434 Mass. 155 | Mass. | 2001
A Superior Court jury convicted the defendant, Jerry L. Henderson, on four indictments charging wilfully endeavoring to interfere with a witness, G. L. c. 268, § 13B;
1. Background. The victim had a relationship with the defendant from 1991 until 1995. In December, 1995, the two got into an argument that resulted in the defendant’s striking the victim in the face. This incident gave rise to the assault and battery charge.
2. Accord and satisfaction instruction. In response to the four charges of endeavoring to influence or interfere with a witness in violation of G. L. c. 268, § 13B, the defendant asserted an “accord and satisfaction” defense pursuant to G. L. c. 276, § 55.
According to the defendant, without the benefit of the desired instruction, the jury were ill equipped to discern whether the letters were an unlawful attempt to influence the victim or a lawful attempt to reach an accord and satisfaction vis-a-vis the outstanding assault and battery charge. Because most jurors are not familiar with the accord and satisfaction doctrine, it should be charged in cases where it is adequately supported by the evidence. Here, however, no view of the evidence could lead a reasonable jury to find that the defendant intended to enter into an accord and satisfaction. See Commonwealth v. Medina, 430 Mass. 800, 809 n.11 (2000). We thus conclude that the judge’s omission was not error.
As the evidence makes clear, the letters invite the victim to participate in a scheme of dishonesty, not one of accord and satisfaction. To effectuate an accord and satisfaction, the victim need only proffer a written acknowledgment “that I have received satisfaction for my injury and request that the charges be dropped.” R. M. Kantrowitz & R. Witkin, Criminal Defense Motions § 15.11, at 544 (2d ed. 1998). If this is all the defendant sought to accomplish, there would be no need for the repeated requests for the victim to lie on his behalf. Given this context, statements such as, “please tell [them] that you got jumped and I didn’t hit you,” and “I know it is a lie, but that is the only way,” linked to offers for financial compensation, can only be understood as prohibited attempts to influence the witness.
The defendant’s desire that the victim remain secretive about the proposed scheme also contradicts the plain operation of the
3. Opinion testimony. At trial, the prosecutor asked the victim, “When the [djefendant offered you $150 plus the food stamps, what did you think he was offering you that for?” When she answered, “Just to bribe me to get him out of jail,” defense counsel objected and moved to strike the response. At sidebar, the prosecutor argued that the contested statement was relevant, because “[i]t goes to the accord and satisfaction [theory]. . . . What I intend to show is he repeatedly made offers [that] she repeatedly rejected, so that even doing accord and satisfaction was unreasonable because she rejected the offers.” Defense counsel countered that the victim’s “subjective . . . evaluation of what the offer was for” was not relevant; rather, it was a question for the triers of fact to decide. Given the viability of an accord and satisfaction defense at that juncture, the judge overruled the objection.
“A judge’s decision that evidence is relevant and that the
In addition to the statements’ probative value, our conclusion is bolstered by its limited prejudicial effect, if any. First, the victim’s opinion was hardly the only evidence proffered against the defendant. See Commonwealth v. Prater, 431 Mass. 86, 94 (2000). The jury saw the most compelling evidence, i.e., the letters, and were free to draw their own inferences regarding the drafter’s intent. Second, to the extent the parties maintained an affectionate relationship for several years, the victim’s understanding of the defendant’s expressions and use of language is similar to evidence properly admitted in other cases.
4. Violation of Protective Order.
a. Due process. The defendant challenges the convictions for violating the c. 209A protective order on the ground that he was deprived of his constitutional right to a meaningful opportunity to be heard in opposition. Because of his incarceration, the defendant claims he was afforded neither adequate notice nor a meaningful opportunity to be heard on the extension of the underlying temporary no-contact order. Given our holding in Commonwealth v. Delaney, 425 Mass. 587, 590-593 (1997), cert. denied, 522 U.S. 1058 (1998), we disagree.
On March 27, 1996, the defendant was arrested, taken into custody, and held at the Nashua Street jail. Two days later, the victim applied for a temporary protective order against the defendant. Consistent with G. L. c. 209A, § 4, the judge granted the victim’s application on an ex parte basis. On April 3, 1996, the jail’s chief investigating officer served the temporary order on the defendant at the jail. See G. L. c. 209A, § 7.
