Opinion
No. 12–P–640.
2013-05-3
COMMONWEALTH v. Derrick RICHARDSON.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A grand jury returned indictments against the defendant charging him with two counts of armed assault with intent to murder, aggravated assault and battery by means of a dangerous weapon, unlawful possession of a firearm, unlawful possession of ammunition, and unlawful possession of a loaded firearm. On the indictments charging the defendant with armed assault with intent to murder, a jury in Superior Court found the defendant guilty of the lesser included offense of assault by means of a dangerous weapon, and guilty as charged on all remaining offenses. On appeal the defendant asserts that (1) the trial judge erred by failing to give a humane practice instruction sua sponte, (2) a police officer improperly testified to statements made by the defendant and to his refusal to answer certain questions, (3) trial counsel was ineffective by failing to object to the inadmissible testimony, and (4) his convictions of the lesser included offense of assault by means of a dangerous weapon must be vacated. Humane practice instruction. The defendant faults the trial judge for failing to inquire, sua sponte, whether various inculpatory statements made by the defendant at and after his arrest were voluntary. The defendant neither objected to the jury instructions during trial nor requested a humane practice instruction, thus we review to determine whether the failure to give such an instruction constituted a substantial risk of a miscarriage of justice. See Commonwealth v. Tavares, 385 Mass. 140, 149 (1982).
We agree with the Commonwealth that the judge was not required to give a humane practice instruction in this case because the voluntariness of the defendant's statements was not a “live issue” at trial. See Commonwealth v. Pavao, 46 Mass.App.Ct. 271, 273–274 (1999), quoting from Commonwealth v. Brady., 380 Mass. 44, 49 (1980) (“[T]he judge is required, sua sponte, to conduct a voir dire on the question of voluntariness only when ‘evidence of a substantial claim of involuntariness is produced’ ”). During trial, the defense proceeded under a theory of mistaken identity. The victims of the shooting claimed that the man who shot at them was staggering and appeared to be drunk. However, the police officers who arrested the defendant and interrogated him shortly thereafter testified that he did not exhibit any signs of intoxication. The defendant never argued before the jury that he was intoxicated—to the contrary his defense hinged on the assertion that the shooter was intoxicated while he was sober. The judge was not required, sua sponte, to inquire as to the voluntariness of his statements. See Commonwealth v. Neives, 429 Mass. 763, 769–770 (1999) (where defendant did not focus on involuntariness, judge was not obligated to give humane practice instruction).
We also reject the defendant's assertion that the judge was on notice that voluntariness was at issue because he instructed the jury on intoxication. Although there was scarce evidence that the defendant was in fact intoxicated, the judge acted properly by giving an intoxication instruction in an abundance of caution, and he was not required to give a humane practice instruction as well. See Commonwealth v. Pavao, supra at 276 § “Given the scarcity of evidence pertaining to the defendant's alleged intoxication, it appears likely that the judge's instruction was given due to a simple abundance of caution”).
Furthermore, even if the judge erred by failing to give a humane practice instruction or to inquire as to voluntariness, we are convinced that the error did not create a substantial risk of a miscarriage of justice in light of the overwhelming strength of the Commonwealth's case. Two veteran police officers, both of whom were familiar with the defendant, witnessed the defendant approach 39 Floyd Street, remove a black firearm from his sweatshirt pocket, and fire seven shots at the victims. The officers apprehended the defendant seconds after the shooting (without the defendant ever leaving their sight) and recovered his firearm. One of the victims watched the defendant's apprehension through her living room window and identified the defendant as the man she saw approaching her prior to shots being fired. Given this overwhelming eyewitness evidence, there is no danger that justice miscarried here.
We do not address the defendant's remaining arguments concerning voluntariness because they are mere variations of the argument addressed above.
Sergeant Detective Fitzgerald's testimony. The defendant asserts that Sergeant Detective John Fitzgerald was improperly permitted to testify to statements the defendant made in the booking room, of which Fitzgerald had no personal knowledge. The statements to which Fitzgerald testified constituted admissions by the defendant,
and were admissible regardless of Fitzgerald's personal knowledge. See Mattoon v. Pittsfield, 56 Mass.App.Ct. 124, 137 (2002), citing Liacos, Massachusetts Evidence § 8.8.1 (7th ed. 1999) (“Statements of a party opponent need not be made on personal knowledge to be admissible, i.e., any statement of a party is admissible against him if not objectionable on grounds other than hearsay”). In any event, our review of the record reveals that the testimony in question was entirely related to a conversation between Fitzgerald and the defendant, albeit the subject of that conversation included references to statements the defendant had made previously. See note 2, supra.
