Commonwealth v. White

100 Mass.App.Ct. 1124

182 N.E.3d 339 (Table)

COMMONWEALTH

v.Quinton WHITE.

20-P-1105

Appeals Court of Massachusetts.

Entered: February 11, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant of assault and battery by means of a dangerous weapon, causing serious bodily injury, in violation of G. L. c. 265, § 15A (c ) (i). On appeal, the defendant contends that (1) the Commonwealth failed to prove that the victim suffered a serious bodily injury; and that the trial judge (2) improperly instructed the jury on the element of serious bodily injury, (3) improperly admitted certain statements, (4) should have provided a missing witness instruction, and (5) exhibited judicial bias and assisted the prosecutor at trial. We affirm.

Background. The jury could have found that the defendant stabbed the victim, Rodney Caraballo, three times with a knife -- once in the chest and twice in the left side of his torso -- late one morning in Fall River. An off-duty nurse saw Caraballo lying on the ground, stopped to render aid, and noticed that Caraballo was bleeding from multiple wounds and that blood was soaking though his shirt. She had difficulty stanching the bleeding and perceived that Caraballo was rapidly fading. She called 911 and did her best "to keep him alive until an EMT arrived."

Right after the defendant stabbed Caraballo, he felt like he was choking on blood and could not speak or catch his breath. Caraballo was in and out of consciousness while the nurse rendered aid and during the subsequent ambulance ride. At the hospital, a tube was inserted in Caraballo's lungs to remove blood and to help him breathe; it took him three weeks to feel like he was breathing normally again. At trial, about eight months after the stabbing, Caraballo had three scars on his torso, which he showed the jury.

Discussion. 1. Sufficiency of the evidence. The defendant contends that the evidence was insufficient to prove beyond a reasonable doubt that he caused "serious bodily injury," G. L. c. 265, § 15A (d ), and that the trial judge should have allowed his motion for a required finding of not guilty. "In reviewing a denial of a motion for a required finding of not guilty, our inquiry is whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact that the essential elements of the crime have been proven beyond a reasonable doubt." Commonwealth v. Vazquez, 69 Mass. App. Ct. 622, 626 (2007). "In satisfying that test, the Commonwealth may rely on reasonable inferences drawn from circumstantial evidence." Id., quoting Commonwealth v. Degro, 432 Mass. 319, 325 (2000).

General Laws c. 265, § 15A (d ), sets out three alternate ways to prove "serious bodily injury": bodily injury resulting in (1) "a substantial risk of death," (2) "a permanent disfigurement," or (3) "loss or impairment of a bodily function, limb or organ" (citation omitted). Commonwealth v. Inoa, 97 Mass. App. Ct. 262, 263 (2020). Here, the evidence was sufficient for a rational jury to find beyond a reasonable doubt that the defendant caused serious bodily injury by all three means.

a. Substantial risk of death and loss or impairment of a bodily function, limb, or organ. Based on the same set of facts, a rational jury could have concluded that Caraballo's injuries resulted in (1) a substantial risk of death and (2) the impairment of a bodily function. After the stabbing, Caraballo was in and out of consciousness; felt like he was choking on blood; bled profusely; was rapidly declining while the off-duty nurse did her best "to keep him alive until an EMT arrived"; needed a tube in his lungs to remove blood and assist him in breathing; and, for three weeks, could not breathe normally. These injuries permitted the jury to find beyond a reasonable doubt that the injuries resulted in a substantial risk of death. See Commonwealth v. Gerhardt, 477 Mass. 775, 788 (2017) ("Jurors are permitted to utilize their common sense in assessing trial evidence").

Impairment of a bodily function is "when a part or system of the body (other than an organ or limb) is significantly impeded in its ability to fulfill its role." Commonwealth v. Scott, 464 Mass. 355, 359 (2013). "The loss of a limb, organ, or bodily function would have a substantial impact on a victim on a par with injuries causing permanent disfigurement or risking death." Id. An impairment of a bodily function need not be permanent or life threatening to qualify as a serious bodily injury. See, e.g., Commonwealth v. Marinho, 464 Mass. 115, 118-119 (2013). Here, the jury could reasonably have concluded that the victim's inability to breathe normally for three weeks was an impairment of a bodily function.

b. Permanent disfigurement. "[P]ermanent disfigurement is a significant and enduring injury that affects the appearance or the character of a person's bodily integrity." Commonwealth v. Heywood, 484 Mass. 43, 50 (2020). Scars may be permanently disfiguring. See, e.g., Commonwealth v. Farrell, 322 Mass. 606, 618 (1948) (jury could permissibly have found that cigarette burns and slash marks were permanently disfiguring). See also, e.g., Commonwealth v. Johnson, 92 Mass. App. Ct. 538, 542 (2017) (under less exacting probable cause standard, grand jury could have found serious bodily injury based on victim's "permanent disfiguring scar on his head"). Caraballo's scars endured at the time of trial, approximately eight months after the stabbing, as the jury saw. Having witnessed the scars on Caraballo's torso, the jury were permitted reasonably to conclude that the scarring constituted permanent disfigurement.

2. Instruction on serious bodily injury. The defendant contends that the trial judge's instructions on G. L. c. 265, § 15A (d ), were incorrect because they did not outline the three means of proving serious bodily injury. "We evaluate jury instructions as a whole and interpret them as would a reasonable juror." Marinho, 464 Mass. at 122. "We do not require that judges use particular words, but only that legal concepts are properly conveyed." Id. "Because the defendant did not object to the jury instruction at trial, we review his claim to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice."Id. We conclude that the instructions that the trial judge provided were accurate and appropriately conveyed the law.

The trial judge instructed the jury that " ‘serious bodily injury’ is defined as bodily injury that results in permanent disfigurement, loss or impairment of a bodily function, lymph or organ, or a substantial risk of death."² This definition of "serious bodily injury" tracks the statutory definition and mirrors the model jury instructions, and thus was not in error. See Commonwealth v. Garcia, 94 Mass. App. Ct. 91, 99 (2018) (judge correctly instructed jury where instruction closely tracked statutory definition of serious bodily injury).

3. Improper testimony. The defendant also contends that the trial judge should have excluded two statements by Sergeant McDonald, an officer who investigated the stabbing, as hearsay and violations of the confrontation clause. Because the defendant withdrew his objection to the first statement, and because his objection to the second was sustained, this amounts to an argument that the trial judge should, sua sponte, have struck this testimony.³ We review unpreserved errors for a substantial risk of a miscarriage of justice, asking whether the error, if any, was "sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error" (citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Here, we conclude that the error, if any, did not rise to this level. The Commonwealth's strong case included the following: testimony from the victim and from the off-duty nurse as to the seriousness of the victim's injuries; the victim's testimony about his inability to breathe normally for three weeks; and evidence, in the form of scars, of the lasting effect of the injuries. Furthermore, the trial judge provided a general curative instruction by telling the jury, "If I sustained an objection to a question, you cannot draw any inference from the wording of the question." See Commonwealth v....