Opinion
19-P-444
07-17-2020
COMMONWEALTH v. CANDACE DALEY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
In 2016, the defendant was an inmate at the Massachusetts Correctional Institution at Framingham when three separate criminal complaints issued charging her with committing (1) an assault and battery and assault and battery on a correction officer on February 9, (2) an assault and battery on two correction officers on June 9, and (3) an assault and battery by means of a dangerous weapon (hot water) on September 15. Three sequential bench trials took place on the same day before a District Court judge who convicted the defendant of assault and battery by means of a dangerous weapon, assault, and three counts of assault and battery on a correction officer. The defendant did not testify at any of the trials. On appeal, the defendant claims that her motions for required findings of not guilty in each case should have been allowed. We affirm.
Background. Correction Officer Mandy Maynard testified that she was helping to prepare the defendant for transport on February 9 when she witnessed the defendant spit on and attempt to kick another correction officer, Angela Rodriguez. An emergency prevented Rodriguez from appearing for the trial. However, Maynard was present on February 9 when Rodriguez was struggling to unlock malfunctioning ankle cuffs that were on the defendant. The defendant became disruptive and "lunged forward in the seat, spat at that time, and then attempted to lift her feet to kick Officer Rodriguez in the face." The defendant's foot came within "millimeters" of Rodriguez. The defendant then spat on Rodriguez's neck. Maynard estimated that the defendant's restraints allowed her twelve to eighteen inches of movement. The defendant argued that acquittal was required because she "was just defending herself" after the restraints malfunctioned, and the Commonwealth had not proved that her conduct was intentional.
On June 9, Correction Officer Keith Flannery observed the defendant verbally harassing another correction officer in the visitation room and told the defendant that he was going to place her in restraints and escort her out. The defendant turned around and punched Flannery in the face. Six to twelve correction officers, including Christopher Normandin, came to assist Flannery in taking the defendant to the ground so further restraints could be applied. The defendant became "combative" and was kicking, scratching, and trying to bite the officers. She scratched Flannery from his bicep to his forearm, creating an open wound. She kicked Normandin as he was attempting to apply leg restraints, spraining Normandin's finger. The defendant moved for a directed verdict on the ground that the Commonwealth had not met its burden of proving that she acted intentionally rather than accidentally.
On September 15, inmate Britney Deyesso was playing cards in the yard when scalding hot water suddenly hit the side of her face. Deyesso stood up, turned around, and saw the defendant "[a] couple of feet" away holding a plastic peanut butter jar that was "melted from the hot water." The defendant dropped the jar and ran. Seven or eight other inmates were in the yard at the time. Deyesso sustained second and third degree burns to her face as a result of the attack. The defendant moved for a required finding of not guilty of assault and battery by means of a dangerous weapon, arguing there was no evidence that the defendant struck Deyesso.
Standard of review. "When reviewing the denial of a motion for a required finding of not guilty, we consider 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Commonwealth v. Kelly, 470 Mass. 682, 693 (2015), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). See Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "A conviction may be properly based entirely on circumstantial evidence so long as that evidence establishes the defendant's guilt beyond a reasonable doubt." Commonwealth v. Williams, 422 Mass. 111, 121 (1996).
On appeal, the defendant claims that Maynard's testimony in the first case was insufficient to establish that the defendant intentionally spit at, or attempted to inflict a battery on, Rodriguez. The defendant claims that her conduct was not objectively menacing because she was restrained and, therefore, unable to inflict any threatened harm. With respect to the second case involving Flannery and Normandin, the defendant repeats her argument that the Commonwealth failed to prove that the defendant acted intentionally rather than accidentally. At oral argument, the defendant also claimed for the first time that she acted in self-defense. Finally, the defendant claims on appeal that in the third case, Deyesso's testimony was insufficient to establish that it was the defendant who threw the water, rather than some other inmate, or that the defendant acted intentionally. We will address these arguments even though several were not made at the trials.
