Opinion
19-P-56
11-06-2020
COMMONWEALTH v. Mark TAYLOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions, after a Superior Court jury trial, of home invasion (two counts), aggravated assault and battery by means of a dangerous weapon (ABDW), and armed assault with intent to rob. On appeal, he argues that a substantial risk of a miscarriage of justice resulted from four unpreserved trial errors: (1) the judge's instruction that a knife was a dangerous weapon as a matter of law; (2) her decision not to conduct individual voir dire on how a midtrial court house bomb threat might have affected the jury; (3) her assertedly inadequate curative instruction regarding a knife struck from evidence; and (4) her instruction to the deadlocked jury to continue deliberating, assertedly in violation of G. L. c. 234A, § 68C. Seeing no substantial risk that justice miscarried because of the error on the first issue, and no abuse of discretion as to the other issues, we affirm.
Background. The jury could have found that the defendant and a coventurer, Nicholas Martinez, armed with a knife or knives and accompanied by two friends, went to the apartment of David Bastarache and his girlfriend, Kerri Salvi, in order to rob Bastarache of cocaine. Bastarache opened the apartment door to one of the friends, whereupon the defendant (followed by Martinez) entered the apartment and stabbed Bastarache multiple times, causing him serious bodily injury.
1. Knife instruction. The defendant contends that the judge erroneously (but without objection) instructed on an element of home invasion, creating a substantial risk of a miscarriage of justice. A conviction of home invasion requires proof, among other things, that the defendant entered the dwelling while armed with a dangerous weapon. See Commonwealth v. Bois, 476 Mass. 15, 28 (2016), citing G. L. c. 265, § 18C. Home invasion also requires proof that the entry was unlawful. See Commonwealth v. Mahar, 430 Mass. 643, 647 (2000), S.C., 442 Mass. 11 (2004). A consensual entry is not unlawful; but an occupant's purported consent to entry is ineffective, and the entry remains unlawful, if the occupant is not "aware that the person at the door is armed with a dangerous weapon and is about to commit an assault once inside." Commonwealth v. Putnam, 75 Mass. App Ct. 472, 477 (2009), S.C., 481 Mass. 1045 (2019), quoting Mahar, 430 Mass. at 652-653.
Here, accordingly, the Commonwealth could have proved that the defendant's entry was unlawful by proving that the defendant, unbeknownst to Bastarache, either was armed with a dangerous weapon or intended to commit an assault once inside. As there was no evidence that Bastarache knew either of these things, the unlawful entry question for the jury reduced to whether the defendant was armed with a dangerous weapon or intended to commit an assault once inside. The judge instructed the jury that "a knife is a dangerous weapon as a matter of law." Thus, if the jury credited the evidence that the defendant was carrying any knife (which they did, given their guilty verdicts on aggravated ABDW and armed assault with intent to rob), they could have found that his entry was unlawful without considering whether he intended to commit an assault once inside the apartment.
Regardless of how the Commonwealth chose to prove unlawful entry, a separate element of the offense of home invasion still required the Commonwealth to prove that the defendant was armed with a dangerous weapon when he entered. See G. L. c. 265, § 18C.
The judge's instruction was erroneous, however, as the Commonwealth rightly concedes, because there was no evidence (let alone undisputed evidence) that the knife with which the defendant stabbed Bastarache, possessed the particular characteristics necessary to make it dangerous per se, as opposed to merely dangerous as used. See Bois, 476 Mass. at 29-30. The defendant now argues that, had the erroneous instruction not been given, the jury would have had to grapple with the question whether he intended to commit an assault once inside the apartment -- a question on which the defendant asserts that the evidence was equivocal.
We are not persuaded. The Bois decision plainly demonstrates that a conviction of home invasion may rest on proof that an object the defendant brought into the dwelling, even if not a weapon that is dangerous per se, was used as a dangerous weapon once inside. See Bois, 476 Mass. at 28-30. In Bois, the judge erroneously instructed, in connection with the dangerous weapon element of home invasion, that knives are inherently dangerous. See id. at 28-29. The court held that this was error, and that the jury should instead have been instructed to "determine whether [the knife] was dangerous as used." Id. at 29-30. Although the Bois court went on to conclude that the evidence in that case was insufficient to find that the knife was dangerous as used, and thus required a verdict for the defendant, see id. at 30, this case is different.
