Opinion
19-P-1351
10-19-2020
COMMONWEALTH v. Martin OMONKHELGBE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of unarmed robbery as a lesser included offense of armed robbery (to wit: hammer and/or gun). On appeal the defendant raises two main issues: (1) error in the giving of a lesser included offense instruction and in the handling of the corresponding verdict slip; and (2) error in the curtailment of the cross-examination of a cooperating witness. We affirm.
The defendant was acquitted of assault and battery by means of a dangerous weapon (hammer) and armed assault in a dwelling (hammer/gun).
Background. In the early morning hours of August 27, 2016, a homeowner in Dighton woke to the sensor light on his back porch turning on and the sound of his son's dog barking. He got up to investigate and saw four or five masked intruders on his back deck, one of whom was smashing the deck's glass door with a gun. The homeowner fled to a neighbor's house for help. Meanwhile, the intruders confronted the homeowner's son in his basement bedroom. One intruder used a Taser on him while another beat him with a hammer and a third was armed with a gun. The intruders demanded money and ransacked the house for valuables, carrying out trash bags filled with marijuana before leaving.
The son's girlfriend was also present. Although she did not testify, the evidence suggested that she had tipped off the intruders as to the availability of cash and marijuana at the victim's home, providing details of the layout of the house.
The victim was severely injured. He received seventeen staples in his head at the hospital. Police responded to find "blood everywhere" in the house.
The homeowner had a medical marijuana card and grew his own marijuana at home.
One of the intruders, Jessi Peralta, was apprehended by the police as he sat in a car near the home. Pursuant to a cooperation agreement, Peralta testified at trial and identified the defendant as a participant in the robbery. The defendant's trial theory was that he did not participate in the robbery and that Peralta had motive to lie about the defendant's involvement.
Discussion. 1. Lesser included offense and verdict slip. During the charge conference, the judge advised the parties of the instructions she intended to give, which included an instruction on unarmed robbery, as a lesser included offense of armed robbery. The parties did not object, and the judge instructed the jury accordingly, again drawing no objection. The judge told the jury that each verdict slip would have two options, guilty or not guilty. The jury returned a verdict of guilty on the lesser included offense of unarmed robbery, by making a handwritten alteration to the verdict slip, and affirmed the verdict in open court. There was no objection.
On appeal, the defendant contends that his conviction should be reversed, because the judge erred by giving the lesser included offense instruction and failed to follow the "proper protocol" regarding the altered verdict slip. Because the defendant did not object to either issue below, we must determine whether an error occurred and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) ; Commonwealth v. Lawson, 425 Mass. 528, 531 (1997). A substantial risk of a miscarriage of justice arises "if the evidence and the case as a whole ... [leave the court] with a serious doubt that the defendant['s] guilt [was] fairly adjudicated." Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997).
"Where, as here, ‘the issue is whether the judge erred in giving a lesser included instruction ... it is not error to give a lesser included offense instruction if on any hypothesis of the evidence, the jury could have found the defendant[ ] guilty of [the lesser included offense] and not guilty of the greater offense.’ " Commonwealth v. Russell, 470 Mass. 464, 480 (2015), quoting Commonwealth v. Porro, 458 Mass. 526, 537 (2010). "In determining whether there was a hypothetical basis for the jury to conclude that the defendant was guilty of the lesser included offense, but not the offense charged, the judge may consider the possibility that the jury reasonably may disbelieve the witnesses' testimony regarding an element required of the greater, but not the lesser included, offense." Id.
Unarmed robbery is a lesser included offense of armed robbery. See Commonwealth v. Garrett, 473 Mass. 257, 267 (2015) ; Commonwealth v. Netto, 438 Mass. 686, 704 (2003). "The elements of the crime of armed robbery are that a defendant, while armed with a dangerous weapon, assaulted another person, and took money or property from the person with the intent to steal it." Commonwealth v. Anderson, 461 Mass. 616, 633 (2012). "To prove unarmed robbery, the Commonwealth must prove that a defendant robbed ‘by force and violence, or by assault and putting in fear’ " (citation omitted). Garrett, supra.
The defendant argues that "no interpretation" of the evidence could lead to the inference that the defendant was unarmed. We disagree. The Commonwealth presented evidence that the defendant participated in the robbery and that various weapons were used, although the indictment specified a hammer and a gun. The victim testified that the intruders who remained with him were armed, one with a hammer and the other with a gun. Because they were masked, he could not identify whether either one was the defendant. Peralta identified the defendant as being present and testified that he "kn[e]w that there was a gun and maybe something else," but he did not specifically testify that the defendant was armed in any way.
Certainly, the evidence permitted the jury to infer that the defendant was one of those individuals armed with a hammer or a gun, but they were not required to do so. See Netto, 438 Mass. at 704. Accord Commonwealth v. Daughtry, 417 Mass. 136, 140 n.1 (1994) ("A jury are free to believe part of a witness's testimony and disbelieve part"). Similarly, the jury could have considered the defendant to have been armed by way of a joint venture with the armed intruders, but they were not required to do so. See Netto, supra. Because there existed a basis for the jury to conclude that the defendant participated in the robbery but may not have been armed, the judge did not err in giving the unarmed robbery instruction. See Porro, 458 Mass. at 537.
