Opinion
14-P-1584
03-10-2016
COMMONWEALTH v. EDDIE L. CARREKER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the defendant's direct appeal from his convictions of kidnapping a child, G. L. c. 265, § 26; assault and battery, G. L. c. 265, § 13A(a); and assault and battery on a police officer, G. L. c. 265, § 13D.
The defendant first argues that trial counsel was constitutionally ineffective. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[T]he preferred method for raising [such a claim] is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). Relief will be granted on a direct appeal only when "the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
The defendant claims that he failed to accept a plea bargain as a result of trial counsel's misadvising him as to the elements of kidnapping. In particular, he asserts that trial counsel misinformed him about the strength of his defense because of counsel's mistaken belief that a lack of specific intent due to mistake would entitle the defendant to an acquittal. In point of fact, kidnapping, when charged under the first clause of G. L. c. 265, § 26, as it was here, is a general intent crime. See Commonwealth v. Traylor, 43 Mass. App. Ct. 239, 243 n.7 (1997) ("Where, as here, the crime of kidnapping is charged under the first clause of G. L. c. 265, § 26 ['[W]hoever, without lawful authority forcibly or secretly confines or imprisons another person within this Commonwealth against his will'], it does not require proof of specific intent").
Ineffective assistance of counsel is not shown indisputably on this record. It is not at all clear that there were any plea negotiations with the prosecutor. At a pretrial hearing defense counsel stated that "[the judge] had offered [the defendant] kind of a deal. [The defendant] would have been out in January of this year [2013], but it would have involved a guilty on the kidnapping and he wasn't willing to accept that."
Even assuming without deciding that this refers to a plea bargain offer -- something that is far from clear -- the record does not demonstrate that the reason the defendant did not want to plead guilty to kidnapping was that he thought he had a good defense. The defendant argues that his reason for not pleading guilty can be inferred from the fact that, once defense counsel learned the day after the pretrial hearing that lack of specific intent was not a valid defense and reported that to the defendant, the defendant offered to plead guilty. After jury empanelment, defense counsel told the judge, "Judge, in view of the lack of specific intent, which the Commonwealth has to prove in this case, I explained to my client, if he can be released today, he is willing to admit to the kidnapping charge." However, the fact that the defendant was willing on the day of trial to plead guilty on the condition that he immediately be released does not indisputably demonstrate that his reason for rejection of whatever deal might have been on the table when he was before the judge was the result of his having been misinformed by defense counsel of the elements of the offense.
It does appear that trial counsel did not understand that kidnapping was a general intent crime, as late as the day before trial. We may thus assume that the defendant has met his burden to demonstrate that defense counsel's performance fell measurably below what might have been expected of an ordinary fallible lawyer, and that the first prong of Saferian therefore was met. See Saferian, 366 Mass. at 96. Nonetheless, the defendant cannot show indisputably on this record that, as a consequence of counsel's failure, the defendant failed to accept a plea bargain that he otherwise would have. That is, the defendant has not shown indisputably on this record that, "but for counsel's unprofessional errors, the result of the proceeding could have been different." Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting from Strickland v. Washington, 446 U.S. 668, 694 (1984).
The defendant next claims that the trial judge erred by denying a motion to excuse one of the jurors. On the second and final day of trial, the juror in question told a court officer that he recognized a man who entered the court room with one of the Commonwealth's witnesses, a ten year old child who is the son of the woman who was supposed to be babysitting the kidnap victim, as someone who had been the juror's counselor. The judge inquired of the juror and concluded that that juror could be fair to both sides. We disagree with the defendant's contention that the judge was not entitled to rely on the juror's assurances that this past relationship would not "interfere in any way with [his] ability to be fair," and consequently we find no abuse of discretion in the judge's determination. We also see no error in the judge not cautioning that juror not to speak about the former counselor's presence in the court room with the other jurors.
Finally, the defendant challenges a supplemental instruction offered in response to a jury question with respect to the element of "forcible or secret confinement."
Although the jury question was not read into the record, the discussion among the judge and the attorneys makes clear that it was about the meaning of "forcible" conduct. The judge properly instructed the jury on force emphasizing that doing an act forcibly "could be either the application of actual physical force or it could be a display of potential force which compels the victim to go with the defendant." In passing, the judge said, "[n]ow, of course the statute says forcibly or secretly confines or imprisons. So in addition to forcibly, it could be secretly. And secretly simply means to do something without the knowledge of others. In this case without any knowledge of the child's lawful [guardian], parent or custodian, would be sufficient."
Trial counsel did not object to the supplemental instruction but, for the first time on appeal, the defendant argues that this final sentence reduced the burden on the Commonwealth with respect to what must be proven to show "secret" confinement. The defendant argues that in Commonwealth v. Rivera, 460 Mass. 139, 142 (2011), quoting from 3 LaFave, Substantive Criminal Law § 18.1(c), at 17 (2d ed. 2003), the Supreme Judicial Court concluded that "confinement is 'secret' in nature 'when it serves to isolate or insulate the victim from meaningful contact or communication with the public, that is, when the confinement is in a place or in a manner which makes it unlikely that members of the public will know or learn of the victim's unwilling confinement within a reasonable period of time.'"
Assuming the instruction on secret confinement given by the trial judge was in error, and that the proper instruction would have utilized the language from Rivera, supra, that error did not create a substantial risk of a miscarriage of justice. In addition to the strong evidence of force, it is undisputed that the defendant took the child into a locked hotel room and did not open the door for several minutes after a police officer knocked and identified herself. This conduct clearly suffices to meet the definition of secret confinement articulated in Rivera. Consequently, any error in this supplemental instruction, particularly in the context of the judge's full initial instruction, which the defendant agrees correctly defines secret, and in light of the fact that the question from the jury appears to have related solely to forcible confinement and not secret confinement, could not have materially affected the verdict. See Commonwealth v. King, 460 Mass. 80, 85 (2011).
The defendant argues that the videotape of him walking with the victim did not show the use of any force. However, notwithstanding what appears in the videotape, there was strong evidence that the defendant used force when initially removing the victim from the hotel room where he was watching an older child play a video game.
The defendant's brief is not clear as to whether he is contesting the length of the interval between when the police officer knocked and when she had maintenance open the door. Initially, he describes this interval as "a couple of minutes," but later he describes it as "a few seconds." The defendant cites the same portion of the responding officer's testimony for both propositions, however, and the officer clearly stated that the interval was several minutes. Therefore, we take the defendant's statement to the contrary to be a typographical error. Even if we did not, it would not affect our conclusions.
Judgments affirmed.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 10, 2016.