Opinion
No. 11–P–337.
2012-11-8
COMMONWEALTH v. Vaughn SEALES.
By the Court (BERRY, GREEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of armed assault with intent to murder, two counts of kidnapping, two counts of assault and battery by means of a dangerous weapon, three counts of assault and battery, two counts of assault and battery in violation of an abuse prevention order, and violating an abuse prevention order.
On appeal, he raises several claims that question the validity of his convictions. Because none merits relief, we affirm.
The judge entered required findings on counts of witness intimidation and breaking and entering in the nighttime with the intent to commit a felony. The jury found the defendant not guilty of attempting to burn a building and of a third count of assault and battery by means of a dangerous weapon. After the verdicts, the judge dismissed a second indictment for violation of an abuse prevention order as duplicative of one of the defendant's convictions of assault and battery in violation of an abuse prevention order.
1. Sufficient evidence. The defendant claims there was insufficient evidence of a specific intent to kill to support his conviction of armed assault with intent to murder. We disagree. The defendant's claim ignores the potent evidence of words from his own mouth stating, in no uncertain terms and after dousing the victim with lighter fluid and attempting to ignite it, “I'm going to fucking kill you, bitch.” Needless to say, this evidence was more than sufficient to permit the jury to conclude that the defendant possessed the requisite intent to kill. The defendant also claims the Commonwealth's evidence was insufficient to disprove sudden combat or reasonable provocation. However, that burden only arises where there exists credible evidence of mitigation that preceded the defendant's action. The defendant claims that his pouring lighter fluid and attempting to ignite was mitigated by the victim hitting him with a mop and hitting his head on the bed post. Even in the light most favorable to the defendant,
the victim's actions occurred as she fought with the defendant after he had beaten her and stripped her clothes off, and after she had tried to call the police and leave the house. In these circumstances, no rational jury could reasonably doubt that the defendant's intent to kill did not arise from the frailty of human nature in the face of reasonable provocation or sudden combat. See Commonwealth v. Vick, 454 Mass. 418, 429 (2009).
The defendant did not testify.
Our conclusion is buttressed by the sufficient cooling-off period that occurred following the victim hitting the defendant, during which time the two had a discussion that was then followed by him dousing her with the lighter fluid. See Commonwealth v. Groome, 435 Mass. 201, 220 (2001); Commonwealth v. Zagrodny, 443 Mass. 93, 106 (2004).
For the same reason, there was no error in the judge's decision not to instruct the jury on the Commonwealth's duty to disprove mitigation.
2. Prior bad acts. The defendant claims that it was error for the judge to admit evidence of his prior bad acts. We disagree. The evidence of the physically abusive nature of the defendant's relationship with the victim, including that he hit, punched, and kicked her, and his efforts to isolate the victim from family and friends, was properly admitted. Such evidence was probative of the hostile nature of the relationship, the defendant's intent to commit several of the crimes, including the abuse prevention order violation, and also as evidence that explained the victim's behavior. See Commonwealth v. Chalifoux, 362 Mass. 811, 815–816 (1973); Commonwealth v. Butler, 445 Mass. 568, 574 (2005); Mass. G. Evid. § 404(b) (2012). There was no error and no abuse of discretion.
Also, where the victim's state of mind was a material issue at trial, the evidence of her feelings surrounding the defendant's acts charged in the indictments was properly admitted. See, e.g., Commonwealth v. Williams, 46 Mass.App.Ct. 700, 702–703 (1999).
3. Alexandria Vellante. The defendant claims that Alexandria Vellante, a social worker with the Department of Children and Families (DCF), improperly vouched for the prosecution in her testimony. We disagree.
Vellante told the victim that DCF had been unable to contact the defendant to discuss its investigation. Specifically, Vellante told the victim that DCF would be concerned if the victim remained in a relationship in which anything warranted a police response to her home, because DCF would be concerned for the safety of her children and would consider taking custody of her children if that were to occur.
Although the parties disagree on whether this claim of error is preserved, we will treat counsel's objection at trial as being specific enough to preserve the matter for appellate review.
This statement was neither an opinion of the defendant's guilt nor did it refer to the defendant's charged conduct. Vellante's testimony was an effort to rehabilitate the victim's testimony regarding the break-up and the circumstances in which it occurred.
After this testimony, the judge explicitly instructed the jury that they could only use this evidence as it may be relevant to motive, intent, and state of mind of the defendant, and that the jury were prohibited from considering it as character evidence or evidence that the defendant was a threat to the children.
In light of the defendant's earlier cross-examination of the victim, the context of Vellante's testimony, and the judge's limiting instruction, we cannot say the judge erred or abused her discretion.
The defendant had earlier cross-examined the victim about the circumstances of the Thanksgiving break-up and tried to show that the victim was angry at the time. The victim warned the defendant that if he did not participate with DCF, she would leave him.
4. Jury instructions. In addition to the judge's oral instructions to the jury, she also provided them with written instructions on the elements of the crimes charged. The defendant claims that this created a substantial risk of a miscarriage of justice. We disagree. In Commonwealth v. Baseler, 419 Mass. 500, 505 (1995), quoting from Commonwealth v. Dilone, 385 Mass. 281, 287 n.2 (1982), the court noted that it had “endorse[d] any reasonable procedure by which all or portions of a judge's charge agreed to by the parties are made available in writing to a jury.” Given this, and the judge's specific admonition to the jury that what she said in court controlled, we cannot say there was an error, let alone a risk that justice miscarried.
The defendant further claims that a typographical error in the written instructions shifted the burden of proof. However, because the judge properly placed the burden on the Commonwealth well over a dozen times, and told the jury that her in-court instructions controlled, there was no risk of a miscarriage of justice. See Commonwealth v. Belcher, 446 Mass. 693, 696 (2006); Commonwealth v. Ortiz, 463 Mass. 402, 419–420 (2012). Also, there was no error in the judge's instruction on the presumption of innocence, which was clear and correct.
5. Duplicative convictions. The defendant claims that his conviction of assault and battery arising out of the February 9, 2008, incident is duplicative of his two convictions of assault and battery by means of a dangerous weapon. We disagree. Each indictment involved separate acts and the judge instructed on the requirement for such as well as the requirement of specific unanimity. See Commonwealth v. Connolly, 49 Mass.App.Ct. 424, 427 (2000).
The defendant also claims that, as to the incident of November 28, 2008, his conviction of violating an abuse prevention order was duplicative of that for assault and battery in violation of an abuse prevention order. Although the former conviction was placed on file, we reach the defendant's argument and conclude that it is without merit substantially for the reasons stated in the Commonwealth's brief at pages 49–50.
Judgments affirmed.