Although some knives may be inherently dangerous, there was insufficient evidence in Bois to make that determination. See Bois, 476 Mass. at 29-30.
Cf. Commonwealth v. Delaney, 442 Mass. 604, 615 (2004) (same error, in context of self-defense instruction on justification for defendant's resort to dangerous weapon, caused no substantial risk of miscarriage of justice, where knife at issue, although not dangerous per se, had been used to stab victim repeatedly). The defendant here nevertheless argues that, in the home invasion context, the determination whether an object is a dangerous weapon should be made as of the moment of entry, rather than taking into account how it is used once inside. We are, however, bound by Bois; the defendant's policy arguments are best addressed to the Legislature.
Here, the jury found the defendant guilty of aggravated ABDW, the aggravating factor being causation of serious bodily injury. The defendant does not challenge either the jury instructions or the sufficiency of the evidence supporting that verdict. The dangerousness of the knife as used was not an issue at trial. No substantial risk of a miscarriage of justice arises from an erroneous instruction on an element of an offense (here, home invasion) where another verdict demonstrates that the jury necessarily found the element in question. See, e.g., Commonwealth v. Britt, 465 Mass. 87, 98-99 (2013) ; Commonwealth v. Woods, 94 Mass. App. Ct. 761, 768 (2019) ; Commonwealth v. McCray, 93 Mass. App. Ct. 835, 847-848 (2018).
2. Bomb threat. The defendant argues that the judge abused her discretion by not inquiring more thoroughly into how a bomb threat during the trial might have affected the jury. The threat required the court house to be evacuated. The next day, the judge told the jury that the evacuation had been due to a bomb threat. The judge then informed the jury about various scheduling issues, and then asked if any juror had read, seen, or heard anything about any aspect of the case that might affect the juror's ability to remain fair and impartial, or whether there was any serious matter or concern that any juror needed to bring to her attention. No juror responded in the affirmative. Without objection from the defendant, testimony then resumed.
The defendant now claims a violation of the rule that where "the entire jury were exposed to extraneous material, the judge is required to conduct individual voir dire ‘to determine the extent of [each] juror's exposure to the material and its effects on the juror's ability to render an impartial verdict.’ " Commonwealth v. DaCosta, 96 Mass. App. Ct. 105, 110 (2019), cert. denied, 140 S. Ct. 2813 (2020), quoting Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). "An extraneous matter is one that involves information not part of the evidence at trial ‘and raises a serious question of possible prejudice’ " (citation omitted). Commonwealth v. Guisti, 434 Mass. 245, 251 (2001), S.C., 449 Mass. 1018 (2007). We review the judge's decisions on such issues, including whether the information in question is "extraneous matter," for abuse of discretion. See Commonwealth v. Mendes, 441 Mass. 459, 477-478 (2004).
We see no abuse of discretion in the judge's implicit determination that the bomb threat did not raise any "serious question of possible prejudice" requiring further inquiry. Guisti, 434 Mass. at 251. The subject matter of the trial had nothing to do with bombs or with attempts to interfere with the operation of the criminal justice system. There was no information connecting the threat to the defendant or any of the other participants in the trial. No juror responded to the judge's questions concerning recent exposure to information that might have affected the juror's ability to remain fair and impartial, or any other serious matter or concern that warranted the judge's attention. Neither defense counsel nor counsel for the codefendant, Martinez, voiced any question or concern about the bomb threat's possible effect on the jury. Cf. Commonwealth v. Toro, 395 Mass. 354, 360 (1985) (defense counsel's failure to object to prosecutor's closing argument suggested that argument was not unfairly prejudicial). In these circumstances, individual voir dire about the effect of the bomb threat could well have done more harm than good, by suggesting to the previously unconcerned jurors that they did indeed have cause for concern. There was no abuse of discretion, and thus no risk of a miscarriage of justice.