Discussion. Assault and battery. There are two theories of assault and battery. "An intentional assault and battery is 'the intentional and unjustified use of force upon the person of another, however slight.'" Commonwealth v. Porro, 458 Mass. 526, 529 (2010), quoting Commonwealth v. McCan, 277 Mass. 199, 203 (1931). "A reckless assault and battery is committed when an individual engages in reckless conduct that results in a touching producing physical injury to another person." Porro, supra. Thus, "[w]anton and reckless conduct may substitute for the 'intentional conduct' element necessary for a battery." Commonwealth v. Pease, 49 Mass. App. Ct. 539, 541 (2000).
"Assault is defined as either a threat to use physical force on another, or an attempt to use physical force on another." Kelly, 470 Mass. at 703. "The crime of assault may be committed in one of two ways: by attempting (or achieving) a battery, . . . or by engaging in objectively menacing conduct so as to place another in reasonable apprehension of an immediately threatened battery." Parreira v. Commonwealth, 462 Mass. 667, 672-673 (2012). "Under the attempted battery theory, the Commonwealth must prove that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so." Commonwealth v. Melton, 436 Mass. 291, 295 (2002).
1. Acts of February 9. It cannot seriously be contended that attempting to kick someone who is bending down to release leg restraints is not objectively menacing conduct. The Commonwealth was not required to present Rodriguez's testimony or prove that Rodriguez actually felt threatened in order to sustain its burden of proof on that issue. See Commonwealth v. Gorassi, 432 Mass. 244, 248 (2000). The fact that the defendant attempted a battery by kicking at Rodriguez and then followed that attempt with an accomplished battery (by means of her spit) supports an inference that the kick was also intended to hit Rodriguez. See Kelly, 470 Mass. at 693 (inferences drawn from evidence need only be reasonable and possible, not necessary or inescapable). Finally, evidence that the defendant's movements were limited by restraints did not require findings in the defendant's favor. The restraints neither stopped the defendant from accomplishing a battery, prevented the defendant's foot from coming within "millimeters" of Rodriguez's face, nor bore on the question of the defendant's intent. "[W]hile the laws of physics may determine the extent of injury or physical damage accomplished by a person's act, the perpetrator's intent is not so constrained. A person can intend things that are hopelessly unrealistic or even absurd." Melton, 436 Mass. at 295-296.
2. Acts of June 9. If believed, Flannery's and Normandin's testimony provided ample evidence to support a conclusion, beyond a reasonable doubt, that the defendant intentionally punched Flannery in the face and then recklessly flailed about in such a way that Flannery was scratched and Normandin's finger was sprained. See Commonwealth v. Hamilton, 87 Mass. App. Ct. 274, 276 (2015) (conviction for reckless assault requires proof that defendant engaged in conduct in "disregard of probable harmful consequences to another" and "victim suffered some physical injury" resulting from that conduct [citations omitted]). The judge was entitled to submit to herself questions of witness credibility. See Kelly, 470 Mass. at 694 (it is fact finder's province to assess credibility of witnesses and decide whom to believe). The defendant's belated claim of self-defense lacks merit where the evidence established that the defendant punched Flannery without Flannery ever having touched the defendant. See Commonwealth v. Carrion, 407 Mass. 263, 268 (1990) ("[S]elf-defense is unavailable to the person who initiates the fray"). Having "initiated this particular 'fray,'" the defendant could not claim that she scratched Flannery and kicked Normandin in self-defense. Commonwealth v. Fisher, 433 Mass. 340, 353 (2001).
3. Acts of September 15. Finally, we find no merit to the defendant's claim that the evidence was insufficient to establish that it was she who threw the scalding water at Deyesso, rather than some other inmate, or that she intended the water to hit Deyesso. Deyesso testified that the defendant was only "a few feet" away from her immediately after the water hit her face. The defendant was holding a melted plastic jar, which she dropped before running away. "Flight is perhaps the classic evidence of consciousness of guilt." Carrion, 407 Mass. at 277. The inference that the defendant got close enough to Deyesso to ensure that the scalding water she was holding actually hit Deyesso was not only reasonable and possible, but practically inescapable.
Judgments affirmed.
By the Court (Sacks, Wendlandt & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 17, 2020.