Sergeant Detective Fitzgerald testified: “I asked him why at that point, and he said, ‘It's just on me.’ I said, ‘Okay. Well, when you came walking through the cell block earlier you were yelling to Mr. Williams that you were going to take the shooting. What was that all about?’ And he didn't have any answer for me.”
The defendant also argues that Fitzgerald should not have been permitted to testify about the defendant's refusal to answer two of his questions because his refusal constituted an assertion of his right to remain silent. We reject this argument for the reasons stated in the Commonwealth's brief at page 31. See, e.g., Commonwealth v. Senior, 433 Mass. 453, 463 (2001) (defendant's silence in response to one particular question did not constitute an affirmative indication that he was invoking the right to remain silent, which he previously waived).
Ineffective assistance claim. Next, we address the defendant's assertion that his trial counsel was ineffective for failing to object to the admission of the testimony discussed supra. We predicate our consideration of this issue by noting that our courts strongly disfavor raising claims of ineffective assistance on direct appeal. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
In any event, the defendant's claim fails, as it is governed by our analysis in the preceding sections. “[W]hen the claim of ineffectiveness is predicated ... on counsel's failure to object to something that occurred at trial, the standard for evaluating the ineffectiveness claim is not significantly different from [that] applicable to our review of the underlying, unpreserved error; we review the claim under the substantial risk standard applicable to such unpreserved error.” Commonwealth v. Phim, 462 Mass. 470, 478 n.7 (2012) (citations omitted).
Lesser included offenses. Finally, the defendant asserts that his convictions of assault by means of a dangerous weapon should be vacated because assault by means of a dangerous weapon is not a lesser included offense of the crime for which he was indicted, armed assault with intent to murder, G.L. c. 265, § 18(b).
The trial judge instructed the jury that they could convict on the lesser included offenses if they found that the defendant lacked the requisite intent to murder, and indeed the jury found the defendant guilty of two counts of assault by means of a dangerous weapon. The Supreme Judicial Court, however, has recently held that assault by means of a dangerous weapon is not a lesser included offense of armed assault with intent to murder because each crime requires proof of an element the other does not. See Commonwealth v. Bright, 463 Mass. 421, 445–446 (2012). Because these crimes are distinct statutory offenses and the defendant was not indicted for assault by means of a dangerous weapon, we agree with the Commonwealth that he is entitled to have those convictions reduced to simple assault, which is a lesser included offense of both crimes. Id. at 446, citing Commonwealth v. Dixon, 34 Mass.App.Ct. 653, 657–658 (1993). We agree with the defendant, however, that one of these assault convictions must be reversed in its entirety because the judge did not instruct the jury that they must find different factual predicates to support both the aggravated assault and simple assualt charges pertaining to Patricia Cheatham. See Commonwealth v. Berrios, 71 Mass.App.Ct. 750, 753–754 (2008), quoting from Commonwealth v. Howze, 58 Mass.App.Ct. 147, 150 (2003) ( “Convictions of two cognate offenses will be sustained when there is no chance that the finder of fact based the two offenses upon the same act ... that is, where the judge instructs the jury explicitly that they must find separate and distinct acts underlying different charges.... However, ‘if there is any possibility that the jury's verdicts were premised on a single act, reversal as to the lesser included offense ... would be required’ ”).
We note that this argument was not raised in the defendant's principal brief on appeal. While we are not obligated to address it, Commonwealth v. Hampton, 64 Mass.App.Ct. 27, 33 n.8 (2005), we do so here because the Commonwealth raised the issue in its brief and has not asserted waiver. See Commonwealth v. Bunting, 458 Mass. 569, 572 n.7 (2010).
Conclusion. The defendant's conviction of assault by means of a dangerous weapon with regard to Heather Choukas is vacated, and a judgment of conviction of simple assault, G.L. c. 265, § 13A, shall enter on that count. The defendant's conviction of assault by means of a dangerous weapon with regard to Patricia Cheatham is reversed, the verdict is set aside, and judgment shall enter for the defendant on that count. The defendant's remaining convictions are affirmed. The matter is remanded for resentencing.
So ordered.