COMMONWEALTH vs. JOHNELLE M. BROWN.
SJC-12313
Supreme Judicial Court of Massachusetts
March 16, 2018
Middlesex. November 7, 2017. — March 16, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
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Assault and Battery. Intimidation of Witness. Witness, Intimidation. District Court, Jurisdiction. Practice, Criminal, New trial, Assistance of counsel, Instructions to jury, Sentence, Allocution, Restitution. Restitution.
Complaint received and sworn to in the Cambridge Division of the District Court Department on May 2, 2014.
The case was tried before Michele B. Hogan, J.; a restitution hearing was held before Daniel C. Crane, J.; and a motion for postconviction relief was heard by Hogan, J.
The Supreme Judicial Court granted an application for direct appellate review.
Luke Rosseel for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney,
CYPHER, J. A jury in the District Court convicted the defendant, Johnelle M. Brown, of assault and battery and witness intimidation. After beginning the sentencing hearing, the trial judge revoked the defendant‘s bail and delayed sentencing for four days. After reconvening, the judge imposed a sentence of a one-year commitment to a house of correction, suspended for two years, probation, and restitution. The defendant disputes the District Court‘s jurisdiction over the witness intimidation prosecution. The defendant also appeals from the denial of her motion for a new trial, revocation of bail, and order of payment of restitution. We affirm.
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 restaurant. Mahboobe
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 from the kitchen. Carr grabbed Mehdi. Carr hit and slapped Mehdi‘s face and pulled his shirt. While Carr struggled with Mehdi, the defendant kicked the bathroom door. Mahboobe retrieved a telephone from underneath the cash register and moved out from behind the counter toward the defendant. Mahboobe was standing one to two feet away from the defendant when she tried to dial 911. The defendant grabbed the wrist of the hand in which Mahboobe was holding the telephone and said, “You‘re bad fuck.” After approximately one minute, the defendant let go of Mahboobe‘s wrist. As Mehdi and Carr continued to fight, Mahboobe left the restaurant and telephoned 911. The defendant followed. The defendant asked Mahboobe why she telephoned the police. The defendant then punched Mahboobe in the face, causing Mahboobe to drop the telephone. The telephone fell to the ground and broke. A man was inside of a nearby bar when he “heard a commotion next door, like tables and chairs being banged around.” He and a bar security employee went outside and saw Mahboobe being punched in the face.
The defendant opened the door to the restaurant and told Carr that Mahboobe had telephoned the police. Carr came out of the
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).
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 witness,” and “witness” when describing facts of several witness intimidation cases). The myriad uses of “witness” and its frequent convergence with “potential witness” suggest the ordinary meaning of “witness” encompasses victims of intimidation who could also be described as “potential witnesses.” Such a holding is consistent with our decision in Muckle, where we interpreted “juror” in the jurisdictional statute to encompass “juror” and “grand juror” in the intimidation statute.
The distinction advocated by the defendant would cause the District Court to gain and lose jurisdiction repeatedly over prospective
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 explained infra, even if the information provided in the affidavits were presented at trial, when considered in context with the testimony of the Commonwealth‘s witnesses, “we are not persuaded that [testimony] likely would have influenced the jury‘s decision.” Commonwealth v. Duran, 435 Mass. 97, 103-104 (2001) (no ineffective assistance of counsel where potential testimony that could have resulted from investigation would have been outweighed by “strong” contradictory evidence).
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 available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “In regard to the latter requirement, there ought to be some showing that better work might have accomplished something material for the defense” (quotations omitted). Commonwealth v. Bell, 460 Mass. 294, 303 (2011), quoting Commonwealth v. Johnson, 435 Mass. 113, 123 (2001).
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.
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 order to use the restroom; the defendant gave Mahboobe her debit card and tried to make a purchase; Mahboobe took the defendant‘s debit card but told the defendant she did not meet the ten-dollar minimum required for all debit card purchases; the defendant asked for her debit card; Mahboobe refused to return the debit card; Carr entered the restaurant and encouraged the defendant to leave; Mahboobe ushered both Carr and the defendant out of the restaurant, still holding the defendant‘s debit card; outside, Mahboobe held the defendant‘s debit card over the defendant‘s head; while the defendant reached for the card, her hand hit Mahboobe; the defendant never saw Mahboobe holding a telephone and did not knock a telephone from Mahboobe‘s hand; she and Carr left in Carr‘s automobile.