“It is clear that ‘[d]ue process requires that no [extended] order be issued against a person without prior notice and the
The defendant’s attempt to distinguish Commonwealth v. Delaney, supra (service left at defendant’s last and usual place of abode) because of his incarceration is unpersuasive. Nothing
b. Sufficiency of the evidence. “To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that (1) a valid c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order.” Com
Judgments affirmed.
The defendant asked the victim to inform the court that her bruise resulted from a medical condition, rather than from physical contact.
Although unrelated, the abuse was inflicted upon the same victim.
At trial, the Commonwealth produced “ten individual letters and then three separate packets of letters” totaling between fifty and sixty letters in all. The parties agreed to redact certain portions of the correspondence “that would have been more inflammatory than probative.”
“I have a hundred and fifty dollars, plus food stamps, get me out of here and they are all yours.
“Please do that for me. Tell them I did not hit you [in the eye], please, for me. I will give you my money ....
“I will give you anything I have ... I know it is a lie, but that is the only way. Baby, tell them that for me. I need you to lie for me. Please tell a lie for I can get out. ... I know it is wrong for me to ask you to lie for me.
“Don’t tell them that I hit you .... When you get on the stand, tell them you are lying, because you [were] mad at me.
“[My mother] is going to give you $300. . . . The only one[s who] will know [are] you and me . . . .”
The defendant argued in his opening statement that, “ offering] somebody money to settle a criminal case is right. It’s not against the law. In fact there is [an accord and satisfaction] statute in this Commonwealth that authorizes that, that says you can offer money, that you can offer a promise to settle a criminal case.”
It is not clear whether the accord and satisfaction theory was offered as an affirmative defense (that the Commonwealth would Have to disprove) or as an alternative explanation for conduct that might negate one of the elements of G. L. c. 268, § 13B, i.e., that the defendant wilfully endeavored to influence the witness.
Given that, according to the text of his letters, the defendant was in contact with his attorney at all relevant times, we are unpersuaded by the suggestion that he simply misunderstood the procedural mechanics of an accord and satisfaction.
For instance, after one instance of abuse, the victim telephoned the police and the defendant said, “Look how those guys did you, why did you get in that van?” Familiar with the defendant’s “trying to play his role,” the victim realized that the defendant “was making a lie for me” to relate to the police.
This question was asked only with regard to one of the letters. The victim did not offer any opinion as to the defendant’s intentions behind the other letters.
Although the defendant did not request an instruction on this point, the judge arguably should have instructed the jury that the victim’s interpretation of the letter is not dispositive of the matter. See P.J. Liacos, Massachusetts Evidence § 7.3.1, at 372 (7th ed. 1999 & Supp. 2001) (discussing admissibility of opinions bearing on “ultimate issues”). The judge did, however, instruct the jury to “give the testimony of each witness whatever degree of belief and importance that you judge it is fairly entitled to receive.” Because the statement itself was of minimal import, any related instruction would be of little assistance, as well. Thus, the absence of any curative instruction was not error.
On both direct and cross-examination, the witness recounted other familiar expressions used by the defendant and her interpretation of what they meant. The defendant does not contest this testimony. See note 7, supra.
The victim also testified that, within one week of its issuance, she spoke with the defendant about the initial protective order.
Courts should make efforts “to secure [the defendant’s] presence in court if requested to do so.” Commentary to § 4.07 of the Guidelines for Judicial Practice: Abuse Prevention Proceedings (Oct. 1996). “[I]f the court does not issue a writ of habeas corpus for the defendant to appear at the ten-day hearing, the defendant has no meaningful opportunity to exercise his or her right to be present.” A.J. Cabral, Obtaining, Enforcing and Defending c. 209A Restraining Orders in Massachusetts § 2.8.2, at 2-13 (Mass. Continuing Legal Educ. 1997). Contrary to his argument, however, the onus of seeking a writ of habeas corpus falls on the defendant. In these proceedings, the court is under no obligation to issue a writ of habeas corpus absent a request.
The defendant’s reliance on Commonwealth v. Harrison, 429 Mass. 866, 867 (1999) (vacating probation revocation; hearing held in defendant’s absence because of incarceration in Federal prison), is similarly misplaced. There, the defendant’s desire to participate was evidenced by counsel’s objections and the Superior Court’s repeated efforts to secure his presence by a writ of habeas corpus. Id. at 867-868 & nn. 2, 5. No such efforts were expended by this defendant.