Opinion
13-P-1214
07-07-2015
COMMONWEALTH v. LAWRENCE HARVEY.
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 was charged with eight crimes of domestic violence against his wife. After a Superior Court jury trial, he was convicted of three of the charges: assault and battery upon a pregnant person, intimidation of a witness, and assault and battery. We affirm.
He was acquitted of two counts of attempted murder by means of strangulation, and one count each of assault and battery causing serious bodily injury, assault and battery, and stalking.
Background. The jury could have found the following facts. The defendant and the victim began living together in 1999 and were married in 2005. As early as 2003, their relationship was volatile. On November 22, 2007, while the victim was pregnant with their second child, the defendant and the victim got into an argument. The defendant put his hands around the victim's neck and squeezed until she lost consciousness and fell to the floor. The victim did not immediately report this incident because she did not want to get her husband in trouble.
In March, 2011, the victim woke up as the defendant was punching her in the side of her head. When she asked what he was doing, he replied, "If I really wanted to hurt you, I would hurt you. I was punching you in the head and you didn't even know." Thereafter, in April, 2011, the defendant thought he saw the victim looking at a black man in the car next to them while they were driving home. The defendant became angry, slapped the victim and berated her for looking at the man, saying, "You want a fucking nigger?" When they arrived home, the defendant continued to yell at the victim, and then slapped her face and punched her between her legs. As she tried to leave the room, the defendant hit her and pushed her into the counter. He then grabbed the victim by the neck with both hands and twisted her neck, while shouting at her. The victim was afraid that the defendant was going to kill her.
The victim was able to get free and called 911; but when the defendant threatened to "beat the living shit out of [her] right now," she told the 911 operator that she had called by mistake, and hung up the telephone. The defendant then left the house, and the victim called 911 again. The officer who came to investigate testified that he observed red marks on both sides of the victim's neck and that she appeared nervous and anxious. Later that morning, police saw the defendant driving in his van and arrested him near his home.
At trial, there was evidence of other incidents of violence between the couple. The victim testified that, in 2003, the defendant threw magazines at her face and broke her nose, but when she went for treatment, she gave the false explanation that her dog had bumped into her face, because, at the time, she believed her husband must have struck her by accident. In addition, there was evidence that, in 2009, the victim was arrested for kicking the defendant in the face after she found out that he was unfaithful, and in 2010, the victim bit the defendant's lip necessitating that he obtain stitches.
Discussion. 1. Evidence of 2003 incident. The defendant argues that the trial judge erred in admitting testimony about the 2003 incident in which the defendant threw magazines at the victim. The defendant contends that this evidence was not relevant because the incident occurred several years before the charged offenses, involved dissimilar conduct, and may not have been intentional. We disagree. The evidence was probative of the hostile nature of the relationship over a span of years, see Commonwealth v. Butler, 445 Mass. 568, 575 (2005), as well as the victim's state of mind. There was no abuse of discretion.
2. Evidence of racial slur. The defendant testified at trial. During direct examination he stated that the incident in April, 2011, did not occur as described by the victim. Among other things, the defendant said that he had not used a racial slur, was not a racist, and never used racist terms. In response, the Commonwealth introduced evidence that the defendant's Facebook password was a racial slur spelled backwards.
We reject the defendant's argument that evidence of the password lacked probative value and should not have been admitted. The evidence was admissible to impeach the defendant's credibility and to corroborate the victim's account of the April, 2011, incident. See generally Commonwealth v. Washington, 28 Mass. App. Ct. 271, 273 (1990).
3. Misjoinder. The defendant argues that the 2007 and 2011 incidents should not have been joined for trial. Because the defendant did not move to sever, we review only to determine if any error created a substantial risk of a miscarriage of justice. Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 159 (2008).
The offenses arose out of a long-standing pattern of physical aggression towards the victim, and the acts in 2007 and 2011 therefore would have been admissible in separate trials to demonstrate the hostile nature of their relationship. See Commonwealth v. Butler, supra at 575. See Mass.R.Crim.P. 9(a), 378 Mass. 859 (1979); Commonwealth v. Aguiar, 78 Mass. App. Ct. 193, 199 (2010). Joinder was not error, and, hence, there was no substantial risk of a miscarriage of justice.