The defendant also argues that trial counsel's failure to object to the lesser included offense instruction constituted ineffective assistance of counsel. Given that the evidence warranted an instruction on unarmed robbery and the defendant's trial theory was that he was not present during the robbery at all, failure to object to an instruction on unarmed robbery did not constitute ineffective assistance of counsel. See Commonwealth v. Donlan, 436 Mass. 329, 333 (2002) (where defense theory was no sexual conduct took place, it was not unreasonable to fail to object to lesser included offense instruction); Commonwealth v. Thayer, 418 Mass. 130, 134 (1994) (no prejudice from instruction on rape without force where defense theory was no sexual contact at all).
Relatedly, the defendant argues that the judge erred by failing to reaffirm the intent of the jurors and to notify defense counsel when presented with handwriting on the verdict slip. As an initial matter, under Mass. R. Crim. P. 27 (a), 378 Mass. 897 (1979), "a single verdict slip accompanies the indictment or complaint, not a separate verdict slip for each lesser included offense." Commonwealth v. Figueroa, 468 Mass. 204, 226 (2014), quoting Commonwealth v. Roth, 437 Mass. 777, 787 (2002). It is best practice to separately list the lesser included offense. See, e.g., Commonwealth v. Gardner, 479 Mass. 764, 778 (2018) ; Russell, 470 Mass. at 467 & n.3. "We have said that [t]he only verdict which can be received and regarded, as a complete and valid verdict of a jury ... is an open and public verdict, given in and assented to, in open court" (quotation and citation omitted). Lawson, 425 Mass. at 530.
The defendant acknowledges that he had an opportunity to review the verdict slip before it was submitted to the jury, and that it did not have an option for a lesser included offense. Additionally, the judge announced in open court that each verdict slip had only two options, guilty or not guilty. Thus, the parties should have been on notice of the incongruity between the verdict slip and verdict announced. Yet, no one expressed any surprise when the verdict was announced.
Here, although the lesser offense was omitted from the verdict slip, the actual verdict was valid. The jury were properly instructed on unarmed robbery, and the verdict was read and affirmed by the jury in open court. See Commonwealth v. Martell, 407 Mass. 288, 292 (1990), quoting Commonwealth v. Tobin, 125 Mass. 203, 206 (1878) ("The verdict which determines the rights of the parties ... is the verdict received from the lips of the foreman in open court"). There was no ambiguity in the jury's verdict and it was one that was supportable in the evidence. Compare Commonwealth v. Zekirias, 443 Mass. 27, 32 (2004) (jury returned legally impossible and therefore ambiguous verdicts). The absence of the lesser offense on the verdict slip did not create a substantial risk of a miscarriage of justice. See Lawson, 425 Mass. at 531. See also Roth, 437 Mass. at 796.
2. Limited cross-examination. Next, the defendant contends that his right to confrontation was violated by the judge twice limiting his cross-examination of Peralta. We review the judge's decision to limit the defendant's cross-examination of a witness for an abuse of discretion. See Commonwealth v. Chicas, 481 Mass. 316, 319 (2019). An abuse of discretion has occurred when a judge "made ‘a clear error of judgment in weighing’ the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
While "[c]ross-examination of a prosecution witness to show the witness's bias or prejudice is a matter of right under the Sixth Amendment to the Constitution of the United States and art. 12 of the Declaration of Rights of the Commonwealth," Commonwealth v. Avalos, 454 Mass. 1, 6 (2009), quoting Commonwealth v. Allison, 434 Mass. 670, 681 (2001), the right "is not without limits." Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). For instance, "[a] judge does have discretion to limit cross[-]examination concerning possible bias when further questioning would be redundant" (citation omitted). Allison, supra.
Here, defense counsel asked Peralta four times on cross-examination whether Peralta had previously had a physical altercation with the defendant. Peralta three times denied ever having an altercation with the defendant. After the fourth question, the judge sustained the prosecutor's objection. Defense counsel immediately agreed to drop the line of questioning, and later explained that he had hoped that the witness would have agreed with him, adding, "He can deny it and he did." There was no error. See Allison, 434 Mass. at 681.
In the second instance of curtailed cross-examination, defense counsel inquired into each of Peralta's original charges and their disposition. When defense counsel asked Peralta about the potential punishment for his dismissed armed robbery charge, the same charge faced by the defendant, the Commonwealth objected, arguing that highlighting the penalty might prejudice the Commonwealth. The judge sustained the Commonwealth's objection. The judge did not make " ‘a clear error of judgment in weighing’ the factors relevant to the decision" (citation omitted), L.L., 470 Mass. at 185 n.27, by curtailing the line of questioning where defense counsel had already elicited testimony regarding the penalties faced by Peralta. Drawing the jury's attention to the potential penalty faced by the defendant would have been perilous. See Commonwealth v. Bart B., 424 Mass. 911, 913 (1997) (noting jury should not regard probable punishment in determining defendant's guilt or innocence).
Defense counsel elicited from Peralta that he had faced multiple felonies before agreeing to cooperate with the Commonwealth. Peralta testified that he understood that one of his charged felonies, armed home invasion, carried a potential punishment of twenty years to life.
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Judgment affirmed.