Opinion
23-P-1344
07-15-2024
COMMONWEALTH v. JEFFREY W. SHIMKOSKI.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
In 2023, after a jury-waived trial, the defendant was convicted of dissemination of obscene matter in violation of G. L. c. 272, § 29. On appeal, he claims that (1) there was insufficient evidence of the defendant's criminal responsibility at the time of the offense; (2) the judge committed prejudicial error by allowing the victim to testify to ultimate factual issues; and (3) trial counsel was ineffective for advising the defendant not to testify in his own defense. We affirm.
Appellate counsel submitted the third issue pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981).
1. Criminal responsibility.
The defendant first claims that the evidence at trial was insufficient to support the judge's finding that the defendant was criminally responsible.Although the defendant failed to move for a required finding of not guilty on this basis, he did properly assert a defense of lack of criminal responsibility at trial through expert testimony and submitted medical records. See Commonwealth v. Mills, 400 Mass. 626, 627-628 (1987). Therefore, we "must examine the evidence in the light most favorable to the Commonwealth and determine whether the evidence and the inferences that reasonably could be drawn from it were of sufficient force to permit a rational finder of fact to conclude that the defendant was criminally responsible beyond a reasonable doubt" (quotations and citation omitted). Commonwealth v. Lawson, 475 Mass. 806, 816 (2016).
While the defendant's criminal responsibility is not an element of any given crime, the fact finder must nonetheless be satisfied that it has been proven beyond a reasonable doubt where the issue has been adequately raised. See Commonwealth v. Kostka, 370 Mass. 516, 532-537 (1976).
Where it is undisputed that the defendant had a mental disease or defect at the time of the crime, the Commonwealth was required to prove beyond a reasonable doubt that the defendant did not "lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." Lawson, 475 Mass. at 811, quoting Commonwealth v. Keita, 429 Mass. 843, 849-850 (1999).
The defendant had a diagnosis of schizophrenia, paranoid type with a history of hallucinations, paranoid delusions, and neologisms. He was discharged from a psychiatric hospitalization approximately one week prior to the offense, and he claimed he was not on his medication at the time of the offense.
"[T]he inference that the defendant is criminally responsible because the great majority of persons are criminally responsible is not sufficient alone to warrant a rational finder of fact to conclude beyond a reasonable doubt that a defendant is criminal responsible," but the Commonwealth is not required to utilize an expert witness to prove criminal responsibility. Lawson, 475 Mass. at 815-816. Rather, the Commonwealth may meet its burden "through the inferences arising from the circumstances of the offense, including evidence that the defendant planned the offense, acted on a rational motive, made rational decisions in committing the offense and in avoiding capture, and attempted to conceal the offense or his or her role in the offense." Id. at 816. "The Commonwealth also may prove criminal responsibility through admissible evidence of the defendant's words and conduct before, during, and after the offense, including evidence of malingering." Id. It is the "rare case" where the totality of such evidence is not sufficient for the Commonwealth to establish criminal responsibility, id. at 817, even where there is uncontradicted testimony from the defendant's expert as to lack of criminal responsibility at the time of the crime. See Commonwealth v. Kostka, 370 Mass. 516, 535-536 (1976).
Here, the evidence was sufficient for the judge to infer criminal responsibility. The victim testified that the defendant walked into the coffee shop where she was working alone and proceeded to order coffee "normally." As the victim was making and handing out drinks, the defendant was continuously following and staring at her after he had ordered and received his coffee from her. The defendant kept making advances toward her, saying she was pretty and asking for her phone number, despite the victim continuously rejecting him and telling him to leave her alone. As the victim was washing her hands at a sink next to the espresso bar, the defendant shoved his phone, which was playing a video recording (video) of a man touching his genitalia, in her face. Viewing these facts in the light most favorable to the Commonwealth, the judge could infer that the defendant made several rational decisions prior to committing the offense and that he knew it was wrong to show this video to the victim because he put his phone right in her face, away from other people's eyes, in an attempt to conceal the offense. See Lawson, 475 Mass. at 815-816.
