Opinion
18-P-1431
05-04-2020
COMMONWEALTH v. PING HONG.
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
After a jury trial, the defendant was found guilty of assault by means of a dangerous weapon with the intent to murder Jinzi Zhu, assault and battery by means of a dangerous weapon causing serious bodily injury to Jinzi Zhu's face, assault and battery by means of a dangerous weapon causing serious bodily injury to Jinzi Zhu's hand, assault and battery on Yonghe Lian, and several violations of an abuse prevention order by contacting Yonghe Lian. On appeal, the defendant makes a variety of claims, none of which have merit; accordingly, we affirm.
1. Voir dire questioning. The defendant claims that the judge abused his discretion by conducting voir dire of the jurors as a group, rather than individually on the presumption of innocence. We disagree. Prior to trial the defendant requested that he be permitted to "examine prospective jurors and for particular empanelment procedures." In particular, the defendant requested that the judge inform "the full venire" about certain legal principles, including the presumption of innocence, proof beyond a reasonable doubt, and the Commonwealth's burden of proof, and then to inquire about their understanding of those principles. The judge did so. The defendant also requested specific individual voir dire questions, none of which inquired about the presumption of innocence. The only objection made relative to voir dire matters was to the form of questions 3 and 5, which pertained to the jurors' ability to follow the judge's instructions and believing a police officer's testimony over an ordinary witness. Neither was a question regarding the presumption of innocence.
The defendant also claims that the judge violated G. L. c. 234A, § 67A (formerly G. L. c. 234, § 28), which requires that a judge inquire of the prospective jurors into subjects such as whether the jurors understand that a defendant is presumed innocent until proven guilty, that the Commonwealth has the burden of proving guilt beyond a reasonable doubt, and that the defendant need not present evidence in his behalf. See Commonwealth v. Figueroa, 451 Mass. 566, 569 (2008). The defendant filed the required motion, the judge questioned the venire about the required subjects, and no juror indicated that he or she could not accept or understand these principles. To the extent the defendant claims the judge should have addressed these subjects in an individual voir dire of the jurors, he cites no authority in support of such a requirement. See Commonwealth v. Tatro, 42 Mass. App. Ct. 918, 919-920 (1997). In the end, the judge properly exercised the discretion he had on how to conduct juror voir dire. See Commonwealth v. Robertson, 480 Mass. 383, 389 (2018).
2. Sufficiency of the evidence. The defendant also claims that there was insufficient evidence to support his convictions for violating the no contact provision of the abuse prevention order, as he did not actually communicate with Lian because she did not answer the telephone calls he placed from jail. We disagree.
"To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that (1) a valid G. L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order." Commonwealth v. Silva, 431 Mass. 401, 403 (2000). The defendant does not challenge the evidence regarding the first and third elements. Instead, he challenges the sufficiency of the second element based on his claim that he did not actually communicate with the victim.
In the light most favorable to the Commonwealth, the evidence showed that while he was in custody, the defendant made multiple telephone calls to Lian. On March 28, 2017, he called Lian's cell phone twice. On March 31, 2017, he called Lian's cell phone three times. On April 1, and April 2, 2017, he called Lian's cell phone one time each day. All of the calls went unanswered. Lian was aware of the phone calls, each of which appeared as a "Missed Call" on her cell phone. Lian informed a detective about the defendant's calls on April 2, 2017.
Contrary to the defendant's claim, there is no requirement that contact necessarily requires verbal communication. See Commonwealth v. Basile, 47 Mass. App. Ct. 918, 919 (1999) (waiving at victim); Commonwealth v. Crimmins, 46 Mass. App. Ct. 489, 490 (1999) (following victim's car); Commonwealth v. Butler, 40 Mass. App. Ct. 906, 907 (1996) (sending flowers anonymously considered contact); Commonwealth v. Tate, 34 Mass. App. Ct. 446, 449-450 (1993) (looking at victim on same street where she lived violated "no contact" condition of probation).
Again, contrary to the defendant's claim, this is not a case like Commonwealth v. Cove, 427 Mass. 474, 476 (1998), where the victim was unaware of the telephone calls. Rather, the defendant called Lian's cell phone seven times in the days following his arrest, each call appeared as a missed call from the jail's phone number, Lian was aware of the missed calls, and it was Lian who alerted the detective about the calls. This was sufficient evidence of contact. See Commonwealth v. Russell, 46 Mass. App. Ct. 307, 309-310 (1999).
In addition, the defendant claims there was insufficient evidence to support his conviction for assault and battery by means of a dangerous weapon causing serious bodily injury to Zhu's face based on his assertion that the victim did not suffer a serious bodily injury. We disagree.
