Opinion
19-P-483
06-01-2020
COMMONWEALTH v. KENNETH J. SULLIVAN, THIRD.
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
The defendant, Kenneth J. Sullivan, III, appeals from his conviction of assault and battery by means of a dangerous weapon after his wife alleged that he threw a wine glass at her which struck her in the face. On appeal, he argues that (1) his counsel was ineffective by failing to review crucial video evidence, and allowing the defendant to testify in such a way that his credibility was undercut by that evidence; (2) the judge improperly admitted prior bad acts evidence; and (3) the judge failed to sua sponte instruct the jury on "accident" as a defense. We affirm.
The defendant was also charged with assault and battery on a household member and was acquitted of that charge.
Alternatively, he claims ineffective assistance because the attorney failed to request the instruction.
Background. A jury could have found the following facts. The defendant and his wife were married in 2014. After thirteen months of marriage, the defendant moved out of the marital home due to an affair with one of the wife's coworkers. In July of 2016, the defendant moved back in with the wife in an attempt to reconcile. The wife testified that after the defendant returned, he became "obsessive" over the idea that she also had had an affair. She testified that he would often search through her phone and her e-mail, would berate her and accuse her of cheating, and hired a private investigator to follow her. On March 4, 2017, she received messages via Facebook Messenger from the woman her husband had the affair with implying that the affair was ongoing. After she confronted the defendant via text messaging, the defendant volunteered to pick up his possessions from the marital home at 9 A.M. the next day.
The wife immediately texted the defendant that he should never come home again. He responded, "Why?" and the wife responded with the first name of the other woman.
The defendant and the wife testified to differing accounts of what took place when the defendant arrived at the home that morning. The wife testified that the defendant knocked on the door and then proceeded straight to the bedroom, carrying his own plastic trash bags, and began packing his belongings. At some point, when he was exiting the bedroom with a full bag of possessions, she asked him, "Do you have anything to say for yourself?" They began to argue, and he came into the kitchen to look through a pile of mail to find his car registration. The wife began looking through the pile for him. When the defendant turned to a corner cabinet to retrieve a medication of his, he saw two upside down, washed wine glasses in the sink. He said to the wife, "Who the fuck did you have here last night, you stupid slut." Within seconds, the wife then felt a burning on her face. She heard the wine glass break, and could not tell if it had broken on her face or on the floor. Shards of glass were located in her clothes and on the kitchen floor. The defendant then grabbed at the wife's neck, reaching to tear off a necklace pendant she was wearing that he had given her. After he ripped the necklace, she told him that she was going to call the police and he ran out the breezeway door and left in his truck. The wife then locked the breezeway door behind him, went into her bedroom and locked that door before retreating further into her closet. Sitting behind the closet door on the floor, she called the police.
The wife's testimony was supported by testimony from the responding police officer, who stated that he was dispatched to the scene at 9:16 A.M. When he arrived at the home, the wife was "crying" and was "shaking vigorously." He noticed that her "left side was extremely red," she had cuts on her left cheek, and there were red marks on her neck. He also noticed that there were bags of male clothing in the front porch. Additionally, he saw a broken wine glass on the floor. The wife was eventually taken to the hospital, where doctors removed a glass shard from her cheek. Photographs of her face and the shattered wine glass, along with her medical records, were entered in evidence.
In contrast, the defendant testified that his wife immediately began screaming at him when he walked in the house, shouting, "How could you? Does your [boss] know about this? And I'm going to ruin your fucking life." He stated that he walked to the bedroom with a single trash bag, intending to only pick up his work uniforms and come back later for the rest of his possessions. After filling up that bag for one or two minutes, he walked out and put the bag into his truck. He reentered the house and asked the wife whether he had received any mail, looking for his car registration. She responded that she would "fucking mail it to [him]." At that time, he left the house. He stated that he never entered the kitchen and never saw the wine glasses in the sink. He was at the house for "three or four minutes, tops." He estimated that he left the home at "9:04 - 9:05, 9:06 maybe."
In rebuttal, the Commonwealth introduced a security surveillance videotape from a 7-Eleven store near the marital home that showed a pickup truck that looked similar to the defendant's passing by at 8:57 A.M. in the direction of the home and again at 9:18 A.M. heading in the opposite direction. Given that the defendant had stated he left the house at roughly 9:05 A.M., the videotape was seemingly more consistent with the wife's testimony than the defendant's. When the videotape was introduced, the defendant did not object, but his counsel indicated that he tried and failed to view the videotape provided. He had believed the file contained just the 911 call so he "didn't worry about it."
