J. Brown
HISTORY: The defendant was convicted of two counts of
the lesser included offense of armed assault with intent to kill, two counts of
mayhem (second branch), and two counts of assault and battery by means of a
dangerous weapon. He argued that trial
counsel was ineffective and moved for a new trial. The trial judge denied the motion and the
defendant appealed. His appeal from the
denial of a new trial was combined with his direct appeal claiming (1) the two
convictions of assault and battery were duplicative of his two mayhem
convictions, (2) the victim was not properly qualified to testify about her
medical condition, and (3) the jury instructions were flawed.
FACTS: The defendant was staying at his cousin’s
apartment where her four-year-old son and her boyfriend also lived. One evening, the defendant asked the
boyfriend to help him get something he dropped under the bathroom sink. When the boyfriend bent down, the defendant
grabbed his forehead and tried to slice his throat with a six-inch steak
knife. The boyfriend blocked the
defendant’s knife with his hand causing his fingers to get sliced and his arm
gouged. The defendant accused the
boyfriend of robbing him while stabbing the boyfriend in his head, neck, and
face and claimed to be a gangster. The
boyfriend struggled to get the knife as the defendant continued stabbing him.
The cousin
heard the commotion and saw the defendant standing over her boyfriend punching
him as he was trying to cover his head with his arms. When she tried to push the defendant away,
she could see he was holding a knife.
The defendant tried to cut her throat, stabbed her head, back of her
neck, and her fingers. Once she was on the
floor, he told her he “would get [her] where it would hurt [her]” and sliced
her face. The cousin’s son was watching
and yelling for the defendant to stop.
The defendant stopped long enough for the cousin to play dead and take
her son to safety in a neighbor’s apartment on the second floor. The boyfriend followed her blood trail to
meet up with them while the defendant believed she was dead.
The police
saw the most blood in the bathroom and the knife handle was stuck on the shower
curtain in a pool of blood. One officer
gave first aid to the cousin and another officer helped her boyfriend. The cousin’s cheek stuck to the towel and
pulled away at one point to where the officer could see her teeth through the opening. Both were taken to separate hospitals where
they stayed for five days.
The defense
did not call any witnesses, but played a video of the defendant’s interview
with the police for the jury. According
to the defendant, the boyfriend accused him of taking his Oxycontin pills,
lunged at him and tried to stab him with a knife. The defendant described the two as “jumping
on me,” and while one was choking him the other was trying to stab him. He then “blacked out” after snapping the
knife and said that his cousin and her boyfriend were “all fucked up [on
Oxycontin]” and were “going to kill me.”
The next thing he remembered was seeing a lot of blood and told the
police that he “would never hurt his cousin.”
ISSUE (1): Are there duplicative convictions where there
is assault and battery by means of dangerous weapon and mayhem all relating to
the same victim?
No.
Assault and battery committed by means of a dangerous weapon is a lesser
offense of second-branch mayhem as charged here. See Commonwealth v. Martin, 425
Mass. 718, 721-23 (1997). Convictions of
both are allowed as long as they “rest on separate and distinct acts.” Commonwealth v. King, 445 Mass. 217,
225 (2005). It would have been better
had the judge instructed the jury specifically that the convictions had to be
based on separate acts, but the jury received substantial guidance in viewing
the evidence. Therefore there is no
reversible error.
One mayhem
charge was based on the viciousness of the attack on the cousin’s face. The defendant waited until the cousin fell to
the floor before telling her that he “would get [her] where it hurt [her],” and
stabbed her hard enough for a portion of her cheek to separate from her head is
different from the other wounds the defendant caused. This contrasts with the other injuries not
only because of his statement and severity of the wound, but the face is an
area where a disfiguring injury particularly egregious. See Commonwealth v. Drew, 67
Mass. App. Ct. 261, 262 (2006).
The
evidence for the boyfriend was less dramatic, but left a disfiguring injury to
the boyfriend’s fingers and arm. The
rest of the stabbings were to the boyfriends head, neck, and back. The judge instructed the jury on the elements
of both offenses with “maim” or “disfigure” used no fewer than eighteen times
to describe mayhem, and that the offense requires proof of an injury that
“disfigures, cripples, or inflicts serious or permanent physical injury.” As for assault and battery by means of a
dangerous weapon, the judge instructed a requirement of “touching” of the
victim, “however slight,” and the touching must be committed by means of a
dangerous weapon.
The
evidence showed a series of separate and distinct acts, combined with the
prosecutor’s closing argument and the judge’s instructions clearly differentiated
the two offenses. Therefore there was no
substantial risk of separate convictions based on the same acts.
ISSUE (2): Can a victim provide testimony concerning the
medical effects that followed from her injuries?
Yes. The evidence was unrelated to any live issue
at trial. The defendant did not say how
the evidence influenced the result, and there is no such effect from the
record.
ISSUE (3): Did the judge give improper instructions for
self-defense, witness’s prior statements, disbelief of a witness, and first
aggressor?
No. The judge repeatedly instructed the jury on
all three elements of self-defense, including the definition of the third
element. Permitting the use of prior
inconsistent statements did not limit the jury in considering the defendant’s
video-recorded statement because the defendant did not testify at trial and
therefore there was no reason for the jury to use these instructions for the
defendant. The judge specifically told
the jury that the evidence in the case consisted of “the testimony of the
witnesses” and “forty-one exhibits.” The
defendant’s recorded statement was among the forty-one exhibits.
The
defendant conceded that the judge correctly instructed the jury in accordance
with Commonwealth v. DiRusso, 60 Mass. App. Ct. 235, 241 (2003), that
“disbelief of a witness’s testimony does not constitute evidence of the
contrary proposition.” His claim that
the instruction prevented the jury from using the victims’ alleged false
statements as consciousness of guilt evidence does not stand. It is only relevant where it permits an
inference of a defendant’s guilt of the crime charged. See Commonwealth v. Stuckich,
450 Mass. 449, 453 (2008), and quoted text.
The judge
instructed the jury they could consider the boyfriend’s past behavior in
determining the first aggressor. Commonwealth
v. Adjutant, 443 Mass. 649, 664 (2005).
The defendant argues that drawing and using the knife is an act that is
additional to being the “first aggressor” and without explanation that being
the first aggressor may include drawing and using the knife, the instruction is
unduly narrow. The instruction and the
term “first aggressor” include within it an impression of an individual being
the first one to draw and use the weapon without a separate explanation to that
effect. See Commonwealth v.
Niemic, 427 Mass. 718, 720 (1998), and quoted text. There was no error.
ISSUE (4): Was there ineffective counsel warranting a
motion for a new trial?
No. The defendant did not show how information
concerning the reasoning behind his living with his cousin, unrelated to any
live issue at trial, deprived him of “an otherwise available, substantial
ground of defense.” Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). Even
though the cousin stated that the defendant was thrown out of his mother’s
house, by not calling the defendant’s mother to testify (to impeach cousin’s
testimony) is not ineffective counsel. See
Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). The defendant’s summary claim that the errors
were due to counsel’s lack of preparation fails as well for previously stated
reasons.
JUDGMENT: Affirmed, order denying motion for new trial
affirmed (MB)