For all of the above reasons, we reject the defendant's further argument that the judge should have expressly instructed the jurors that the bomb threat was unrelated to the case.
3. Instruction regarding knife struck from evidence. The defendant argues that the judge abused her discretion by giving an assertedly inadequate curative instruction regarding a knife that she had struck from evidence. The issue arose because the Commonwealth had offered in evidence a steak knife found in the defendant's apartment. The knife was different from the one described by two witnesses to the stabbing, which was never found. The judge admitted the steak knife de bene, over the defendant's objection, based on the Commonwealth's assertion that it was relevant because a later witness would testify to the presence of human blood on the knife.
After that witness failed to so testify, the judge allowed the defendant's and his codefendant's motions to strike the knife from evidence. She instructed the jury that the steak knife "has been [struck] from evidence, and I'm going to ask you to disregard it. Any testimony surrounding that knife is not evidence of anything in this case, so you're not to regard that. That has been [struck] as evidence." The defendant did not argue to the judge that this instruction was inadequate. He now makes that argument to us. We review for whether any abuse of discretion created a substantial risk of a miscarriage of justice. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).
We see no abuse of discretion. First, the jury are presumed to have followed the judge's instructions "to disregard matters withdrawn from their consideration" (citation omitted). Commonwealth v. Helfant, 398 Mass. 214, 228-229 (1986). Second, the jury acquitted the defendant of two additional charges premised on use of a knife at the scene, instead finding the codefendant guilty of those charges. This suggests that the jury's deliberations were not swayed by the struck knife tied to the defendant and that the jury were able to remain focused on the evidence properly before them of who used a knife against whom. Even assuming that there was some shortcoming in the judge's curative instruction (and we see none), we do not have "a serious doubt whether the result of the trial might have been different" had a more forceful instruction been given. Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). Third, that counsel for the defendant and the codefendant did not consider the judge's instruction insufficient is some indication that it was adequate. Fourth, and relatedly, counsel as well as the judge could have considered that a more emphatic instruction to ignore the struck knife would have backfired by simply calling more attention to it. There may be cases where struck evidence is so prejudicial that an instruction to disregard it does not negate a substantial risk of a miscarriage of justice. See Commonwealth v. Errington, 14 Mass. App. Ct. 733, 739-740 (1982), S.C., 390 Mass. 875 (1984). This is not such a case.
These were aggravated ABDW on Salvi and ABDW on Francis Curran, a neighbor who was stabbed when he came to investigate the commotion in Bastarache's apartment.
Errington, 14 Mass. App. Ct. at 738-740, was a child sexual assault case in which this court concluded that hearsay evidence of the defendant's similar conduct involving another child should not have been admitted and that, once the trial judge struck that evidence, his instruction to the jury to disregard it left too great a risk that the trial had been unfair. On further review, the Supreme Judicial Court concluded that the judge need not have struck the evidence; the court thus did not reach the question whether the judge's instruction was adequate. See Commonwealth v. Errington, 390 Mass. at 882. We also note that, unlike this case, Errington involved prior bad act evidence, which carries "a high risk of prejudice to the defendant" (quotation and citation omitted). Commonwealth v. Anestal, 463 Mass. 655, 672 (2012). It is thus subject to "a more exacting standard [of] admissibility," Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014), and may create a "need to instruct the jury with particular care what to do in order to avoid diversionary misuse of the material." Commonwealth v. Mills, 47 Mass. App. Ct. 500, 506 (1999).
We decline the defendant's invitation to consider, in the substantial risk calculus, that the initial decision to admit the steak knife resulted from what the defendant characterizes as a prosecutorial misrepresentation and defense counsel's unpreparedness to counter that misrepresentation. In support of that argument the defendant cites Commonwealth v. Baker, 440 Mass. 519, 525-527 (2003). But, putting aside that Baker, id. at 525, involved review under G. L. c. 278, § 33E, the court there concluded that prosecutorial actions and defense counsel's omissions "deprived the defendant of a substantial ground of defense." See Baker, supra at 527. Here, whatever else could be said of how the prosecutor and defense counsel handled the steak knife issue, their acts and omissions did not result in a level of prejudice comparable to that in Baker.