The responding officer testified that he stopped the defendant in his vehicle, which was parked nearby, and the defendant was "hesitant to speak" at first. The defendant was able to hand the officer his license, registration, and proper documentation regarding the vehicle's ownership, which indicated that the defendant had purchased the vehicle within the last seven days. Again, viewing these facts in the light most favorable to the Commonwealth, the judge was permitted to infer that the defendant was attempting to conceal his role in the offense by hesitating to speak with the officer, and that he made numerous rational decisions in procuring this vehicle and handing the officer all the proper documentation.
The defendant's expert, a court clinician, first evaluated the defendant in May of 2022, approximately one and one-half years after the incident. He then performed an extended evaluation for both competence and criminal responsibility in August of 2022. In his report dated August 1, 2022, he opined that "it is likely that due to his mental illness Mr. Shimkoski lacked the capacity to appreciate the wrongfulness of his actions or conform his behavior to the requirements of the law" (emphasis added). The expert stated that he was unable to provide a definitive opinion as to criminal responsibility because the defendant reported having no memory of the incident, possibly due to the traumatic brain injury he sustained the day after the offense. In his report dated October 24, 2022, which is not a part of the record on appeal but was admitted as an exhibit at trial, the expert definitively opined that the defendant lacked the ability to appreciate the wrongfulness of his behavior or conform his behavior to the requirements of the law. In explaining the difference in certainty between his opinions, the expert testified that the defendant finally gave his version of the incident, which the expert described as "bizarre and psychotic," in October of 2022.
Although the Commonwealth did not utilize an expert to contradict the defendant's expert, the judge was entitled to discredit the expert testimony. See Commonwealth v. Brown, 449 Mass. 747, 761 (2007). There is no reason to disturb the judge's credibility determinations here. Based on the evidence noted above, the judge could infer that the defendant had the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
2. Ultimate issue testimony.
The defendant next claims that the judge erred by allowing the victim, a lay witness, to testify that the video was "obscene," and that the defendant's act was "willful," because such testimony went to ultimate issues for the judge to decide. We agree, but we conclude that the errors were not prejudicial.
It is questionable whether trial counsel properly objected to the now challenged testimony, but we will assume, without deciding, that the issues are properly preserved for purposes of this appeal. Therefore, we review for prejudicial error. See Commonwealth v. Gallagher, 91 Mass.App.Ct. 385, 389 (2017). "An error is not prejudicial if it 'did not influence the [fact finder], or had but very slight effect'; however, if we cannot find 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,' then it is prejudicial." Id., quoting Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
The elements of the crime that the Commonwealth was required to prove beyond a reasonable doubt were that (1) the matter was obscene; (2) the defendant possessed the matter; (3) he knew the matter to be obscene; and (4) he intended to disseminate the matter. See Commonwealth v. Lotten Books, Inc., 12 Mass.App.Ct. 625, 628 (1981). Matter is "obscene" if, taken as a whole, it" (1) appeals to prurient interest of the average person, applying the contemporary standards of the commonwealth; (2) depicts or describes sexual conduct in a patently offensive way; and (3) lacks serious literary, artistic, political or scientific value." Commonwealth v. Plank, 378 Mass. 465, 467 n.2 (1979). "'[I]ntent to disseminate' can be inferred from a finding that actual dissemination has occurred." Lotten Books Inc., supra at 628 n.5.
