Opinion
17-P-883
04-30-2019
COMMONWEALTH v. DAVID J. PERROTTA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from his convictions of assault by means of a dangerous weapon (knife), G. L. c. 265, § 15B (b), and threat to commit a crime, G. L. c. 275, § 2. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following.
In the evening of January 19, 2015, the victim, Michael Searles, was arriving home in his car. As he arrived, the defendant drove his pickup truck into the driveway. The truck stopped, and the defendant began shouting at the victim for breaking into his friend's house. The defendant drove farther onto the driveway and yelled at the victim, including "a threat to kill [him], a threat to stab [him]." The truck then pulled out of the driveway, stopped, and reversed, forcing the victim to jump out of the way to avoid being hit. The defendant continued to yell at the victim. He got out of the truck, pulled out a shiny object that looked like a knife, and yelled, "I'll fucking stab you." The defendant and the victim were twenty to twenty-five feet apart. The defendant then began to walk toward the victim, but the victim's neighbor pulled into a driveway across the street. The defendant then stopped advancing toward the victim. The defendant told the neighbor "he had nothing to worry about," got into his truck, and left. The police apprehended the defendant later that night after stopping him for a motor vehicle infraction. A black folding knife was found in his sock, and both a spring-loaded knife and a box cutter were found in his truck. Without any prompting by the police, the defendant said, "Searles broke into my house."
Sufficiency of the evidence of assault by means of a dangerous weapon. The defendant first argues that there was insufficient evidence to prove beyond a reasonable doubt that he assaulted the victim with a dangerous weapon. We must affirm if the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to convince a rational trier of fact of each element of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). In this case, the Commonwealth proceeded on both the threatened battery and attempted battery theories of assault by means of a dangerous weapon. Because the jury returned a general verdict, we may affirm only if there was sufficient evidence of assault by means of a dangerous weapon on both theories. See Commonwealth v. Chambers, 57 Mass. App. Ct. 47, 48, 53 (2003).
"A conviction of assault under a theory of threatened battery requires the prosecution to prove that the defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat." Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010). In this case, the prosecution was also required to prove that this was accomplished using a dangerous weapon. A rational juror in this case could conclude that the acts of pulling out a knife, yelling "I'll fucking stab you," and advancing toward the victim were sufficient to meet these elements, where the victim testified to the threat and hence perceived it.
"A conviction of assault under a theory of attempted battery requires the prosecution to prove that the defendant 'intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.'" Porro, 458 Mass. at 530, quoting Commonwealth v. Melton, 436 Mass. 291, 295 (2002). Again, the prosecution here was required to prove that the attempted battery was accomplished with a dangerous weapon.
The defendant argues that no rational juror could have found an attempt in this case because, viewed in the light most favorable to the Commonwealth, he was too far away from the victim to have taken an "overt step" toward the commission of the crime, and he was not "reasonably close to doing so." We disagree. There is no bright-line rule separating mere preparation from a criminal attempt. Hence, there is no particular limit on the maximum distance a defendant can be from the victim beyond which he cannot be convicted of an attempted battery with a knife. When considering whether an overt act is an attempt, we consider, at a minimum, "the gravity of the crime, the uncertainty of the result, and the seriousness of harm that is likely to result." Commonwealth v. McWilliams, 473 Mass. 606, 611 (2016).
A defendant can also commit an attempt by performing "the last act required to complete [the] crime," McWilliams, 473 Mass. at 610, which the defendant here did not do.
Here, assault and battery by means of a dangerous weapon is a serious felony, punishable by up to ten years in prison, G. L. c. 265, § 15A (b), and a stabbing could result in serious bodily injury or death. As to the uncertainty of the result, while, as a general rule, a battery is less likely to be completed the greater the distance between the defendant and the victim, there was sufficient evidence here for the jury to find that the defendant came reasonably close to completing a battery. The defendant's words expressed an intent to commit a battery. The defendant in fact pulled out and brandished what the jury could have concluded was a knife, indicating a present ability to commit a battery, and the defendant had begun advancing on his putative victim. Indeed, the defendant stopped advancing toward the victim only after being interrupted by the neighbor. See Commonwealth v. Purrier, 54 Mass. App. Ct. 397, 402 (2002) (interruption is relevant to attempted battery analysis). Moreover, the defendant here was closer to committing the crime than the McWilliams defendant, who was arrested when he was sitting at a table twenty-five feet away from a bank he had robbed three weeks earlier, in possession of a pellet gun, a disguise, and similar objects that he had carried with him to the prior robbery. The McWilliams defendant had previously been seen walking past the bank but was not advancing toward it when he was interrupted. Id. at 608-609. The McWilliams court found this conduct sufficient for an attempted robbery. Id. at 611-612. Here, too, the conduct was sufficient to convict the defendant on an attempt theory.
