COMMONWEALTH v. KOUVCHINOV (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This a consolidated appeal from the defendant's conviction of assault and battery by means of a dangerous weapon (scissors),² and the denial of his postconviction motion for funds to retain an expert. The defendant claims (1) error in the admission of certain evidence, (2) error in the denial of his request for an instruction on the defense of another, and (3) that he received the ineffective assistance of counsel. The defendant also claims that the motion judge, who was not the trial judge, abused her discretion in denying his request for funds for postconviction proceedings. We affirm.

Background. Stephen and Sally Roche, to whom we will refer by their first names, were doing laundry in the shared laundry room of their condominium complex on the evening of November 25, 2016, when they observed their wet clothes on top of the dryer.³ Another resident, Mia Rakhman, was present, along with her boyfriend, the defendant. Upon seeing Rakhman's laundry in the dryer, Stephen asked why the Roches' laundry had been removed. The defendant punched a table and said, “Because I do what I want to do.” The Roches turned to leave, and Stephen was about to follow Sally out the door of the laundry room and back into the main housing area, when Stephen heard the defendant say, “That's okay because I know where you and your family live.”

Stephen turned around as the door closed and locked behind Sally. He asked Rakhman if the defendant was threatening Stephen's family. Stephen testified that the defendant then reached for some scissors, stood up, stabbed the table with the scissors, and said, “I'll fucking kill you.” The defendant pushed Rakhman out of the way, and, with the scissors, chased Stephen around the laundry room and into an attached garage area. Realizing he was trapped, Stephen picked up a nearby ice scraper and said that he had twenty years' experience in the military and would defend himself if he had to. Rakhman grabbed the handle of the ice scraper as the defendant lunged at Stephen with the scissors, causing Stephen to drop the ice scraper. The defendant, holding the scissors, and Rakhman, now holding the ice scraper, chased Stephen to another area of the garage, where Stephen picked up a bicycle and used it as a shield. Stephen then threw the bicycle at the defendant and turned to run at the same time the defendant lunged at him. Stephen slipped and fell face first onto the floor, while the defendant stabbed him in the back with the scissors. Sally, who thought Stephen was right behind her as she returned to their unit, and who did not realize Stephen didn't have his key to the laundry room door, heard Stephen screaming and ran back downstairs. When Sally entered the garage, she saw Stephen lying face down on the ground with the defendant standing over and straddling him. The defendant and Rakhman walked past Sally and returned to Rakhman's unit while Sally ran to Stephen. Seeing that Stephen's face was bloodied, Sally called 911. She and Stephen then went back to their unit. Over the defendant's objection, Stephen testified that he did not observe any signs that the defendant had been intoxicated.⁴

Stephen was upset when he and Sally got back to their unit, and was still “visibly shaken up” when Newton Police Officer Greg Helms responded to Sally's 911 call. Helms observed Stephen “bleeding pretty profusely from his nose,” and saw a puncture wound on Stephen's back and “slices” on both of his arms. Stephen was so upset that he had difficulty speaking to Helms without stuttering. Helms or a fellow officer took photographs of Stephen's injuries and called emergency medical technicians (EMTs) to the scene. Color copies of those photographs were introduced at trial without objection. Stephen declined medical treatment other than the care he received from the EMTs.

After speaking with the Roches, Helms proceeded to Rakhman's unit, where he knocked on the door three times before Rakhman calmly opened it and acted “kind of puzzled that the police were there.” When Helms asked if the defendant was there, Rakhman “pointed directly behind her” to a sliding door that led to an outdoor deck where the defendant was sitting, calmly drinking an alcoholic beverage and smoking a cigarette. Rakhman had no visible injuries or difficulty speaking with Helms.

As he approached, Helms detected a strong odor of alcohol emanating from the defendant, and asked “what was going on.” The defendant did not answer the question and instead “said to give him three minutes, and he continued to smoke his cigarette.” Helms asked three more times what had happened; finally, the defendant “just kind of slurred” an indiscernible response. The defendant had glassy eyes and was swaying in his chair. Without objection, Helms testified to his opinion that the defendant was intoxicated. After Helms observed two abrasions on the defendant's face, the defendant was placed under arrest and transported to the police station. The scissors used in the attack were never located.

