Opinion
10-P-215
04-04-2012
COMMONWEALTH v. VANDA OUK.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Vanda Ouk, appeals from the denial of his motion for new trial and from jury convictions of assault and battery by means of a dangerous weapon (motor vehicle), and leaving the scene of personal injury. We affirm.
1. Ineffective assistance of trial counsel. The defendant states that trial counsel's failure to request an instruction on necessity constituted ineffective assistance, and that the trial judge committed an error of law in denying his motion for a new trial on this issue. Noting only that counsel indicated during trial that she intended to request such an instruction, the defendant has not provided any reason, through affidavit or otherwise, why counsel did not request that instruction. He asserts that the evidence that he fled the scene of a fight in his vehicle because he was in fear of an angry mob entitles him to an instruction that he took such action out of necessity. The Commonwealth argues that, in addition to advancing a 'cohesive theme' at trial that the defendant did not act intentionally, defense counsel sought and obtained an instruction on accident, and suggests that counsel made a reasoned choice not to follow through with a request for a necessity instruction. Moreover, the Commonwealth argues that counsel cannot be faulted for not requesting an instruction that was not supported by the evidence.
Viewing the evidence in the light most favorable to the defendant, the Commonwealth argues that he failed to meet all the conditions required for necessity by Commonwealth v. Kendall, 451 Mass. 10, 13-14 (2008): the anger of the mob initially was directed at the passenger in his vehicle who entered the vehicle seeking to escape; the defendant, safely in his vehicle, could have escaped the angry mob by driving away -- the two victims he struck were not directly in his path and there was evidence he steered toward them. Additionally, the necessity defense is precluded by the defendant's commission of two crimes -- aiding and abetting another and leaving the scene of personal injury.
The defendant fails to show that he was 'deprived . . . of an otherwise available, substantial ground of defence,' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and that his counsel was ineffective. See the reasons given in greater detail in the Commonwealth's brief at pages eight to nineteen. Because we rely on these reasons, as did the judge, we conclude that the defendant's motion for a new trial properly was denied.
The trial judge also was the motion judge.
2. Unobjected-to jury instructions. The defendant claims that the judge did not correctly instruct the jury on reckless assault and battery. He asserts that after correctly instructing the jury on the elements, the judge 'provided the jury with an example of negligent conduct that was analytically indistinguishable from reckless conduct.' However, the judge's purpose in giving the example (the umbrella example) was to distinguish intentional from unintentional conduct, which did not concern the instructions on reckless assault and battery. Because the defendant was acquitted of the portion of the indictment charging intentional assault and battery, any claim of harm by the instructions or the example is without merit.
The jury asked for an example of reckless behavior. The judge answered that she could not give an example and told the jury they should apply the definitions they had been given on accidental, negligent, and reckless conduct.
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The defendant engages in unjustified speculation that the jury considered the umbrella example on the charge of reckless assault and battery. Even if the jury equated reckless with negligent conduct, as the defendant asserts, he would have benefited because the judge instructed the jury that if they found the defendant acted negligently they had to acquit.
The defendant also asserts that the judge's instructions on general and specific intent were flawed, and improperly equated intentional with unintentional conduct. We discern no error in the judge's reference to 'reflex' to contrast 'contemplation' in her instruction on specific intent. The term was not used to illustrate general intent. It was not error for the judge to explain the difference between general and specific intent as she did in this case. Cf. Commonwealth v. Deschaine, 77 Mass. App. Ct. 506, 513 (2010). There was no error, and therefore no substantial risk of a miscarriage of justice.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cypher, Green & Trainor, JJ.),