Opinion
20-P-485
12-21-2020
COMMONWEALTH v. NICHOLAS MARTINEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Nicholas Martinez, was convicted after a Superior Court jury trial of three counts of armed home invasion, G. L. c. 265, § 18C, two counts of aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (c), one count of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b), and one count of armed assault with the intent to rob, G. L. c. 265, § 18 (b). We affirmed the convictions on direct review. Commonwealth v. Martinez, 85 Mass. App. Ct. 288 (2014). The defendant now appeals from an order denying his motion for a new trial. Concluding that trial counsel was not ineffective, we affirm.
1. Background. a. The Commonwealth's case. On September 20, 2009, the defendant, his girlfriend, Kim Castro, codefendant Mark Taylor, and Taylor's girlfriend, Lisa Cofield, while smoking crack cocaine, decided to try to obtain more drugs despite having insufficient funds. Earlier that night, Castro had purchased cocaine from David Bastarache (a victim), and she observed that he and his girlfriend, Kerri Salvi (another victim), were intoxicated. As they knew that Bastarache sold high quality cocaine and that he and his girlfriend were intoxicated, the four decided to steal drugs and money from him.
Taylor is Castro's brother. Taylor was convicted, at the same trial, of two counts of armed home invasion, one count of aggravated assault and battery by means of a dangerous weapon, and one count of armed assault with the intent to rob. A panel of this court affirmed his convictions. Commonwealth v. Taylor, 98 Mass. App. Ct. 1118 (2020).
Around midnight on September 21, 2009, Bastarache received a phone call from Cofield, requesting to purchase two "eight-balls" of cocaine for $300. Bastarache gave Cofield the code to get into the building and told her to come over. They parked half a block down the street from Bastarache's building, and Cofield and Taylor walked to the apartment building, the defendant following behind them.
Castro stayed in the vehicle because she owed Bastarache money.
Bastarache opened the door to his apartment and allowed Cofield inside. Upon hearing a stomping noise coming from outside of the apartment, on the stairwell, Bastarache asked Cofield, "What's that," and she replied, "They're with me." As Bastarache approached to close the door, someone stuck a foot in and attempted to force his way into the apartment. As Bastarache peeked through the opening in the door, he saw Taylor holding a knife behind his back. Taylor forced himself into the apartment.
As Bastarache tried to run down the hallway, Taylor stabbed him twice in the back, and once in the side. Cofield ran out of the apartment. Salvi, in the bedroom at the time, heard a scream and "bashing against the wall" before she saw Bastarache come through the bedroom doorway being stabbed by both the defendant and Taylor. As Bastarache attempted to grab weapons stored above his bedroom door, he was stabbed three times in the side, and temporarily lost consciousness. He was stabbed eight times in total.
Meanwhile, as the defendant stabbed Bastarache, Salvi jumped on Taylor's back. When Bastarache regained consciousness, Taylor, the defendant, and Salvi were all on top of him, and he was able to push them off, after a struggle with Taylor and the defendant. When he stood up, Salvi was on the ground in a fetal position, pleading with the defendant and Taylor not to hurt her. The defendant stabbed her twice in the side near her liver. Subsequently, Bastarache grabbed a broomstick and mace and threatened Taylor and the defendant.
Francis Curran, the tenant of the apartment below, heard Salvi's screams for help, and he grabbed a baseball bat and went up the stairs to investigate with a roommate. As Curran walked down the hallway into the apartment, Taylor came around the corner and stabbed him twice. Taylor then ran out of the apartment, the defendant following after him. The foursome failed to obtain drugs or money from Bastarache.
b. The defendant's case. The defendant's theory, largely based on Taylor's testimony at trial, was that Taylor went to Bastarache's apartment to buy two "eight-balls" of cocaine. Taylor testified that, after he gave Bastarache $300 for the cocaine, Bastarache told him that he would give Taylor only one "eight-ball" because Castro owed him money. As Taylor tried to grab his money back from Bastarache, they began to fight. When Bastarache hit him with a pool stick, Taylor called the defendant for help. The defendant helped to get Salvi and Bastarache away from Taylor and, as they both tried to leave, they ran into Curran with a baseball bat, whom the defendant then "charged" in order to escape.