In the light most favorable to the Commonwealth, and drawing reasonable inferences from the evidence, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), there was sufficient evidence to prove that Zhu suffered serious bodily injury, including multiple stab wounds that caused difficulty eating and a loss of sensation. There are "three distinct routes for establishing serious bodily injury." Commonwealth v. Scott, 464 Mass. 355, 357 (2013). "The Commonwealth may prove that a defendant caused bodily injury that resulted either in (1) a permanent disfigurement; (2) loss or impairment of a bodily function, limb, or organ; or (3) a substantial risk of death." Id.
The injuries from the multiple stab wounds that the victim sustained had both temporary but significant effects to her body as well as long-lasting effects. The damage to the victim's mouth in particular compromised its usual functions. The victim testified that at the time of trial she still had lost feeling and sensation to part of her head, mouth, and lips. It is a fair inference that her ability to eat, which is a bodily function, was affected by the attack. The motion for a required finding of not guilty was properly denied.
3. The ortho-tolidine test. For the first time on appeal, the defendant claims that the judge should have sua sponte excluded the results of the ortho-tolidine test as scientifically unreliable pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994). We disagree.
A forensic scientist testified, without objection, that the ortho-tolidine test revealed positive tests for blood in multiple areas around the driver's seat of the car that had been driven by the defendant on the night of the attack. The defendant claims this testimony was unreliable because the ortho-tolidine test is prone to false positives, and therefore, unfairly prejudicial to the defendant.
The fundamental problem with the defendant's claim is that because it is being raised for the first time on appeal, it is waived. Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 694 (2015). See Commonwealth v. Caruso, 476 Mass. 275, 288 (2017); Commonwealth v. Crouse, 447 Mass. 558, 570 n.11 (2006). Even if not waived, there was no error, and thus no risk that justice miscarried, because the Supreme Judicial Court has held that results of ortho-tolidine tests are admissible in evidence. Commonwealth v. Gordon, 422 Mass. 816, 842 (1996). Also, in Commonwealth v. Duguay, 430 Mass. 397, 402 (1999), the court directly addressed the defendant's argument that the ortho-tolidine tests are overly prejudicial. As in that case, here the forensic expert testified that the ortho-tolidine test is a screening test that cannot differentiate between human and animal blood and further acknowledged that some other substances, including nail polish, can lead to false positives. In other words, the defendant's claim merely goes to the weight of the evidence and not its admissibility. Id.
4. The defendant's statements. Finally, the defendant claims that the admission of his unredacted statement to the police created a substantial risk of a miscarriage of justice because it included statements by the police accusing the defendant of lying and implying the police had more inculpatory evidence than was presented at trial. We disagree.
The defendant also claims, for the first time on appeal, that his waiver of his Miranda rights was invalid. In this posture, the defendant has deprived the Commonwealth of the opportunity to present necessary evidence, and the judge from making necessary findings. Accordingly, the issue is waived. See Commonwealth v. Silva, 440 Mass. 772, 781-783 (2004). Even if it were not waived, as discussed below, the defendant has failed to show that the admission of his unredacted statement created a substantial risk of a miscarriage of justice.
The defendant did not object to his unredacted statement being entered in evidence, nor did he request any portion of it be redacted, which renders the claim waived. Nonetheless, to determine whether this evidence created a substantial risk of a miscarriage of justice, and keeping in mind that "[e]rrors of this magnitude are extraordinary events and relief is seldom granted," Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions: "(1) Was there error? (2) Was the defendant prejudiced by the error? (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? (4) May we infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision?" (Citations omitted.) Id. at 298. "Only if the answer to all four questions is 'yes,' may we grant relief." Id. Accord Commonwealth v. Coutu, 88 Mass. App. Ct. at 693.
Focusing on question (4), we determine that the decision to not challenge the admissibility of the entire recorded statement was a tactical decision by defense counsel. The defendant pursued a Bowden defense at trial. See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980). To illustrate the claimed inadequate investigation, the defendant used the officers' statements in the interview that the defendant was lying to argue that their judgment was clouded by sympathy for the victim and that the police had already concluded who committed the crime without conducting a thorough investigation. The defendant used his statement to claim that there had been a rush to judgment.
The defendant similarly exploited the exaggerated inculpatory evidence to support his Bowden defense. While the police officers told the defendant that the victim's blood was found in his car and that his shoeprint in the victim's blood was found at the scene, the defendant correctly argued that there was no blood test that confirmed this, nor was there any attempt to match the shoeprint to the defendant. Given how this case was tried, we cannot allow the defendant to obtain appellate review on an entirely different theory, which was never advanced or suggested at the trial, let alone the subject of an objection. See Commonwealth v. Johnson, 374 Mass. 453, 465 (1978). In light of this, and the Commonwealth's strong evidence of the defendant's guilt, there was no risk that justice miscarried.
In the same week the defendant assaulted Lian, and following a day of threatening text messages, the defendant attacked Zhu, who immediately identified the defendant as her attacker while she lay bleeding from the twenty stab wounds the defendant inflicted.
Judgments affirmed.
By the Court (Meade, Sacks & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 4, 2020.