Com. v. Perry

Page 640

843 N.E.2d 640

65 Mass. App. Ct. 624

COMMONWEALTH v. Marcus PERRY.

No. 04-P-106.

Appeals Court of Massachusetts, Plymouth.

Argued December 8, 2005.

Decided March 2, 2006.

COPYRIGHT MATERIAL OMITTED

David A.F. Lewis, Cambridge, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: DUFFLY, SMITH, & COHEN, JJ.

SMITH, J.

After a jury trial in Superior Court, the defendant was convicted of armed burglary, armed assault with intent to murder, and assault and battery by means of a dangerous weapon.¹ Following the entry of the guilty verdicts, the defendant was arraigned on three indictments alleging that he was a habitual offender, see G.L. c. 279, § 25. After a jury-waived trial, the judge convicted the defendant of being a habitual offender. As prescribed by G.L. c. 279, § 25, the defendant was sentenced to the maximum penalty of life imprisonment for armed burglary, a concurrent twenty-year sentence for armed assault with intent to murder, and a concurrent ten-year sentence for assault and battery by means of a dangerous weapon.

On appeal, the defendant argues that (1) the evidence was insufficient to support the unlawful entry element of armed burglary; (2) counsel was ineffective for failing to request an instruction on the lesser included offense of armed assault with intent to kill, based on either a heat of passion or an intoxication theory; (3) the evidence was insufficient to support the twice "committed" prerequisite to punishment as a habitual offender; (4) the indictments should have been dismissed because false and misleading evidence was presented to the grand jury; and (5) assorted claims raised in his reply brief require a new trial.

The jury could have found the following facts. On September 4, 2000, the victim, Daniel Leger, hosted a Labor Day cookout at his home in Brockton. His guests, consisting primarily of his family and neighborhood friends, began to arrive in the early afternoon. Among the guests were Lisa Matthews and her boyfriend, the defendant, who is the father of Lisa's child. Lisa lived a short distance from the victim's house. About one-half hour after his arrival, the defendant spoke with the victim's fourteen year old son, Joshua Leger. As a result of that conversation, Joshua formed the opinion that the defendant was drunk. The defendant, however, was not observed drinking alcohol while at the cookout. The victim drank beer all day and also ingested some cocaine.

When it became dark, the group at the cookout disbanded. A few of the guests stayed behind to help clean up, including Lisa, but not the defendant. After cleaning up, the victim and his guests were relaxing in the living room of the victim's house, when a neighbor telephoned. As a result of that call, the victim and his guests went out to the front porch. At that point, the defendant came around from the side of the house to the area near the front porch and began to yell at Lisa that she needed to leave.

When Lisa refused to leave, the defendant grabbed her by the neck as she was standing on the stairs to the front porch and said, "Let's go." When the defendant did not release Lisa, the victim grabbed him and the two began to fight. They wrestled on the porch and then fell over the railing, breaking it, and landed on the ground. The guests on the porch were able to separate the two men. The defendant began to walk away in the direction of Lisa's apartment and, as he did so, told the victim that he was going to come back and kill him.

Everyone went inside the victim's house and the victim locked the door. He went upstairs to retrieve a baseball bat, and Lisa and Joshua followed him. A heated discussion erupted, and within minutes Joshua left and went next door. Joshua failed to lock the door behind him. About five to fifteen minutes after the fight had occurred, Joshua, who was now on a neighbor's front porch, saw the defendant walking towards his father's house. Joshua followed him, keeping his distance. Joshua saw the defendant put his hand on the front door knob, turn it, and enter the victim's home.

Lisa and a neighbor were arguing on the second-floor landing when the defendant entered. The victim, who was also at the top of the stairs, saw the defendant walk through the front door. Within about one second of entering the home, the defendant walked quickly up the stairs towards the victim. The victim told the defendant to leave. A pushing match between the victim and the defendant ensued and the victim had the defendant against the wall when the defendant raised his right arm and struck him. The victim felt several "whacks in the face and then one down lower." Joshua saw a silver blade in the defendant's hand when he raised his arm and made contact with the victim's face, and then Joshua saw two streaks of blood going down the wall.

