COMMONWEALTH v. VELEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted of one count of assault and battery on a family or household member, and one count of witness intimidation. These convictions were based on an incident that took place on March 22, 2018, between the defendant and his girlfriend.² On appeal, he argues that reversal of the assault-and-battery conviction is required because of the lack of a specific unanimity instruction. He also argues that he is entitled to a new trial on the witness intimidation charge because there was insufficient evidence to support one of the theories on which the jury might have convicted him. Unpersuaded by these arguments, we affirm.

Background. According to the victim, she and the defendant had a “rocky” relationship “off and on” for approximately sixteen years. The victim testified in detail about a fight they had on March 22, 2018. It began when she rebuffed the defendant's entreaties for oral sex while the couple was seated on the victim's bed. After he began berating her, she tried to leave the bed when the defendant “grabbed” her. She then “shook him off.”³ Upset, she yelled at the defendant to leave her home and began throwing clothes at him. He refused to leave. She left the bedroom and tried to call the police on her cell phone from the living room. The defendant, who had followed closely behind her, grabbed the cell phone from her and pushed her. After she returned to the bedroom in an attempt to locate a second cell phone, the defendant pulled her by the hair. The defendant meanwhile called the police himself to report that the victim had assaulted him with a knife.

As this recitation indicates, and as the prosecutor highlighted in her closing argument, there was evidence that the defendant took at least three specific actions during the incident that could constitute an assault and battery: the initial grabbing in the bedroom, the push in the living room, and the hair pulling after the victim returned to the bedroom. No specific unanimity instruction was requested or given.

Specific unanimity. Because there were three specific actions that could have constituted an assault and battery, the defendant argues that his trial counsel should have requested a specific unanimity instruction, and that the judge erred by not providing one sua sponte. We disagree. The case law is clear that “[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required.” Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 905 (1995). Here, the specific acts in question took place in close temporal proximity in adjacent rooms as part of the same physical and verbal altercation. They constituted a continuing course of conduct, not a succession of clearly detached incidents. Accordingly, the absence of a specific unanimity instruction did not constitute error.⁴ In addition, even if there had been error, the defendant could not show sufficient prejudice to establish a substantial risk of a miscarriage of justice. That is because -- as is discussed further below -- there was sufficient evidence that each specific act constituted an assault and battery. See Commonwealth v. Keevan, 400 Mass. 557, 567 (1987), citing Commonwealth v. Comtois, 399 Mass. 668, 676-677 (1987) (“In considering the omission of a specific unanimity instruction, we have determined that there is no substantial risk of a miscarriage of justice if the evidence satisfies each element of the statute and is sufficient to defeat a motion for a required finding of not guilty”).

Witness intimidation. To make out a case of witness intimidation, the Commonwealth had to prove the following four elements:

“(1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined by the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding.”

Commonwealth v. Fragata, 480 Mass. 121, 126-127 (2018), citing G. L. c. 268, § 13B (1) (c) (i).⁵ In arguing that the Commonwealth had met such elements, the prosecutor focused principally on the defendant's taking the victim's cell phone from her. See Fragata, supra at 128 n.7, citing Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, 230 (1998) (“Especially given the central place of cellular telephones as a means of communication in contemporary life, depriving a victim of access to one can certainly qualify as an act of intimidation when a potential witness seeks to report a possible criminal violation”). The defendant argues that there was legally insufficient evidence that a “possible criminal violation” had been committed by the time the defendant took the victim's cell phone.⁶ We disagree. As noted above, there was evidence that the defendant had grabbed the victim on the bed before he took away her cell phone. Although the defendant suggested that the victim was the aggressor and that any grabbing of her was therefore somehow excused, nothing required the jury to accept such suggestions. For purposes of our sufficiency analysis, we view the trial evidence in the light most favorable to the Commonwealth rather than crediting the defendant's alternative view of the facts. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The evidence of the defendant's grabbing the victim on the bed constituted sufficient evidence of an actual assault and battery, not merely the “possible” one required by the witness intimidation statute.⁷

For similar reasons, we discern no merit in the defendant's additional argument that his contacting the police himself precluded the jury from inferring that he took the victim's cell phone with intent to “impede or interfere with” a criminal investigation. Based on the trial evidence, the jury reasonably could have inferred that the defendant sought to prevent the victim from contacting the police to initiate an investigation and subsequently decided to contact the police himself when he realized that the victim likely would contact them anyway, despite his efforts to convince her that this could result in her losing custody of her son. Moreover, even if the jury had found that the defendant had decided to contact the police himself by the time he took away the victim's cell phone -- an inference that nothing required the jury to draw -- his actions to prevent the victim from being the first to contact the police would itself suffice to make out a case of witness intimidation.

Judgments affirmed.

FOOTNOTES

2.   The jury acquitted the defendant of two counts of assault and battery on a family or household member that were based on alleged earlier incidents with the girlfriend.

3.   At some points in her testimony, the victim testified that the defendant “tried” to grab her on the bed. Regardless, given that she consistently testified that she “shook him off,” the jury readily could have found that the defendant made contact with her.

4.   To the extent that the defendant suggests that his counsel's failure to request a specific unanimity instruction constituted ineffective assistance, his argument fares no better.

5.   Although the statute was amended after the incident in question, see St. 2018, c. 69, § 155, the amendments are not implicated in this case.

6.   The defendant acknowledges that there was sufficient evidence to support a witness intimidation conviction based on actions that the defendant took after he pushed the victim in the living room. Therefore, he seeks a new trial limited to such alternative theories rather than a judgment of acquittal.

7.   Thus, this case does not call for us to address the distinction between a “possible” crime and an actual one.