Opinion
18-P-1379
04-25-2019
COMMONWEALTH v. THOMAS J. WASHINGTON.
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
A District Court jury convicted the defendant of assault and battery by means of a dangerous weapon (a belt). The victim was his sixteen year old daughter, and his defense was one of self-defense. On appeal, the defendant claims error in the judge's refusal to allow him to testify about the specifics of a conversation he had had with the daughter weeks before his altercation with her. The defendant also argues that the trial evidence was insufficient to sustain his conviction. We affirm.
Background. 1. The altercation. The incident occurred at the home of the defendant's mother. According to the daughter's testimony, the defendant asked her to step outside so that he could discuss with her various concerns he had about her behavior. Once the two were outside, the verbal confrontation escalated and turned physical, with the defendant striking the daughter with his belt, which had a buckle, on her back, neck, arms, and head. Photographs of the injuries that the daughter received were admitted in evidence. The daughter denied that she had struck her father.
The defendant testified in his own defense. He admitted to threatening the daughter with his belt and to swinging it at her. Although he initially claimed that he did not "know if it connected to her arm or whatever," he later stated on cross-examination that he "believe[d] that's where it connected on her [and that he thought] it was her left arm." The defendant asserted that the daughter started the physical confrontation by poking him in the eye, then by grabbing the belt from him and striking him with it, and then by hitting him with her hands.
The defendant's mother also testified in his defense. According to her, she observed the beginning of the incident from a window. She testified that as the confrontation escalated, the daughter aggressively was "posturing," and that as she was doing so, she hit the defendant in the eye. The mother also testified that she saw the daughter snatch the belt from the defendant and strike him with it. The mother claimed not to have observed what happened after that because she left her observation post.
2. The earlier argument. During the defendant's testimony, his counsel began to inquire whether the daughter had any reason to be angry with him as of the date of the incident. The prosecutor objected, which led to a lengthy discussion at sidebar. Defense counsel made the following proffer as to what he was seeking to elicit from the defendant:
"Earlier in the summer, of 2016, [the daughter] asked him why they had different last names. He explained to her that after she was born, they found out -- he found out that [the daughter's] mother was already married to somebody else when she married him. And since that time, things -- Since he told her that, she accused him of calling her mother a whore. And things were not friendly after that."Later in the sidebar discussion, defense counsel added the following:
"[The defendant] tells me that's the turning point in their relationship . . . . And she was angry about that."The prosecutor objected to the defendant being allowed to testify as to the substance of the earlier conversation. The gist of her objection was that defense counsel had not laid any foundation for this line of questioning, and that even if hearsay statements about the earlier conversation were being admitted only as to the daughter's state of mind, their relevance, if any, would be outweighed by unfair prejudice to the Commonwealth (given their inflammatory nature).
The transcript reveals that the judge wrestled with what to do about the proffered testimony. For example, the judge considered but ultimately rejected the option of letting the testimony come in but then allowing the Commonwealth to recall the daughter to provide rebuttal testimony. Finally, the judge announced a mixed ruling, allowing the defendant to testify that he and the daughter had engaged in the earlier argument and that this made the daughter angry, but precluding him from "go[ing] into the specifics of what she was angry about." Defense counsel responded, "Okay." Counsel then elicited from the defendant that he had had a conversation with the daughter "[a]bout three to four weeks prior" to the incident, and that the daughter was "[v]ery" angry about the substance of that conversation.
The trial was being held in Springfield, and the prosecutor stated that the daughter -- who lived in Brockton -- had left the court house.
Discussion. 1. The excluded testimony. The defendant's lead argument is that the judge's refusal to allow him to recount the substance of the earlier conversation he had had with the daughter constitutes reversible error. He argues essentially that had the jury heard that the argument was of such a profound nature, they might have been persuaded that the daughter was so angry at him as to credit his claim that he was acting in self-defense.
