Opinion
No. 11–P–481.
2012-07-17
COMMONWEALTH v. Stephen J. PELLEGRINE.
By the Court (CYPHER, HANLON & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of indecent exposure and shoplifting. On appeal he only raises issues concerning the indecent exposure conviction, arguing that the Commonwealth failed to prove that he intentionally exposed himself, and also that the jury instructions improperly shifted the burden of proof. In addition, he contends that he received ineffective assistance at trial based on defense counsel's failure to impeach the Commonwealth's only witness. We affirm.
The jury heard the following evidence. The defendant approached a cashier in a CVS store and asked her to help him because he needed razor cartridges from the locked case at the back of the store. The cashier “grabbed the key, and ... led him down the aisle,” turning to ask what type of cartridges he needed. When she turned, she “saw him putting something down his pants ... the front of his pants.” She said to him, “Whatever you just put down the front of your pants, take it out and put it on the shelf before I have you kicked out of the store.” The defendant responded that he didn't take anything, and then said, “Look. I'm, like I'm telling you.” She turned around and the defendant “dropped his pants” to his mid-thighs and she “saw his genitals.” She was “dumfounded,” and said, “I don't believe you just did that. I just don't believe you did that.” She started to walk away and the defendant said, “I'm telling you I did not take anything.... Look and see.” When the clerk turned around again, he “dropped his pants again”. The store clerk “was offended, very uncomfortable” with what the defendant had done. A surveillance video was admitted at trial. Viewing this evidence in the light most favorable to the Commonwealth, it was reasonable for the jury to conclude that the defendant intended to expose himself to the woman and intended to offend her. See Commonwealth v. Swan, 73 Mass.App.Ct. 258, 261 (2008). We have in mind that the defendant approached a female employee, asked for something in an area away from the front of the store, deliberately secreted something in the front of his pants, and, when confronted with an accusation that he was shoplifting, demanded that she look at him while he was exposing his genitals. Despite the woman's shocked reaction to this behavior, the defendant asked again that she look at him and lowered his pants, exposing himself a second time. His argument that he “accidentally exposed himself” twice is not persuasive. See G.L. c. 272, § 53; Commonwealth v. Dubois, 451 Mass. 20, 26 (2008) (the evidence offered “viewed in the light most favorable to the Commonwealth, [was] sufficient to persuade a rational jury of the existence of all the elements of the crime charged beyond a reasonable doubt”).
The defendant next argues that the judge, delivering the model jury instruction on intent, improperly shifted the burden of proof to the defendant.
See Criminal Model Jury Instructions for Use in the District Courts, Instruction 3.120 (2009). We rejected that argument in Commonwealth v. Soares, 51 Mass.App.Ct. 273, 279 (2001), and decline to revisit it now. See also Commonwealth v. Doucette, 391 Mass. 443, 450–452 (1984). (“[T]he charge concerning intent was correct. Sandstrom v. Montana, [442 U.S. 510,] 515 [ (1979) ], does not invalidate the use of an entirely permissive inference or presumption which allows the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one, and which places no burden of any kind on the defendant. See Commonwealth v. Ely, 388 Mass. 69, 76 [1983]”). In addition, the judge correctly instructed the jury on the presumption of innocence and the Commonwealth's burden of proving “each and every element of the charges beyond a reasonable doubt.” We see no error and certainly no substantial risk of a miscarriage of justice.
The defendant did not object to the instruction. At the charge conference, he requested the “standard” intent instruction and agreed with the trial judge that it would “come with the indecent exposure” instruction. On appeal, he focuses his argument on the following language. “As a general rule, it is reasonable to infer that a person ordinarily intends the natural and probable consequences of any acts that he does intentionally. You may draw such an inference unless there is evidence that convinces you otherwise.”
Finally, the defendant argues that he received ineffective assistance at trial when his attorney failed to impeach the victim during cross-examination about a prior encounter with the defendant.
Presenting this claim on direct appeal rather than through a motion for new trial is the weakest form of this type of challenge and it is strongly disfavored. Commonwealth v. Zinser, 446 Mass. 807, 810–811 (2006). In order for us to determine whether “defense counsel's asserted failures may in fact have been the considered product of a tactical decision,” Commonwealth v. McCormick, 48 Mass.App.Ct. 106, 108 (1999), the “factual basis of the claim [must] appear[ ] indisputably on the trial record.” Commonwealth v. Zinser, supra, quoting from Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344 (1994). On this record, we cannot say that it does. We have no idea what the prosecutor may have told defense counsel or why he decided to abandon the inquiry. In addition, we note that, “[f]ailure to impeach a witness does not, standing alone, amount to ineffective assistance.” Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011).
At a bench conference, defense counsel informed the judge that he wished to ask the victim about a prior incident with the defendant. The lawyer represented that the victim had given the defendant incorrect change and that, when the money in the register was counted, “he was, in fact, shorted twenty dollars.” After consulting with the prosecutor, defense counsel told the judge that he was not going to ask that question.
Judgments affirmed.