Commonwealth v. Royal

92 Mass.App.Ct. 1103

87 N.E.3d 1201 (Table)

COMMONWEALTH

v.Yolanda ROYAL.

15-P-1668

Appeals Court of Massachusetts.

Entered: August 17, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Yolanda Royal, raises multiple claims of error in this consolidated appeal after her convictions—of assault and battery by means of a dangerous weapon (shod food), assault and battery, and threatening² —and from the orders denying her motions for new trial and postconviction discovery.³ We affirm.

1. Sufficiency of the evidence. The defendant claims that her motions for a required finding of not guilty were improperly denied as to the charge of assault and battery by means of a dangerous weapon. We review to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). We discern no error.

The jury could have found that the defendant kicked the victim more than once in the back of her calves with a closed-toe shoe while the victim descended a set of stairs, "trying to get away from [the defendant]." The kicks were with sufficient force that the victim required the assistance of her boy friend, who was below her on the stairs, in order not to fall down. Viewed in the light most favorable to the Commonwealth, we conclude that this evidence was sufficient to present a jury question whether the defendant's shod foot was dangerous as used. See Commonwealth v. Mattei, 455 Mass. 840, 844-845 (2010). The defendant's motions for a required finding were properly denied.

2. Constitutional challenges. The defendant claims, for the first time on appeal, that the definition of "dangerous weapon" in G. L. c. 265, § 15A(b ), is unconstitutionally vague, as applied to the circumstances of her case. An as-applied challenge to a statute may be preserved in a motion for a required finding of not guilty after the Commonwealth has presented its evidence. See Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986). Here, the defendant made no such argument at trial. Our review is therefore limited, and we act "only in response to a serious and obvious error creating a substantial risk of a miscarriage of justice." Commonwealth v. Oakes, 407 Mass. 92, 94-95 (1990) (quotation omitted). No such error occurred.

A statute is considered unconstitutionally vague if people "of common intelligence must necessarily guess at its meaning." Commonwealth v. Sefranka, 382 Mass. 108, 110 (1980), quoting from Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). "If a statute has been clarified by judicial explanation, however, it will withstand a challenge on grounds of unconstitutional vagueness." Commonwealth v. Crawford, 430 Mass. 683, 689 (2000), citing Rose v. Locke , 423 U.S. 48, 50-52 (1975). A statute is not vague "if it requires a person to conform [her] conduct to an imprecise but comprehensible normative standard." Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).

"[T]he phrase ‘dangerous weapon’ has a defined meaning under the common law that is routinely applied to those statutory crimes that have a dangerous weapon element." Commonwealth v. Wynton W., 459 Mass. 745, 749 (2011). It is a familiar rule that dangerous weapons under the common law include those objects that are dangerous per se, in that they are "designed and constructed to produce death or great bodily harm," Commonwealth v. Appleby, 380 Mass. 296, 303 (1980), as well as those objects that are not dangerous per se but "become dangerous weapons because they are ‘used in a dangerous fashion.’ " Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001), quoting from Commonwealth v. Appleby, supra at 304. Whether a particular object is dangerous as used is "a highly fact-bound question that requires ‘not only consideration of any evidence as to the nature and specific features of the object but also attention to the circumstances surrounding the assault and the use of the object, and the manner in which it was handled or controlled.’ " Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 191 (2016), quoting from Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984). "[T]he question whether a weapon is dangerous as used is always one for the fact finder." Commonwealth v. Appleby, supra at 307 n.5.

Given these principles, a person of common intelligence would understand that using closed-toe shoes to kick a person in the back of the legs repeatedly as she descended a stairway was behavior well within the law's prohibition. As such, there was no error and no substantial risk of a miscarriage of justice.

