Commonwealth v. Blanton

100 Mass.App.Ct. 1101

170 N.E.3d 725 (Table)

COMMONWEALTH

v.Michael A. BLANTON.

20-P-226

Appeals Court of Massachusetts.

Entered: July 14, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was found guilty of (1) assault and battery on a household member, G. L. c. 265, § 13M (a ) ; (2) assault by means of a dangerous weapon, G. L. c. 265, § 15B (b ) ; (3) threatening to commit a crime, G. L. c. 275, § 2 ; (4) intimidation of a witness, G. L. c. 268, § 13B ; and (5) assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ). He now appeals.

The defendant's first argument is that the jury's verdicts were coerced. See Commonwealth v. O'Brien, 65 Mass. App. Ct. 291, 294-295 (2005) (describing jury coercion). The defendant was convicted after a two-day trial. On the first day, the jury were dismissed at 4 P.M. On the second day, however, they were sent to deliberate at 3:30 P.M. They were not instructed that they might go home without having first reached a verdict, there was no explanation by the judge of the timeline for their deliberation, they were not informed of any arrangements with respect to dinner, nor were they asked or told anything about arrangements for the end of the day with respect to personal issues that might affect their deliberations, such as medical or childcare matters. At 5:32 P.M. there was a question from the jury about the difference between assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon. The judge reinstructed them, and they resumed deliberations at 5:40 P.M. The verdict was returned approximately ten minutes later at 5:50 P.M.

The defendant raised no objection to any of these procedures at the time, but regardless of the standard of review that might be applicable to this claim, we are not persuaded on this record that jury coercion has been demonstrated.

We have no doubt that at some point a jury may be coerced by withholding food or rest, or, indeed, by failure to inform them that a break in deliberation, adjournment for the evening, a meal, or some other arrangement for their comfort or convenience, is forthcoming. The days are long past since when, "[u]nder early English law, juries could be coerced into agreement by withholding ‘meat, drink, fire, or candle, unless by permission of the judge, till they [were] all unanimously agreed.’ " Commonwealth v. Jenkins, 416 Mass. 736, 737-738 (1994), quoting 3 W. Blackstone, Commentaries *375.

It is, of course, difficult to articulate a bright line beyond which deliberation cannot be allowed to continue without some explanation by the judge of the plan for the jury's continued deliberation, or some statement that they are permitted to deliberate at their own pace, and that their various needs will be met to permit them to do so. Indeed, it might be the better practice, in cases in which juries are required to deliberate later in the afternoon, to spell out for them the anticipated course of proceeding as evening approaches.

Nonetheless, we are not persuaded that what happened here can be described as a matter of law to have been coercive. The jury commenced deliberation at 3:30 and received all the exhibits, some of which required redaction, shortly after 4 P.M. At 5:30, they asked a relevant and appropriate question and at 5:50 reached a verdict. In the absence of any evidence of any of the jurors feeling coerced or having a circumstance that might have rendered the course of proceedings coercive, we conclude that the defendant has not met his burden to demonstrate coercion.

The defendant argues next that the conviction for assault and battery by means of a dangerous weapon must be vacated because that charge was not read to the jury at the outset of the case. The jury were properly instructed on the count and rendered a verdict of guilty.

There was no objection either to the failure of the clerk to read the charge, nor to the jury being instructed on the charge prior to beginning their deliberations. The defendant cites no case requiring that the charges be read at the outset to the jury. He cites no authority for the proposition implicit in his argument that in order to be tried on a count it must be read at the outset of the case by the clerk. To the extent the defendant argues that due process was violated because the failure to read the charge of assault and battery by means of a dangerous weapon meant that the jurors were not put on notice at the outset of what aspect of the case warranted their particular attention, we think in the circumstance of this case, the claim is without merit. Putting to one side the fact that the name of each charge does not necessarily inform the jurors of the elements of the offense, something that is explained to them only during the judge's instruction following the close of all evidence, in this case the jury were informed during the reading of the charges that the defendant had been charged both with assault and battery on a household member and with assault by means of a dangerous weapon. Given this, we do not think that the omission of the assault and battery by means of a dangerous weapon charge would have left them inattentive to the evidence relevant to that latter charge.

The defendant's next claim is based on the fact the jury were not instructed that the convictions for cognate charges were required to be based on separate and distinct acts. The defendant did not object or propose any such instruction. Whether this is framed as an unpreserved claim of error, or, as the defendant would have it, ineffective assistance of counsel, the defendant is entitled to relief only if he can demonstrate a substantial risk of a miscarriage of justice from the failure to instruct on separate and distinct acts. See Commonwealth v. Randolph, 438 Mass. 290, 296 (2002) ("when a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel ... we do not evaluate the ineffectiveness claim separately. If we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice -- ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not").

The defendant argues first that assault by means of a dangerous weapon is a subset of assault and battery by means of a dangerous weapon, and that in the absence of a separate and distinct acts instruction, the defendant may have been convicted of both counts on the basis of the same act or series of acts. As the defendant notes, there is reversible error in the absence of an objection where there is "any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act or series of acts." Commonwealth v. Kelly, 470 Mass. 682, 700 (2015).

Having reviewed the transcript of the trial, we conclude that there is no such significant possibility here. The only battery involving a dangerous weapon described in the evidence was contact between the victim's head and the wall or floor.² Where there was also testimony that the defendant held a baseball bat with two hands as he was standing over the victim as if preparing to hit her with it while threatening her -- threats for which the defendant was convicted -- we do not think there is a significant possibility that the jury's conviction on the assault charge was based not on the incident with the baseball bat, but on some momentary fear on the part of the victim that her head would make contact with the floor or wall immediately before it actually did so.

The defendant also argues that "[a]s instructed, ‘threats’ [to commit a crime]...