The defendant then turned and walked quickly down the stairs. Joshua, who was standing at the bottom of the stairs, ran out of the house ahead of the defendant. Joshua did not notice anything in the defendant's hands when he came out of the house. The defendant walked quickly towards Lisa's apartment. Joshua saw a police cruiser driving down the street and flagged it down. The police officer stopped the vehicle and spoke to Joshua. The police officer then went into the victim's house, took care of the victim's immediate needs, and called for an ambulance.

At the hospital, the victim was treated for three stab wounds to the face and one stab wound to the abdomen.² Tests conducted on the victim at the hospital revealed that the victim's blood alcohol content was slightly above the legal limit for operation of a vehicle, and traces of cocaine were detected in his urine. Approximately two weeks after the incident, the defendant was arrested.

The defense presented no witnesses. Through cross-examination and argument, the defendant attempted to establish a defense of misidentification. The theory had some basis in the evidence because Lisa did not testify at trial and the victim could make only an equivocal identification of the defendant. For example, the victim testified, "I don't remember the looks too well, but it's got to be him because, you know." When pressed, the victim said, "Well, the face doesn't really look the same, but I'm sure it was him." Although the victim's son clearly identified the defendant as the perpetrator, defense counsel argued that Joshua did so only to support his father.

1. Unlawful entry. The defendant argues that the judge failed to instruct the jury to consider whether his entry into the victim's home was permitted, and his trial counsel was ineffective for failing to request such an instruction. The omission was critical, the defendant argues, because an element of armed burglary is unlawful entry, see Commonwealth v. Robbins, 422 Mass. 305, 313-316, 662 N.E.2d 213 (1996), and an entry is not unlawful if it is permitted. Here, according to the defendant, the evidence shows that he had permission to enter the home during the cookout and that that permission had not been revoked until after he entered the dwelling later that evening and the victim told him, for the first time, to leave.

In support of his argument, the defendant relies on the principles first set forth in Commonwealth v. Robbins, supra. In Robbins, the evidence showed that the defendant had repeatedly been allowed to return to the apartment of his estranged wife, the victim, as recently as two days before she was killed and that he had begun to paint the kitchen while he was there. Id. at 313 & n. 4, 662 N.E.2d 213. The Robbins court ruled that in such circumstances the jury must be informed of the factors that bear on a defendant's right to enter. Id. at 315, 662 N.E.2d 213. See Commonwealth v. Fleming, 46 Mass.App. Ct. 394, 396-397, 706 N.E.2d 1138 (1999). These factors have been interpreted to include "whether the entry was permitted, expressly or through cumulative practice; whether the entry was privileged; and whether the defendant knew that he had no right to enter the premises." Commonwealth v. Fleming, 46 Mass.App.Ct. at 396, 706 N.E.2d 1138, citing Commonwealth v. Robbins, 422 Mass. at 315, 662 N.E.2d 213.

Here, viewing the evidence in the light most favorable to the defendant does not support the defendant's contention that he did not know that he did not have permission to return to the victim's home. First, there was no evidence of any cumulative practice that suggested that the defendant regularly entered the victim's home prior to the day of the cookout. The defendant points to portions of the victim's testimony that, according to the defendant, indicate that the defendant was in and out of the victim's house the day of the cookout.³ Even if we assume that the victim was describing the defendant being "in and out" of the victim's home during the cookout, it does not mean, in view of the defendant's subsequent actions in engaging in a wrestling match with the victim, that he had permission later to enter the victim's home to stab him repeatedly. Common sense dictates that once the defendant threatened to kill the victim, the defendant could not reasonably have believed that he still had permission to enter the victim's home, at least in the absence of some intervening event or permission. Contrary to the defendant's contention on appeal, the facts of this case simply do not present a situation where an invited guest in a home suddenly turns violent. See and contrast Commonwealth v. Fleming, 46 Mass.App.Ct. at 395-397, 706 N.E.2d 1138. There was no error.

2. Failure to instruct on lesser included offense of assault with intent to kill. The defendant argues that the trial judge should have instructed the jury, sua sponte, that they could find the defendant guilty of assault with intent to kill, the lesser included offense of assault with intent to murder, on the basis that the defendant acted without malice in the...