Opinion
No. 10–P–837.
2012-08-23
COMMONWEALTH v. Terrance HAMPTON.
By the Court (KATZMANN, SIKORA & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant, Terrance Hampton, of assault and battery upon a correctional officer, G.L. c. 127, § 38B. The trial judge sentenced him to two and one-half to five years' incarceration in State prison. He appeals from the conviction and the from the denial of his motion for a new trial.
Background. The Commonwealth presented the testimony of three correctional officers: Richard Barcomb, a correctional and K–9 officer; Sergeant Thomas Rondeau; and Lieutenant Thadius Carter. The defendant testified on his own behalf. The jury received the following information of the incident in question from Officers Barcomb, Rondeau, and Carter.
On June 24, 2008, at the Hampden County house of correction, the defendant was preparing to go to court. In accordance with standard operating procedure, he was located within the “Intake Unit” (Unit). The protocol for inmates preparing to leave the building for appearance in court was (1) that they come to the room at the rear of the Unit in which they change from their institutional clothes into civilian clothes for court room purposes and, in the process, submit to a clothing and property search; and (2) that they then proceed to a nearby holding cell in anticipation of transport to the court house. The room in which the prisoners changed clothes and submitted their clothes and property to correctional personnel for inspection and search was known as the “strip room.” At about 9:50 A. M., as the defendant was awaiting transportation from his holding cell, officers learned that his court appearance had been cancelled. Officer Barcomb brought the defendant from the holding cell back to the strip room for a change from his civilian clothes to his prison uniform.
Barcomb instructed the defendant to change clothes and to put his sheaf of court papers on a counter in the room. When the defendant did so, Barcomb began to inspect the papers. The defendant told him not to read them. Barcomb continued to inspect them. The defendant then pulled the papers out of Barcomb's hands. Barcomb told the defendant to turn and face the wall, and then placed his hands on the defendant. The defendant, Barcomb testified, spun around and punched Barcomb in the face. Barcomb fell toward the floor as the defendant attempted to deliver additional punches to the face. Both men landed on the floor and continued to struggle there.
Sergeant Rondeau testified that he was present in the strip room, saw the defendant hit Barcomb, and then saw him attempt additional short, “choppy” blows, and then heard him yell, “Do you know who the fuck I am.” Rondeau testified also that he never saw Barcomb hit the defendant; and that he saw no injuries to the defendant, an individual whom he described as approximately six feet tall and over 200 pounds in weight.
Lieutenant Carter testified that he was outside the strip room; that he heard loud voices and came in; and that he saw the defendant grab papers away from Barcomb and then punch Barcomb with multiple blows.
The defendant testified. He related that he had asked Officer Barcomb four times not to read his papers; that he grabbed them away from Barcomb; that Barcomb turned him around and pushed or struck him three times from the rear. The defendant turned and swung at Barcomb but missed. Barcomb then hit him in the eye.
Upon this evidence, the jury convicted the defendant. Meanwhile, proceedings preliminary to empanelment showed that the defendant and his trial defense attorney were experiencing disagreement and tension. The defendant was dissatisfied with the pretrial motion practice of counsel and with her alleged failure to compel the presence of other potential eyewitnesses to the incident.
Postconviction counsel investigated the defendant's belief that, in particular, an inmate named Deven Gallop may have witnessed all or some of the incident. As an element of the motion for a new trial, the defendant submitted an affidavit by Gallop. Gallop alleged that the defendant and he were codefendants in an underlying case and that they were scheduled to go to court together on the morning in question; that they were in the holding cell together; that he saw an officer take Hampton back to the strip search room and was able to see into that room for a period of time. He stated that he saw officers push Hampton three or four times as he watched from across the hall through the open door. The officers then closed the door so that he could not see anything further. He heard voices inside the room. One voice said, “Why the fuck [did] you hit me?” Another voice said, “Stop resisting.”
The motion judge, who was also the trial judge, denied the motion for a new trial. The defendant has timely appealed. We reserve certain other factual details for discussion of the parties' legal arguments.
Analysis. 1. Issues preserved for direct appeal. The defendant presents the following contentions by direct appeal. We treat them as preserved. Consequently we review them under the standard of prejudicial error: we inquire (1) whether any error has occurred, and (2) whether we are assured that the error did not influence the jury or had only slight effect. Commonwealth v. Graham, 431 Mass. 282, 288 (2000), citing Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). See Commonwealth v. Urban, 450 Mass. 608, 614 (2008).
