Opinion
No. 10–P–1953.
2012-06-28
COMMONWEALTH v. Wallerson NUNES.
By the Court (CYPHER, GRASSO & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury found the defendant guilty of one count of assault and battery by means of a dangerous weapon (a blunt object) causing serious bodily injury, and one count of assault by means of a dangerous weapon (a rock). The defendant appeals from his convictions upon multiple grounds. For the following reasons, we affirm.
Background. The evidence allowed the jury to find the following facts. On July 13, 2009, at approximately 2:00 A. M., Thomas Keane was taking out the trash at his job at a warehouse in Everett. When he came out of the building, he heard two men arguing in loud voices, in a language he did not recognize. Keane walked toward the voices and saw two men standing under a street light in front of a Dodge Neon automobile. The defendant, Wallerson Nunes, was standing by the driver's door of the Neon with his back to Keane, and the victim, Julihermes Barros, was on the passenger side of the vehicle, farther away from Keane's position. As Keane continued to approach the men, he noted that the victim appeared to be more passive than the defendant. Barros gestured to the defendant with his hands as if to say “I'm done with you,” and then began to walk away. As Barros walked away, the defendant walked around to the front of the car and picked up two objects. Keane then observed the defendant heave or lob the object in his right hand, which appeared to be a rock, at the victim as if he were throwing a shot-put. Nunes than ran toward the victim brandishing the other object, which appeared to be a two-by-four piece of wood or a stick. While Keane continued to approach the intersection where the altercation was taking place, he called 9–1–1.
The prosecution introduced the tape of the 9–1–1 call into evidence and played it for the jury.
For a brief period of six to ten seconds, a building blocked Keane's view of the victim and the defendant. Then, Keane saw the victim laying on the ground motionless with blood on the back of his head. Nunes was standing over Barros and yelling at him. Nunes then got into the Neon and drove away. Keane tried to follow on foot and get the license plate number, but was unable to do so.
When Keane returned to the victim, a third man, Ramon Miurim, was trying to pick Barros up off the sidewalk. At the insistence of the 9–1–1 operator, Keane told Miurim to leave the victim alone until the ambulance arrived. However, Miurim continued to drag Barros to a nearby house, up the stairs. When the police arrived, they first spoke to Keane, who then directed them to the house where Miurim had taken the victim. The police located Barros in the house and had him taken to Massachusetts General Hospital.
At the hospital, an emergency room physician assessed Barros's condition as “rather dire” and his injuries as “pre-terminal” and “critical.” He received urgent treatment for injuries consistent with large magnitude blunt force trauma to the back of the head. The treatment included surgery to reduce the swelling in his brain by removal of a portion of his skull. Additionally, part of his temporal lobe was removed. After surgery, Barros remained in critical condition and comatose for ten to twelve days. His hospitalization extended for more than two months. After his release, he entered a rehabilitation facility where he had to re-learn how to walk. The victim was unable to remember the events of July 13, 2009, at the time of trial.
Immediately after the attack on Barros, the Everett police spoke with Ramon Miurim and his brother Silvio. The men both identified the defendant, Wallerson Nunes, by his aliases, “Galileo” or “Felipe Bastos.” Over the next several weeks, police attempted to locate the defendant. By observation of his social networking Internet site and computer activity, they traced him to Pompano Beach, Florida. Police there arrested him still in possession of the silver Dodge Neon.
Upon return to the Commonwealth, Nunes waived his Miranda and Rosario
rights and agreed to a video-recorded station house interview.
See Commonwealth v. Rosario, 422 Mass. 48, 56–57 (1996).
During the interview, the defendant told the police that Barros and he had been drinking all day; that they had argued earlier in the day and had met again at the time of the altercation to talk. The defendant admitted to (i) throwing a rock at the victim, which he said made the victim “scared”; (ii) hitting the victim in the face with a plastic sign, much like a wet floor sign; and (iii) punching the victim in the face. He claimed that he was acting to disarm the victim of a knife.
The prosecution introduced the video into evidence and played it for the jury.
One of the police investigators testified that two knives were found in the kitchen of the house to which Miurim had taken the victim and that they “may have been taken from one of the driveways and brought into the house.”
The case proceeded to trial on Friday, June 25, 2010. The defendant's theory of the case was self-defense against the victim's threatening use of a knife. Nunes did not testify at trial, but instead relied on his testimony from the recorded police interview. On July 1, 2010, the jury returned guilty verdicts on two counts,
(1) assault and battery by means of a dangerous weapon (a blunt object), causing serious bodily injury (count 1), and (2) assault by means of a dangerous weapon (a rock) (count 3).
At the close of evidence, by agreement of the parties, the judge entered a required finding of not guilty upon the separate charge of assault and battery causing serious bodily injury, (count 2).
Analysis. On appeal the defendant raises five arguments; we analyze them in turn. We begin with the applicable standard of review. Defense counsel at trial preserved the issue of the sufficiency of evidence of the charge of assault by a threatened battery by request for a directed finding. Mass.R.Crim.P. 25, 378 Mass. 896 (1979). We will review that question under the standard of Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). The remaining issues were not preserved. As a result, we will examine those contentions under the standard of substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293–294 (2002).
1. Use of defendant's aliases and street names. The defendant challenges the use at trial of his aliases or street names, “Felipe Bastos” and “Galileo.” He argues that this evidence allowed the jury to draw an impermissible inference of criminal propensity. We disagree.
