Opinion
No. 12–P–1655.
05-16-2016
COMMONWEALTH v. Tilfor HAMILTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Tilfor Hamilton, was convicted of assault and battery by means of a dangerous weapon and witness intimidation. In consolidated appeals, the defendant argues, among other things, that (1) he was denied due process when the trial judge failed to instruct the jury on affirmative defenses to the assault and battery charge; and (2) there was insufficient evidence to support his conviction of witness intimidation. Because we agree that there was insufficient evidence to support his witness intimidation conviction and that the failure to properly instruct the jury with respect to the offense of assault and battery by means of a dangerous weapon gave rise to a substantial risk of a miscarriage of justice, we reverse the convictions. Judgment shall enter for the defendant with respect to the witness intimidation conviction. On the charge of assault and battery by means of a dangerous weapon, the order denying the motion for a new trial is reversed. A new order shall enter allowing the motion. On that charge, the judgment is reversed and the verdict is set aside.
The defendant was initially charged with assault and battery by means of a dangerous weapon on November 21, 2011. On May 15, 2012, he was charged with witness intimidation. Those charges were joined on June 6, 2012.
Discussion. 1. Jury instructions. Because the challenge is to the failure to charge the jury on affirmative defenses, we recite the facts in the light most favorable to the defendant. See Commonwealth v. Pike, 428 Mass. 393, 395 (1998). It is undisputed that Jackeline Grant, the defendant's then girl friend, testified that on the day of the incident she was upset with the defendant because she was told by a friend that the defendant had been cheating on her. Grant waited with her sister-in-law, Fenemae Eden–Grant, and Grant's niece, Nayobe Eden–Grant, in Grant's and the defendant's shared home, until the defendant came home from work, to confront him. Grant became increasingly upset as the defendant denied her allegations. Grant became enraged, went into the kitchen, returned with a knife, and tried to stab the defendant.
As the sister-in-law and niece have the same last name, we refer to them by their first names.
The defendant repeatedly asked Fenemae to call the police, but she refused. Grant testified that as she attempted to stab the defendant, he grabbed her by the hand, the knife broke and dropped to the floor. She attempted to retrieve the broken knife to continue her attack. Grant further testified that she believed that the defendant was carrying a box cutter because he used it for his job and that while she did not see the defendant holding the box cutter during the altercation, she tried to get it from him, and then she fell onto the defendant and realized her neck was wet with blood. Grant testified that she did not know how she was injured, but that after she fell, she realized that she was cut. The police did not recover a box cutter at the scene or on the defendant. Grant also testified that the defendant had never hurt her physically before.
The defendant contends that he was denied due process when the trial judge failed to instruct the jury on the affirmative defenses of self-defense and accident. We agree. The defendant requested both instructions at the charge conference and the judge declined to give the instructions, but the defendant did not renew his objection at trial. “Because the defendant failed to object to the instructions given, ‘we review to determine whether the alleged error created a substantial risk of a miscarriage of justice.’ “ Commonwealth v. Botelho, 87 Mass.App.Ct. 846, 849 (2015), quoting from Commonwealth v. Dussault, 71 Mass.App.Ct. 542, 544 (2008).
Although we conclude that the failure to instruct the jury on each of the defendant's affirmative defenses is independently sufficient to establish a substantial risk of a miscarriage of justice, see Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), the cumulative impact of the additional errors during trial, discussed infra, part 3, further heighten the risk of a miscarriage of justice.
“In determining whether the failure to give an instruction created a substantial risk of a miscarriage of justice we consider ‘(1) whether the Commonwealth presented a strong case against the defendant; (2) whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error; and (3) whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision.’ “
Botelho, supra at 851, quoting from Dussault, supra.
a. Self-defense. “A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present.” Pike, 428 Mass. at 395. “In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant.” Ibid., citing Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975). A defendant is entitled to a self-defense instruction, when deadly force is used, where he:
“(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. Pring–Wilson, 448 Mass. 718, 733 (2007), quoting from Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). Cf. Commonwealth v. Allen, 474 Mass. 162, 166–173 (2016).