The defendant had testified that he drove to the house in a full-sized F-150 truck with a toolbox in the back.
Discussion. On appeal, the defendant first argues that his trial counsel was ineffective because he failed to review the 7-Eleven videotape and then made the "decision to put [the defendant] on the stand." He argues that the videotape impeached the defendant's testimony, and if his counsel had viewed the videotape, he would have known that the videotape contravened the defendant's planned testimony. Second, he asserts that evidence of his extramarital affair was improperly admitted. Finally, he contends that the judge failed to instruct the jury as to "accident" in regards to the charge of assault and battery by means of a dangerous weapon. We address each argument in turn.
1. Ineffective assistance of counsel. We review a claim of ineffective assistance of counsel to determine whether there was "serious incompetency, inefficiency, or inattention of counsel" that falls measurably below that which is expected of an ordinary, fallible attorney and "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Regarding counsel's "decision to put [the defendant] on the stand," the defendant fails to present evidence that his election to testify was the product of a tactical decision by trial counsel. Indeed, "[r]elief on a claim of ineffective assistance based on the trial record is the weakest form of such a claim because it is 'bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.'" Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). We simply do not know what trial counsel advised regarding the defendant and his decision to take the stand. To be sure, in the end it is the defendant's decision and his decision alone as to whether he will testify.
Trial counsel may have advised the defendant not to testify.
As to the failure to view the videotape, it is not trial counsel's obligation to "investigate and confirm virtually every statement that a client makes, no matter how apparently or circumstantially accurate." Commonwealth v. White, 409 Mass. 266, 274 (1991). Given that there was no dispute that the defendant drove to the house and left that morning, we cannot find that the attorney's behavior fell beneath that of an ordinary, fallible attorney for failing to watch a videotape that would provide evidence that the defendant drove to the house and left that morning.
The defendant's attorney presented a reasonable defense given the challenges in the case. He hired a retired criminal investigator to provide expert testimony criticizing the Commonwealth's handling of the evidence and conducted a rigorous cross-examination of the wife and the responding police officer.
We also see no ground of defense that would have been available to the defendant had trial counsel viewed the videotape. Even excluding the Commonwealth's rebuttal to the defendant's testimony, the government brought a forceful case including photographic evidence, medical records, and compelling testimony from the victim and the responding police officer. In other words, the videotape was simply one piece of an entire body of evidence that contradicted the defendant's factual assertions.
2. Bad acts evidence. For the defendant's second claim challenging the admission of his hostile behavior toward his wife and his prior infidelity, we must determine whether the bad act evidence's probative value is outweighed by the risk of unfair prejudice to the defendant. Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). We conclude that there was no error. The evidence was highly probative of the Commonwealth's theory at trial and established the defendant's motive and intent to commit the assault on his wife, and demonstrated the existence of a hostile relationship between the two. "The prosecution was entitled to present as full a picture as possible of the events surrounding the incident itself." Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982). Whether the probative value of relevant evidence is outweighed by it prejudicial effect is a question "within the sound discretion of the judge." Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). The judge carefully considered the admission of the evidence and heard and weighed the defendant's argument opposing it. That the defendant was acquitted on a similar charge suggests that the jury did not rush to convict based on his prior bad acts. In balance we cannot conclude the judge abused her discretion in admitting the evidence.
Additionally, she instructed the jury that the evidence in question was not to be considered in terms of the defendant's guilt or innocence. We are free to consider that in our analysis of this claim. See Commonwealth v. Almeida, 479 Mass. 562, 569 (2018).
3. Jury instructions. Because the defendant failed to object to the lack of an accident instruction at trial, this claim is waived and we review for a substantial risk of a miscarriage of justice. Commonwealth v. Zimmerman, 441 Mass. 146, 150 (2004). The analysis requires little attention. We see no such risk here, where the defendant presented no theory of the case that the incident resulted from an accident. Indeed, an accidental striking of the victim runs completely contrary to the defendant's testimony, in which he unequivocally denied going into the kitchen and touching any wine glass at all that morning. Instead he asserted that he had been framed by the victim. See Commonwealth v. Bonia, 95 Mass. App. Ct. 1110 (2019). For similar reasons, the defendant's alternative ineffective assistance claim is also unavailing. See Commonwealth v. Gaeten, 15 Mass. App. Ct. 524, 533 (1983) (counsel's failure to file motions, "especially where the record demonstrates little likelihood that any such motions would have succeeded, is not the kind of conduct falling measurably below what is expected of an ordinary, fallible attorney that constitutes ineffective assistance of counsel").
Judgment affirmed.
By the Court (Meade, Milkey & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 1, 2020.