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COMMONWEALTH v. Michael DOHERTY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of two indictments charging assault and battery, G. L. c. 265, § 13A (indictments one and two), an indictment charging assault and battery with intent to intimidate based on race, G. L. c. 265, § 39 (a) (indictment three), and an indictment charging the unauthorized use of a motor vehicle, G. L. c. 90, § 24 (2) (a) (indictment four).2 The convictions were based on evidence that the defendant, an off-duty Boston police officer, attacked Louis Blanco, a Hispanic Uber driver, who had driven him to South Boston. On appeal, the defendant claims that (1) the convictions of indictments two and three were duplicative, (2) the prosecutor's closing argument was improper, (3) the judge erred in instructing the jury, (4) the judge improperly excluded evidence of a second victim's prior acts of violence, and (5) the evidence was insufficient to prove that the defendant assaulted Blanco with the intent to intimidate him because of his race. We affirm.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Early in the morning on January 4, 2015, the defendant and a friend requested an Uber after a night of heavy drinking. Blanco, who was born in the Dominican Republic, responded to the request, and picked up the defendant and his friend at Bricco, a restaurant in Boston's North End. Blanco dropped off the friend in Charlestown, then took the defendant to an address in South Boston that he believed the defendant had requested. When Blanco told the defendant that they had arrived at his destination, the defendant said they were in the wrong place and demanded to be taken elsewhere. As Blanco continued driving, the defendant said to Blanco “you think I'm an idiot. I'm going to kill you, you fucking spic.” The defendant then attacked Blanco from the rear seat. He “started just throwing punches, and he[ ] grabb[ed] [Blanco's] ear and [his] face.”
Blanco got out of the car and called 911 as the defendant chased him around the vehicle. He waved down a passing vehicle driven by Guilliano Verna, the second victim. Verna, who was born in Haiti, stopped and was conversing with Blanco when the defendant entered Blanco's car and drove off. Blanco, still on the 911 call, entered Verna's car, and he and Verna followed the defendant. They found the defendant stopped in the middle of the street approximately four blocks away. As Blanco approached the defendant on foot, the defendant told Blanco “take your car back and get the fuck out of here.” Blanco pushed the defendant away from the door, entered his car, and began to drive away.
Blanco stopped his car and got out again when he saw the defendant approach Verna. The defendant said to Verna, “do you want a piece of me, you fucking nigger.” When the defendant observed that Blanco was still talking on his cell phone, he charged Blanco and threw him to the ground. Verna interceded and struck the defendant in the face. He threw the defendant to the ground, and kicked him in the face and arm. The defendant got up and walked away as police cars approached.
The defendant called no witnesses at trial. He advanced, through cross-examination and argument, a theory that Blanco and Verna attempted to rob him, and that he acted in self-defense.
Discussion. 1. Duplicative convictions. The defendant filed a posttrial motion for a required finding of not guilty as to indictments one and two, arguing that both charges were duplicative of those charged in indictment three. The Commonwealth conceded that indictment one was duplicative and the judge allowed the motion as to that indictment. The judge denied the motion as to indictment two, reasoning that the assault and battery charged in that indictment was a separate and distinct act and the absence of a specific unanimity instruction did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Palermo, 482 Mass. 620, 629 (2019). The defendant claims error in that ruling.
Although assault and battery is a lesser included offense of assault and battery for the purpose of intimidation, see Commonwealth v. Kelly, 470 Mass. 682, 702 (2015), “[c]onvictions of greater and lesser included offenses are allowed when they ‘rest on separate and distinct acts.’ ” Id. at 699, quoting Commonwealth v. King, 445 Mass. 217, 225 (2005), cert. denied, 546 U.S. 1216 (2006). “Whether a defendant's actions constitute separate and distinct acts or must be considered a single crime is a question of fact for the jury to resolve.” Commonwealth v. Vick, 454 Mass. 418, 435 n.16 (2009).
Here, although the judge did not use the phrase “separate and distinct act,” she clearly instructed the jury at the beginning of the trial that the indictments were based on separate acts.3 This was a sufficient explanation of the distinction between indictments two and three. See Commonwealth v. Gouse, 461 Mass. 787, 799 (2012) (no risk of jury confusion between cognate offenses even without specific instruction on separate and distinct acts).