Prior bad act evidence. The defendant next argues that the judge erred by admitting evidence of his prior bad acts. Over his objection, the judge allowed the prosecutor to introduce evidence that the defendant and the victim's brother had in 2008 or 2009 worked together at the Massachusetts Bay Transportation Authority (MBTA), that the defendant threatened the brother while they were on the job, and that the brother reported it to his superiors, which resulted in the defendant's being placed on leave. The judge also allowed the brother to testify, if an adequate foundation could be established, that the defendant continued to threaten the brother and was ultimately terminated by the MBTA as of a certain date. Because the victim had testified that he did not know the defendant, and the brother lived with the victim, the Commonwealth sought to introduce this testimony as evidence of motive.
Evidence of prior bad acts is admissible to show motive, see Commonwealth v. Walker, 460 Mass. 590, 613 (2011), and the judge properly instructed the jury that they were permitted to consider the evidence solely for this purpose, not as proof that the defendant had a criminal propensity or a bad character. The defendant therefore argues that the evidence was inadmissible because its probative value was outweighed by the risk of unfair prejudice. See Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). We review for abuse of discretion. See id. at 252.
While the similarity of the prior bad acts to the threats charge weighs against admissibility, it was within the judge's discretion to find that the risk of unfair prejudice did not outweigh the probative value of the evidence. Since the victim testified that he did not know the defendant, the defendant's presence at the victim's home would have been inexplicable but for evidence of the defendant's relationship with the brother, who also lived there. And the defendant's conflict-ridden history with the brother was a plausible motive for why he sought to attack the victim. The defendant argues that the Commonwealth did not try the case on this motive, but rather based on the theory that, consistent with the police officer's statement that the defendant told him that "Searles broke into my house," the defendant believed that the victim had broken into his house. But, even if this were the defendant's motive, the jury could have concluded that the past history with the brother played a role in the defendant's forming a conclusion regarding a break-in.
At trial, the brother testified only that he and the defendant had worked together for about a month in 2008 or 2009 during which time the defendant had threatened to "kick [his] ass," that he (the brother) reported the incident, that the defendant came back to work a month later for one day, and that they never worked together again. Even though the judge allowed him to, the brother did not testify that the reporting led to the defendant's suspension or that the defendant had been terminated from his employment some five years later, before the incident in the driveway. While this evidence of motive is weaker than the evidence the judge allowed the Commonwealth to introduce, and hence less probative, the defendant at trial did not move to strike it on that basis. Even if the admission of the more limited evidence was erroneous, it did not create a substantial risk of a miscarriage of justice.
Jury instructions. The defendant next argues that errors in the jury instructions require reversal. First, he argues that the judge's instruction on assault by means of a dangerous weapon was incorrect because the judge defined a dangerous weapon as "an item which is capable of causing serious injury or death." According to the defendant, assuming the jury concluded he was holding a knife, and assuming the knife was not dangerous per se, the judge should have instructed the jury that they had to find that the knife was dangerous as used in order to conclude it was a dangerous weapon.
Because the defendant did not object to the instruction as given, we will reverse only if the error alleged created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Here there was no such risk because the evidence was powerful that, assuming the jury found the defendant was holding a knife, the defendant used the knife in a dangerous manner: The victim testified that the defendant pulled out a knife, yelled "I'll fucking stab you," and advanced toward the victim until the defendant was interrupted by the neighbor. Given this context, the fact that the victim said on cross-examination that he saw what he "presume[d]" to be the blade of the knife does not weaken the evidence of the defendant's use of the knife in a dangerous manner such that failure to instruct the jury as described by the defendant created a substantial risk of a miscarriage of justice.
