Commonwealth v. BrownCommonwealth v. Brown
CYPHER, J. A jury in the District Court convicted the defendant, Johnelle M. Brown, of assault and battery and witness
Facts. We recite the facts as the jury could have found them, reserving certain facts for later discussion.
Mahboobe Aria and Mehdi Aria1 managed a restaurant. On April 6, 2014, the restaurant closed at 2:30 A.M. At approximately 2:40 A.M., Mahboobe and Mehdi were completing tasks relevant to closing the restaurant. Mehdi was outside, cleaning the outdoor seating. Mahboobe was inside.
The defendant and a man arrived in an automobile and parked outside the restaurant. The man was not identified by name at trial, but the defendant‘s motion for a new trial, appellate brief, and affidavits identify this man as Tyrell Carr. Carr remained in the automobile while the defendant went into the
Mahboobe told the defendant that the restaurant was closed. The defendant said that she needed to use the bathroom. Mahboobe refused to allow the defendant to use the bathroom because Mahboobe had already cleaned it. The defendant said that she would “call [her] boyfriend” if Mahboobe refused her use of the bathroom; Mahboobe still refused. The defendant took a bottle of juice from a refrigerator in the restaurant, placed it in front of the register, and told Mahboobe that she was going to purchase it. Mahboobe replied that the credit card machine and cash register were already closed so she could not make any more sales. The defendant opened the door to the restaurant and called out to someone. Carr came inside the restaurant and loudly asked Mahboobe why she was not allowing the defendant to use the bathroom. Mahboobe reiterated that the bathroom was closed.
Carr waved a credit card at Mahboobe and offered to pay for the bottle of juice the defendant had placed on the counter. Mahboobe refused payment, explaining that the restaurant and credit card machine were closed. Mehdi entered the restaurant and asked the defendant and Carr to leave. The defendant took the juice bottle off the counter and threw it in Mahboobe‘s direction. The bottle struck glass that separates the cashier
The defendant opened the door to the restaurant and told Carr that Mahboobe had telephoned the police. Carr came out of the restaurant and drove away with the defendant in a vehicle that had been parked on the street.
Discussion. 1. Jurisdiction. The defendant argues that, following our decision in Commonwealth v. Muckle, 478 Mass. 1001 (2017), the District Court lacked jurisdiction over her case.2
The defendant seeks to analogize her case to Muckle, arguing that the District Court did not have jurisdiction because, at the time of the assault, Mahboobe was not a “witness” but was a “potential witness.” The defendant seeks to draw a distinction between a “witness” and a “potential witness” in the intimidation statute. However, when assessing the District Court‘s jurisdiction, we must begin our interpretation with the meaning of “witness” in the jurisdiction statute. We interpret a statute‘s text, construing its words “by the ordinary and approved usage of the language.” Energy Express, Inc. v. Department of Pub. Utils., 477 Mass. 571, 576 (2017), quoting Meikle v. Nurse, 474 Mass. 207, 210 (2016). We are bound to “interpret the statute so as to render the legislation effective, consonant with sound reason and common sense.” Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006).
The term “witness” is broadly used to characterize an individual with information that is pertinent to an investigation or case and is often used interchangeably with “potential witness.” See Commonwealth v. Rakes, 478 Mass. 22, 41 (2017) (describing individuals who might testify in future as “witnesses” and “potential witnesses“); Commonwealth v. Squires, 476 Mass. 703, 711 (2017) (Gaziano, J., dissenting) (using “potential witnesses” to describe those who might see crime occurring); Commonwealth v. Williams, 475 Mass. 705, 708 (2016) (using “potential witnesses” to describe people interviewed by police); Commonwealth v. Watkins, 473 Mass. 222, 239-241 (2015) (using “witnesses” to describe people who testified during trial and those who did not testify but had relevant information that could have been offered during trial); Commonwealth v. Brewer, 472 Mass. 307, 311 n.10, 313-315 (2015) (using “witness” to describe person present at shooting who gave statement to police, and describing people who had information to share at trial but did not testify as “witnesses” and “potential witnesses“); Commonwealth v. Collins, 470 Mass. 255, 270-273 (2014) (using “potential witness” to describe those on witness list during trial); Commonwealth v. Robinson, 444 Mass. 102, 110-111 (2005) (using “witness” to describe person‘s status when he was going to testify at hearing and after hearing had concluded); Commonwealth v. Finn, 362 Mass. 206, 207-208 (1972) (using “witnesses” to describe individuals present at scene of crime when discussing investigatory conversations with police and testimony at trial); Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 800 (1998) (using “prospective witness,” “potential
The distinction advocated by the defendant would cause the District Court to gain and lose jurisdiction repeatedly over prospective witness intimidation prosecutions during the course of a crime, investigation, trial, and subsequent proceedings. Indeed, Mahboobe‘s status at the time of the assault could be characterized as both a “witness” and a “potential witness.” She was a “witness” to the assault of Mehdi with information to provide to the 911 operator and police officers and a “potential witness” to further criminal activity. When the trial commenced, she was a “potential witness” who might have been called to testify and, upon being called, became a “witness.” Common sense dictates that “witness” in the jurisdictional statute includes “a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type,” as protected by
2. Motion for a new trial. The defendant moved for a new trial, arguing that counsel was constitutionally ineffective, the jury were improperly instructed, her right to allocution was violated, her right not to be placed in jeopardy twice was violated, and her restitution order was invalid.3 In support of her motion for a new trial, the defendant submitted numerous affidavits and exhibits. After a nonevidentiary hearing, the judge denied the defendant‘s motion for a new trial “under all theories” but did not issue a written decision.