Thereafter, the jury heard evidence that the defendant struck Blanco inside Blanco's vehicle after the defendant told him “I'm going to kill you, you fucking spic.” Later, and several blocks away, the defendant attacked Blanco again as Blanco stood outside his car talking to the police on his cell phone. There was no racial slur directed at Blanco during this second attack.
While a better practice would have been for the judge to have repeated her preliminary instruction during the final charge, we are confident that the conduct underlying indictment three was understood by the jury. In light of the judge's clear preliminary instruction, the evidence at trial, and her final general unanimity instruction, we see no “significant possibility” that the jury may have based the conviction of indictment three on the conduct alleged in indictment two. Kelly, 470 Mass. at 700.
2. Prosecutor's closing argument. The defendant broadly attacks the prosecutor's closing argument, claiming that he unfairly characterized the theory of defense, vouched for witnesses' credibility, commented on the defendant's prearrest silence, and misstated the law. In reviewing these claims, we bear in mind that “[r]emarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.” Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).
a. Characterization of the defense. First, we agree with the defendant that it was improper for the prosecutor to characterize the defense's argument that the defendant was a robbery victim as “garbage.” While prosecutors are free to encourage jurors not to believe a defendant, see Commonwealth v. Ormonde, 55 Mass. App. Ct. 231, 235 (2002), it is error to disparage the theory of defense. See Commonwealth v. Lewis, 81 Mass. App. Ct. 119, 123-124 (2012), S.C., 465 Mass. 119 (2013). However, the judge sustained defense counsel's objection to that comment and immediately instructed the jury to disregard it. We assume that the jury heeded this instruction, see Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013), and discern no prejudice.
b. Vouching. Next, the defendant claims that the prosecutor improperly vouched for Verna's credibility when he argued:
“You got an opportunity to see Mr. Verna testify. Was he confident in his answers? Was he clear in his answers? Was he unfazed? Did he have any problem telling you ․ [he] had some convictions ․ He was open and up front with you about that․ Attorney Scapicchio is a fantastic cross-examiner. You saw her in action throughout this trial. You saw how Luis Blanco, I'd say he got frightened.”
“Improper vouching occurs when ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.’ ” Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 10 (2019), quoting Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). It is well established, however, that a “prosecutor may argue strenuously, and even with a flourish, that the jury should credit certain testimony or draw certain inferences consistent with the evidence before them.” Commonwealth v. Merry, 453 Mass. 653, 667 (2009). Here, the prosecutor's argument was a fair response to defense counsel's attack on the credibility of a victim, rather than a statement of personal belief. See Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 253 (2001) (“A prosecutor may fairly respond to an attack on the credibility of the Commonwealth's witnesses”).
Nor do we see error in the prosecutor's statement about defense counsel's skillful cross-examination. The comment that followed, however (“I'd say [Blanco] got frightened”), was an expression of personal belief concerning Blanco's credibility that should not have been made. But there was no prejudice where the judge sustained defense counsel's objection and later instructed the jury that (1) they were to decide the case based only on the evidence, and (2) “closing arguments of the lawyers are not a substitute for the evidence.” See Olmande, 84 Mass. App. Ct. at 236-237.
c. Failure to call 911. In closing, defense counsel argued that Blanco and Verna conspired to rob the defendant, who was acting in self-defense. To support that argument, defense counsel highlighted Blanco's failure to call 911 until after he exited the car and was being chased by the defendant. In response, the prosecutor called the jury's attention to the defendant's cell phone records and said “you're not going to see the defendant calling 911.” The defendant argues on appeal that this was an improper comment on the defendant's prearrest silence. We disagree. The prosecutor's comment, when viewed in the context of the whole argument and the evidence admitted at trial, was a response to the claim of self-defense rather than a comment on the defendant's right to remain silent. By pointing out that the defendant took no steps to report the alleged robbery when he had an opportunity to do so, the prosecutor was responding directly to defense counsel's argument that the defendant was the real victim. There was no error.4
d. Self-defense. In response to defense counsel's argument that the defendant was acting in self-defense, the prosecutor said,
“[w]as it reasonable for him to be in fear for his safety? When? When he was in the car with Mr. Blanco? Was it a threatening left turn? If it wasn't a threatening left turn, if he had no reason to feel like he was in danger, that safety was in danger, ladies and gentlemen, when you hear these instructions, the Commonwealth has proved its case.”