The defendant also argues that the judge's failure to instruct on the definition of a dangerous weapon prejudiced his self-defense theory, according to which his acts were in response to the victim's purported use of his dog. A passenger in the defendant's car testified that, after the defendant got out of his truck, the victim approached the defendant with a pit bull. (The victim testified that he left his dog in his car.)
Our conclusion above controls as to whether there was a substantial risk of a miscarriage of justice with respect to whether the instruction relieved the Commonwealth of proving that the defendant used the knife as a dangerous weapon. As to whether the victim used a dangerous weapon -- dogs, including pit bulls, are not dangerous per se, yet they are "capable of causing serious injury or death." See Commonwealth v. Tarrant, 2 Mass. App. Ct. 483, 487 (1974) ("dogs can be . . . employed" as dangerous weapons). The defendant argues that the jury should have been told that they were to determine whether the victim's dog (assuming they believed he confronted the defendant with it) was used in a dangerous manner. The instruction as given, though, would have required them to find the dog was a deadly weapon, whether or not the victim used the dog in a dangerous manner. This can only have been helpful to the defendant with respect to his claim of self-defense. It thus cannot have created a substantial risk that he was convicted as a result of a miscarriage of justice.
For the same reasons, the judge's dangerous weapon definition did not create a substantial risk of a miscarriage of justice by relieving the Commonwealth of the burden of proving that the defendant intended to use deadly force in self-defense. The same evidence that the weapon was dangerous as used satisfied the element of deadly force. See Commonwealth v. Klein, 372 Mass. 823, 827 (1977) ("We define deadly force as force intended or likely to cause death or great bodily harm. This tracks with our long-standing definition of a 'dangerous weapon,' viz.: an instrument that is likely to produce death or serious bodily injury").
The defendant next argues that the judge erred by refusing, over his objection, to instruct the jury that the defense of self-defense applies to the crime of threatening to commit a crime. Assuming without deciding that this was error, we are confident that it "did not influence the jury, or had but very slight effect" (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). To begin with, the victim testified that the defendant first threatened to stab and kill him while the defendant was still in his truck, before any possibility of self-defense arose. This alone would have sufficed to convict the defendant of threatening to commit a crime. But even assuming the jury convicted the defendant for his threat to stab the victim after they were both outside their vehicles, the jury convicted the defendant of assault by means of a dangerous weapon for this conduct as well. Thus, the defendant could have prevailed on self-defense only if the jury were to have found that his assaultive conduct (brandishing the knife and advancing toward the victim) was excessive but his threatening conduct (threatening to "fucking stab" the victim) was not. However, the record reveals that the jury almost certainly rejected the self-defense theory not because the defendant's force was excessive, but because he was not threatened by the victim. The only evidence of self-defense came from the passenger, who "couldn't really see what was going on," and who testified only that the victim had a dog and was speaking with the defendant in a "confrontational tone." (The passenger testified that he heard some of what was said, but did not say what he heard.) Because the evidence of a threat to the defendant was exceedingly weak, we are confident the omission of a self-defense instruction on the charge of threatening to commit a crime was nonprejudicial.
Reconstructed record. Finally, the defendant argues that the failure to record the closing arguments and jury instructions violated his due process rights. Those parts of the proceeding were reconstructed through a process that resulted in what the defendant describes as "thorough findings" by the judge. The defendant's only argument is that, absent a contemporaneous recording, "it is impossible to determine whether the jurors were actually instructed properly" because "[t]he judge would not realize, or recall, if he made an inadvertent slip of the tongue during the instructions, which could have [gone] unnoticed by [trial] counsel." But the case law is clear that the defendant cannot obtain a new trial on this basis unless there is a specific claim on appeal that the reconstructed record is insufficient to resolve. See Commonwealth v. Imbert, 479 Mass. 575, 578 (2018). Because the defendant presents no such claim here, a new trial is not warranted.
The judge's response to the jury's request for clarification regarding the elements of the two crimes for which the defendant was convicted were recorded and transcribed. It was this judge's practice to respond to such questions by instructing the jury in "exactly the same" way as the initial instructions on the charges.
Judgments affirmed.
By the Court (Rubin, Kinder & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 30, 2019.