We are not unsympathetic to the defendant's position that an argument over the legitimacy of the daughter's birth and whether the defendant called her mother a "whore" could be seen by jurors as qualitatively different from ordinary disputes that parents and their children may have. However, for related reasons, such testimony had the potential to cause the Commonwealth unfair prejudice or to lead to juror confusion. "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Mass. G. Evid. § 403 (2018). Even though the judge did not articulate her ruling as one resting on that principle, it is evident that this was the basis of her decision. We conclude that she did not abuse her discretion in striking that balance. See Commonwealth v. Alphas, 430 Mass. 8, 16 (1999) (assessing whether evidence is unreasonably prejudicial lies within trial judge's "wide discretion").
That said, we note that appellate counsel focuses on this distinction far more than was done at trial. Although trial counsel characterized the fight as a turning point in the relationship between the defendant and the daughter, he did not portray it as the kind of seismic event that appellate counsel does.
Even if the judge's refusal to let the defendant testify as to the substance of the conversation were viewed as error, the defendant has not shown sufficient prejudice to warrant reversal of his conviction. In this regard, we note that the jury may well have convicted the defendant not because they credited the daughter's testimony that she did not initiate the altercation, but because they concluded that the defendant either failed to avail himself of a means to escape before employing physical force, or else used excessive force in defending himself. It was uncontested that the defendant was six feet tall, and that his sixteen year old daughter was five feet, seven inches or five feet, eight inches tall. Moreover, the defendant himself alluded to the imbalance of physical power between him and the daughter, commenting that after the two of them had gotten into a "tug-of-war" over the belt, the daughter let go of her end of the belt because "she saw that she couldn't get it, she couldn't overpower me." In addition, the testimony indicated that -- notwithstanding the argument that the defendant and the daughter had weeks earlier -- the two appeared to be getting along during the daughter's visit to her grandmother's house until the incident. Viewing the excluded testimony in the context of the trial as a whole, we are confident that the jury's verdict would not have been different had they learned the specific subject matter of the earlier argument. See Commonwealth v. Rosario, 430 Mass. 505, 514 (1999), quoting Commonwealth v. Gilday, 382 Mass. 166, 178 (1980) (convictions may be affirmed even in face of preserved claims of error where appellate courts can conclude that errors "did not influence the jury, or had but very slight effect").
For example, the father had picked up the daughter and her friends at the bus station on the day before the incident, and on the day of the incident he had provided them round-trip transportation to an amusement park.
Out of a surfeit of caution, we have assumed that the prejudicial error standard applies. That is far from clear even though the Commonwealth has taken the position that it does. After the Commonwealth objected to the line of questioning about the earlier conversation between the defendant and the daughter, the judge issued a split ruling that gave the defendant some of what he was seeking (allowing him to testify that the two had had an argument that made the daughter angry), while denying the defendant the ability to delve into the substance of the argument. Under these circumstances, a strong argument can be made that instead of responding "okay" to the ruling, it was incumbent on defense counsel to lodge an objection if he wanted to preserve his claim of error. Contrast Commonwealth v. McDonagh, 480 Mass. 131, 140 n.9 (2018) (where judge plainly had rejected counsel's position, counsel "need not continue to voice an objection once it [wa]s clear that doing so would be futile").
2. Sufficiency. The defendant's additional argument that the trial evidence was insufficient to sustain his conviction requires little discussion. In assessing sufficiency, we view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The credibility of the witnesses was for the jury to determine, and for purposes of our review, we therefore assume that the jury credited the daughter's account over the accounts provided by the defendant and his mother. The daughter's testimony and accompanying photographs provided an ample basis for rational jurors to conclude beyond a reasonable doubt that the defendant struck the daughter with a belt without her consent, that the belt was used in a dangerous manner, and that the defendant was not acting in self-defense. Nothing more was required. See Commonwealth v. Williams, 450 Mass. 879, 885 n.2 (2008) (elements of self-defense); Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 182 n.19 (2001) (elements of assault and battery by means of dangerous weapon). See also Commonwealth v. McAfee, 430 Mass. 483, 495-496 (1999) (evidence that Commonwealth met its burden of disproving self-defense beyond reasonable doubt is viewed in light most favorable to Commonwealth).
Judgment affirmed.
By the Court (Milkey, Blake & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 25, 2019.