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Appeals Court of Massachusetts.



Decided: April 27, 2021

By the Court (Sullivan, Desmond & Singh, JJ.1)


The defendant, John D. Le, was convicted by a jury of assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon. He was sentenced to eighteen months’ probation, and as a condition of that probation, the defendant was ordered to abstain from alcohol and drugs and to submit to random testing. The defendant filed a direct appeal from his convictions arguing that the trial judge erred in (1) failing to instruct the jury on self-defense, (2) instructing the jury that a knife was a dangerous weapon as a matter of law, and (3) admitting certain statements at trial. The defendant also contends, on direct appeal, that his trial counsel provided ineffective assistance.

Subsequent to filing his direct appeal, the defendant filed a motion to revise and revoke his sentence arguing that the conditions of his probation requiring him to abstain from drugs and alcohol and to undergo random testing were unwarranted. His motion was denied. The defendant appealed from the order denying his motion, and his appeals were consolidated in this court. We vacate the portions of the judgments requiring the defendant to abstain from drugs and alcohol and to undergo random testing as conditions of his probation, and remand for further sentencing proceedings consistent with this memorandum and order. The judgments are otherwise affirmed.

Background. We summarize the facts as presented to the jury. On February 21, 2018, Sebastian McCarthy was staying with his boyfriend, Jackson Le,2 at Jackson's home, where he lived with his brother, the defendant.3 At approximately 1:00 p.m. on that date, the defendant was loudly banging on the walls of Jackson's bedroom from an adjacent room, and McCarthy and Jackson began to argue about whether they should leave the home.4 According to McCarthy, the defendant had behaved similarly on a number of occasions, and McCarthy wanted to leave because he feared the defendant would become violent.

After unsuccessfully urging Jackson to leave the home, McCarthy decided to leave the house on his own. As McCarthy reached his car, which was parked in the driveway, he heard “a loud bang” coming from the second floor. He then heard Jackson and the defendant arguing. In response, McCarthy ran back into the house, stood at the bottom of the stairs, and yelled at the defendant and Jackson to stop. After McCarthy yelled up the stairs, the defendant ran at him, holding what McCarthy described as a “butcher knife.” McCarthy testified that the knife was approximately one foot long and was very sharp.

Once McCarthy saw the defendant descending the stairs holding the knife, he ran away. He ran out through a screen door, breaking it off its hinges and cutting his leg. He continued running down the hill next to the home, but he tripped and ultimately tumbled down the hill, hitting his head and sustaining scratches on his arms and legs. After falling down the hill, McCarthy turned back toward the house, concerned for Jackson's safety. In the front yard, he saw the defendant holding the same knife to the side of Jackson's neck. McCarthy testified that the knife “pricked” Jackson, causing little spots of blood to form on his neck.5 At that point, McCarthy began to scream and cuss at the defendant. Eventually, the defendant retreated inside the home and locked the door. McCarthy and Jackson called the police, and Officer Michael Eddy responded to the scene.

When Officer Eddy arrived, he observed McCarthy and Jackson standing in the middle of the street. He described them as “frantic.” Officer Eddy observed that McCarthy had a number of scrapes on his hands and knees, and Jackson had a superficial cut on his pinky finger. Officer Eddy knocked on the door of the residence, but received no response, and as result, he waited for additional officers to arrive on the scene. When Sergeant Bonagonario arrived, the officers again knocked on the door, and this time, the defendant answered. The defendant informed the officers that Jackson and McCarthy were arguing, and when the defendant told them to quiet down, McCarthy “offered him out to fight.” The defendant stated that he accepted the invitation and went outside to engage McCarthy in a fist fight. He stated that, once he got outside, McCarthy took off running and Jackson jumped on his back. The defendant then told the officers that he had a plastic knife in his hand during the incident, but that he had since flushed the knife down the toilet. Specifically, the defendant stated to the officers, “I destroyed evidence. I'm sorry.” Officer Eddy placed the defendant under arrest and another officer transported him to the police station.

Officer Eddy, Sergeant Bonagonario, and Jackson then looked for the knife inside of the home. Jackson brought the officers to the kitchen and showed them a twelve-inch knife and a four-inch knife. He stated to the officers that the knife used by the defendant was shorter than the larger knife, but longer than the shorter knife. Officer Eddy understood Jackson to be describing a “six-inch steak knife.” Their search for the knife was ultimately unsuccessful, and the knife was never recovered by the police.

