Opinion
15-P-665
05-30-2017
COMMONWEALTH v. Sajan CHRISTENSEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial on a murder in the first degree indictment, the defendant was convicted of voluntary manslaughter. On appeal, he claims the judge erred by refusing to instruct the jury on self-defense, excluding evidence of specific acts of violence by the victim, seating jurors biased in favor of police witnesses, and discharging an ill juror. He also argues that the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.
1. Self-defense. The defendant claims the judge erred by not instructing the jury on self-defense. We disagree. "In order for self-defense to be a viable issue at trial, there must be sufficient evidence to create 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. Lopez, 474 Mass. 690, 696 (2016), quoting from Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).
In the light most favorable to the defendant, the evidence showed that after he argued with the victim on the telephone, the two set up a fistfight at a public park. Before going to the park, the defendant went home and retrieved a knife while his friend, Adam Martin, obtained a bat. Although the defendant could have avoided the park or left once he arrived, he nonetheless went to the park for the fight. When he arrived at the park, the victim was not there, but after a telephone call, the defendant saw the victim walk onto the field. After the victim, the defendant, and Martin exchanged words, the fight started in an open area when the victim "charged" at the defendant and Martin, whereupon Martin hit the victim with the bat "[m]ultiple times." After being struck in the head, the victim took the bat from Martin, looked at the defendant (causing the defendant to be "scared"), and "kind of took a step" toward the defendant. The defendant then stabbed the victim twice in the chest, and then once in the back. The victim never struck the defendant and the defendant was not injured, other than the bruises to his hands and cut to his finger that he said happened when the knife closed on his finger.
The defendant testified that he told the victim he did not want to fight but the victim told the defendant that he would find him if he did not show up for the fight.
As an initial matter, as the judge indicated at trial, the defendant cannot claim self-defense where he and Martin were the first to introduce deadly force into the fray by their employment of the knife and the bat. See Commonwealth v. Chambers, 465 Mass. 520, 528 & n.8 (2013). Moreover, the defendant never testified that the victim raised the bat or swung the bat at him.
In addition, even in the light most favorable to the defendant, the evidence did not establish a reasonable doubt that the defendant used all reasonable means to avoid the confrontation with the victim. Although the fight was mutually agreed upon, the defendant could have avoided it by staying home or contacting the police. Once he arrived at the park, the defendant again made no effort to avoid the fight in an open park that provided opportunities for escape. See Commonwealth v. Rodriquez, 461 Mass. 100, 110 (2011) (defendant unable to claim self-defense where "events took place in the store's parking lot, with ample open space for the defendant to retreat"); Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 820 (2006) ("Where a confrontation occurs on a public street and there is no evidence that the principal was not able to walk away, there is no basis for ... self-defense").
Finally, relative to the defendant's claim that he feared that the victim would track him down, as the judge noted at trial, "[t]here were obvious alternatives available to the defendant, such as calling the police or simply remaining at his home." Commonwealth v. Hart, 428 Mass. 614, 616 (1999). But, as he told the police, he chose instead to be "a man" and not "back down." See Commonwealth v. Lopez, 474 Mass. at 697 (defendant could not claim self-defense where, "[a]fter the initial verbal confrontation, the victim ... went to the landing outside the apartment's front door for approximately forty-five minutes, during which the defendant could have telephoned the police or taken further precautions such as leaving the apartment and not returning").
The defendant also claims that the judge abused his discretion by excluding the evidence of specific acts of violence by the victim. We disagree. Even assuming that the proffered evidence qualified under Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005), because the evidence at trial did not raise the issue of self-defense, the judge properly excluded the proffered evidence. See Commonwealth v. Benoit, 452 Mass. 212, 227-228 (2008) (judge correctly excluded evidence of victim's prior violence where evidence did not raise issue of self-defense); Commonwealth v. Rodriquez, 461 Mass. at 110-111.
2. Jury selection. The defendant claims that the judge seated jurors who were biased in favor of the police. We disagree. The judge asked every prospective juror whether he or she believed police officers were more likely to tell the truth than other witnesses. If the prospective juror so believed, the judge further inquired, if the officer's "testimony was challenged in some way at trial," would that juror "tend to go with the officer's testimony, ... or would you look at all the evidence in deciding whether to believe him?"