The defendant appeals from the denial of her motion for a new trial, repeating the grounds on which she sought relief below. A judge may grant a motion for a new trial “if it appears that justice may not have been done.”
a. Ineffective assistance of counsel. In his opening statement, defense counsel argued that the defendant was defending her property, a debit card that Mahboobe had taken from her and refused to return. Defense counsel presented no witnesses; instead, he elicited testimony in support of that defense during cross-examination. The defendant claims that trial counsel was ineffective in failing to develop sufficient evidence of the defense of property and in advising her not to testify. Specifically, she alleges that trial counsel should have called Carr to testify in support of her defense and that he should not have advised the defendant not to testify. As
During cross-examination, defense counsel elicited from the responding police officer that Mahboobe gave him the defendant‘s debit card. In contrast, Mahboobe testified that the police found the debit card on the restaurant‘s floor. Counsel sought to exploit the difference between these statements to suggest that Mahboobe had kept the defendant‘s debit card, so the defendant had had to use force to recover the card. The judge declined counsel‘s request for a “defense of property” jury instruction and permission to argue that theory in his closing argument.4
Counsel was ineffective if his conduct fell “measurably below that which might be expected from an ordinary fallible lawyer” and “likely deprived the defendant of an otherwise
The defendant‘s ineffective assistance of counsel argument is premised on the theory that counsel was ineffective for not introducing sufficient evidence to merit a defense of property instruction. In making such an argument and failing to raise any claim that the judge erred, the defendant implicitly concedes that the evidence presented at trial was insufficient to warrant a defense of property instruction.
Carr‘s affidavit, considered with the evidence presented by the Commonwealth, is insufficient to show that his testimony “might have accomplished something material for the defense.” See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Carr‘s affidavit is best summarized as follows: Carr followed the defendant into the restaurant after he witnessed an argument inside the restaurant; the defendant told Carr that Mahboobe had her debit card; both the defendant and Carr left the restaurant at the urging of Mahboobe; Mahboobe held the defendant‘s debit card over her head while the defendant struggled to get the card; the defendant‘s “hand came into contact with [Mahboobe‘s] face“; and both Carr and the defendant left the area in Carr‘s automobile. This potential testimony is only credible if all percipient witnesses are disbelieved. See Commonwealth v. Jenkins, 458 Mass. 791, 809 (2011) (“Even had the attorney‘s advice been substandard, it would have made no difference. For
Counsel exploited inconsistencies in the testimony about whether the debit card was found on the floor or given to police by Mahboobe as skillfully as the facts permitted. Although this discrepancy could have bolstered the proposed defense testimony, such a sliver of support is not enough to yield a conclusion that this testimony would have changed the outcome. Therefore, the defendant was not prejudiced by the lack of testimony and the judge did not err in denying the motion for a new trial.
The second claim raised under the rubric of ineffective assistance of counsel is the defendant‘s claim that counsel‘s advice caused her to unknowingly waive her right to testify. Testifying in one‘s own criminal defense is a fundamental right that must be waived knowingly and intelligently. Jenkins, 458 Mass. at 803. The defendant has the burden of proving by a preponderance of the evidence that, absent counsel‘s advice, she would have testified. Commonwealth v. Lucien, 440 Mass. 658, 671 (2004). “It is not enough to say that counsel had discouraged [her] from testifying.” Id.
The judge did not abuse her discretion when she denied the motion for a new trial. The defendant‘s affidavit is best summarized as follows: she asked Mahboobe to use the restroom; Mahboobe said the defendant would have to make a purchase in
The defendant‘s affidavit alleges that she would have testified had counsel informed her that her testimony would have been necessary to advance a defense of property defense. When asking for a jury instruction on defense of property, counsel indicated that he had discussed the decision to testify with the defendant after Mahboobe testified. The defendant was aware of all testimony against her. Although counsel may have misjudged the minimum showing required to merit a defense of property jury instruction, the defendant nonetheless knew that the jury had heard no testimony about Mahboobe‘s keeping the defendant‘s debit card and the defendant seeking to recover it. “It can
b. Inadequate jury instructions. The judge told the jurors: “It‘s essential that you confine your deliberations only to the evidence which is presented to you in the courtroom.” The defendant contends that because the judge did not instruct the jury to refrain from researching the case on the Internet, jurors could have searched for information about the defendant and found two news articles published online about the defendant‘s past alleged criminal activity. The defendant did not object to this omission at trial or request that the judge specifically instruct the jury to refrain from Internet research. Therefore, we consider whether the omission was error
The absence of a jury instruction specifically prohibiting research on the Internet is not, in and of itself, reversible error. The judge instructed the jury to refrain from outside research, using social media, visiting the scene of the incident, and “talk[ing] to anyone outside of the jury about the case.” The better practice would have been to include in the instructions a prohibition on Internet research. See Commonwealth v. Rodriguez, 63 Mass. App. Ct. 660, 678 n.11 (2005) (“[G]iven the simplicity, speed, and scope of Internet searches, allowing a juror to access with ease extraneous information about the law and the facts, trial judges are well advised to reference Internet searches specifically when they instruct jurors not to conduct their own research or investigations“). But this omission was not error where the judge‘s instruction forbade consideration of any outside information.