For the first time on appeal, the defendant claims that this comment misstated the law on self-defense. We disagree. The first requirement for self-defense is that the defendant reasonably believed his safety was in immediate danger. See Commonwealth v. Miranda, 484 Mass. 799, 811 (2020). That such a belief could have arisen after the defendant and Blanco got out of the car does not render the prosecutor's argument improperly misleading, especially where the judge instructed the jury that they were to consider self-defense separately as to each assault and battery. There was no error, much less one that created a substantial risk of a miscarriage of justice.5
3. Jury instructions. a. Assault and battery for purposes of intimidation. The defendant argues that the judge was constitutionally required to instruct the jury that “a racial slur is not enough to prove assault and battery for purposes of intimidation.” We are not persuaded. The United States Constitution requires that the judge instruct the jury on each essential element of a charged offense. See Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 6-7 (2001). The essential elements of assault and battery for purposes of intimidation based on race are (1) an assault and battery on another, (2) with the specific intent to intimidate based on the victim's race. See Kelly, 470 Mass. at 690; Massachusetts Superior Court Criminal Practice Jury Instruction § 4.16.1 (Mass. Continuing Legal Educ. 2013). The judge adequately instructed the jury on both of those elements. We agree with the Commonwealth that the instruction requested by the defendant was a supplemental instruction that the judge was not required to give. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) (“necessity, scope, and character of a judge's supplemental jury instructions are within his or her discretion”).
b. Necessity. Next, the defendant argues that the judge erred when she denied his request to instruct the jury on the defense of necessity as to indictment four charging unauthorized use of a motor vehicle. Entitlement to a necessity defense instruction requires evidence of (1) a clear and imminent danger, (2) a reasonable expectation that the defendant's action will abate the danger, (3) no legal alternative which would abate the danger, and (4) no legislative action to preclude the defense. See Commonwealth v. Magadini, 474 Mass. 593, 597 (2016). Here, the evidence showed that the defendant attacked Blanco inside his car, chased Blanco, got back in Blanco's car, and drove away. The defendant then stopped the car and waited as Blanco approached on foot. Even viewed in the light most favorable to the defendant, this evidence did not support an inference that the defendant took Blanco's car to abate a clear and imminent danger.
c. Mistaken belief in self-defense. For the first time on appeal, the defendant claims that the judge erred in failing to instruct the jury regarding a mistaken belief in self-defense. According to the defendant, the jury could have found that the defendant mistakenly believed that Blanco drove him to a deserted area to rob him because he was “confused or intoxicated.” The Commonwealth responds, in part, that the defendant was not entitled to any instruction on self-defense because the evidence did not support it. We need not determine whether the facts warranted a self-defense instruction because the judge instructed the jury consistent with the model instruction on self-defense. See Criminal Model Jury Instructions for Use in the District Court Instruction 9.260 (2009). The judge further explained to the jury that they could “consider the defendant's mental condition at the time of the alleged incident, including any credible evidence of the effect on the defendant of his consumption of alcohol, in determining whether the defendant actually believed that he was in immediate danger of being attacked.” This instruction adequately covered the concept of a mistaken but reasonable belief that the defendant was being attacked, see Commonwealth v. Glass, 401 Mass. 799, 809 (1988), and we discern no substantial risk that justice miscarried.6
4. Evidence of Verna's prior acts of violence. Before and during the trial, the defendant sought permission to introduce evidence of Verna's prior violent conduct to show that Verna and Blanco were the first aggressors. See Commonwealth v. Adjutant, 443 Mass. 649, 654-655 (2005). The defendant also sought to show that Verna was biased in favor of the Commonwealth because he had earlier been charged with crimes that were not prosecuted. The judge allowed the defendant to impeach Verna with prior convictions for larceny and assault and battery, but precluded cross-examination regarding violent conduct for which he was not prosecuted, reasoning that the question of who was the first aggressor had not fairly been raised by the evidence. On appeal, the defendant claims that the judge's restriction of his cross-examination of Verna violated his constitutional rights, and deprived him of a fair trial. We disagree.
