Opinion
10-P-1174
11-14-2011
COMMONWEALTH v. ROBERT SYLVIA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a District Court jury of assault and battery by means of a dangerous weapon. He challenges the judge's decision to admit into evidence a letter as evidence of consciousness of guilt. He also argues that the judge erred in the course of his jury instruction on consciousness of guilt. We affirm.
1. Background. On the evening of November 14, 2008, during a housewarming party at an apartment, the defendant and another guest became engaged in an argument, which escalated. Although the precise details differ, small objects were thrown and eventually the defendant retrieved a machete from an adjacent room. In the course of the physical confrontation that ensued, the defendant used the machete to inflict significant injuries on the other guest. Other partygoers intervened to separate the two and summoned an ambulance. The defendant left and was subsequently arrested on the street when he was spotted by a police officer. At trial, the defendant argued self-defense, asserting that the other guest had attacked him first.
During the trial, the Commonwealth called as a witness William Waite, one of the apartment's tenants. After the defense had finished its cross-examination, the Commonwealth on redirect examination asked Waite if he had received any communication from the defendant since the incident. Waite indicated he had received a letter, which he identified as written by the defendant. The letter instructs Waite on the details of what he is to tell the other witnesses at the party to say about the incident and emphasizes the importance of ensuring that the new versions match the defendant's account. Over the defendant's objection, the judge admitted the letter into evidence as evidence of consciousness of guilt. Over the defendant's objection, the judge also instructed on consciousness of guilt evidence, see Instruction 3.580 of the Criminal Model Jury Instructions For Use in the District Court (2009), but did not give the accompanying model supplemental instruction, for use where such evidence is also evidence of another crime. The defendant did not ask for the model supplemental instruction, nor does the record show he objected to its omission.
The defendant argues that the letter should not have been admitted, as it was unfairly prejudicial and outside the scope of Waite's cross-examination, and because there was not sufficient evidence that the letter showed consciousness of guilt. He also argues that the instruction was defective because it omitted the model supplemental instruction.
2. Admission of the letter. The defendant argues that the judge abused his discretion, because the letter was unfairly prejudicial: since the letter comprised both consciousness of guilt evidence and evidence of other uncharged misconduct, its prejudicial effect outweighed its probative value. See Mass. G. Evid. § 403 (2011). Evidence showing consciousness of guilt may well also be uncharged misconduct evidence, but that fact does not make it inadmissible. See Commonwealth v. Fernandes, 427 Mass. 90, 94 (1998). Such matters are within the discretion of the judge, to which this court defers, barring palpable error. Commonwealth v. Mavredakis, 430 Mass. 848, 862 (2000). The content of the letter was plainly probative of the main elements in dispute at trial, the nature of the incident. By the defendant's own assertion, the uncharged misconduct shown in the letter is at most arguably an attempt to suborn perjury, not an attempt to coerce, threaten, or intimidate witnesses. For this reason, a jury would be unlikely to conclude, based on the letter alone, that the defendant was a violent and dangerous person deserving punishment regardless of the merits of the Commonwealth's case. There was no palpable error in the judge's determination.
The defendant also argues that the letter was improperly admitted because it was outside the scope of Waite's cross-examination. The judge has discretion to permit redirect examination on matters not touched upon in cross-examination. Commonwealth v. Smith, 329 Mass. 477, 479 (1952). Commonwealth v. Nawn, 394 Mass. 1, 5 (1985). To prove that a deviation from proper testimonial sequence was an abuse of discretion, the defendant must show prejudice. Commonwealth v. Rodriguez, 75 Mass. App. Ct. 235, 245-246 (2009). This he has failed to do, as the only grounds he offers are the same as those advanced above. There was no error.
3. Instructions. The defendant argues that there was insufficient evidence for the judge properly to instruct the jury on consciousness of guilt. He contends that the letter's contents were merely a plea that witnesses testify in a fashion consistent with the defendant's own account of events, rather than an attempt to suborn perjury; thus, it would not be evidence of consciousness of guilt. However, soliciting false testimony constitutes evidence of 'concealment of evidence' sufficient to give the consciousness of guilt instruction. See Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008). For evidence to be sufficient to support a consciousness of guilt instruction due to an attempt to solicit false evidence, it need only be 'susceptible of a finding' that the defendant sought to do so. Commonwealth v. Porter, 384 Mass. 647, 653 (1981). The contents of the letter, in which the defendant repeatedly urged witnesses to adhere to his version of events by memorizing and reciting the script he provided, altering their previous testimony, is amply susceptible of such a finding. The instruction was proper.
Finally, the defendant argues that the judge erred by not employing the model supplemental instruction for consciousness of guilt evidence where such evidence could form the basis of another crime. An instruction must be a complete, correct, and clear statement of the law. Kunkel v. Alger, 10 Mass. App. Ct. 76, 84 (1980). In assessing the adequacy of the instruction, we consider the instruction as a whole, Wilson v. Boston Redev. Authy., 366 Mass. 588, 591 (1975), and the substance of the information conveyed to the jury. It is that substance, not the talismanic use or omission of a particular model instruction template, which determines the adequacy of the instruction. Here, the judge correctly instructed the jury on the use of evidence of consciousness of guilt and conveyed the substance of the supplemental instruction. Moreover, the defendant has not cited any authority holding that in any case in which the supplemental instruction could be given, it must be given. There was no error.
Finding no error in the jury charge, we do not reach the issue as to whether the defendant preserved this argument.
Judgment affirmed.
By the Court (Mills, Smith & Wolohojian, JJ.),