Opinion
13-P-1400
04-07-2015
COMMONWEALTH v. WILLIAM SERRANO, JR.
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
On September 8, 2008, a jury in the Worcester County division of the Superior Court Department returned guilty verdicts on five counts charging the defendant with home invasion under G. L. c. 265, § 18C; armed assault in a dwelling under G. L. c. 265, § 18A; armed robbery while masked under G. L. c. 265, § 17; breaking and entering in the daytime with intent to commit a felony under G. L. c. 266, § 17; and assault and battery by means of a dangerous weapon under G. L. c. 265, § 15A(b). During jury empanelment, the court officers closed the courtroom to all members of the public, including relatives of the defendant, as was the custom and practice at the time in that courthouse.
The defendant had previously pleaded guilty to two other counts stemming from the same incident that resulted in the convictions at trial.
On September 2, 2010, the defendant filed a motion for a new trial, claiming that the closure of the courtroom was structural error necessitating reversal. After an evidentiary hearing the motion judge, who was also the trial judge, determined that the defendant's trial counsel was ineffective in failing to contest the courtroom closure, but concluded the error was not prejudicial to the defendant. Thereafter, the defendant filed a motion for reconsideration and for leave to amend his argument on the motion. The judge allowed the defendant to amend his motion but, after reconsideration, again denied the motion for new trial. The defendant filed a timely appeal from the denial of his motion for new trial, which is now consolidated before us with his direct appeal.
On appeal, the defendant raises several claims, including arguments that he was deprived of his right to a public trial under the Sixth Amendment to the United States Constitution due to ineffective assistance of counsel; the evidence was insufficient to support his convictions of home invasion and armed assault in a dwelling; the judge should have given the jury an instruction on self-defense, and his counsel was ineffective for not requesting it; the prosecutor provided the jury with false and prejudicial evidence; and the judge erred in allowing the prosecutor to provide the jury with hearsay evidence contained in the defendant's medical records. We affirm.
1. Motion for new trial. Standard of review. We review the denial of a motion for a new trial for "significant error of law or other abuse of discretion," Commonwealth v. Sherman, 451 Mass. 332, 334 (2008) (citation omitted), paying "[p]articular deference" to the rulings of the motion judge who also served as trial judge in the case. Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We accept the judge's findings of fact if supported by the evidence. Ibid.
At the evidentiary hearing on the defendant's motion for new trial, four court officers testified that the common practice in 2008 in the Superior Court courthouse in Worcester was to empty the courtroom prior to the entry of prospective jurors. The judge accepted as true the testimony of the defendant's family members that they were in the courtroom on the first day of trial but were asked to leave by court officers prior to empanelment. Based upon this testimony, the judge concluded that the courtroom was closed during empanelment.
In addition, the defendant's trial counsel acknowledged that, although he was aware of the practice, he failed to object to the courtroom closure and that his failure to object was a nonstrategic error due to a lack of knowledge that the closure was improper.
The defendant argues that he received ineffective assistance of counsel due to trial counsel's failure to object to the removal from the courtroom of members of the defendant's family during jury selection. When counsel, as here, fails to timely object to the courtroom closure, the right to a public trial is deemed procedurally waived. See Commonwealth v. Alebord, 467 Mass. 106, 112-113 (2014). If the failure to object is attributed to ineffective assistance of counsel, we utilize the test of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), to review counsel's performance. See Commonwealth v. Morganti, 467 Mass. 96, 103 (2014). Under the first prong of that test, we must measure whether counsel's conduct fell below "that which might be expected from an ordinary fallible lawyer." Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013), quoting from Saferian, 366 Mass. at 96.
Although the judge found that defense counsel did not have a tactical reason for failing to object, the ineffective assistance of counsel test is an objective one. See Alebord, 467 Mass. at 114. Hence, counsel's error was not conduct falling below that of an ordinary fallible lawyer when measured against the Worcester court's then-current custom of closing the courtroom during jury selection and against the defense bar's acquiescence to this custom.
Because we hold that counsel's conduct was not substandard, we do not reach the question whether the defendant was prejudiced. See Lavoie, 464 Mass. at 91 n.13. We note that, with respect to the second prong of the ineffective assistance of counsel analysis, the Supreme Judicial Court has recently decided that, "where the defendant has procedurally waived his Sixth Amendment public trial claim by not raising it at trial, and later raises the claim as one of ineffective assistance of counsel in a collateral attack on his conviction, the defendant is required to show prejudice from counsel's inadequate performance." Commonwealth v. LaChance, 469 Mass. 854, 856 (2014).
2. Sufficiency of evidence. The defendant challenges the sufficiency of the evidence supporting his convictions of home invasion and armed assault in a dwelling. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was as follows.