The defendant‘s affidavit alleges that she would have testified had counsel informed her that her testimony would have been
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 and, if so, whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Horne, 476 Mass. 222, 225-226 (2017).
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,
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 it“). Nor is there any evidence in the record to rebut that presumption. The record is devoid of evidence of any jurors using the Internet for any outside research, including discovering any information about the defendant.6 Without any indication that the jury were exposed to extrajudicial information about the defendant, there is no substantial risk of a miscarriage of justice in allowing the defendant‘s convictions to stand.
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 was “very sorry” about the incident. The judge then allowed the defendant to speak. The defendant told the judge that she wished she had testified. The judge told the defendant that she had had an opportunity to testify at trial and, now that the trial was over, the judge was “not going to hear [the defendant‘s] side.” The defendant
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
i. Right to allocution. The modern meaning of “[a]llocution is . . . the right to make a statement to the sentencing judge before he pronounces sentence.” United States v. Foss, 501 F.2d 522, 530 n.3 (1st Cir. 1974). The defendant urges us to find a constitutional right to allocution and to hold that the judge violated that right by not allowing the defendant to finish speaking during the sentencing hearing. We have never held that a defendant has a constitutional right to allocution, and we decline to do so now.
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 rule 28 were satisfied when her attorney made a statement during sentencing and the judge permitted the defendant to speak. The defendant contends that because the judge allowed her to speak at all, the judge erred in ceasing the defendant‘s allocution before the defendant finished speaking. The judge had no obligation to do more than satisfy the requirements of rule 28, either through statements from the defendant or the defendant‘s attorney. Even in satisfying rule 28, some reasonable limits are necessary. See Commonwealth v. McKay, 23 Mass. App. Ct. 966, 968 (1987) (no error where sentencing judge allowed two people familiar with defendant “to address the court on the defendant‘s background and character but refused” to allow testimony about circumstances of crime). The judge did not abuse her discretion by limiting the defendant‘s statements to permissible and relevant topics within rule 28. The rule 28 opportunity to speak is not an unlimited right of a defendant to speak endlessly on irrelevant subjects or in a disruptive manner. Here, the defendant contested the facts presented at trial. Such statements are extraneous in a sentencing hearing and were therefore properly excluded.
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
Further, judges have discretion to revoke bail after a conviction. See
d. Restitution hearing. At the close of the sentencing hearing, the judge scheduled a restitution hearing and said, “I‘m going to hold it because I know the facts of the case.” On the day of the hearing, the trial judge was not at the court house and a different judge presided over the restitution hearing. The defendant requested a continuance so that the trial judge could preside over the hearing. The hearing judge denied this request and proceeded with the hearing. Mahboobe testified about the damage the defendant caused to the restaurant and her telephone. Defense counsel conceded that each item was broken during the assault. Mahboobe provided written estimates of repair costs and a receipt for replacing the telephone. The judge ordered the defendant to pay $3,100 in restitution.
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 judge‘s proceedings following a verdict if the trial judge is “absen[t]” or “unavail[able]” and the judge believes he or she is able to fulfil the needs of the hearing.
The defendant conceded that she caused the harm,14 and the Commonwealth properly proved the amount damaged. Mahboobe submitted a receipt for replacing the broken telephone and estimates from contractors to fix the window and bathroom door damaged by the defendant. The final determination of restitution was less than the “actual loss” proffered by Mahboobe. See Commonwealth v. Henry, 475 Mass. 117, 129 (2016) (“the amount of restitution may not exceed the victim‘s actual loss“). Therefore, the judge did not abuse his discretion when he ordered the defendant to pay restitution.
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 (2017) (counsel was not ineffective for not pursuing defense that was unlikely to succeed). Mahboobe‘s testimony that the defendant caused the damage was consistent with her trial testimony. Defense counsel had been unsuccessful in impeaching Mahboobe at trial and had no new tools with which to impeach Mahboobe. Therefore, it was not unreasonable for defense counsel to concede that the defendant caused the damage. Similarly, defense counsel was not unreasonable
Conclusion. None of the defendant‘s claims merits disturbing the jury‘s verdicts.
Judgment affirmed.