2. Standard of review. "[W]e review the denial of a motion for a new trial for 'a significant error of law or other abuse of discretion.'" Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). "Ineffective assistance of counsel requires 'behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,' which 'likely deprived the defendant of an otherwise available, substantial ground of defen[s]e.'" Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 175 (2018), quoting Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 44 (2015). In assessing whether the defendant was prejudiced, "a defendant is entitled to a new trial 'if we have a serious doubt whether the result of the trial might have been different had the error not been made.'" Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 439 (2016), quoting Commonwealth v. Millien, 474 Mass. 417, 432 (2016). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge." Commonwealth v. Sorenson, 98 Mass. App. Ct. 789, 791 (2020), quoting Commonwealth v. Diaz Perez, 484 Mass. 69, 73 (2020).
3. Ineffective assistance of counsel. a. Unlawful entry jury instruction. To sustain a conviction of armed home invasion, the Commonwealth must prove that the defendant unlawfully entered the dwelling of another. See Commonwealth v. Mahar, 430 Mass. 643, 652 (2000). "An entry into a dwelling is not unlawful if it is consensual, in response to an invitation, or privileged." Commonwealth v. Putnam, 75 Mass. App. Ct. 472, 477 (2009). Accord Commonwealth v. Fleming, 46 Mass. App. Ct. 394, 396-397 (1999) (defendant who offered evidence he entered dwelling with permission in past, leading to reasonable belief he had right to enter, may, if entry was otherwise lawful, be entitled to jury instruction on consent or privilege). "A consensual entry, however, does not always correlate with a lawful entry. . . . [P]urported consent [to entry] cannot be considered legally significant unless the occupant has been made aware that the person at the door is armed with a dangerous weapon and is about to commit an assault once inside." Putnam, supra, quoting Mahar, supra at 652-653.
The instruction given here was essentially identical to the one that was approved in Putnam, 75 Mass. App. Ct. at 479-480. Although the defendant argues that Putnam can be distinguished because in Putnam there was "ample evidence to warrant the jury's conclusion that the entry was not consented to," id. at 480 n.6, there is ample evidence here from Bastarache's testimony that he did not consent to Taylor's entry and no evidence that he consented to the defendant's entry. In both Putnam and in this case, there was testimony from defendants that the entry occurred without any intent to commit an assault inside. Id. at 475-476. Nonetheless, we stated in Putnam that "Mahar does not require that the Commonwealth prove that the occupant has been made aware both that defendant was armed with a dangerous weapon and that he intended to commit an assault once inside the dwelling. That is to say, if the Commonwealth shows that either element was not present, then there was no consent." Putnam, 75 Mass. App. Ct. at 479. As the instruction was approved in Putnam, defense counsel was not ineffective in requesting it.
The trial judge instructed the jury, "While consent to enter may be considered as evidence that the entry was lawful, consent may be negated if the person giving consent is unaware that either of the defendants was armed with a dangerous weapon or that they had the intent to commit a crime once inside." In Putnam, the jury instruction read, "While consent to enter may be considered as evidence that the entry was lawful, consent may be negated if the person giving consent is unaware of the defendant's being armed with a dangerous weapon or of an intent to commit a crime while inside." Putnam, 75 Mass. App. Ct. at 478.
b. Defense of another jury instruction. The judge instructed the jury, along with the elements of defense of another, that "a person may not use a dangerous weapon or deadly force in self-defense or in defense of another until he has availed himself of all proper means to avoid physical combat." This jury instruction was substantially the same as the one given in Commonwealth v. Allen, 474 Mass. 162, 166 n.6 (2016).
In Allen, 474 Mass. at 166 n.6, the relevant portion of the jury instruction stated, "The person may not use force in defense of another person until he has availed himself of all proper means to avoid physical combat."
In Allen, the Supreme Judicial Court held, "Although we agree that the instructions were flawed and confusing . . . and we disapprove of the inclusion of [this] language, we disagree that the instruction, taken as a whole, constitutes reversible error." Allen, 474 Mass. at 169. "Nowhere in the instruction did the judge say anything about 'retreat.'" Id. at 170-171. Accord Commonwealth v. Hakala, 22 Mass. App. Ct. 921, 922-923 (1986) (holding no error where judge stated there was "[a] duty to avoid physical contact" and that "a person must, before resorting to deadly force . . . take advantage of all proper and reasonable means to avoid the use of deadly force" as unlikely to impose duty to retreat); Commonwealth v. Sullivan, 17 Mass. App. Ct. 981, 981-982 (1984) (where defendant argued it was erroneous for judge to "employ[] the words 'self defense'" in explanation of defense of another, no error as jury not likely to construe instructions as imposing duty to retreat). "[G]iven the incompatible nature of intervention and retreat, we do not conclude that reasonable jurors would have construed the instructions as imposing a duty to retreat." Allen, supra at 171. Furthermore, "intervention with a deadly weapon is an act of last resort, and . . . a jury may consider whether other actions would have 'avert[ed] the occasion' to use deadly force." Id., quoting Hakala, supra at 923. For the reasons stated in Allen, this jury instruction did not constitute reversible error, despite its confusing nature. Accordingly, its inclusion here did not deprive the defendant of an available, substantial defense.