“[W]here a claim of self-defense has been asserted and the identity of the first aggressor is in dispute ․ trial judges have the discretion to admit in evidence specific incidents of violence that the victim is reasonably alleged to have initiated.” Adjutant, 443 Mass. at 650. We see no abuse of discretion in the judge's conclusion that there was insufficient evidence that either Blanco or Verna acted as the initial aggressor. Indeed, defense counsel acknowledged the absence of such evidence. Moreover, the victim in each of the assaults that resulted in the defendant's convictions was Blanco, not Verna. Verna's prior acts of violence were not relevant to the claim that Blanco was the first aggressor.
Finally, even were we to determine that evidence of past violent conduct for which Verna was charged, but not prosecuted, was relevant to show bias, that limitation on cross-examination was harmless. Verna's credibility was thoroughly and aggressively challenged during cross-examination. He admitted that (1) he had prior convictions for assault and battery and larceny, (2) he wanted to beat the defendant, (3) he hit and kicked the defendant in the face, and (4) he risked going to jail if he assaulted someone while he had an open case. Defense counsel argued forcefully in closing that Blanco and Verna had conspired to rob the defendant and that the jury should not believe their testimony. Considering the narrow scope of the restriction here, the otherwise vigorous attack on Verna's credibility, and the overall strength of the evidence against the defendant, we are confident that any limitation in cross-examination, even if error, was harmless beyond a reasonable doubt. See Commonwealth v. Miles, 420 Mass. 67, 71-73 (1995) (strength of evidence renders error in restriction of cross-examination harmless).
5. Sufficiency. To support the conviction of indictment three, the Commonwealth was required to prove an assault and battery on Blanco with the specific intent to intimidate him based on his race. See Kelly, 470 Mass. at 690; G. L. c. 265, § 39 (a). The defendant claims that his motion for a required finding of not guilty should have been allowed because there was insufficient evidence of the defendant's intent to intimidate Blanco because of his race. We review this claim to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
An inference that the defendant had the specific intent to intimidate Blanco because he is Hispanic was supported by the defendant's own statement -- “I'm going to kill you, you fucking spic.” Immediately after uttering those words, the defendant attacked Blanco while he was restrained by his seatbelt. The defendant's argument that the “punches were thrown because Blanco drove [the defendant] down to a deserted area or because of anger unrelated to race” is not persuasive. In any event, the Commonwealth need not prove that racial animus was the sole or even the primary motivating factor, as long as it was a motivating factor. Kelly, 470 Mass. at 691-692. The evidence was sufficient to prove that the defendant was motivated by racial hostility.
2. A fifth indictment charged the defendant with violating the constitutional rights of a second victim in violation of G. L. c. 265, § 37. The jury found the defendant not guilty on that indictment.
3. The judge instructed the jury that “[t]wo of the indictments charge assault and battery on the first alleged victim, Luis Blanco․ The Commonwealth alleges that one of the assaults and battery occurred inside the Uber vehicle. The Commonwealth alleges that the second assault and battery charge occurred afterwards outside of the Uber vehicle․ A third indictment relative to Mr. Blanco is assault and battery for purposes of intimidation. The Commonwealth is alleging that the assault and battery that occurred inside the Uber vehicle upon Mr. Blanco was done with the intent by the defendant to intimidate him because of his race.”
4. Nor was there prejudice, where the judge sustained defense counsel's objection to the prosecutor's comment regarding the 911 call, struck the comment from the record, and instructed the jury that the defendant had no obligation to call 911.
5. Nor are we persuaded by the defendant's argument that the prosecutor impermissibly shifted the burden of proof when he argued that defense counsel was asking the jury to “give [the defendant] a pass.” We view this as permissible “enthusiastic rhetoric.” Wilson, 427 Mass. at 350.
6. The defendant also argues that the judge should have instructed the jury that they “may” rather than “shall” find the defendant guilty if the Commonwealth proved all elements of a crime beyond a reasonable doubt. This argument lacks merit where the jury had a duty to return a guilty verdict if the crime was proved beyond a reasonable doubt. See Commonwealth v. Kirwan, 448 Mass. 304, 319 (2007). We also reject the defendant's argument that he was entitled to an instruction pursuant to Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). “As we have explained repeatedly, a judge is not required to instruct on the claimed inadequacy of a police investigation. Bowden simply holds that a judge may not remove the issue from the jury's consideration” (quotations and citations omitted). Commonwealth v. Wilkerson, 486 Mass. 159, 178 (2020).
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