Commonwealth v. Shippee

83 Mass.App.Ct. 659

988 N.E.2d 859

COMMONWEALTH

v.Craig SHIPPEE.

No. 11–P–1864.

Appeals Court of Massachusetts, Worcester.

Argued Feb. 4, 2013.

Decided May 31, 2013.

Michael J. Hickson for the defendant.

Donna–Marie Haran, Assistant District Attorney, for the Commonwealth.

Present: VUONO, RUBIN, & SULLIVAN, JJ.

SULLIVAN, J.

The charges in this case arose from events which occurred on the evening of September 12, 2008, in an abandoned building on Main Street in Worcester. The defendant was convicted of indecent assault and battery on a woman named Anne,¹ who died later that night in a fire that consumed the building. He was also convicted of armed assault with intent to kill (as a lesser included offense of armed assault with intent to murder), assault with intent to maim, and assault and battery by means of a dangerous weapon on a second occupant of the building, Raul Robles Santiago.² On appeal, the defendant contends that (1) the judge erred by failing to instruct, sua sponte, that the Commonwealth was required to prove that Anne was alive at the time the defendant was alleged to have committed an indecent assault and battery, (2) the judge erred in allowing the introduction of prejudicial “sympathy” evidence concerning Anne's life and character, (3) the judge erred by failing to instruct the jury on the defendant's right to use deadly force against Santiago, (4) an indictment was defective, (5) the conviction of assault and battery by means of a dangerous weapon was duplicative of the conviction of assault with intent to maim, and (6) counsel was ineffective. We affirm.

Indecent assault and battery instruction. The defendant contends that the failure of the judge to instruct the jury, sua sponte, that the victim must be alive at the time of an indecent assault and battery in order to convict under G.L. c. 265, § 13H, warrants reversal of that conviction. At trial, the defendant's theory was that while he was with her, Anne was alive, but inebriated, and needed assistance in getting to another room that was being used as a bathroom. Santiago testified that when he woke to find an inert and apparently unconscious Anne lying on a mattress with her pants around her ankles, the defendant was stretched over her “pumping up and down.” In statements he made to the police, the defendant maintained that he was only putting Anne back on the mattress after returning from the other room, and that her pants were down because she had defecated on herself. Trial counsel did not request that the jury be instructed that they had to find that Anne was alive at the time of these events, nor did counsel object to the absence of such an instruction. We therefore review for a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563–564, 227 N.E.2d 3 (1967). See Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979).

“It was not incumbent upon the judge sua sponte to instruct the jury on a theory upon which the defense had placed no reliance at trial.” Commonwealth v. Hakkila, 42 Mass.App.Ct. 129, 130–131, 675 N.E.2d 401 (1997).³ There are many sound tactical reasons why the defendant would not have suggested to the jury that he was present when Anne was dead, or that he engaged in the indecent touching of a dead body. The contention that the judge should have done so when counsel did not is unpersuasive. “[I]f the judge had given such an instruction on [his] own, [he] might well have interfered with the defendant['s] right to present [his] chosen defenses.” Commonwealth v. Norris, 462 Mass. 131, 144, 967 N.E.2d 113 (2012). “The consequences of trial tactics may not be converted after conviction into alleged errors by the judge.” Commonwealth v. Roderiques, 462 Mass. 415, 428, 968 N.E.2d 908 (2012), quoting from Commonwealth v. Simcock, 31 Mass.App.Ct. 184, 196, 575 N.E.2d 1137 (1991).⁴

“ Sympathy” evidence. At trial, the prosecution introduced a photograph of Anne taken some ten years before trial. In addition, her sister testified that Anne was a mother of three, and that “[s]he was “very caring with people. She had a heart of gold. If you needed something, she would help you with it. She was great with my children. She was just ... a good person.” The defendant objected to the introduction of the photograph and to the testimony before the witness was heard.⁵ The judge allowed the evidence, but noted the defendant's objection. Viewing the objection “in the context of the trial as a whole,” the objection was preserved. See Commonwealth v. Jones, 464 Mass. 16, 19 n. 4, 979 N.E.2d 1088 (2012). We therefore review the admission of the testimony and the photograph under the prejudicial error standard. See Commonwealth v. Aviles, 461 Mass. 60, 66–67, 958 N.E.2d 37 (2011). See also Commonwealth v. Jones, supra.

