March 16, 2011
Commonwealth v. Kenneth Luciano
Docket No 09-P-1585.
Assault and Battery by Means of a Dangerous Weapon, Error, Harmless.
The defendants, Kenneth Luciano and Kimberly White, were tried for armed robbery, witness intimidation, and assault and battery by means of a dangerous weapon. The were acquitted the defendants of armed robbery and witness intimidation, but the jury was deadlocked as to the other charges. A second jury trial was held before the same judge and both defendants were convicted of two counts of assault and battery by means of a dangerous weapon. The defendants appealed their convictions and moved for a new trial, claiming that the judge's denial of their requests to obtain a transcript of the first trial for use in the second trial was erroneous. The transcript should have been made available; however, they were not entitled to appellate relief. Also, an omission in the judge's instructions on joint venture required that defendant White's convictions of assault and battery by means of a dangerous weapon be reversed. The convictions were otherwise affirmed.
Facts
On August 22, 2007, White lured the victim, Donald Reynolds, to a designated area, where he was beaten by Luciano and another man, Timothy Malloy. Previously, Malloy, Reynolds and Luciano all had been romantically involved with White. For some period prior to the beating, White had been living with Luciano. However, after discovering that Reynolds had won some money while gambling, she began to see him again. Reynolds tried to persuade White to reunite with him permanently after learning that Luciano had fathered a child with a different woman. White told Reynolds that she would leave Luciano if Reynolds could prove the accusation. Reynolds paid the other woman for test results establishing Luciano's paternity. On the day of the beating, Reynolds went with White to a mall and spent thousands of dollars on her and her children, but when he found her with Luciano later the same day, a heated argument ensued.
That evening, White called Reynolds to tell him that the argument was "stupid." She also said that she wanted to confront Luciano about the paternity test but was afraid to do so. She told Reynolds that if he gave the papers to Luciano, she would be with him romantically. Later, she left several messages for Reynolds telling him that she was with Malloy and Luciano on Spring Street, and urging him to come over. Reynolds went to Spring Street. White pointed him down an alley, which (unbeknownst to Reynolds) was Malloy's residence. Reynolds then saw Luciano hiding in the alley and walked toward him, where they began to argue. As they did, Malloy came from the left of Reynolds and beat him on the head with a glass bottle. Luciano, who was also a security guard, beat Reynolds with a security flashlight. Eventually, Reynolds was left bleeding and lying on the ground until help arrived.
That evening, White called Reynolds to tell him that the argument was "stupid." She also said that she wanted to confront Luciano about the paternity test but was afraid to do so. She told Reynolds that if he gave the papers to Luciano, she would be with him romantically. Later, she left several messages for Reynolds telling him that she was with Malloy and Luciano on Spring Street, and urging him to come over. Reynolds went to Spring Street. White pointed him down an alley, which (unbeknownst to Reynolds) was Malloy's residence. Reynolds then saw Luciano hiding in the alley and walked toward him, where they began to argue. As they did, Malloy came from the left of Reynolds and beat him on the head with a glass bottle. Luciano, who was also a security guard, beat Reynolds with a security flashlight. Eventually, Reynolds was left bleeding and lying on the ground until help arrived.
Issue 1: Were the defendants entitled to the transcript from their first trial?
Immediately after the first trial, White, an indigent, moved to obtain the transcript of the prior proceedings. The judge denied the motion without a hearing, saying that the "general, non-specific reason" offered was insufficient. On the first day of the second trial, Luciano's counsel moved that Reynolds’ testimony from the first trial should be transcribed to impeach Reynolds during cross-examination on his direct testimony, i.e., that he was holding the paternity papers in his hand when he approached Luciano. The judge denied the request and both defendants objected.
