Opinion
No. 12–P–731.
2013-09-3
COMMONWEALTH v. Samuel JEAN–BAPTISTE.
By the Court (HANLON, BROWN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In Commonwealth v. Jean–Baptiste, 79 Mass.App.Ct. 1118 (2011), we considered the defendant Samuel Jean–Baptiste's appeal from convictions arising out of his unlawful entry into his former apartment and the robbery of two current tenants during the evening and early morning hours of September 30 to October 1, 2007. We affirmed the judgments in all respects but one—we concluded his conviction on count 14, charging him with unlawful possession of ammunition, was duplicative of his conviction on count 13, charging him with unlawful possession of a loaded firearm.
Nine months after our decision, the defendant filed a pro se motion for a new trial. The motion was denied. The defendant timely appealed. For the reasons which follow, we affirm.
On July 1, 2011, the Supreme Judicial Court denied the defendant's application for further appellate review. See 460 Mass. 1107 (2011).
Discussion. Because the issues raised in this appeal could have been raised in the defendant's direct appeal, our review is limited to the determination of whether the error, if any, was so significant that it created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolf, 438 Mass. 290, 296 (2002).
The judge denied the defendant's motion with an endorsement stating: After review of this motion, the memorandum in support and in opposition, and the jury instructions, the motion is denied, largely for the reasons set out in the Commonwealth's opposition. The judge did not make any findings of fact. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). See also Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 394 (2012). We do not address the defendant's arguments regarding his convictions on counts 6 and 7 charging kidnapping, because he was found not guilty on these counts.
1. Duplicative convictions. The defendant contends that his convictions of assault and battery (counts 10 and 11) were duplicative of his convictions of armed assault upon an occupant in a dwelling (counts 4 and 5). Contrary to his argument, however, counts 4 and 5 do not allege the commission of a crime requiring proof of a battery, but only of an assault. Since each of the two offenses has at least one required element of proof that is not common to both, this argument fails. See Morey v. Commonwealth, 108 Mass. 433, 434 (1871); Commonwealth v. Vick, 454 Mass. 418, 431–432 (2009).
2. Sentencing in violation of G.L. c. 269, § 10(a). Contrary to the defendant's assertion, the trial judge did not continue without a finding the sentence for illegal possession of a firearm (count 12) in violation of G.L. c. 269, § 10( a ). The record shows that the judge imposed a term of from two and one-half to three years concurrent with the sentence on count 4 of the indictment.
The defendant may misunderstand the handwritten endorsement on the indictment attached to the verdict slip, which contains an abbreviation that we interpret to mean concurrent with count 4.
3. Specific unanimity. The defendant argues that the fact that the verdict slips did not specify whether he was found guilty as a principal or as a joint venturer violated his due process rights and made the verdicts on all counts unconstitutional. The trial judge instructed the jury on joint venture as to counts 1 through 11 only (and not on the firearm charges). It is settled that no specific unanimity instruction or bifurcated verdict slip is required even if the Commonwealth presents alternative theories that the defendant is guilty either as a principal or as a joint venturer. See Commonwealth v. Santos, 440 Mass. 281, 290 (2003); Commonwealth v. Ramos, 31 Mass.App.Ct. 362, 367–368 (1991). The defendant does not argue that this case presents circumstances in which there is sufficient evidence for conviction either as a principal or a joint venturer, but not both, and that since only a general verdict was returned, the conviction must be reversed. See Commonwealth v. Rolon, 438 Mass. 808, 820 (2003).
The defendant's statement in his appellate brief that the verdicts may have been premised on insufficient evidence does not rise to the level of appellate argument. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Commonwealth v. Springer, 49 Mass.App.Ct. 469, (2000). In any case, there was ample evidence at trial of the defendant's guilt on counts 1–11 on either theory.
4. The instructions regarding the dangerous weapon. As the Commonwealth correctly points out in its brief at pages 23–28, in connection with counts 2 and 3 (armed robbery) and counts 4 and 5 (armed assault in a dwelling), the judge was not obliged to instruct the jury that an essential requirement for proof of the defendant's guilt was that he was armed with a working firearm. These counts did not charge the firearm enhancement established by St.1998, c. 180. Instead, the jury were properly instructed on the traditional requirement of proof of a dangerous weapon. The relevant focus in evaluation whether an item is a ‘dangerous weapon’ is [the] ‘instrumentality's potential for harm as it might have objectively seemed to a reasonable individual.’ Commonwealth v. Mattei, 455 Mass. 840, 846 (2010), quoting from Commonwealth v. Tarrant, 367 Mass. 411, 414 (1975). See Commonwealth v. Rumkin, 55 Mass.App.Ct. 635, 638 (2002) (The particular type of dangerous weapon with which the offense was committed is not an essential element of the crime charged). The evidence at trial showed, at a minimum, that a weapon which appeared to be a firearm was used during the commission of the relevant crimes. The defendant's argument therefore fails.
In any case, the jury were warranted in concluding beyond a reasonable doubt that it was the defendant who pointed the pistol at both tenants and that the pistol was the one the police later seized from his person. State Trooper Stephen Walsh testified that the pistol seized by Detective Oliveira was a firearm, a 9 mm. HighPoint pistol, loaded with ammunition.
5. The cumulative effect of the claims presented does not warrant a new trial. In light of the above, the defendant's final argument that the cumulative effect of the claims presented warrants a new trial also fails.
Order denying motion for new trial affirmed.