas BENJAMIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of assault and battery causing serious bodily injury in violation of G. L. c. 265, § 13A (b ) (i). The defendant appealed, and, while his appeal was pending, he filed a motion for a new trial in which he made several claims of ineffective assistance of trial counsel. The motion was denied by the trial judge in a thorough memorandum of decision and order. The appeal from the denial of the motion for a new trial has been consolidated with the defendant's direct appeal. For the reasons that follow, we affirm the conviction and the order denying the new trial motion.
Background. We summarize the facts the jury could have found, reserving certain details for later discussion. On the evening of August 13, 2015, two employees of the department of public works (DPW) observed the victim, Jose Gonzalez, sitting on an electrical box drinking a bottle of beer in the Downtown Common, a park in Framingham. They watched as the defendant, who appeared angry, approached Gonzalez and told him to leave. The defendant began to walk away, but quickly returned and punched Gonzalez repeatedly in the face. Gonzalez fell off the box, the defendant punched him a few more times, and then left the park. When the two DPW employees realized that Gonzalez was not getting up, they left their truck and walked over to check on him. Gonzalez was unconscious and bleeding profusely from the nose. One of the DPW employees called 911. The police, followed by emergency medical technicians, arrived within minutes. Gonzalez was transported to a hospital where it was determined that he was in a coma. In addition, Gonzalez had numerous nasal fractures and had suffered a brain injury.
The two DPW employees left the park soon after the police arrived. As they were driving in the area, they saw the defendant and reported his location to the police. The police responded, arrested the defendant, and brought him to the police station where he consented to an interview. The defendant said that he was on his way to the station to tell the police what had happened when he was arrested. He explained that he wanted to make an example of Gonzalez in retaliation for an earlier confrontation and admitted that he had shoved Gonzalez which caused him to trip on the box and fall down. He claimed, however, that Gonzalez tried to punch him first. The defendant also admitted that he punched Gonzalez once in the face after he was on the ground.
There were two police interviews, but only one was recorded. A transcript of the recorded interview was admitted in evidence.
Gonzalez spent about three weeks in the hospital. There was no dispute about the extent of his injuries. At the time of trial, Gonzalez was living with his brother, who assisted him with daily tasks including eating, cleaning, using the telephone, and paying bills.
The defendant did not call any witnesses. Through cross-examination and argument, defense counsel attempted to undermine the Commonwealth's case by pointing to several discrepancies in the testimony of the two DPW employees and challenging the identification of him as the perpetrator. Both DPW employees were unable to identify the defendant from a photographic array, and they had provided a fairly generic description of the assailant to the police. The defendant also argued that he acted in self-defense and suggested that, based on the severity of Gonzalez's injuries, an unidentified person had been involved in the commission of the crime.
Discussion. 1. The defendant's direct appeal. The defendant argues that (1) the evidence presented at trial was insufficient to establish that he was responsible for Gonzalez's serious injuries; (2) the judge incorrectly instructed the jury on the element of causation; and (3) the integrity of the grand jury was impaired by the prosecutor's failure to present allegedly exculpatory evidence. We address each argument in turn.
a. Sufficiency of the evidence. In reviewing the sufficiency of the evidence, we look at the evidence in the light most favorable to the Commonwealth and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). To sustain a conviction under G. L. c. 265, § 13A (b ), the Commonwealth must prove that the defendant committed an assault and battery resulting in "serious bodily injury," defined as "bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death." G. L. c. 265, § 13A (c ). The defendant challenges the sufficiency of the evidence with respect to the element of causation only and asserts that the Commonwealth failed to prove that his conduct, i.e., shoving Gonzalez off the box and punching him once, resulted in serious bodily injury. He further argues that the Commonwealth could not meet its burden in the absence of expert testimony regarding the nature of the injuries and how they were inflicted.
To begin with, the defendant has not described the evidence in the light most favorable to the Commonwealth, as required when challenging sufficiency. See Latimore, supra at 676-677. Although he admitted to pushing Gonzalez and punching him once, one of the DPW employees testified that he saw the defendant punch the victim repeatedly in the face and continue to punch him once he had fallen to the ground. That same witness saw Gonzalez unconscious and bleeding profusely from his nose just after the defendant walked away. The police and emergency medical technicians who arrived within minutes of the defendant's departure also observed those injuries and noted that Gonzalez was having difficulty breathing due to blood in his mouth and air passageways. Ultimately, as we have noted, it was determined that Gonzalez had suffered a brain injury from which he did not fully recover. The testimony of the two DPW employees coupled with the observations of the first responders was sufficient to permit the jury to conclude beyond a reasonable doubt that the defendant's conduct caused Gonzalez's serious bodily injuries. See Commonwealth v. Marinho, 464 Mass. 115, 118-119 (2013).