The defense at trial was that the defendant never struck Stephen, and, if he did, it was in defense of himself or Rakhman. To this end, Rakhman testified that Stephen was acting “agitated, angry, [and] rude” while demanding to know from her why his laundry was removed from the dryer. Rakhman testified that Stephen threatened to kill the defendant and was wielding an ice scraper while “kind of looking at [Rakhman] but not seeing [her].” Rakhman claimed that Stephen said to her, “If I'm upsetting you, I'm sorry,” and “just sort of became detached from [Rakhman].” Rakhman denied that the defendant ever struck Stephen, chased Stephen, or had scissors. The judge agreed to instruct the jury on the use of force in self-defense, but he denied the defendant's request for an instruction on defense of another after finding that there was no evidence of an “assault or anger directed toward Ms. Mia Rakhman.”

Discussion. 1. Evidentiary claims. The defendant claims error in the admission of color photographs of Stephen's injuries and testimony regarding the defendant's alcohol consumption. Although he raised no objection at trial, the defendant now alleges that the evidence was more prejudicial than probative. We review this claim for “a substantial risk of a miscarriage of justice.” Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

Whether evidence is relevant, and whether its probative value is outweighed by its prejudicial effect, “are questions within the sound discretion of the judge.” Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). A judge abuses their discretion only “where we conclude that the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

Contemporaneous photographs of Stephen's injuries “possess[ed] evidential value on a material matter” in this case, namely, Stephen's credibility. Commonwealth v. Bell, 473 Mass. 131, 142 (2015), quoting Commonwealth v. Keohane, 444 Mass. 563, 573 (2005) The nature of Stephen's injuries was also relevant to the questions whether the defendant committed an assault and battery by means of a dangerous weapon and whether he acted in self-defense. There is no merit to the defendant's claim that the photographs were irrelevant because Stephen's bloody nose was unrelated to the attack. Nor were the photographs inadmissible solely because they were in color or may have had an inflammatory effect on the jury. See Bell, supra. Given their relevance and the absence of an objection, the judge's decision to admit the photographs did not fall outside the range of reasonable alternatives.

The Commonwealth's theory of the case was that the defendant's intoxication explained his decision to escalate a minor disagreement between neighbors into a potentially deadly confrontation. Rakhman's testimony that the defendant consumed alcohol with dinner, and Helms's testimony that the defendant appeared to be drinking an alcoholic beverage and intoxicated immediately after the incident, “was relevant to the defendant's motive and state of mind” during the confrontation in the laundry room, Commonwealth v. Maldonado, 429 Mass. 502, 504 (1999), and had “a rational tendency to prove” the Commonwealth's theory.⁵ Dunn, 407 Mass. at 807. See Mass. G. Evid. § 401 (2020) (defining relevant evidence as having a “tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action”). We do not agree that the evidence unfairly portrayed the defendant as “a belligerent, drunk, Russian man,” particularly where defense counsel was the only person at trial other than Rakhman to refer to the defendant's heritage. The evidence that the defendant had been drinking and was intoxicated “was essential to understanding the motivation behind the crime.” Maldonado, supra.

2. Defense of another. Next, the defendant claims that the judge should have instructed the jury on defense of another. Because the defendant objected to the judge's decision not to give the instruction, we review this claim to determine if there was error, and, if so, whether “the conviction is sure that the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). See Commonwealth v. Vargas, 475 Mass. 338, 348 (2016).

We see no error here, prejudicial or otherwise. As the judge found, even viewing the evidence in the light most favorable to the defendant, nothing “warrant[ed] a conclusion that a reasonable person would have believed [Rakhman] was actually being attacked.” Commonwealth v. Scott, 463 Mass. 561, 576 (2012). By Rakhman's testimony, there was no “imminent danger of death or serious bodily harm” to her, Commonwealth v. Green, 55 Mass. App. Ct. 376, 380 (2002), because Stephen was directing his anger solely toward the defendant while apologizing to Rakhman. Contrast id. (error not to instruct on defense of another where defendant's unarmed friend was in more exposed position than defendant when shooting began and third person was shooting in direction of both defendant and friend). Here, the absence of an instruction on defense of another could not have prejudiced the defendant where the jury rejected the defendant's claim of self-defense. See id. at 381; Scott, supra.