Discussion. 1. Jury instructions. Because the defendant did not object to the jury instructions as given, we review his claims to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Taranovsky, 93 Mass. App. Ct. 399, 405 (2018).

a. Self-defense instruction. The defendant first contends that the judge erred in failing to, sua sponte, give an instruction on self-defense. We disagree.

“A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present.” Commonwealth v. Pike, 428 Mass. 393, 395 (1998). The predicate components of self-defense that must be present include: “(1) the defendant had a reasonable concern over his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness” (quotation and citations omitted). Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 369 (2004). “In determining whether sufficient evidence of self-defense exists [to warrant submission to the jury], all reasonable inferences should be resolved in favor of the defendant.” Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 239 (2012), quoting Pike, supra.

Regarding the charge of assault by means of a dangerous weapon, no view of the evidence would support the conclusion that the defendant used all reasonable means to avoid physical combat. Viewing the evidence in light most favorable to the defendant and assuming that McCarthy did in fact challenge the defendant to a fist fight, the defendant still accepted that invitation and went outside to engage in the fight. Notably, he did so while holding a plastic knife in his hand. By agreeing to fight and then going outside armed with a knife, he clearly did not attempt to avoid combat, and he accordingly was not entitled to an instruction on self-defense with respect to that charge.

With respect to the charge of assault and battery by means of a dangerous weapon, “[i]t was not incumbent upon the judge sua sponte to instruct the jury on a theory upon which the defense had placed no reliance at trial.” Commonwealth v. Hakkila, 42 Mass. App. Ct. 129, 130-131 (1997). The defendant did not argue at trial that he used the knife only to defend himself against Jackson. Rather, the defendant asserted that that the evidence, specifically the absence of the knife, was insufficient to establish that he committed the charged offense. The focus of the defense was that what occurred was nothing more than a brotherly dispute. “[I]f the judge had given such an instruction on [his] own, [he] might well have interfered with the defendant[’s] right to present [his] chosen defenses” (citation omitted). Commonwealth v. Shippee, 83 Mass. App. Ct. 659, 661 (2013). See Commonwealth v. Norris, 462 Mass. 131, 144 n.12 (2012) (“where the defendant has not relied on or even mentioned the defense at trial,” judge is not required to instruct on self-defense in absence of request to do so).

b. Dangerous weapon instruction. The defendant next contends, and the Commonwealth appropriately concedes, that it was error for the judge to instruct the jury that, as a matter of law, a knife is a dangerous weapon. The instruction was erroneous. See Commonwealth v. Bois, 476 Mass. 15, 29 (2016). As a result, we must determine whether the error created a substantial risk of a miscarriage of justice. We conclude that it did not.

A substantial risk of a miscarriage of justice is created only where there is “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). If the jury had been properly instructed, they would have had to find, beyond a reasonable doubt, that the defendant used the knife “with the intent to use it in a dangerous or potentially dangerous fashion.” Commonwealth v. Mattei, 455 Mass. 840, 845 (2010). Here, while brandishing the knife, the defendant chased McCarthy out of the home and down the hill. See Bois, 476 Mass. at 30 (displaying knife in threatening manner may render it dangerous as used). Further, it is undisputed that the defendant held the knife to Jackson's neck, which ultimately cut Jackson causing him to bleed.6 While the jury heard several descriptions of the knife, we are confident that, given the manner in which the knife was used, the jury's verdict would not have been different regardless of which description of the knife they accepted. See Mattei, supra at 844 (considering object's purpose and manner used to determine whether object dangerous as used).

2. Admission of statements. a. Jackson's statements. The defendant argues that the admission of Jackson's statements to the police describing the characteristics of the knife violated the rule against hearsay as well as the confrontation clause of the Sixth Amendment to the United States Constitution. The defendant failed to object to this testimony at trial, and thus we review to determine whether the error, if any, created a substantial risk of a miscarriage of justice. See Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016).

The testimony by Officer Eddy that Jackson showed him two knives, and stated that the knife used by the defendant was larger than one, but smaller than the other, was not admitted to prove the actual size of the knife possessed by the defendant. Rather, it was admitted to demonstrate the steps that the police took in attempting to locate the specific knife, and their reason for not confiscating other knives in the home. This was permissible where the defendant argued that there was a lack of evidence and that no knife was ever recovered by the police. See Commonwealth v. Avila, 454 Mass. 744, 753, 757 (2009).