The victim returned to his apartment in a multi-story building with $1,000 in cash, $300 of which the victim placed in his wallet. Three locked doors -- to a common hallway, to the second floor, and to the apartment -- separated the victim's apartment from the street. A neighbor who knew that the victim had money stopped by and chatted with the victim. After the neighbor left, the victim locked the apartment door and later heard a knock at the door. The victim opened the door and saw an individual wearing a "cloth" over his face exposing only his eyes. That individual, while standing in the hallway, punched the victim in the face, causing him to fall to the floor inside his apartment. Subsequently, the individual attacked the victim with a "two-by-four" piece of wood that did not come from inside the victim's apartment. The individual immobilized the victim and as the victim was struggling to free himself, the cloth came off the intruder's face, revealing him as the defendant. The defendant threatened the victim, reached into the victim's wallet, took the money, and left the apartment.
The victim alerted the neighbors that he had been robbed. When the police arrived, they noticed the victim's fresh injuries and retrieved a Massachusetts identification card (ID), a Social Security card, and other cards from the floor of the victim's apartment. All the cards were in the defendant's name. The victim identified the person pictured in the Massachusetts ID as his attacker, the defendant.
At trial, the defendant took the stand in his own defense and presented an alternative view of the incident. He contended that he entered the foyer of the victim's apartment house accompanied by two large black strangers in order to purchase marijuana and, once inside, was attacked by the victim and the two strangers, beaten by the victim with a two-by-four, and robbed of approximately $300.
The defendant contends that the evidence was insufficient to prove home invasion and armed assault in a dwelling because there was insufficient evidence that he entered the home with a board or that he entered the home knowing the victim was within. We disagree.
The Commonwealth can prove its case by direct evidence or solely by circumstantial evidence as long as the inferences drawn from the evidence are "reasonable and possible." Commonwealth v. Robertson, 408 Mass. 747, 755 (1990) (citation omitted). On review, we "do not weigh the credibility of the witnesses." Commonwealth v. Johnson, 53 Mass. App. Ct. 732, 734 (2002).
The defendant first argues that the Commonwealth did not prove beyond a reasonable doubt that he had knowledge that the building entered was a dwelling, because the jury were not instructed whether, under the statutes, the "dwelling" was the secured portion of the apartment building or just the victim's apartment. The defendant argues that the dwelling was the secured part of the apartment building and, thus, that the Commonwealth did not meet its burden of proving that the defendant knew or had reason to know that another person would be present in the dwelling, as required by the home invasion statute.
The defendant does not directly challenge the judge's jury instructions on these crimes.
However, the determination of what constitutes a dwelling under the armed assault in a dwelling and home invasion statutes is a question of fact for the jury. See Commonwealth v. Doucette, 430 Mass. 461, 467 (1999). Where the victim was assaulted in his secured apartment, a reasonable jury could have found that the apartment in which the victim was assaulted and robbed was the dwelling. See Commonwealth v. Goldoff, 24 Mass. App. Ct. 458, 460 (1987) ("When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose" [citation omitted]).
We acknowledge that case law establishes that in situations where the victim was assaulted in the secured common area of a building, that secured area can be part of the dwelling for the purpose of burglary statutes. See Commonwealth v. Goldoff, 24 Mass. App. Ct. 458, 463 (1987). But see Commonwealth v. Stokes, 440 Mass. 741, 747 n.7 (2004) ("dwelling place of another" was the victim's apartment). Nevertheless, construing dwelling automatically to include the larger secured area, as the defendant would have us do, goes against the purpose of the burglary statutes, which is "to prohibit that conduct which violates a person's right of security in a place universally associated with refuge and safety." Goldoff, 24 Mass. App. Ct. at 462. Interpreting "dwelling" to include the secured common area as a matter of law would "frustrate" the protection offered by the statutes in the case where the victim has the misfortune of being assaulted in his apartment situated in a building that also happens to have secured common areas. Ibid.
The home invasion statute's knowledge requirement may be proved by showing that the defendant "knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present" (emphasis supplied). G. L. c. 265, § 18C, inserted by St. 1993, c. 333. At a minimum, the evidence shows that the defendant remained in the apartment and assaulted the victim, including by hitting him with the two-by-four, after he learned that the victim was home when he knocked at the door and the victim opened it. See Commonwealth v. Smith, 458 Mass. 1012, 1013 (2010) ("[T]he timing of when the defendant gains that knowledge -- either prior to entry or after entry [and then remaining therein] -- is not critical").
Next, the defendant argues that the Commonwealth did not provide sufficient evidence that the defendant was armed with a dangerous weapon when he entered the dwelling, as required under both the home invasion and armed assault in a dwelling statutes. A reasonable and rational jury could have inferred, from the victim's testimony that the two-by-four did not come from the victim's apartment, that the defendant entered the apartment already armed with the wood piece. In addition, the defendant's argument that the evidence was insufficient to prove that the two-by-four was a dangerous weapon fails in the face of the multiple injuries suffered by the victim which could lead a jury reasonably to infer that "the [two-by-four], as used by the defendant, is capable of producing serious bodily harm." Commonwealth v. Mattei, 455 Mass. 840, 844 (2010) (citation omitted).