c. Defense of personal property jury instruction. "A defendant may successfully assert a defense of property defense if '(1) the defendant used only nondeadly force, and (2) the force used was "appropriate in kind and suitable in degree, to accomplish the purpose."'" Commonwealth v. Brown, 479 Mass. 163, 169 n.4 (2018), quoting Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 248-249 (1999). "A person 'may defend or regain his momentarily interrupted possession by the use of reasonable force, short of wounding or the employment of a dangerous weapon.'" Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 666 (2019), quoting Commonwealth v. Donahue, 148 Mass. 529, 531 (1889).
As the jury convicted the defendant and Taylor of using deadly force by stabbing Bastarache, the jury could not have found that either acted in proper defense of personal property, even had they been instructed on the concept. See Ogarro, 95 Mass. App. Ct. at 666. Furthermore, the defendant was not deprived of a substantial ground of defense, as the jury found that this was an attempted robbery, thus discrediting Taylor's testimony that he engaged in a struggle with Bastarache to get his money back. See Commonwealth v. Hudson, 446 Mass. 709, 726 n.14 (2006).
d. The admission of the knife. At trial, the prosecutor informed the judge that the Commonwealth intended to introduce a steak knife found at Taylor's apartment, understanding "from talking to counsel yesterday that there may be an objection." The defendant's counsel stated, "I don't think there's any connection between the knife that was recovered and the possible one that may have been used in this incident." The prosecutor stated that he expected testimony identifying human blood on the knife. The judge allowed the knife into evidence "de bene," but warned counsel that it was "subject to being stricken."
The conversation continued, as defense counsel stated, "I'm not even sure it's conclusively human blood -- or is it, on that particular knife?" Again, the prosecutor confirmed that the presence of human blood was found.
After the knife was entered de bene over objection, Taylor's counsel requested that the knife be stricken from the record, "after going back through the criminalistics reports [and finding] that there is no evidence that there was human blood on that knife." The judge stated, "At this point, I will leave it in de bene, but I am seriously considering striking it. . . . [A]s of right now, based on what I'm hearing, the knife will not be in before the close of this case." During a charge conference, after a chemist testified that the source of the blood on the knife was inconclusive, Taylor's counsel again moved to strike the steak knife on behalf of his client and the defendant, which the judge allowed. The judge instructed the jury that the steak knife was "stricken from the evidence," and to "disregard it." "Any testimony surrounding that knife is not evidence of anything in this case, so you're not to regard that. That has been stricken as evidence."
The admission of the knife did not deprive the defendant of a substantial ground of defense. The curative instructions provided to the jury informed them to disregard everything they had heard concerning this knife. The jury are presumed to have followed the judge's instructions "to disregard matters withdrawn from their consideration." Commonwealth v. Roe, 90 Mass. App. Ct. 801, 804 (2016), quoting Commonwealth v. Cameron, 385 Mass. 660, 668 (1982). See Commonwealth v. Silva, 93 Mass. App. Ct. 609, 615 (2018), quoting Commonwealth v. Thad T., 59 Mass. App. Ct. 497, 508 (2003) ("[We] shall not assume that jurors will slight strong and precise instructions of the trial judge to disregard the matters which have been withdrawn from their consideration"). Concluding the judge acted within her discretion in denying the motion for a new trial, we affirm.
As the defendant was not deprived of a substantial ground of defense, we need not address his argument that defense counsel should have requested an explanation of the meaning of "de bene" for the jury.
Rather than admit the knife de bene, the better practice would have been to conduct a voir dire outside the hearing of the jury, or wait until a sufficient foundation had been established to admit the knife into evidence. That notwithstanding, we do not discern any abuse of discretion in denying the motion for new trial for the reasons stated, supra.
Order denying motion for new trial affirmed.
By the Court (Rubin, Neyman & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 21, 2020.