Further, because these statements “were offered for a nonhearsay purpose, rather than through a hearsay exception,” the defendant's confrontation clause argument is without merit. Commonwealth v. Mendes, 463 Mass. 353, 369 (2012). The confrontation clause is not offended by the use of statements “for purposes other than establishing the truth of the matter asserted.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004). To the extent that, in the absence of a limiting instruction, the jury could have understood these statements to be offered for their truth, we discern no substantial risk of a miscarriage of justice.

Jackson described the knife to the police as a knife that was shorter than a twelve-inch knife, and longer than a four-inch knife. This description was more favorable to the defendant than the one provided by McCarthy, who characterized the knife as a butcher knife. Moreover, the fact that McCarthy and Jackson provided inconsistent descriptions of the knife was also favorable to the defendant. Indeed, in closing argument, the defendant highlighted that the Commonwealth presented discrepant descriptions of the knife to argue that the Commonwealth failed to meet its burden in the case. In the end, “[r]elief under the substantial risk of a miscarriage of justice standard is rare,” Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 n.7 (2019), and this is not a case where “the error was patent and prejudicial,” such that reversal of the defendant's convictions is required. Id., quoting Commonwealth v. Freeman, 352 Mass. 556, 563 (1967).

b. McCarthy's statements. At trial, McCarthy testified that he was afraid of the defendant on the date of the incident, and also testified about statements that he made to Jackson expressing that fear. The defendant objected to this testimony, and as a result, we review its admission for prejudicial error. See Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 680 (2011).

McCarthy's testimony about his own fear was not hearsay. See Commonwealth v. Williams, 46 Mass. App. Ct. 700, 702 n.4 (1999). Further, the statements McCarthy made to Jackson urging him to leave the home were not admitted for the truth of the statements, but instead were admitted to show McCarthy's state of mind. “[D]eclarations out of court may be admissible to prove the state of mind or intent of a person when it is a material issue.” Commonwealth v. Bins, 465 Mass. 348, 365 (2013), quoting Commonwealth v. Magraw, 426 Mass. 589, 594 (1998). The defendant nevertheless argues that the testimony was irrelevant, and that McCarthy's fear was immaterial to any issue at trial. We are not persuaded.

In proving that the defendant committed an assault by means of a dangerous weapon, the Commonwealth was required to show, at least under a theory of threatened battery,7 that “the defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat.” Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010). Though “[t]he victim need not actually be in fear,” he or she “must apprehend the risk of an imminent battery.” Id. at 531. McCarthy's statements expressing fear of the defendant were relevant to determining whether a reasonable person would recognize the defendant's conduct to be threatening and whether McCarthy in fact perceived the threat. Accordingly, we discern no error by their admission, and as a result, no prejudice.8

3. Ineffective assistance of counsel. For the first time on appeal, the defendant argues that his trial counsel was ineffective for failing to request a self-defense instruction and, in the absence of such an instruction, for stating in closing argument that the defendant engaged in a “mutual fight” with the victims.

We review the defendant's claim under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant bears the burden of demonstrating “that trial counsel's behavior fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and, if this first element is established, to show additionally that the attorney's conduct ‘has likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Bryant, 390 Mass. 729, 749-750 (1984), quoting Saferian, supra. The defendant has failed to meet this burden.

First, because a self-defense instruction was not warranted, defense counsel's failure to request one did not amount to ineffective assistance. See Commonwealth v. Randolph, 438 Mass. 290, 296 (2002) (failure to preserve issue for appeal is not ineffective assistance where error did not create substantial risk of miscarriage of justice). Second, the defendant has failed to demonstrate that trial counsel's tactical decision to argue in closing that the fight was mutual was “manifestly unreasonable” (citation omitted). Commonwealth v. McCrae, 54 Mass. App. Ct. 27, 29 (2002) (where claimed deficiency is tactical decision, defendant must demonstrate that strategy was “manifestly unreasonable”).

“[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial,” Commonwealth v. Williams, 450 Mass. 879, 892 (2008), quoting Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), where evidence can be presented, “including an ‘explanation by trial counsel for his [or her] actions.’ ” Williams, supra, quoting Zinser, supra at 811. Here, the defendant's trial counsel was forced to contend with the fact that the defendant had admitted to bringing a knife to a fist fight with one of the victims. In these circumstances, without a more complete record, that may include trial counsel's rationale for her decision to make such an argument in closing, “we are unable to evaluate the reasonableness of that strategy.” Williams, supra. An affidavit from trial counsel, which we do not have, is needed on this point. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) (“an ineffective assistance of counsel challenge made on the trial record alone,” and without affidavit from counsel, is in its “weakest form ․ because it is bereft of any explanation by trial counsel for [her] actions and suggestive of strategy contrived by a defendant viewing the case with hindsight”). As a result, the defendant's claim of ineffective assistance of counsel must fail on direct appeal. See id.