Requests by indigent defendants for funds to prepare their defense are governed by G.L. c. 261, §§ 27A-27G: "If the court makes a finding of indigency, it shall not deny any request with respect to normal fees and costs, and it shall not deny any request … if it finds the document … is reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as he would have if he were financially able to pay. The court shall not deny any request without first holding a hearing thereon." According to § 27C(4), White's motion should not have been denied without a hearing. The judge's concerns were unsubstantiated. The denial of the motion on the ground that she failed to make a showing of need was a violation of her constitutional right to equal protection. The "reasonably necessary" standard must be met whenever a defendant requests funds for the transcript of a prior mistrial, even if the defendant has not made a specific showing of the transcript's use. However, the potential impeachment had no relationship to the main issue, which was whether the defendants were joint venturers in the beating; it went only to the issue of credibility. Luciano's counsel was able to use his memory of the first trial to cross-examine Reynolds effectively. The failure to give the defendants a transcript was inconsequential. Accordingly, it was harmless beyond a reasonable doubt.
Requests by indigent defendants for funds to prepare their defense are governed by G.L. c. 261, §§ 27A-27G: "If the court makes a finding of indigency, it shall not deny any request with respect to normal fees and costs, and it shall not deny any request … if it finds the document … is reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as he would have if he were financially able to pay. The court shall not deny any request without first holding a hearing thereon." According to § 27C(4), White's motion should not have been denied without a hearing. The judge's concerns were unsubstantiated. The denial of the motion on the ground that she failed to make a showing of need was a violation of her constitutional right to equal protection. The "reasonably necessary" standard must be met whenever a defendant requests funds for the transcript of a prior mistrial, even if the defendant has not made a specific showing of the transcript's use. However, the potential impeachment had no relationship to the main issue, which was whether the defendants were joint venturers in the beating; it went only to the issue of credibility. Luciano's counsel was able to use his memory of the first trial to cross-examine Reynolds effectively. The failure to give the defendants a transcript was inconsequential. Accordingly, it was harmless beyond a reasonable doubt.
Issue 2: Was there a substantial risk of miscarriage of justice?
The judge's charge did not tell the jury that to find the defendants guilty of assault and battery by means of a dangerous weapon on a theory of joint venture, the Commonwealth had to prove beyond a reasonable doubt that the defendant knew that his or her co-venturer was armed with a dangerous weapon. Neither defendant objected at trial, so the court determined whether the omission was a substantial risk of a miscarriage of justice.
As to defendant White, the Commonwealth conceded that her convictions cannot stand. The jury could have found that, although White laid a trap, she did not know that her co-defendants had weapons. As to defendant Luciano, there was no substantial risk of a miscarriage of justice. There was no real risk that the jury would have reached a different result had they been told that they had to find beyond a reasonable doubt that Luciano knew that Malloy was armed.
As to defendant White, the Commonwealth conceded that her convictions cannot stand. The jury could have found that, although White laid a trap, she did not know that her co-defendants had weapons. As to defendant Luciano, there was no substantial risk of a miscarriage of justice. There was no real risk that the jury would have reached a different result had they been told that they had to find beyond a reasonable doubt that Luciano knew that Malloy was armed.
Issue 3: 3. Other issues.
a. Police officer testimony. Luciano claimed that the investigating officer gave an improper expert opinion as to guilt; he testified that after speaking with Reynolds as he lay bleeding, he told other officers that there was "probable cause to arrest" two individuals: Luciano and Malloy. The court did not think that this testimony was impermissible, as it explained the officer's actions. No substantial risk of a miscarriage of justice resulted from this testimony.
b. Ineffective assistance of counsel. The objections that the defendants claimed their trial counsel should have made most likely would have been futile or would have made no material difference in the case. The motion/trial judge was entitled to reject them.
b. Ineffective assistance of counsel. The objections that the defendants claimed their trial counsel should have made most likely would have been futile or would have made no material difference in the case. The motion/trial judge was entitled to reject them.
Defendant White’s two convictions of assault and battery by means of a dangerous weapon were reversed and the case remanded. As to the convictions of defendant Luciano, the judgments were affirmed.
–Prepared by JWK.