Furthermore, it was not necessary to present expert testimony in order to prove causation. The jury could have reached their conclusion based on the testimony of Gonzalez, his brother, and the emergency room physician who conducted an initial medical assessment. The information provided by these witnesses regarding the injuries was within the ordinary, common knowledge and experience of a reasonable juror and did not require further explanation. See Commonwealt h v. Scott, 464 Mass. 355, 364 n.9 (2013) (citing cases).
b. Jury instruction on causation. The model jury instructions on serious bodily injury in effect at the time of trial provided as follows:
"The defendant's touching must have directly caused the serious injury or must have directly and substantially set in motion a chain of events that produced the serious injury in a natural and continuous sequence."
Instruction 6.160 of the Criminal Model Jury Instructions for Use in the District Court (2009). The judge's proposed instruction omitted that portion on the instruction which states "or must have directly and substantially set in motion a chain of events that produced the serious injury in a natural and continuous sequence." When the prosecutor requested that the omitted language be included, the defendant opposed the request, arguing that "there [was] no evidence of a substantial continuation or setting in motion a series of events." The judge granted the defendant's request and did not give the full instruction. The defendant now claims that failure to give the full instruction resulted in a substantial risk of a miscarriage of justice. We disagree.
We note that the current version of the model instructions does not include the language at issue in this case. See Instruction 6.160 of the Criminal Model Jury Instructions for Use in the District Court (rev. Dec. 2019).
The main problem with the defendant's argument is that he benefitted from the instruction as given. See Commonwealth v. Puleio, 394 Mass. 101, 108 (1985) ("The defendant cannot legitimately complain of an [alleged] error that only could have benefited him"). If the judge had given the full model instruction, the jury could have found the defendant guilty if they found that the defendant directly caused Gonzalez's serious injuries or if they found that he did so indirectly by "set[ting] in motion a chain of events that produced the serious injur[ies]." Instruction 6.160 of the Criminal Model Jury Instructions for Use in the District Court (2009). However, the instruction the judge gave required the jury to find direct causation beyond a reasonable doubt and deprived the Commonwealth of the ability to satisfy the element of causation by establishing, in the alternative, that the defendant's conduct caused Gonzalez's injuries indirectly. See Commonwealth v. Buttimer, 482 Mass. 754, 772-773 (2019) (no substantial risk of miscarriage of justice where defendant benefitted from instruction that raised Commonwealth's burden). In these circumstances, we discern no error, let alone a substantial risk of a miscarriage of justice.
c. Alleged impairment of the grand jury. The defendant argues for the first time on appeal that the Commonwealth withheld exculpatory evidence contained within Gonzalez's medical records when the case was presented to the grand jury. This claim is not supported by the record, which shows that the Commonwealth introduced the medical records as exhibits (numbers 1 and 2) during its presentation of evidence before the grand jury.
Next, the defendant argues, also for the first time on appeal, that the Commonwealth failed to inform the grand jury that there were additional witnesses who observed the incident. This argument is equally unavailing. First, this assertion is based on statements contained within the medical records, which were before the grand jury. Second, the defendant has failed to identify any witnesses who had exculpatory evidence. Lastly, even if we were to assume that such witnesses existed, and, as a result, the "integrity of the [grand jury] proceedings [had] been impaired," in the absence of willful misconduct, the indictment would have been dismissed without prejudice. Commonwealth v. Fernandes, 483 Mass. 1, 6 n.6 (2019). Because there is no basis on which we can conclude that the Commonwealth (for whatever reason) would not have presented the case to a grand jury again and obtained the same indictments, this argument fails.
The defendant does not assert that the Commonwealth engaged in willful misconduct and, therefore, the dismissal of the indictment would have been without prejudice. See Fernandes, 483 Mass. at 6 n.6.
2. Motion for a new trial. In his motion for a new trial, the defendant alleged that trial counsel provided him with ineffective assistance by (1) asserting inconsistent defenses of misidentification and self-defense; and (2) failing to pursue the only allegedly logical defense of conceding that the defendant had committed an assault and battery but had not inflicted a serious bodily injury.
"Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant." Commonwealth v. Montez, 450 Mass. 736, 755 (2008). Under the familiar Saferian test, the defendant must show that counsel's representation "fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that the performance inadequacy ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The trial judge concluded that the defendant had not met his burden. We review the judge's decision for an abuse of discretion or error of law. See Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015), S.C., 482 Mass. 838 (2019). "Where, as here, the motion judge [was] also the trial judge, we give ‘special deference’ to the judge's findings of fact and the ultimate decision on the motion." Kolenovic, supra at 672-673.