Aliases can be “suggestive of bad character and prior criminality, and therefore raise a possibility that the jury will improperly consider criminal propensity.” Commonwealth v. Martin, 442 Mass. 1002, 1002 (2004). However, they can also serve valid probative purposes. See Commonwealth v. Dyer, 460 Mass. 728, 754–755 (2011).
First, the names served to establish the defendant's identity, to show the full story of the investigation, and to connect Nunes to the incident. See Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007) (as long as the probative value of the evidence is not substantially outweighed by any prejudicial effect, the Commonwealth is entitled to present a full picture of the events surrounding the incident). The victim's friends, Silvio and Ramon Miurim, used the aliases to identify the defendant to the police. Also, Nunes started his station house interview with police by identifying himself as “Felipe Bastos.” Second, use of aliases is admissible to show consciousness of guilt. See Commonwealth v. Monuz, 461 Mass. 126, 139 (2011). In sum, the probative value of the use of Nunes's alternate names outweighed any prejudicial impact.
2. Stepfather's testimony concerning victim's injuries and recovery. While the prosecution may have presented more evidence than was necessary or prudent, the stepfather's testimony was nonetheless admissible. First, the testimony consisted not of hearsay, but of the stepfather's direct observations at the hospital. Commonwealth v. Cohen, 412 Mass. 375, 393 (1992). Second, this testimony was relevant and probative because it substantiated the severity of the “serious bodily harm” comprising a prima facie element of the charge of assault and battery by means of a dangerous weapon causing serious bodily harm. We find no error in the admission of this testimony.
3. Jury instruction upon self-defense. The judge properly informed the jury that the Commonwealth carried the burden of disproving the defendant's claim of self-defense. Her jury charge did not shift the burden of proving the affirmative defense to the defendant.
The “finding” language used in one instance by the judge, “while disfavored ... is not in error when the charge, read as a whole, clearly places the burden on the Commonwealth to prove each element of the offense beyond a reasonable doubt.” Commonwealth v. Petetabella, 459 Mass. 177, 192 (2011). Here, when viewed as a whole, the instructions make it clear that the Commonwealth had the burden to disprove self-defense. Commonwealth v. Young, 461 Mass. 198, 207 (2012) (reviewing court does not consider pieces of the jury instruction in isolation, but instead reviews the instruction as a whole). The judge properly stated, at least four times, that where there was evidence that Nunes may have acted in self-defense, the Commonwealth assumed a duty to prove an additional element beyond a reasonable doubt, that Nunes did not act in self-defense. We therefore find no error in the jury instructions regarding self-defense.
We also note that the lack of an objection to the jury instruction “suggests that the defendant's trial counsel was satisfied with the instructions, at least to a point where counsel felt that the jury had received competent guidance on the legal principles governing the issue of self-defense.” Commonwealth v. Vidito, 21 Mass.App.Ct. 332, 335 (1985), and cases cited.
4. Jury instruction upon assault by a threatened battery. The defendant next argues that there was insufficient evidence to justify a jury instruction on a theory of immediately threatened battery. He claims that the jury did not hear evidence that the Barros was aware of Nunes's threatening conduct, as required by the case law and the model jury instructions. See Commonwealth v. Richards, 363 Mass. 299, 303–304 (1973); Massachusetts Superior Court Criminal Practice Jury Instructions § 2.19 (1999 & Supp.2003).
This argument fails to acknowledge that the jury viewed the defendant's taped interview at the Everett police station. During the interview, Nunes stated that he threw a rock at Barros and that Barros was “scared” by it. That testimony provided sufficient evidence of awareness and apprehension on the part of the victim to allow a proper instruction and resulting verdict of guilty of assault by a threatened battery. See Commonwealth v. Latimore, 378 Mass. at 676–677.
5. Judge's management of the jury question regarding the use of an alternate juror. Finally, Nunes argues that the judge's failure to make further inquiry and to give a cautionary instruction to the jury after they submitted a question alluding to a possible hold-out juror was reversible error. We disagree.
After approximately five hours of deliberation, the jury sent the following question to the judge:
“One of the jurors appears to be having difficulty in using reasonable doubt in making a determination of the defendant's guilt or innocence. It seems that this juror cannot make a decision without knowing with absolute certainty the occurrences during the night of July 13th, 2009. Should we use an alternate juror?”
The judge conducted a hearing with counsel on the record that day, and again the next morning. All counsel agreed that the judge would answer the question by reiterating the original instruction on reasonable doubt.
The standards for discharging a deliberating juror appear in G.L. c. 234, § 26B, and G.L. c. 234A, § 39. “Although differing in language, the standards ... have been construed to permit dismissal only [for] reasons personal to a juror, having nothing whatever to do with the issues of the case or with the juror's relationship with his fellow jurors.” Commonwealth v. Olavarria, 71 Mass.App.Ct. 612, 619 (2008) (internal citations and quotations omitted). The trial judge has discretionary authority both to respond to a jury question and to determine the presence of good cause to remove a juror. See Commonwealth v. Haywood, 377 Mass. 755, 768 (1979); Commonwealth v. Robinson, 449 Mass. 1, 7–8 (2007).
The trial judge did not abuse her discretion by retention of the juror and reinstruction upon the burden of proof beyond a reasonable doubt. The circumstances did not require her to perform any further inquiry before making this decision. Nor did they require her to provide any remedial instructions advising jurors to maintain an open mind and to respect the views of other jurors. We find no error in the judge's response to the jury question.
Judgments affirmed.