Opinion
14-P-1808
01-05-2016
COMMONWEALTH v. MICHAEL DISE.
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
The defendant, Michael Dise, appeals from his conviction of assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B(b). The defendant maintains that his conviction should be reversed for two reasons. First, the defendant argues that the jury instruction on inferring intent reduced the burden of proof and caused a substantial risk of a miscarriage of justice. Second, the defendant contends that the jury instruction on assault created a substantial risk of a miscarriage of justice because it included the concept of immediately threatened battery. We affirm.
Background. "We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth," reserving certain details for our analysis of the issues raised on appeal. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
On May 16, 2012, at approximately 7:00 P.M., Patrick Gonzalez was walking back to his vehicle from an auto parts store. When he reached his vehicle, he heard a verbal disagreement coming from a Jeep Cherokee (Jeep) parked next to his vehicle. He observed two males, one of them the defendant, exit the Jeep and instruct a third male passenger (passenger) to exit the Jeep. At some point, the defendant ran around to the passenger side of the Jeep and returned with what appeared to be a firearm, which he held against his leg throughout the altercation. The defendant noticed Gonzalez observing him and went back inside his Jeep. This prompted Gonzalez to drive across the street to continue observing and call the police.
What appeared to be a firearm was actually an airsoft pistol.
From across the street, Gonzalez was about 150 feet away and had a clear view of the defendant. Gonzalez observed the defendant back up his vehicle and then drive forward towards the passenger in an attempt to hit him. The vehicle came within inches of the passenger forcing him to jump out of the way. The defendant then jumped out of the Jeep and began to fistfight with the passenger. Police arrived and the passenger fled the scene on foot and was neither identified nor apprehended.
Discussion. Both of the defendant's challenges to his conviction of assault by means of a dangerous weapon derive from the judge's jury instructions. However, we are mindful that there was no objection to either portion of the challenged jury instruction. Therefore, we review the jury instruction to determine error and, if so, if that error created a substantial risk of a miscarriage of justice. Commonwealth v. Belcher, 446 Mass. 693, 696 (2006).
I. Jury instruction on inferring intent. The defendant argues that the judge erred in his instruction to the jury regarding inferring intent because it reduced the burden of proof the Commonwealth needed to prove below the beyond a reasonable doubt standard. A conviction requires proof of every element of the offense beyond a reasonable doubt. See Commonwealth v. Niziolek, 380 Mass. 513, 521-522 (1980). The Commonwealth was required to prove, under the attempted battery theory of assault, "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). "Where intent is a necessary element of the crime charged, and there is no direct evidence of the defendant's intent at the time of the crime, the jury are permitted, but not required, to infer the element of criminal intent from the circumstances." Commonwealth v. Correia, 381 Mass. 65, 83 (1980). "While an inference drawn from circumstantial evidence 'need only be reasonable and possible and need not be necessary or inescapable,' e.g., Commonwealth v. Casale, 381 Mass. 167, 173 (1980), our task is to determine whether 'the evidence presented at trial, together with all reasonable and possible inferences that might properly be drawn from it, was sufficient to permit a rational [fact finder] to find beyond a reasonable doubt the existence of every essential element of the crimes charged.' Commonwealth v. Arroyo, 442 Mass. 135, 139-140 (2004)." Commonwealth v. Oyewole, 470 Mass. 1015, 1016 n.2 (2014).
The jury instruction that the judge gave on intent did not reduce the Commonwealth's burden to prove every element beyond a reasonable doubt. The following jury instruction was given by the judge:
We note that the jury instruction on specific intent used by the judge was prepared by the District Court Committee on Criminal Proceedings. See Criminal Model Jury Instructions for Use in the District Court 3.120 (Mass. Cont. Legal Educ. 3d ed. 2009).
"In this case, you may examine the defendant's actions and words and all of the surrounding circumstances to help you determine what the defendant's intent was at that time. As a general rule, it is reasonable to infer that a person ordinarily intends the natural and probable consequences of any acts that he does intentionally.The part of the jury instruction that is challenged by the defendant is "[y]ou may draw such an inference unless there is evidence that convinces you otherwise." Objections to a judge's jury instructions are not viewed in a vacuum, but viewed in their entirety. See Commonwealth v. Harris, 395 Mass. 296, 301 (1985). It is clear from the instruction given on specific intent that the judge gave an example of a permissible inference to the jury. Nevertheless, he reiterated that the jury must find, vis-à-vis any reasonable inferences, that the Commonwealth has proved beyond a reasonable doubt that the defendant intended to commit battery. Because "jurors are always presumed to follow the instructions they are given," Commonwealth v. McCaster, 46 Mass. App. Ct. 752, 764 (1999), the jury instruction did not reduce the burden of proof the Commonwealth is required to prove as it articulated the reasonable doubt standard that was required. The judge committed no error giving this jury instruction, and, accordingly, there was no substantial risk of a miscarriage of justice present.
"You may draw such an inference unless there is evidence that convinces you otherwise.
"You should consider all of the evidence and any reasonable inferences you draw from the evidence in determining whether or not the Commonwealth has proved beyond a reasonable doubt, as it must, that the defendant acted with the intent to commit a battery."
II. Jury instruction on assault. The defendant also contends that the jury instruction on an attempted battery theory of assault created a substantial risk of a miscarriage of justice because it included the concept of immediately threatened battery which could have caused confusion to the jury. However, even if we assume, without deciding, that this instruction was given in error, there would be no substantial risk of a miscarriage of justice. To determine if there has been a substantial risk of a miscarriage of justice, this court employs a four-part inquiry: (1) was there error? (2) did the error prejudice the defendant? (3) in context of the entire trial, did the error materially influence the verdict? and (4) can we infer that counsel's failure to object was not a reasonable tactical decision? Commonwealth v. Randolph, 438 Mass. 290, 298 (2002). It is clear from the trial transcript that the language now complained of was a reasonable tactical decision by defense counsel. When discussing the jury instructions with the judge, defense counsel clearly stated, "I guess I was initially asking that there be no reference to the [immediately threatened battery theory], but if you are going to make reference to both theories [of assault], and I can argue -- I can argue it in my closing." Defense counsel did not object to this jury instruction as a tactical decision to be able to argue it in her closing.
Although there are two ways to prove an assault, the Commonwealth limited its theory of the assault to attempted battery.
Furthermore, the judge stated numerous times, once in the preliminary instruction to the jury and six in the final jury charge, that the Commonwealth was proceeding only on one theory, attempted battery, of assault. This was also clearly indicated on the jury slips. Again, we reiterate, because "jurors are always presumed to follow the instructions they are given," Commonwealth v. McCaster, 46 Mass. App. Ct. at 764, there was no risk of confusion to the jury on which theory of assault the Commonwealth needed to prove to sustain a conviction.
Judgment affirmed.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: January 5, 2016.