Opinion
No. 14–P–1494.
05-09-2016
COMMONWEALTH v. Adam C. JENKINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Adam C. Jenkins, was convicted of assault and battery upon a corrections officer, and sentenced to a term of no more than seven years and no fewer than two and one-half years at MCI Cedar Junction, to be served from and after the sentence he was then serving. On appeal, he argues that the prosecutor's questioning of a witness to elicit testimony about an excluded statement denied him due process, and that the trial judge impermissibly invaded the province of the jury. We affirm.
Background. On June 3, 2012, after the Boston Celtics had defeated the Miami Heat in a playoff game, the defendant and other inmates in the Barnstable County correctional facility A–Pod (A–Pod) began kicking their cell doors, and yelling and screaming in celebration. Because of potential damage to the doors, the correctional facility has a zero tolerance policy for kicking cell doors; for that reason, Matthew Cascio, a corrections officer assigned to the A–Pod, approached each of the cells where the inmates were kicking, requested that the inmates stop what they were doing, and turned off the televisions until the inmates complied with his orders.
Cascio approached the defendant because he was one of several who continued to kick and scream. In response to the defendant's question about why the TV was turned off, Cascio explained that he would turn it back on if the inmates were quiet. In answer to a question from Cascio, the defendant admitted that he had been kicking his cell door while screaming and yelling.
Shortly thereafter, as Cascio walked by the defendant's cell, the defendant requested more toilet paper. Cascio went and retrieved the toilet paper and, when he returned with it and entered the defendant's cell, the defendant threw a crumpled up piece of paper at him and, using a racial epithet, threw a closed fist punch at Cascio's head. The defendant's punch missed, and the officer, in an attempt to subdue him, performed a “middle block,” pushing the defendant in the chest and to the ground. The defendant continued to resist Cascio's attempts to subdue him, and during the struggle, the defendant punched Cascio in the testicles. After a struggle, Cascio eventually was able to pin the defendant against the wall and put him on the ground until more officers arrived. The defendant stopped resisting once the other officers arrived and he was shackled and handcuffed, although he continued to threaten the officers verbally. After the defendant was moved to an administrative segregation unit, he was overheard making statements about the incident.
1. Prosecutor's question. The defendant argues that he was denied due process because the prosecutor attempted to elicit testimony about an inculpatory statement made by the defendant, one which the judge had previously deemed inadmissible. Because the defendant objected to the question, we review for harmless error, and ask whether, if there was error, it “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994) (quotation omitted).
A deputy sheriff testified that he had overheard a conversation between the defendant and another inmate, in which the defendant said “that he had punched Deputy Cascio in the balls.” The prosecutor then mistakenly asked a follow-up question regarding subject matter that the judge had earlier ruled inadmissible. The judge immediately stopped the prosecutor, defense counsel objected, and the judge called the attorneys to sidebar. We are satisfied that the error was harmless because the prosecutor's question, which was based on her good faith misunderstanding of the judge's earlier ruling, was not answered, and she quickly moved to new subject matter. “In view of the overwhelming weight of the evidence,” Commonwealth v. Bastaldo, 472 Mass. 16, 35, 32 N.E.3d 873 (2015), including, significantly, the defendant's admission, “we are confident that the jury's verdict ‘was not substantially swayed by the error.’ “ Ibid., quoting from Flebotte, supra.
The prosecutor asked, “After Jenkins said-and I don't want to misquote you, but ‘I punched him in the balls'-what did Jenkins say?”
At sidebar, the prosecutor realized that she had misunderstood the judge's ruling about the admissibility of the statement she was eliciting and quickly apologized.
2. The judge's conduct. The defendant next argues that the trial judge invaded the province of the jury when he appointed the foreperson; the defendant also contends that the judge denied him a fair trial because he told the jury that they could not request transcripts of the witnesses' testimony before their deliberation. We disagree. We review both claims of error for a substantial risk of a miscarriage of justice because the defendant did not object below. Commonwealth v. Letkowski, 469 Mass. 603, 617, 15 N.E.3d 207 (2014), citing Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999).
a. Appointment of the foreperson. The defendant argues that the judge impermissibly invaded the province of the jury when he stated that he appointed the foreperson because he was the senior member of the jury and noted that he was an experienced businessman. We see no error. The judge specifically asked that the foreperson ensure that each juror had a voice and that he encourage a “full and fair discussion of [the] evidence.” At no time did the judge elevate the foreperson's vote above the others; in fact, he instructed the jurors to consider the evidence, to deliberate together, and ultimately for each juror to come to his or her own conclusion.
b. Trial testimony transcripts. Finally, the defendant contends that the judge “erred in failing to recognize his discretionary power to grant a jury's request to review the testimony of a witness.” This argument also fails. The “trial judge has broad discretion whether to permit a jury to review transcripts of trial evidence generally, ... and such requests must always be treated with caution.” Commonwealth v. Richotte, 59 Mass.App.Ct. 524, 530, 796 N.E.2d 890 (2003), citing Commonwealth v. Mandeville, 386 Mass. 393, 405, 436 N.E.2d 912 (1982), and Commonwealth v. Bacigalupo, 49 Mass.App.Ct. 629, 635, 731 N.E.2d 559 (2000). Here, it is clear from the charge as a whole that the judge clearly understood that he had the discretion to allow the jury to request the transcripts, but chose not to exercise it. He explained that the court did not have the resources to obtain the transcripts during deliberations and that he did not want the jury to overemphasize one piece of evidence over another. Because we discern no error, there is no risk that justice miscarried.
The defendant also argues that “the judge prevented [him] from appealing to the discretion of the court if the jury had indeed been permitted to request to review testimony of any witness.” We disagree. Mere speculation is insufficient to show a substantial risk of a miscarriage of justice.
--------
Judgment affirmed.