3. Self-defense instruction. The defendant asserts that the judge should have instructed the jury on self-defense with respect to the assault and battery by means of a dangerous weapon charge. In the alternative, the defendant argues that defense counsel's withdrawal of a request for a self-defense instruction for that charge and failure to request the same instruction for the home invasion and armed robbery charges amounts to ineffective assistance of counsel.
A defendant is entitled to self-defense jury instructions at trial if "the evidence, viewed in its light most favorable to him, is sufficient to raise the issue." Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). Here, there was no such evidence. At trial, the defendant testified about his version of the events. He claimed that he never entered the victim's apartment or used the two-by-four but instead was attacked by two black men and the victim inside the entrance of the apartment building and that the victim was the one who struck him with a two-by-four, to which the defendant responded in self-defense by kicking. However, the defendant was not charged with kicking the victim, he was charged with assault and battery by means of a dangerous weapon: to wit, a two-by-four. Thus, even in the light most favorable to the defendant, there is no view of the evidence under which the defendant struck the victim with the two-by-four in self-defense. See, e.g., Commonwealth v. Jordan, 464 Mass. 1004, 1005 (2012) (prerequisites for instructions on self-defense with a dangerous weapon). Cf. Connolly v. Commonwealth, 377 Mass. 527, 531 (1979) (there is a "critical nexus" between self-defense and elements of crime).
Nor does the defendant's alternative version of the events support an argument, assuming that such an argument is possible, that he committed home invasion or armed robbery in self-defense.
Deciding the issue as we do, we dispose of the defendant's argument that counsel was ineffective in failing to insist on an instruction on self-defense.
4. Evidentiary issues. The defendant makes two more substantive arguments in his brief. First, he argues that the jury received distorted and untrue information about the existence of a 911 call made by the defendant from Saint Vincent's hospital ten days after the events that led to the criminal charges.
The defendant argues that, in the alternative, defense counsel's failure to properly raise the arguments at trial amounts to ineffective assistance of counsel. The defendant first raises these claims of ineffective assistance of counsel on direct appeal and not as part of his motion for a new trial. See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007). The trial record does not indisputably support a conclusion of ineffective assistance of counsel. Ibid. Moreover, the defendant's cursory argument does not rise to the level of proper appellate argument and "we need not consider it." Commonwealth v. Anderson, 445 Mass. 195, 215 (2005).
When requested by the defendant, the Commonwealth could not locate records of the 911 call prior to trial. At trial, the defendant testified that he made a 911 call from a pay telephone at the hospital and later spoke to a police officer at the hospital whom he described as a male, approximately six feet, five inches tall, wearing a full police uniform. Over objection, the Commonwealth was permitted to call a rebuttal witness, Officer Freidhoff, who testified that every time the police station received a 911 call, someone was dispatched and an incident report was created. He further testified that he did not have access to records of telephone calls received at the station, but had researched the police records for such an incident report and there was none.
The defendant argues that "[r]egardless of the technical 'truth' of Freidhoff's testimony regarding his search for an incident report related to [the defendant], . . . [t]his was a false and misleading inference in a case where [the defendant's] credibility versus that of [the victim] was paramount." He contends that the Commonwealth failed to produce a record of the 911 call when requested as part of pretrial discovery, and then significantly impeached the defendant by arguing that he lied about the call and, thus, should not be believed. This, the defendant claims, was presenting false evidence to the jury in violation of the Fourteenth Amendment to the United States Constitution. See Napue v. Illinois, 360 U.S. 264, 269 (1959); Brady v. Maryland, 373 U.S. 83, 87 (1963).
We disagree. Based on Freidhoff's testimony, the Commonwealth's rebuttal argument was that the defendant was untruthful when claiming that a police officer was dispatched to the hospital the day before the defendant turned himself in on an outstanding warrant. It follows that the Commonwealth did not falsely present evidence at trial that the defendant made no 911 call, but rather rebutted the defendant's argument that a police officer had been dispatched to the hospital as a result of a 911 call.
The defendant testified that, when he made the 911 call from the hospital, he did not identify himself as the caller. The judge subsequently concluded that the Commonwealth's failure to produce a record of the 911 call was inadvertent. Moreover, as the judge found, if presented at trial, the 911 call would have inculpated rather than exculpated the defendant. Hence, there was no Brady violation due to the Commonwealth's failure to disclose the record of the 911 call. See Commonwealth v. Caillot, 454 Mass. 245, 261-262 (2009).
Second, the defendant claims that the judge's admission of records of the defendant's hospital visit upon the Commonwealth's request violated the hearsay rule and the confrontation clause. The defendant agreed to place the hospital records in evidence after they were redacted for prejudice. For this reason, the defendant has waived his appellate claims of violation of the hearsay rule and of the confrontation clause. See Commonwealth v. Montgomery, 52 Mass. App. Ct. 831, 833 (2001).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Graham, Brown & Sullivan, JJ.,),
The panelists are listed in order of seniority.
Justice Graham participated in the deliberation on this case prior to his retirement.
Clerk Entered: April 7, 2015.