4. Conditions of probation. The defendant argues that the conditions of his probation requiring him to abstain from drugs and alcohol and to submit to random testing pose a significant burden on him and are not reasonably related to the goals of his probation. On the record before us, we agree.

There is no evidence in the record that the defendant was using drugs or alcohol at the time he committed the offenses, nor is there any indication that the defendant has ever used drugs or alcohol. The only argument presented by the Commonwealth at sentencing was that the defendant had previously thrown parties where “hard drugs” were present but there was uncertainty as to whether he participated in their use. As a result, the Commonwealth did not request the conditions that were ultimately imposed, but instead requested only that the defendant be ordered to submit to a substance abuse evaluation.9

“A judge's latitude in sentencing is great but not infinite.” Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 859 (2009). To be enforceable, a probation condition must be “ ‘reasonably related’ to the goals of sentencing and probation.” Commonwealth v. Eldred, 480 Mass. 90, 96 (2018), quoting Commonwealth v. Obi, 475 Mass. 541, 547 (2016). Even where a condition implicates a constitutional right, as does the condition to submit to random alcohol and drug testing, it is valid only if “ ‘reasonably related’ to the goals of sentencing and probation, in light of the defendant's underlying crime and [his or] her particular circumstances.” Eldred, supra, quoting Obi, supra. “The primary goals of probation are rehabilitation of the probationer and protection of the public.” Gomes, supra at 858. Other goals include “punishment, deterrence, and retribution.” Id., quoting Commonwealth v. Power, 420 Mass. 410, 415 (1995), cert. denied, 516 U.S. 1042 (1996).

Where there is no evidence that the defendant has ever used drugs or alcohol, and the defendant's offenses did not involve drugs or alcohol, “requiring the defendant to submit to random testing, as a matter of law, is not reasonably related to any recognized probationary goal.” Gomes, 73 Mass. App. Ct. at 859. It is also not apparent on this record what the judge's reasoning was for imposing the condition of drug and alcohol abstention and what its relationship may be to a legitimate probationary goal, as it pertains to this defendant and his offenses. Compare Commonwealth v. Williams, 60 Mass. App. Ct. 331, 332 (2004).

Conclusion. We vacate so much of the judgments as imposed, as conditions of probation, random drug testing of the defendant and the defendant's abstention from drugs and alcohol, and remand the matter for resentencing. On remand, if the judge determines, upon further consideration, that either or both of those conditions of probation are warranted, the judge should articulate his reasoning for imposing them, including how those conditions are “reasonably related to recognized probationary goals for this particular defendant.” Gomes, 73 Mass. App. Ct. at 861. See Williams, 60 Mass. App. Ct. at 333 n.2. In all other respects, the judgments are affirmed.

So ordered.

Vacated in part; affirmed in part


2.   Because Jackson Le and the defendant share a last name, we refer to Jackson by his first name to avoid confusion.

3.   Jackson asserted his privilege under the Fifth Amendment and refused to testify against his brother at trial.

4.   McCarthy also testified that the defendant was jumping up and down in the shower, making loud noises, and had sent the victims “threatening text messages.” There was no explanation at trial for why the defendant was behaving in this manner.

5.   Later testimony, however, indicated that the blood was coming from Jackson's hand, which he was using to protect his neck from the knife.

6.   Though there was some dispute about whether the knife caused Jackson's neck or hand to bleed, the distinction does not affect our conclusion.

7.   The Commonwealth proceeded under theories of both attempted battery and imminently threatened battery.

8.   The defendant also contends that the cumulative effect of the above-claimed errors created a substantial risk of a miscarriage of justice and requires the reversal of his convictions. Given our disposition of the defendant's claims, individually, we disagree. Any cumulative error “was no more prejudicial than the individual errors, which had minimal impact.” Commonwealth v. Kosilek, 423 Mass. 449, 457 (1996).

9.   The defendant was not ordered to submit to a substance abuse evaluation, but was ordered to undergo a mental health evaluation. That condition is not contested on appeal.

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