Opinion
19-P-1234
06-02-2021
COMMONWEALTH v. Ainsley LAROCHE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of three charges of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ), and one charge of threats, G. L. c. 275, § 2. The charges were based on so-called disciplinary practices meted out on youths committed to Casa Isla, a Department of Youth Services facility. On appeal, the defendant argues that the trial judge abused his discretion in allowing the Commonwealth to use a summary of the indictments as a chalk. We affirm.
In addition, the trial judge entered required findings of not guilty as to a witness intimidation charge, G. L. c. 268, § 13B, and another threats charge. The jury found the defendant not guilty as to two witness intimidation charges and a separate threats charge.
One such practice was called "orange chicken," which entailed making a resident lie on the floor, pants removed, and striking the resident's bare buttocks with an orange-soled sandal (or another object). These assaults generally took place in the Casa Isla cafeteria because there were no security cameras, and participating staff would close the blinds and block the door with a ping pong table.
In his brief, the defendant also argues that the judge erred in admitting prior bad act evidence. However, this argument was made without identifying any supposedly improperly admitted evidence and, therefore, does not rise to the level of appellate argument. Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629-1630 (2019) (briefs "shall contain ... the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities and parts of the record on which the appellant relies"). When pressed at oral argument to identify the supposedly improperly admitted evidence, the defendant demurred and withdrew the argument.
Also in his brief, the defendant argues that cumulative error requires reversal of his convictions. In light of our disposition of the merits of the only properly presented issue in this appeal, together with the fact that his second argument does not rise to the level of appellate argument, the defendant's claim of cumulative error fails.
The case involved six defendants, five victims, and forty-one charges. Each defendant was represented by separate counsel. Not all defendants were charged with harming all five victims, nor did all defendants face identical charges. The Commonwealth created a two-page chart of the charges, which was referred to as an "index." The index merely consisted of a list of the charges faced by each defendant, together with the name of the victim to which each charge pertained. It also showed each defendant's lawyer's name. The defendant acknowledges that the information contained in the index is correct and, moreover, that it consisted of nothing more than what was contained in the indictments which were read to the jury at the outset of the trial. See Commonwealth v. Flynn, 362 Mass. 455, 469 (1972) (no error in reading indictment to jury and permitting them to take indictments into deliberations).
The charges against one defendant were severed after his counsel became unavailable for personal reasons.
Nonetheless, the defendant argues that the trial judge abused his discretion in allowing the index to be used as a chalk during the trial. Generally, a trial judge "has considerable, but not unrestrained, discretion as to the degree to which chalks can be used" (quotations omitted). Commonwealth v. Mimless, 53 Mass. App. Ct. 534, 539 (2002), quoting Commonwealth v. DiFonzo, 31 Mass. App. Ct. 921, 923 (1991). Chalks are "permissible if they are accurate and fair" and "do not function as pedagogical devices that unfairly emphasize part of the proponent's proof." Mimless, supra at 538, quoting Welch v. Keene Corp., 31 Mass. App. Ct. 157, 165-166 (1991). The chart at issue in this case falls comfortably within these parameters. The reading of the indictments alone required twenty-one pages of transcript. It was perfectly reasonable for the judge to decide that a two-page neutral summary of that information would be a helpful organizational tool for the jury and avoid confusion as to who was charged with what.
We are not persuaded by the defendant's arguments that the index invited "conviction by checklist" (as he calls it) or guilt by association. To begin with, there is nothing in the neutrally structured and worded index that would have invited either danger. Cf. Commonwealth v. Wood, 90 Mass. App. Ct. 271, 275-276 (2016) (PowerPoint presentation erroneously admitted because it was "a hybrid document, combining aspects of summary compilation and attorney argument"). Equally important, the judge explicitly instructed the jurors that the index was not "to be used as a checklist." The judge also addressed the temptation of associational guilt by reminding the jury to "treat each defendant separately in determining whether, as to that individual defendant, the Commonwealth has proved its case beyond a reasonable doubt." Finally, the judge reminded the jurors -- both when they received the chalk and during final instructions -- that it was neither evidence nor a statement of facts, only "a guide to help you understand the evidence you will hear and relate it to one or more of the charges." See Commonwealth v. Anderson, 445 Mass. 195, 214 (2005). See also Welch, 31 Mass. App. Ct. at 166 (no error where "[t]he judge carefully instructed the jury that the visual aids were not evidence"). Finally, we note that the verdicts -- which resulted in acquittals on various charges against each of the defendants -- belie the defendant's arguments.
As there was no error in allowing the index to be used as a chalk, the convictions are affirmed.
Judgments affirmed.