Further, the defendant has demonstrated no substantial risk of a miscarriage of justice. Jurors are presumed to have followed the judge‘s instruction not to consider any outside information. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) (“We presume that a jury follow all instructions given to
c. The sentencing hearing. After her convictions, the judge held a sentencing hearing. The Commonwealth recommended a one-year sentence in a house of correction, with the defendant serving ninety days and the balance of the sentence suspended for two years. Defense counsel requested probation. The judge allowed defense counsel to present mitigating information about the defendant, including details of her background and that she
When the hearing resumed, defense counsel spoke more about the defendant‘s background and requested mercy in the defendant‘s sentencing, reporting that she had been “absolutely distraught” while in custody. The judge addressed the defendant, saying, “I trust that I got your attention by holding you over the weekend in custody.” The judge then sentenced the defendant to one year in a house of correction, suspended for two years, and ordered her to pay restitution.8
A defendant‘s right to speak in his or her own defense was recognized by the common law as early as 1682. Marshall, Lights, Camera, Allocution: Contemporary Relevance or Director‘s Dream?, 62 Tul. L. Rev. 207, 209 (1987). This was an opportunity for the defendant to offer what would now be considered defenses as defendants were not permitted to testify on their own behalf. Id. In 1689, the court‘s failure to ask the defendant if he had anything to say before a sentence was imposed required reversal. Green v. United States, 365 U.S. 301, 304 (1961), citing Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (K.B.). Allocution has survived in our modern Federal criminal justice system as a mandate that a judge “permit the defendant to speak or present any information to mitigate the sentence.”
Our approach in the Commonwealth,
The requirements of
ii. Double jeopardy. The defendant contends that the judge punished her twice for a single offense, in violation of double jeopardy principles, when the judge held the defendant without bail pending the completion of the sentencing hearing and then imposed a sentence during the sentencing hearing.
In order to determine whether a penalty violates double jeopardy principles, we analyze the statute that authorizes the restriction on the defendant‘s liberty. See Hudson v. United States, 522 U.S. 93, 99-100, 103 (1997). The defendant argues that the restriction on her liberty was imposed pursuant to
The defendant identifies three issues in the disposition of her restitution hearing: the restitution judge did not follow orders entered by the trial judge; her restitution order was not supported by adequate evidence; and counsel at the restitution hearing was ineffective.
The defendant urges us to vacate her restitution order because a judge other than the trial judge conducted the restitution hearing. We review the decision to proceed with the hearing for abuse of discretion. Commonwealth v. Baro, 73 Mass. App. Ct. 218, 224 (2008). A judge may preside over another
The defendant claims that the Commonwealth did not meet its burden of proving the amount of the loss. The facts at the restitution hearing need only to be proved by a preponderance of the evidence, not to the higher standard required at the criminal trial. See Commonwealth v. Denehy, 466 Mass. 723, 740 (2014). We review the judge‘s assessment of restitution for abuse of discretion. Commonwealth v. McIntryre, 436 Mass. 829, 836 (2002). Restitution provides for the victim‘s economic losses caused by the defendant. Id. at 834. A valid restitution order is supported by evidence, including a victim‘s documentation of losses. Id.
The defendant also contends that counsel was ineffective at the restitution hearing for not disputing that the defendant caused the damage and for not cross-examining Mahboobe about the time gap between the incident and the invoices. We evaluate whether counsel‘s behavior fell measurably below that which can be expected of an “ordinary fallible lawyer” and prejudiced the defendant. Saferian, 366 Mass. at 96. Counsel is not ineffective simply for not making a possible argument when that tactic had little chance of success. See Commonwealth v. Kolenovic, 471 Mass. 664, 673-674 (2015), S.C., 478 Mass. 189
Similarly, defense counsel was not unreasonable in not cross-examining Mahboobe about the difference between the alleged damage and the invoices she introduced to support her claim. Counsel did attempt to impeach Mahboobe‘s credibility about the amount of the damage, albeit through a different tactic. Counsel argued the invoices were not itemized or thorough enough and questioned Mahboobe about the high cost of each repair. Counsel did so with some success, obtaining a restitution order of more than $700 less than that requested by the Commonwealth. There was no error.
Conclusion. None of the defendant‘s claims merits disturbing the jury‘s verdicts.
Judgment affirmed.