The defendant additionally challenges her conviction of assault and battery by means of a dangerous weapon on equal protection grounds, claiming that there is no rational basis for distinguishing the defendant's kick from a push with a finger or other body part in the same circumstances. The defendant "has the burden of proving the absence of any conceivable grounds which would support the statute." Commonwealth v. Franklin Fruit Co., 388 Mass. 228, 235 (1983). See Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977) ("[T]he challenger must bear the heavy burden of overcoming the presumption of constitutionality which attaches to th[e] statute"). Here, the rational basis for the statute is readily apparent: "The criminal law of assault and battery by means of a dangerous weapon expresses society's desire to punish the use of an instrument which is capable of producing serious bodily harm." Commonwealth v. Appleby, supra at 306-307. Accordingly, the defendant's equal protection claim lacks merit.

3. New trial and discovery. The defendant argues that the trial judge improperly denied her motions for new trial and for postconviction discovery without a hearing. Each motion pertained to the Commonwealth's decision to call Riccardo Royal as a witness on the second day of trial. At the time of the offense, Riccardo⁴ was the victim's boy friend and was in the midst of proceedings for a divorce from the defendant.

Riccardo was reflected as a witness in the police report pertaining to this incident, which was provided to the defendant prior to trial. On the first day of trial, Riccardo was present and sworn, though the prosecutor indicated she did not intend to call him as a witness. The next day, the prosecutor indicated her intent to call Riccardo, and was permitted to do so over the defendant's objection. Notably, the defendant did not request a voir dire of the witness or a continuance for purposes of further investigation.

In the defendant's motion for new trial, she argues that the late decision to call Riccardo gave rise to an unfair trial. The only prejudice she argues that resulted from this late notice, however, was the lack of opportunity to impeach Riccardo with his record of criminal convictions. The defendant also argues that the Commonwealth improperly withheld exculpatory evidence by failing to provide the defense with the witness's record of criminal convictions. See Brady v. Maryland, 373 U.S. 83, 87 (1963).

The denial of a defendant's motion for new trial is reviewed for abuse of discretion. Commonwealth v. Marinho, 464 Mass. 115, 123 (2013). We give special deference "to the decision of the motion judge with respect to a motion for new trial where, as here, the motion judge was also the trial judge." Commonwealth v. Myers, 51 Mass. App. Ct. 627, 632 (2001). Here, the judge did not abuse his discretion in denying the defendant's motion for new trial without an evidentiary hearing, because the motion and affidavits raised no substantial issue. See Commonwealth v. McWilliams, 473 Mass. 606, 622 (2016).

Assuming without deciding that, as the defendant claims, the prosecutor's late decision to call Riccardo constituted a late disclosure of evidence, the defendant remains unable to demonstrate any resulting prejudice. See Commonwealth v. Lao, 460 Mass. 12, 20 (2011) (in case of late disclosure of evidence, "the question becomes whether the defendant had sufficient time to adjust to the disclosure in shaping and preparing [her] defense"). Had the defendant wished to investigate Riccardo's criminal record (or any other issues relating to his testimony) upon learning he would be called, a short delay in the trial would likely have sufficed. The defendant's failure to request a continuance or voir dire "tends to undermine [her] assertion that [s]he would have pursued a different course of cross-examination" if she had received the information earlier. Commonwealth v. Richenburg, 401 Mass. 663, 671 (1988).

The defendant's claim that the Commonwealth withheld the defendant's criminal record is equally unavailing. "The defendant did not request that the district attorney's office turn over [Riccardo's] criminal record[ ].... Nor could the district attorney have done so, if [s]he indeed possessed [it]. See G. L. c. 6, § 172. The proper route for the defendant to obtain prior convictions of prospective witnesses from the Commonwealth is by requesting the judge to order the probation department to produce them. See Mass.R.Crim.P. 14(a)(2), 378 Mass. 874 (1979)." Commonwealth v. Martinez, 437 Mass. 84, 95 (2002). Defense counsel made the appropriate motion, which was allowed approximately six months prior to trial. If the probation department failed to provide the records, the defendant's remedy remained with the court, and not the district attorney's office.

The...