COMMONWEALTH v. HERNANDEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury-waived trial, the defendant was convicted of assault with a dangerous weapon and disorderly conduct. The sole argument he raises on appeal is that the Commonwealth failed to meet its burden of proving criminal responsibility beyond a reasonable doubt. We affirm.

Background. We summarize the facts in the light most favorable to the Commonwealth. On April 13, 2018, the victim was out jogging when he passed the defendant from behind. The defendant had recently started a new job and was anxious about being late. When the victim passed him, the defendant yelled, “Hey, you faggot. I'll fucking kill you. I'll fuck you up. You want to do this?” The defendant then took a knife out of his pocket and “flicked it open.” As the victim jogged away, the defendant continued to shout profanities and appeared to “challenge [the victim] to [come] back.”

The victim, concerned by the defendant's “abnormal” behavior, reported the incident to two police officers who were in the area. While the victim was speaking to the officers, the defendant walked by, and the victim stated, “[T]hat's him right there.” The officers approached the defendant and repeatedly ordered him to stop and show his hands, but the defendant failed to comply, at one point walking out into traffic. The officers then took the defendant to the ground to handcuff him. During the struggle the defendant shouted for help, saying that he was being improperly detained.

After the defendant was handcuffed, one of the officers asked him if he had a knife. The defendant replied, “The credit card,” and pointed to a particular card in his wallet for the officer to pull out. The officer saw that the card had a hollowed-out portion “embedded” with a small blade. The officer recovered a second knife -- a folding knife with a three-inch sharp blade -- from the defendant's pocket.

The defendant was arrested and transported to the police station. He was cooperative during transport. During an inventory search, police recovered another folding knife from the defendant's backpack.

Discussion. “Where a defendant asserts a defense of lack of criminal responsibility and there is evidence at trial that, viewed in the light most favorable to the defendant, would permit a reasonable finder of fact to have a reasonable doubt whether the defendant was criminally responsible at the time of the offense, the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant was criminally responsible.” Commonwealth v. Lawson, 475 Mass. 806, 811 (2016). One way the Commonwealth can meet this burden is by showing “that no mental disease or defect caused the defendant to lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Id., quoting Commonwealth v. Keita, 429 Mass. 843, 849-850 (1999). There is no requirement that the Commonwealth offer expert evidence. See Lawson, supra at 815-816. Rather, the Commonwealth can prove criminal responsibility solely “through the inferences arising from the circumstances of the offense.” Id. at 816.

In deciding a motion for a required finding of not guilty based on lack of criminal responsibility, “a judge must view the evidence in the light most favorable to the Commonwealth and must disregard contrary evidence presented by the defendant, including the testimony of a defense expert, unless the contrary evidence demonstrates that the Commonwealth's evidence, or any inference drawn from such evidence, is ‘conclusively incorrect.’ ” Lawson, 475 Mass. at 817, quoting Commonwealth v. Pike, 430 Mass. 317, 323 (1999). “It will be the rare case where the totality of the evidence regarding the defendant's conduct and the circumstances surrounding the offense will not be sufficient to defeat” such a motion. Lawson, supra. This is not one of those rare cases.

The evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove criminal responsibility. The judge could have inferred that the defendant tried initially to evade the police officers. See Lawson, 475 Mass. at 818 (judge could have found defendant criminally responsible based on evidence that he struggled with officers because he feared going back to jail). Once he was detained, the defendant did not act erratically -- he assisted the officers in retrieving the credit card with the embedded blade and was cooperative during transport. See Keita, 429 Mass. at 848-849 (“when arrested, the defendant did not struggle, did not act in an erratic way, and was cooperative,” and, “[w]hen the defendant was booked at the police station, he was again cooperative, answered all the questions, and presented no difficulty”). Furthermore, the defendant told the defense expert that he had been anxious about being late to work that day and that he carried the knives for self-defense, suggesting that he was aware of social norms and what lawful conduct is. See Commonwealth v. Griffin, 475 Mass. 848, 856 (2016) (“There was evidence that the defendant appeared to be acting normally in the days leading up to the killing”); Keita, supra at 849 (“defendant's version of the alleged offense was that he accidentally brushed up against a woman passenger,” which “suggests that the defendant knew what lawful conduct was”).

The testimony of the defense expert did not render the evidence insufficient. Although the expert opined that the defendant had posttraumatic stress disorder and was not criminally responsible, the judge could have found his opinion unreliable for several reasons, including that he did not review the defendant's treatment records or any documents other than the police report, and instead relied on the defendant's self-reporting. As the expert's testimony did not prove the Commonwealth's evidence to be “conclusively incorrect,” the judge did not erroneously deny the defendant's motion for a required finding. Lawson, 475 Mass. at 818, quoting Pike, 430 Mass. at 323.

Judgments affirmed.