Here, viewing the facts in the light most favorable to the defendant, the defendant was entitled to a self-defense instruction. See Pring–Wilson, supra. Grant testified that she attempted to stab the defendant with a deadly weapon. After the defendant disarmed her, she attempted to retrieve the knife and grab his box cutter to harm the defendant. Furthermore, there was no evidence that the defendant used excessive force in his attempt to defend himself from Grant's attack. See ibid. Additionally, Grant's testimony was unclear regarding how much time elapsed between when she was disarmed and attempted to grab the broken knife or the defendant's box cutter, and when she fell onto the defendant and was cut. Grant merely testified that the knife broke, she fell on top of the defendant, and her neck was cut. Grant testified that she did not see the defendant holding or swinging the box cutter at her. Based on Grant's testimony, in the light most favorable to the defendant, the jury could have reasonably believed that the events occurred quickly, the defendant feared for his life or serious bodily harm, and acted in self-defense. See Pike, supra at 396.
The trial judge's failure to instruct the jury on self-defense gave rise to a substantial risk of a miscarriage of justice. See Botelho, 87 Mass.App.Ct. at 851. Based on the evidence above, the jury's verdict might have been different but for the error. Ibid. Additionally, trial counsel requested the self-defense instruction, thus it is clear from the record that his failure to object was not a reasonable tactical decision. Ibid. Because we are not persuaded that the absence of the self-defense instruction did not “ ‘materially influence[ ]’ the guilty verdict,” this error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
b. Accident. “Accident, like provocation, self-defense, and defense of others, is treated as if it is an affirmative defense, which, when it negates an essential element of the crime ... must be disproved beyond a reasonable doubt.” Commonwealth v. McGuane, 77 Mass.App.Ct. 371, 375 (2010), quoting from Commonwealth v. Podkowka, 445 Mass. 692, 699 (2006). “When the issue of accident is ‘fairly raised,’ the judge, at least on request, must instruct the jury that the Commonwealth must disprove accident beyond a reasonable doubt.” Podkowka, supra. “[W]e examine the evidence in the light most favorable to the defendant.” McGuane, supra.
Grant testified that she fell onto the defendant and was cut. She further testified that she did not see the defendant holding the box cutter, that she attempted to grab the box cutter from his pocket, and that she did not know how she had been cut. Based on the facts recited above, the defendant was entitled to an accident instruction and its absence was a significant error. We conclude that the absence of the accident instruction also created a substantial risk of a miscarriage of justice. See Botelho, 87 Mass.App.Ct. at 851.
2. Sufficiency of the evidence—witness intimidation. In the light most favorable to the Commonwealth, the jury could have found the following facts based on the Commonwealth's evidence. On November 21, 2011, days after Grant was injured, she applied for and received a restraining order against the defendant. On May, 8, 2012, Grant invited the defendant to her home to discuss the defendant's trial scheduled for the next day. As the defendant and Grant sat on her bed, Grant called their mutual friend from church, Janet McBean, so that McBean could pray for Grant. Grant testified that during the call, McBean opined that Grant's injury had been an accident, and when Grant countered that she did not know what happened, McBean stated that if Grant did not know how she was injured, that meant it was an accident. Grant also testified that the defendant repeatedly stated: “[S]ay the truth, say the truth. Why don't you say the truth? It were accident.” Grant testified that she replied, “Okay, it were accident.” Grant testified that the call ended after about thirty to forty-five minutes, and Grant told McBean that she would call McBean if she needed to pray and McBean told her that she would indeed pray for her. The defendant left after the phone call ended.
At trial, although Grant denied the veracity of some of the statements contained within the supporting affidavit for the restraining order, she testified that she was scared when she applied for the restraining order.
Grant testified in English sometimes and other times in Spanish through an interpreter. All quotations are as written in the transcript.
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The next morning, before the court proceedings began, McBean approached Grant and told her that she believed in God and that she believed that “the truth will come out.” After McBean spoke to Grant, McBean sat near the defendant. Grant's victim witness advocate, Nicole Castillo, testified that she observed Grant's and McBean's conversation and did not think much of the interaction. However, Castillo also testified that later that day, during the pretrial meeting among Grant, Castillo, and representatives for the police department and the district attorney's office, Castillo observed that Grant became hysterical and did not want to testify because she did not want the defendant to be deported. Grant testified that she was not afraid of the defendant.