(a) Seating arrangement at trial. During the process of empanelment on the first day of trial, the judge required the defendant to sit immediately behind his attorney rather than at counsel table. The judge found the defendant to be restive and argumentative, as he intervened directly in discussions between his counsel and the judge and as he attempted to communicate independently with a court officer in the room. She deemed his immediate presence at counsel table during empanelment to be a “security risk” and required him to sit immediately behind counsel in a position from which he could confer with her during the course of empanelment. In addition, she expressed her concern that his tendency to speak out of turn and directly over his attorney's remarks tended to subvert his own attorney-client privilege and might prejudice him in the eyes of the jury pool or the jury.
The issue of court room security belongs to the sound discretion of the presiding judge. A party claiming injury from the judge's security measures must establish both harm and abuse of discretion. See Commonwealth v. Martin, 424 Mass. 301, 307–308 (1997). The record contains no evidence that the seating arrangement interfered with the ability of the defendant to confer with, and to assist, his trial counsel. See Commonwealth v. Drew, 397 Mass. 65, 80–81 (1986); Commonwealth v. Martin, 424 Mass. at 309–310. Nor does the record show an abuse of discretion by the judge in her efforts to manage the court room and to prevent a mistrial.
(b) Prosecutor's closing argument remarks. The defendant maintains that the prosecutor's argument in support of the credibility of the three correctional officers amounted to vouching. In particular he argues that the prosecutor's references to their collective experience, and their inferable indifference to the defendant's court papers, and references to the high probability of an assault and battery upon Officer Barcomb and to any memory lapse by Barcomb about details of the melee, amounted to vouching.
The prosecutor's remarks were all rooted in the evidence. None of them embodied either (a) a personal belief by the prosecutor in the credibility of the witnesses, or (b) a suggestion of the prosecutor's possession of independent corroborating knowledge of their credibility or of events within their testimony. See Commonwealth v. Ortega, 441 Mass. 170, 181 (2004); and Commonwealth v. Deloney, 59 Mass.App.Ct. 47, 52–53 (2003). Nor did the remarks of the prosecutor realistically interfere with the judge's correct instructions with regard to the requirement of specific unanimity. The prosecutor did not tell the jury that they could convict by less than unanimous agreement upon specific criminal conduct. The judge instructed correctly upon unanimity. No error resulted.
(c) Instructions. (i) The judge correctly denied defense counsel's request for instruction to the effect that the defendant was entitled to use force to protect his property rights in the strip room procedures. Decisions do recognize the right of an individual to use limited force to defend personal property from theft or destruction and real property from invasion. See Commonwealth v. Donohue, 148 Mass. 529, 531 (1889); Commonwealth v. Rogers, 459 Mass. 249, 258 n. 11 (2011); and Commonwealth v. Haddock, 46 Mass.App.Ct. 246, 248 n. 2 (1999). That right of the use of proportionate force to defend property against unlawful misappropriation had no application in the correctional facility circumstances here. Officers were entitled to inspect personal property of inmates passing through the intake facility in order to prevent the transfer of contraband or forbidden communications. The defendant did not occupy the position of a free citizen in possession of customary private property. The judge denied the requested instruction with the proper observation, “There is nothing in the law that justifies any individual taking a swing at a custodial official, whether or not there is any wrongful interference with personal property.”
(ii) The judge's instructions upon the concept of circumstantial evidence were adequate. The reasonable juror could not fail to understand them in the full context of the evidence and the instructions. They created neither prejudicial error nor any substantial risk of a miscarriage of justice.
Because we find no error in regard to the issues raised by the defendant on direct appeal in which he claims error by reason of (1) the prosecutor's closing argument, (2) the judge's instructions, and (3) the judge's placement of the defendant in the court room, we do not disturb the judgment.
2. Issues presented by denial of motion for new trial. The defendant has specified four alleged instances of ineffective assistance of counsel. We review the denial of a motion for a new trial “only to determine whether there has been a significant error of law or ... abuse of discretion.” Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting form Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Reversal under this standard “is particularly rare where the judge acting on the motion was also the trial judge.” Commonwealth v. Moore, 408 Mass. 117, 125 (1990). A defendant complaining of ineffective assistance must establish (1) a serious incompetency of trial counsel (“behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer”) and (2) the resulting deprivation of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If the motion judge has effectively denied an evidentiary hearing upon the grounds submitted for a new trial, the reviewing court must assess “whether the motion or affidavits have raised a ‘substantial issue’ that would require an evidentiary hearing.” Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995). See Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004).
(a) Counsel's failure to offer defendant's medical records. On the day after the incident, the defendant underwent examination at the facility clinic. A nurse's note recorded that he had an “eye slightly swollen, with mild bruising.” An X-ray ruled out a fracture. The defendant argues that the admission of these medical records would have undermined the testimony of the correctional officers that he had not received any injuries from the encounter and would have tended to support his portrayal of the officers as the aggressors. Viewed realistically, the medical records would not have contributed significant probative value to his contention that Officer Barcomb was the aggressor. Because the swelling and bruising of his eye could have resulted from the melee without regard to the fault or role of any of the participants as the aggressor or as the victim, counsel's omission did not deprive him of any substantial ground of defense.