Although juror no. 1 answered the first question with "more likely," he answered the second question by stating he would "look at all the evidence." Juror no. 3 answered similarly. Over the defendant's objection, the jurors were seated. Contrary to the defendant's claim, it was not an abuse of discretion for the judge to speak in terms of "challenged" testimony. The two questions in combination were designed to reveal whether the prospective juror was actually predisposed to believe a police officer, or simply voiced the expectation that a person entrusted with the position of a police officer is duty-bound to tell the truth, regardless of cross-examination or conflicting testimony. The judge crafted these questions in light of his many years as a Superior Court judge. The follow-up question was "reasonably expected to determine impartiality," Commonwealth v. Auguste, 414 Mass. 51, 58 (1992), inasmuch as it envisioned all possible methods of challenge to an officer's testimony, whether by "conflicting testimony," "cross-examination[,] or otherwise."
The questions were answered similarly by four other jurors, who were seated without challenge, beyond the defendant's standing objection. The defendant used peremptory challenges on four other jurors who answered the questions similarly, but also did not challenge other jurors who answered similarly.
Contrary to the defendant's claim, the follow-up question did not suggest that unchallenged police testimony should be accepted as true. The question was designed to reveal bias and predisposition jurors may have relative to police witnesses. In any event, the judge also asked each juror at the end of questioning whether he or she could be fair and impartial, and each answered that he or she could. There was no abuse of discretion. See Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978).
Also, in the final charge, the judge specifically instructed that the credibility of police officers was to be "judge[d] in the same way you judge the credibility of anyone else."
Contrary to the defendant's claim, the judge's choice of voir dire questions is reviewed for an abuse of discretion, and not as a structural error. See Commonwealth v. Silva, 455 Mass. 503, 513 (2009).
3. Discharge of sick juror. On the tenth day of trial, juror no. 15 notified the court from his home that he was sick. During a telephone hearing with the juror and the parties, the juror reported that he had been vomiting consistently for more than two hours and might have a fever. Concerned that not excusing the juror from the already two-week long trial would cause further delay, and that the juror might infect the rest of the jury, the judge excused the juror. The defendant objected to excusing the juror because he had been "attentive."
The trial was expected to last another week, and actually lasted more than an additional week.
On appeal, the defendant claims the judge abused his discretion because, since the juror was available for a hearing and participated by telephone, the appropriate standard for excusing the juror was extreme hardship, not unreasonable delay. We disagree. Pursuant to G. L. c. 234A, § 39, as amended by St. 1984, c. 189, § 158, the judge had the "authority to discharge an impanelled juror who has not appeared for juror service upon a finding that there is a strong likelihood that an unreasonable delay in the trial would occur if the court were to await the appearance of the juror." Because juror no. 15 did not appear for service, this provision of § 39 applied, and the judge was not required to find "extreme hardship" merely because there was a telephone hearing. Rather, the applicability of the different provisions of § 39 turn not on whether a hearing was conducted, but upon the stage of the proceedings and the whereabouts of the juror. See Commonwealth v. Peppicelli, 70 Mass. App. Ct. 87, 94 (2007). In any event, § 39 also provides the judge with the "discretionary authority to dismiss a juror at any time in the best interests of justice." Finally, the defendant has also shown no prejudice, so any error in the dismissal of the juror would not constitute grounds to reverse or set aside the convictions. See G. L. c. 234A, § 74.
The defendant claims he was prejudiced by the discharge of juror no. 15 because that juror was one of nine seated jurors who were not biased in favor of the police. Given there is no merit to the defendant's biased juror claim, it can offer no relief in this context.
4. Closing argument. Finally, the defendant claims that the portion of the prosecutor's closing argument relative to the amount of force with which the defendant stabbed the victim was beyond the scope of the evidence and created a substantial risk of a miscarriage of justice. We disagree.
The prosecutor's argument that the evidence showed the defendant used more force than he admitted, and that he actually plunged the knife into the victim's chest rather than just holding it up, was amply supported by the testimony that the defendant punched the victim with the knife, and that "the body is quite compressible." This supported the inference that, with enough force, a five-inch deep stab wound could occur with a knife blade that measured only three and one-quarter inches. Even if the argument was not supported by the evidence, there was no risk that justice miscarried. The defendant's claimed import of the "force" argument was that the prosecutor used it to establish malice and an intent to kill. Given the defendant's conviction of manslaughter, and not murder, the argument could not have had such an effect. See Commonwealth v. Camacho, 472 Mass. 587, 602 (2015) ("Voluntary manslaughter is an unlawful killing arising not from malice" [quotation omitted] ).
The defendant's remaining claim, that the prosecutor's argument that the victim could not "possibly have known what he was getting into" with the defendant, who would "knock your teeth out for no reason," was beyond the evidence, is without merit for reasons stated in the Commonwealth's brief at 48-50.
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Judgment affirmed.