In order to sustain a conviction of witness intimidation, the Commonwealth must prove beyond a reasonable doubt that “(1) the target of the alleged intimidation was a witness in a stage of a criminal proceeding, (2) the defendant wilfully endeavored or tried to influence the target, (3) the defendant did so by means of intimidation, force, or threats of force, and (4) the defendant did so with the purpose of influencing the complainant as a witness.” Commonwealth v. Pagels, 69 Mass.App.Ct. 607, 612–613 (2007), quoting from Commonwealth v. Robinson, 444 Mass. 102, 109 (2005). “Intimidation requires ‘putting a person in fear for the purpose of influencing his or her conduct.’ “ Commonwealth v. Ruano, 87 Mass.App.Ct. 98, 100 (2015), quoting from Commonwealth v. McCreary, 45 Mass.App.Ct. 797, 799 (1998). “[A]n ‘action does not need to be overtly threatening to fall within the meaning of intimidation.’ “ Ruano, supra at 101, quoting from Commonwealth v. Cohen (No. 1 ), 456 Mass. 94, 124 (2010). “A fact finder may evaluate the circumstances in which the statement was made, including its timing, to determine whether the defendant in fact intended to intimidate the victim.” Commonwealth v. King, 69 Mass.App.Ct. 113, 120 (2007).
Here, viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), we conclude that the evidence was insufficient for the jury to find beyond a reasonable doubt that the defendant intimidated Grant. We take as true that on November 18, 2011, the defendant stabbed Grant in the neck. The night before the first trial date, Grant invited the defendant to her home and while they were talking, Grant called a church friend who urged her to tell the truth that what happened was an accident. Then the defendant urged Grant to tell the truth. There was no overt threat. Moreover, the Commonwealth presented no evidence of “gestures, tone of voice, [or] body language ... from which a rational fact finder could infer ... beyond a reasonable doubt” that the defendant's words or actions were intended to convey a threat. Ruano, supra at 102.
The Commonwealth argues that although the defendant's words and actions on that night were not overtly intimidating, the jury could infer witness intimidation because of the defendant's previous violence against Grant. We disagree. Although the jury were entitled to disbelieve Grant's testimony that she was not in fear of the defendant, it was not permissible to infer intimidation beyond a reasonable doubt where the defendant merely asked Grant to “say the truth.” See Latimore, supra. This inference is far less reasonable when coupled with the evidence that Grant admitted that she attempted to stab the defendant with a knife, she invited the defendant to her home on the night before the first trial date, and she initiated the phone call between herself, the defendant, and McBean, and the threat of deportation was another reason why the defendant might want her to say her injury was an accident. Compare Ruano, 87 Mass.App.Ct. at 102. Contrast Pagels, 69 Mass.App.Ct. at 614 (evidence of six separate phone calls in which defendant ordered victim to change her testimony and admonished her for not following his directions, coupled with evidence of defendant's prior violent assault on victim, allowed inference that victim feared defendant).
The Commonwealth also offered McBean's statements to Grant at the court house as evidence of the defendant's witness intimidation. However, the Commonwealth failed to present any evidence allowing the inference that the defendant intended McBean to intimidate Grant into changing her testimony. Compare Ruano, supra. The only evidence that ties McBean's comments to the defendant is the fact that McBean also spoke to the defendant on the day that trial was first scheduled to begin and Castillo's testimony that Grant was upset at the prospect of testifying against the defendant because she did not want him to be deported. Without more, we cannot say that “the evidence was sufficient to permit the jury to infer the existence of the essential elements of [witness intimidation].” Commonwealth v. Casale, 381 Mass. 167, 172 (1980).
3. Other issues. We address certain claims of error in the event of retrial.
a. Exclusion of percipient witnesses, impermissible hearsay, and juror contact. Given the result we reach, we do not address these arguments on the merits. However, we are confident that upon retrial, trial counsel will ensure the inclusion of the names of all potential defense witnesses on the witness list prior to trial. We also are confident that the trial judge will not permit the victim witness advocate, who, before trial, had only met Grant while shadowing another victim witness advocate and had never met the defendant, to testify that the defendant was “the man that was abusing” Grant. Additionally, we are confident that Grant will not endeavor in the future to contact a sitting juror and if such contact occurs, the trial judge will ensure the continued impartiality of said juror pursuant to Commonwealth v. Jackson, 376 Mass. 790, 800–801 (1978), and its progeny.
b. Clearly erroneous findings. The Commonwealth concedes that the motion judge made clearly erroneous factual findings regarding trial counsel's intention to call the eyewitnesses and whether that decision was tactical. We are confident these errors will not be repeated at any new trial. See Commonwealth v. Gray, 463 Mass. 731, 757 (2012).
4. Conclusion. As to the charge of assault and battery by means of a dangerous weapon, the order denying the motion for a new trial is reversed, and a new order is to enter allowing the motion. The judgment is reversed and the verdict is set aside on that charge.
As to the charge of witness intimidation, the judgment is reversed, the verdict is set aside, and judgment is to enter for the defendant on that charge.
So ordered.