(b) Omission of subpoena of Officer Barcomb's records for prior aggressive behavior. The defendant argues that trial counsel should have subpoenaed and offered into evidence any personnel or institutional records indicating prior abusive behavior by Officer Barcomb. That contention assumes that the subpoena would have netted probative material. It rests upon mere speculation insufficient to support a claim of ineffectiveness. See Commonwealth v. Gonzalez, 443 Mass. 799, 811 (2005). It cannot support a showing of fault by counsel for harm to the client.
(c) Defense counsel's empanelment question. At trial, counsel requested the judge to inquire of each potential juror whether he or she could consider the evidence impartially and fairly with knowledge of the defendant's status as a prisoner. The defendant alleges that she did so without consultation with him. The trial judge granted the request and made the inquiry of each potential juror. The defendant complains that this inquiry provided each potential juror with immediate knowledge of his status as an inmate and with effective proof of an element of the offense (the identity of the victim as a correctional officer).
This contention borders on irrationality. Trial counsel had a duty to safeguard her client against serious and obvious sources of juror prejudice. Knowledge of the defendant's status as a prisoner was inevitable. It inhered in the definition of the offense (the prohibition of a “prisoner” from assault or battery against a correctional officer, G.L. c. 127, § 38B) and therefore in the oncoming evidence. Counsel properly attempted to filter out prejudiced members of the jury pool by means of the empanelment question. No ineffective assistance occurred.
(d) Failure to pursue Deven Gallop as a witness. On the record and before empanelment of the jury, defense counsel informed the judge of disagreement with her client. In particular she related a conflict over the pursuit of additional witnesses to the incident.
“I have spoken with the Commonwealth, and I am confident that at the time that this alleged incident occurred, that the door to the intake facility was closed and so that anyone [who] was in the hallway could not have seen what was going on within the confines of this room, so that the only witnesses, in fact, would have been the participants ....“
The defendant vigorously presented to the judge his belief of the existence of additional witnesses, and in particular of one witness whom he described but did not name, but who appears by description to have been Deven Gallop. The judge concluded at that time that no evidence or information indicated that defense counsel “ha[d] done anything that would not comport with her requirement to provide effective representation.”
In opposition to the motion for a new trial, the Commonwealth argued that trial defense counsel's decision not to call Deven Gallop as a witness was “not a manifestly unreasonable tactical choice.” The assistant district attorney reasoned that Gallop would have been vulnerable to cross-examination by reason of his prior association with the defendant as a codefendant in an underlying offense and by reason of contradictory testimony that the strip room door was closed and the events inside not visible to anyone across the hall. The judge denied the motion for a new trial without an evidentiary hearing and “for the reasons set forth in the Commonwealth's Memorandum.”
However, in the circumstances of the case, the affidavit of Gallop does present a sufficiently “substantial issue,” Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1502 (2001), for evaluation by an evidentiary hearing. See Commonwealth v. Licata, 412 Mass. 654, 660–661 (1992); Commonwealth v. DeVincent, supra. The trial was a duel of credibility between the three correctional officers and the defendant. His defense was self-defense against the aggressive assault or battery by one or more of the correctional officers, especially Officer Barcomb. By his affidavit, Gallop claims to have witnessed an initial battery against the defendant by officers' delivery of three or more aggressive pushes or shoves. He alleges also that he may have seen one of the officers initially throw a punch at the defendant. Despite Gallop's vulnerabilities as a witness, these allegations lodge in the core of a case hinging on credibility. They do present an issue for exploration by an evidentiary hearing. We therefore remand the case for the sole purpose of such a hearing by which the judge may assess the value of Gallop's testimony and the issue of ineffectiveness of trial counsel by omission of Gallop as a witness at trial.
In conclusion, while we find no error in the judge's denial of the motion for a new trial in regard to the defendant's claims of error or abuse of discretion on the claims of ineffective assistance of counsel by reason of the trial attorney's (1) failure to offer into evidence the defendant's medical records, (2) failure to investigate Officer Barcomb's prior record for use of excessive force, and (3) submission of a voir dire question to prospective jurors about bias, we vacate the denial of the motion for a new trial and remand the case for an evidentiary hearing upon the question of the competence of counsel's decision not to pursue Deven Gallop as a defense witness.
The judgment is affirmed. The order denying the motion for a new trial is vacated, and the case is remanded for an evidentiary hearing in accordance with this memorandum and order.
So ordered.