3. Ineffective assistance. The defendant claims that trial counsel rendered ineffective assistance by (1) not moving to suppress Officer Helms's testimony regarding his observations of the defendant after Helms entered Rakhman's unit without a warrant, and (2) not impeaching both Stephen with his testimony at a prior hearing,⁶ and his wife Sally's testimony with the recording of her 911 call. The defendant has not filed a motion for a new trial, which is the preferred method for raising these claims. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). He argues that we should address these issues because “the factual basis of the claim appears indisputably on the trial record.” Id. at 811, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). We disagree. Subsidiary facts necessary to establish the voluntariness and scope of Rakhman's consent for Helms to enter her unit, and information regarding trial counsel's trial strategy, cannot be discerned on this record. See Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) (“Relief 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’ ”). Therefore, we decline to address these claims.

4. Postconviction funds. After he was convicted, the defendant filed a motion pursuant to G. L. c. 261, § 27C, for $2,500 to retain the services of Dr. Elizabeth A. Laposata. The motion was verified by appellate counsel but did not include an affidavit from the defendant. Neither an affidavit nor curriculum vittae (CV) from Dr. Laposata was attached to the motion. According to the body of the motion, Dr. Laposata “is board certified in anatomic and forensic pathology, and served for over a decade as the Chief Medical Examiner of Rhode Island.” The motion set forth that Dr. Laposata had agreed to assist the defense in deciding the potential merits of a motion for a new trial, subject to the court's ruling on the motion for funds, by examining evidence of the defendant's and Stephen's wounds and offering an opinion on the nature and causes of those injuries. The motion judge denied the requested funds by margin endorsement. We review her decision for an abuse of discretion, see Commonwealth v. Stewart, 383 Mass. 253, 261 (1981), and see none.

“Funds are generally not available under G. L. c. 261, § 27C, for defendants seeking posttrial relief.” Commonwealth v. Arriaga, 438 Mass. 556, 569 (2003). Nor does that statute “allow costs in connection with the presentation of a new trial motion based on a claim of ineffective assistance of counsel.” Commonwealth v. Carter, 429 Mass. 266, 270 (1999). To the extent the motion could or should have been treated as one under Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001), such a “motion and affidavits must first establish a prima facie case before discovery is available.” Reporter's notes to rule 30 (c) (4), Massachusetts Rules of Court, Rules of Criminal Procedure, at 200 (Thomson Reuters 2020). See Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001) (party seeking postconviction discovery “shall file affidavits” in support of position). The defendant's motion for funds was not supported by an affidavit from the defendant or from Dr. Laposata, whose CV was also not included. We cannot discern from the body of the motion the basis for counsel's verified statements regarding the doctor's qualifications or what opinions she might offer. The motion judge would not have abused her discretion in concluding that the defendant had failed to make an adequate showing to warrant even a hearing on a rule 30 (c) motion, much less relief. See Stewart, 383 Mass.at 257-258; Commonwealth v. Carver, 33 Mass. App. Ct. 378, 380-381 (1992).⁷

Judgment affirmed.

Order denying postconviction motion for funds to retain expert affirmed.

FOOTNOTES

2.   The defendant was acquitted of making threats.

3.   All sixteen units share one washer and one dryer. Both are coin operated.

4.   The objection was not based on unfair prejudice to the defendant. The following exchange ensued:Judge: “What's your objection?”Defense counsel: “I think he's going to say that I believed he was intoxicated, but I don't, I don't know. He's just testified that he's never met him.”

5.   Contrary to the defendant's argument, Rakhman's testimony of the defendant's intoxication was admissible because it tended to show temporal proximity between the incident and the arrival of the police minutes later, who encountered the intoxicated defendant at that time -- i.e., shortly after the incident. Thus, the jury could reasonably infer that the defendant was intoxicated earlier in the evening at time of incident.

5.   On January 5, 2017, a District Court magistrate conducted an evidentiary hearing to determine whether there was probable cause to support Rakhman's request that a criminal complaint issue, charging Stephen with assault and making threats on November 25. After hearing testimony from Rakhman, Stephen, and Sally, the magistrate found “no basis here for this complaint” and denied Rakhman's request.

7.   We decline the defendant's invitation to reverse the motion judge's decision and remand for consideration whether the motion for funds is meritorious in light of the recent Supreme Judicial Court's decision in Commonwealth v. Williams, 481 Mass. 799 (2019), where the defendant has not filed an affidavit asserting factual innocence. See id. at 800-801.