4. Instruction on "character" of witnesses. At the conclusion of the trial, the judge instructed the jury without objection that they could consider a witness's "character" when evaluating his or her testimony. Although the defendant did not object below, he now argues that the instruction erroneously suggested that his prior bad acts could be used to evaluate his credibility. While we agree that the instruction should not have been used, we are unpersuaded that the jury would have been misled in this manner. The instruction related generally to all witnesses, did not single out the defendant, and did not highlight his prior bad acts. See Commonwealth v. Mendes, 441 Mass. 459, 474 (2004). We discern no substantial risk of a miscarriage of justice.
The instruction was based upon a model instruction that was criticized by the Supreme Judicial Court more than a decade prior to the defendant's trial. Commonwealth v. Daley, 439 Mass. 558, 565-566 n.3 (2003).
5. Witness intimidation statute. a. Indictment. The indictment charging the defendant with witness intimidation arose from his threat, in April, 2011, "to beat the living shit out of [the victim] right now" if she continued with her 911 call. The defendant now claims for the first time that the indictment was improper because it included language stating that the defendant had intimidated or harassed "a person furnishing information to a criminal investigator relating to a violation of a criminal statute of the Commonwealth." According to the defendant, because this language appeared in a former version of the statute and not the most current version, which was in force at the time of the alleged crime, the conduct described by this language was not criminal and, therefore, the indictment must be deemed void.
In all other salient respects the indictment tracked the current version and identified all necessary elements of the crime.
It is true that the challenged language derived from the pre-2006 version of the statute, see G. L. c. 268, § 13B, as amended through St. 1996, c. 393, §§ 2-4, and no longer is present in the current, operative version. However, the revisions made to the statute in 2006 and 2010 did not narrow the statute's scope; they expanded its reach. See Commonwealth v. Figueroa, 464 Mass. 365, 368 (2013); Commonwealth v. Morse, 468 Mass. 360, 369-370 (2014); Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 534 (2010). Thus, regardless of the omission of the challenged language, additional language in the current version continues to criminalize intimidation or harassment of a person furnishing information to an investigator. See G. L. c. 268, § 13B(1)(c)(i)-(ii) and (iv). The inclusion of the pre-2006 language in the indictment was inconsequential; it created neither error nor a substantial risk of a miscarriage of justice.
b. Jury instruction. In the alternative, the defendant argues that his conviction must be reversed because the judge's instructions were based upon the pre-2006 statute rather than the current, operative statute. The defendant did not object to the instruction, and, hence, we review only for substantial risk of a miscarriage of justice. See Commonwealth v. Rivera, 76 Mass. App. Ct. at 535 & n.8.
Little need be said about the defendant's argument that the instruction included a class of victims that no longer is protected. As explained above, persons furnishing information to a criminal investigator about a crime remain protected under the current statute. See Commonwealth v. Morse, 460 Mass. 360, 370 (2014).
The defendant argues that under the judge's instruction intent to interfere is directed at a witness, while under the current statute intent is directed at a proceeding, including a criminal investigation. However, he fails to mention that his own proposed instructions requested that the jury be charged that the intimidation be directed with the purpose of influencing a witness. In any event, in finding that the defendant intended to interfere with the victim the jury necessarily found that the defendant intended to interfere with the incipient criminal investigation initiated by her calling 911 and reaching the operator. There was no substantial risk of a miscarriage of justice.
6. Ineffective assistance of counsel. The defendant claims that his trial counsel provided him with ineffective assistance by declining the judge's offer to instruct the jury on assault and battery as a lesser included offense of assault and battery on a pregnant person. However, because there was a factual dispute at trial as to whether the victim was pregnant at the time of the incident, it is possible that counsel made a reasonable tactical decision to proceed with an "all or nothing" strategy. In these circumstances, where the record lacks evidence of defense counsel's thought process or trial strategy, we decline to resolve the issue on direct appeal. See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006); Commonwealth v. Williams, 450 Mass. 879, 892 (2008).
Judgments affirmed.
By the Court (Cohen, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 7, 2015.