4. Deadlocked jury. The defendant argues that the judge violated G. L. c. 234A, § 68C, by delivering a Tuey-Rodriquez instruction to the jury to continue deliberating even after they had twice returned without having agreed on a verdict. Section 68C provides as follows:
See Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851). See also Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973).
"If a jury, after due and thorough deliberation, returns to court without having agreed on a verdict, the court may state anew the evidence or any part of the evidence, explain to them anew the law applicable to the case and send them out for further deliberation; but if they return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they ask from the court some further explanation of the law."
Section 68C "guard[s] against the coercion of a jury to reach a verdict," by "limit[ing] the circumstances under which a judge may require a jury to continue deliberations." Commonwealth v. Jenkins, 416 Mass. 736, 737 (1994) (construing essentially identical predecessor statute, G. L. c. 234, § 34 ).
Here the defendant challenges the judge's implicit determination that a note from the jury (marked J for identification) did not constitute a "return" under § 68C. "The determination as to when the jury's deliberations have been ‘due and thorough’ lies within the discretion of the judge." Commonwealth v. Semedo, 456 Mass. 1, 19 (2010) (construing G. L. c. 234, § 34 ). We thus review for abuse of discretion. See Commonwealth v. Mayne, 38 Mass. App. Ct. 282, 289 (1995). See also Jenkins, 416 Mass. at 741 ; Commonwealth v. Parreira, 72 Mass. App. Ct. 308, 316 (2008).
In this case, after approximately ten hours of deliberations over the course of three days, the jury sent the judge note J at 12:50 P . M . on the third day. Note J stated as follows: "After rigorous deliberation, we have arrived at a verdict of eleven of the sixteen counts, and are unable to arrive at a unanimous verdict on the remaining counts." The judge "told the court officer to inform the jury that it was lunch break, and we were waiting for everybody to come in, and we would address the question at two o'clock." Then, at 1:30 P . M ., the judge received another note, marked K for identification. Note K stated: "Update on previously unanswered question: we have further deliberated, and now have fifteen out of sixteen verdicts; unable to obtain a unanimous verdict on the remaining count, and further deliberation will not be helpful."
The sixteen counts included eight charges against the defendant and eight against his codefendant.
At about 2 P . M ., the judge consulted counsel; found that deliberations had been due and thorough and that the jury were deadlocked on one count; stated her intention to give the Tuey-Rodriquez charge on that count; and stated her further intention, if the jury thereafter returned unable to reach a verdict on that count, to take verdicts on fifteen of the counts and declare a mistrial as to the sixteenth. Defense counsel were asked their views and did not object. The judge then gave the jury the Tuey-Rodriquez charge, they retired to deliberate further, and after eighty minutes they reported having reached a verdict on the remaining count.
The defendant now argues that the judge should have treated note J as a return evidencing due and thorough deliberation. Had she done so, the defendant continues, note K would have constituted the second such return, meaning that -- because the jury neither requested further instructions on the law nor consented to further deliberations -- the judge's instruction to continue deliberations coerced the jury in violation of § 68C.
We see no abuse of discretion in the judge's implicit determination that note J was not a return evidencing due and thorough deliberation. The judge could reasonably have considered that, without any further instruction from her to keep deliberating, the jury did so of their own volition. After forty minutes they were able to reach agreement on five additional counts. The defendant cites no case requiring a judge, in essence, to ignore a jury's unprompted self-assessment that their previous report of an inability to agree was premature. The judge could reasonably have considered note K to constitute the first return demonstrating due and thorough deliberation. See Semedo, 456 Mass. at 19 (discussing factors relevant to that inquiry, including total length of time jury spent in attempting to resolve conflicts). The judge's decision to give the Tuey-Rodriquez charge in response to note K was in no way coercive and violated neither the letter nor the spirit of § 68C.
The judge's response to note J, conveyed orally through the court officer, was not an instruction to continue deliberations. Moreover, because the jury began note K with the words, "[u]pdate on previously unanswered question," the judge could reasonably have entertained some doubt whether the jury had even received her response to note J.
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Judgments affirmed.