As the judge correctly noted, the defendant's ineffective assistance of counsel claims are based on tactical or strategic decisions of defense counsel. As such, the question we ask is whether such decisions were " ‘manifestly unreasonable’ when made." Kolenovic, 471 Mass. at 674, quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). "In cases where tactical or strategic decisions of the defendant's counsel are at issue, we conduct our review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful." Kolenovic, supra at 673, quoting Commonwealth v. Valentin, 470 Mass. 186, 190 (2014).
The judge properly applied the manifestly unreasonable standard here and rejected the defendant's claim that counsel was ineffective for pursuing two theories of defense, misidentification and self-defense. As the judge explained, trial counsel's efforts with regard to the defense of misidentification were directed at demonstrating the inconsistent testimony provided by the two DPW employees regarding their description of the defendant and their failure to identify him from a photographic array. The overall effect of this strategy was to weaken the Commonwealth's version of what had occurred, thereby enhancing the credibility of the defendant's version of events. The strategy was not successful, but it was not unreasonable in the circumstances. See Valentin, 470 Mass. at 190.
Moreover, to the extent that trial counsel raised the issue of self-defense, the theory was not completely inconsistent with the misidentification defense as the defendant now argues. Trial counsel raised the issue briefly in closing argument, stating:
"All the government proved for you is that Tom engaged in self-defense. Had an argument with some people in the park six days ago, walked to some guy, what's your problem, he gets up tries to swing at him and Tom hits him once[.] [T]hat's all they proved, not this other stuff."
The self-defense theory was premised on the one punch to which the defendant admitted. Trial counsel argued, essentially, that the punch was justifiable while also asserting that the defendant was not responsible for the "other stuff," namely, the serious injuries. This permitted the jury to have some doubt on whether the witnesses saw the defendant or another assailant punch Gonzalez multiple times. We do not perceive this strategy as being manifestly unreasonable. Moreover, we note that, although the judge declined to give a self-defense instruction, as the defendant had requested, the jury raised the issue on their own and sent a question to the judge asking, "Is self-defense an excuse?" Thereafter, the judge instructed the jury on self-defense. Thus, it appears, based on the jury's question, that counsel's strategy resonated at least preliminarily with one or more of the jurors.
The judge also properly rejected the argument that trial counsel was ineffective for failing to concede that the defendant was guilty of the lesser included offense of assault and battery and for not actively pursuing the theory that one punch could not have caused the serious injuries Gonzalez sustained. More specifically, the defendant argues that trial counsel should have (1) exploited a reference included in Gonzalez's medical records, which were admitted in evidence, that indicated Gonzalez was drunk and fell "face first" from a standing position and that he had been hit with a beer bottle; (2) focused on an alleged gap between the time he punched Gonzalez and the arrival of any witness or law enforcement officer to show that a third-party culprit was responsible for the injuries; and (3) introduced various photographs of the scene depicting blood near a manhole. The judge concluded that none of these alleged failures amounted to conduct that fell "measurably below that which might be expected from an ordinary fallible lawyer." Saferian, 366 Mass. at 96. We agree.
The defendant also argues that trial counsel's filing of a renewed motion for a required finding of not guilty in which he highlighted the information contained in the medical records regarding Gonzalez's injuries indicates that trial counsel "knew that he had overlooked important evidence." The judge properly rejected this argument. The filing of the renewed motion was not a concession of error on the part of trial counsel and provides no basis for concluding that trial counsel was ineffective.
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First, as the judge correctly observed, the statements in the medical records that Gonzalez fell "face first" and was hit with a beer bottle were questionable because no one who witnessed the event was at the hospital and Gonzalez was unconscious.
Second, there was no evidence of a significant time gap between the time the defendant shoved Gonzalez off the box and the arrival of the two DPW employees. Both employees testified that they approached Gonzalez just after observing the defendant strike him and that they stayed with Gonzalez until the police arrived minutes later. In addition, there was no evidence that the employees were distracted by traffic or calling the police as the defendant suggests.
Third, we have reviewed the photographs that the defendant contends should have been introduced at trial and agree with the conclusion reached by the trial judge that, although the photographs could have been used, counsel was not ineffective for not introducing them. The photographs do not add much to other photographs that were admitted or to the general description of the scene provided by the witnesses.
Lastly, and more importantly, trial counsel did pursue the theory that the defendant's punch did not cause any serious injuries. In his closing argument, trial counsel explicitly directed the jury's attention to the lack of proof that the defendant was responsible for any "stuff" other than what might result from a single punch. He also directed the jury's attention to Gonzalez's medical records and specifically mentioned the notation in the records that indicated Gonzalez had been hit with a beer bottle. Thus, even if we were to assume that the defendant met his burden on the first prong of the Saferian test for any of the reasons discussed above, he cannot show that he was deprived of a substantial ground of defense.
Judgment affirmed.
Order denying motion for new trial affirmed.