There was no error in the admission of the photograph. In the absence of Anne's testimony, it was not improper to put a human face on the proceeding. See Commonwealth v. Degro, 432 Mass. 319, 322–323, 733 N.E.2d 1024 (2000). See also Commonwealth v. Andrews, 403 Mass. 441, 450–451, 530 N.E.2d 1222 (1988); Commonwealth v. Harbin, 435 Mass. 654, 656–657, 760 N.E.2d 1216 (2002). The defendant argues for the first time on appeal that the photograph of Anne in a state of good health was inconsistent with the notion that she was dead at the time of the indecent assault and battery. Since this theory was not argued to either the judge or the jury at trial, no error or prejudice could result.

A closer question is presented by the sister's testimony concerning Anne's character, which was elicited by the prosecutor in a series of questions. “In a case such as this where the victim's character and personal characteristics are not relevant to any material issue, ... the prosecutoris under an obligation to refrain from so emphasizing those characteristics that he risks undermining the rationality and thus the integrity of the jury's verdict.” Commonwealth v. Santiago, 425 Mass. 491, 495, 681 N.E.2d 1205 (1997), S.C., 427 Mass. 298, 693 N.E.2d 127 and 428 Mass. 39, 697 N.E.2d 979, cert. denied, 525 U.S. 1003, 119 S.Ct. 514, 142 L.Ed.2d 426 (1998). Anne's general character (e.g., “a heart of gold”) was not relevant to any theory of the prosecution or the defense. Contrast Commonwealth v. Bonds, 445 Mass. 821, 829–833, 840 N.E.2d 939 (2006) (evidence of rape victim's mental limitations relevant to explain her gullibility and presence with defendant). The testimony in the present case was not properly admitted, but the Commonwealth did not refer to it in its opening or closing, or otherwise emphasize the victim's character at trial. Under these circumstances, “the conviction is sure that the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994) (quotations omitted). ⁶

Instruction on deadly force. Santiago testified that when he woke to see the defendant on top of Anne, he struck the defendant with a tire iron. According to Santiago, the defendant then took the tire iron from him and beat him on the head and face. The defendant told the arson detective that after Santiago struck him, he struck Santiago back with his fists, wrestled the tire iron away from Santiago, and left. The defendant's theory, as explained to the jury by trial counsel in his opening and closing remarks, was consistent with the defendant's statement to police. That is, defense counsel adamantly denied that the defendant had hit Santiago with the tire iron, although counsel did state that if the defendant had done so, it would have been reasonable under the circumstances. Counsel further argued that Santiago told several conflicting stories, and that the real culprits were two men whom Santiago had previously described to the police. The medical personnel who provided treatment to Santiago testified that he was covered with blood and suffered from soft tissue head wounds that were consistent with blunt force trauma from a tire iron, not a fist. The judge instructed the jury on the defendant's right to use nondeadly force in self-defense.

On appeal, the defendant argues that the judge should have instructed the jury on the defendant's right to use deadly force. Because the instruction was not requested, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Zimmerman, 441 Mass. 146, 150, 804 N.E.2d 336 (2004). A deadly force instruction would have been inconsistent with the stated theory of the defense, that is, that only nondeadly force was used. The judge was not obligated to instruct on a theory that was at odds with, and would potentially undermine, the defense presented. See Commonwealth v. Norris, 462 Mass. at 143–144, 967 N.E.2d 113. Moreover, even if the defendant had requested a deadly force instruction in the alternative, a defendant is entitled to a self-defense with deadly force instruction only if any view of the evidence supports a reasonable doubt as to whether the defendant, among other things, reasonably and actually believed he was in imminent danger of death or serious bodily harm, and availed himself of all reasonable means of retreat. Commonwealth v. Pike, 428 Mass. 393, 395–399, 701 N.E.2d 951 (1998). Viewing the evidence in the light most favorable to the defendant, once he took the tire iron from Santiago, “any right to use self-defense terminated.” Commonwealth v. Nunes, 430 Mass. 1, 5, 712 N.E.2d 88 (1999). Moreover, there was no testimony suggesting that retreat was not feasible. The defendant therefore was not entitled to an instruction on the use of deadly force in self-defense. Commonwealth v. Pike, supra at 399, 701 N.E.2d 951.

Defective indictment. The assault with intent to maim indictment alleged only that the defendant “did assault, with the malicious intent to maim or disfigure, the person of Raul Santiago, in violation of G.L. c. 265, § 15.” The assault with intent provision of § 15...