Here, the victim described the matter that the defendant showed her as "a very obscene video of a man touching himself in -- all over his genitalia, taken from the point of view[,] kind of like in between his legs." The prosecutor then asked whether the video had "any artistic value, anything of that nature that [she] could describe about this material," and trial counsel objected to the question as ambiguous. The judge overruled the objection but stated that he was going to take the answer as the "answer of a lay witness." The prosecutor then rephrased the question to whether the matter was "evidently obscene," and the victim answered, "Yes." Trial counsel did not lodge another objection, and he did not cross-examine the witness. The prosecutor then had the following exchange with the victim on redirect examination:
Trial counsel failed to object to this specific testimony, and appellate counsel does not appear to take issue with it either. However, we include it in our discussion because it should not have been admitted, but did not unfairly prejudice the defendant, for the same reasons as the testimony at issue.
Q: "Was there anyone that appeared to be influencing the defendant's behavior or did the defendant appear to be acting of his own accord?"
A: "Yes, the defendant was completely alone."
Q: "It was a volition -- it was a willful act on his part?"
A: "Correct."
Trial counsel then objected on the grounds that the question was leading, which the judge overruled.
It was error for the judge to admit testimony that the video was "obscene," and that the defendant's act was "willful," because it was tantamount to testimony that the defendant was guilty of intentionally disseminating obscene material, knowing it to be obscene, which was the ultimate issue at trial. See Commonwealth v. Canty, 466 Mass. 535, 540-544 (2013), abrogated on other grounds by Commonwealth v. Doughty, 491 Mass. 788 (2023); Gallagher, 91 Mass.App.Ct. at 389. Moreover, the latter question "called for a mere opinion or speculation as to another's state of mind," which is improper. Commonwealth v. Carter, 33 Mass.App.Ct. 378, 383 (1992).
However, given that this was a jury-waived trial, "there was no danger 'that the [fact finder] might forego independent analysis of the facts and bow too readily to the opinion of an . . . influential witness." Commonwealth v. Lannon, 364 Mass. 480, 484 (1974), quoting McCormick, Evidence § 12 (2d ed. 1972). "A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence is to be considered in his role as factfinder." Commonwealth v. Batista, 53 Mass.App.Ct. 642, 648 (2002). There is nothing in the record before us to indicate that the judge did not properly consider the evidence in coming to an independent conclusion of the defendant's guilt, particularly where the judge stated that he would consider the victim to be a lay witness. It seemed apparent to the judge that the victim was considering the word "obscene" as it is used colloquially, rather than testifying that the video meets the legal definition of obscenity.
Moreover, the proper testimony that the defendant shoved the phone in the victim's face while it was playing a video of a man touching his genitalia was enough for the judge to find that the defendant intentionally disseminated obscene material, knowing it to be obscene. Therefore, we cannot say that the judgment was substantially swayed by the erroneous testimony.
3. Ineffective assistance of counsel.
The defendant finally claims that he received ineffective assistance of counsel because trial counsel advised him not to testify in his own defense. To prevail on a claim of ineffective assistance of counsel, the defendant must show that "there has been serious incompetency, inefficiency, or inattention of counsel --behavior of counsel falling measurably below they which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made." Commonwealth v. Frank, 433 Mass. 185, 190 (2001), quoting Commonwealth v. Coonan, 428 Mass. 823, 827 (1999). "If the record reveals sound tactical reasons for counsel's decisions, an ineffective assistance of counsel claim will not succeed." Commonwealth v. Gonzalez, 443 Mass. 799, 809 (2005).
The defendant cannot meet either prong under Saferian. There was no discussion on the record about trial counsel advising the defendant not to testify, nor did the defendant bring a motion for new trial supported by an affidavit to support this claim. Regardless, it would not have been manifestly unreasonable for trial counsel to advise the defendant not to testify because he would be subject to damaging cross-examination about what occurred in the coffee shop. See Commonwealth v. Garvin, 456 Mass. 778, 787 (2010). The defendant claims that he would have testified about his psychiatric history and the car accident that occurred the day after the incident, which resulted in a traumatic brain injury, but it is unlikely that such testimony would have accomplished anything material for the defense. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Therefore, the defendant's claim lacks merit.
Judgment affirmed.
The panelists are listed in order of seniority.