Opinion
15-P-1018
01-12-2017
COMMONWEALTH v. Jaquan HUMPHRIES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was convicted as a youthful offender of assault and battery by means of a dangerous weapon. On appeal, he argues that his case should not have been transferred from the Juvenile Court, that the Commonwealth's closing argument was improper, and that the trial judge erroneously responded to a jury question. We affirm.
Background . Based upon the evidence at trial, the jury could have found the following facts. In 2013, Anneeda Waiters lived at 20 Fairmount Street in the Dorchester section of Boston. Billy Jean Alexander (Billy Jean), her daughter Dianellie Alexander (Dianellie), and her grandson, the defendant, lived across the street. In January of that year, Waiters and Billy Jean had a falling out. On May 10, 2013, Waiters was headed to the supermarket with her rolling shopping bag when she overheard Billy Jean telling neighbors that "the black bitch" (meaning Waiters) "wouldn't talk to [her]." Waiters responded that Billy Jean was "damn right" and proceeded down the street. Billy Jean came off of the porch on which she had been standing and yelled that she was "going to beat that black bitches' [sic ] ass." Waiters kept walking, until she heard a neighbor saying, "[W]hat are you going to do with that." Waiters turned and saw Billy Jean standing in the middle of the street holding a metal fence post. Waiters telephoned her son Avery Combs and returned to her house.
Because Billy Jean and Dianellie have the same last name, we refer to them by their first names to avoid confusion.
Witnesses described it as the silver pole used in chain link fences.
Combs arrived and began to speak to Billy Jean. Billy Jean insulted Waiters, and Combs insulted Billy Jean. The defendant came outside and Dianellie retrieved a tire iron from her car. The defendant walked directly to Combs and swung a knife at him. Combs blocked the blow and ran around with the defendant chasing him. Then Combs lost consciousness and fell to the ground. The defendant jumped on Combs's back and stabbed him six times. Waiters hit the defendant with her shopping bag and he ran away.
A Superior Court grand jury indicted the defendant, as a youthful offender, of armed assault with intent to murder and assault and battery by means of a dangerous weapon. Billy Jean and Dianellie also were indicted, and the Commonwealth moved to consolidate their cases in the Superior Court. On March 17, 2014, an order entered "[p]ursuant to the authority contained in G. L. c. 211B, § 9," consolidating the three cases and authorizing a Superior Court justice to sit as a Juvenile Court justice for the purpose of hearing the defendant's case. Billy Jean's motion for a required finding of not guilty was allowed during the joint trial, and the jury found Dianellie not guilty of assault and battery by means of a dangerous weapon. The jury found the defendant not guilty of assault with intent to murder and guilty as a youthful offender of assault and battery by means of a dangerous weapon.
Discussion . 1. Transfer order . The defendant's first claim of error requires little discussion. The Chief Justice of the Trial Court was empowered to designate as a justice of the Juvenile Court Department, the Superior Court justice to whom Billy Jean's and Dianellie's cases were assigned "in order to dispose of such cases with efficient use of judicial resources." G. L. c. 211B, § 9(x), as appearing in St. 2011, c. 93, § 52. All three cases arose out of the same incident, and their trials would involve the same evidence presented through the testimony of the same witnesses. General Laws c. 211B, § 9, is "designed to expedite the orderly administration of justice," Konstantopoulos v. Whately , 384 Mass. 123, 130 (1981), and it properly was used in this case "to reduce delay and duplication in actions." Custody of a Minor (No. 1) , 391 Mass. 572, 579 (1984). The defendant was not deprived of the benefits of the Juvenile Court, where the Superior Court judge was acting as a justice of the Juvenile Court and could exercise all of the powers and duties of a justice of the Juvenile Court, by virtue of the designation effected by the order of the Chief Justice of the Trial Court. G. L. c. 211B, §§ 3, 9.
2. Closing argument . Next, the defendant argues that improper remarks in the prosecutor's closing require a new trial. We disagree. The prosecutor outlined evidence that Combs was unarmed and argued that the defendant was not acting in self-defense and had armed himself in order to end the argument Billy Jean had started. The prosecutor "urge[d] [the jurors] to use [their] common sense that two different stories do not equal reasonable doubt when one of them is preposterous, when one of them is absurd, when one of them is not supported by any physical evidence and when one of them is filled with witnesses who entirely contradict each other." While the prosecutor should not have referred to the defendant's version of events as "preposterous" and "absurd," "[a] certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed." Commonwealth v. Kozec , 399 Mass. 514, 517 (1987). The judge responded to the defendant's objection with a curative instruction that the jurors "shouldn't be swayed" by the attorneys' characterizations of the evidence; rather, "[y]ou need to make your own determinations on what you think is important and the credibility of the witnesses and what is the evidence and the weight that you wish to give any particular piece of evidence." "The judge's instructions were clear, and we must presume the jury followed them." Commonwealth v. Helfant , 398 Mass. 214, 228 (1986). Viewing the argument as a whole, we see nothing "prejudicial to the point of requiring a reversal of the conviction." Commonwealth v. Kozec , supra at 523.
3. Jury question . The defendant's final claim of error relates to the judge's response to a jury question. In his instructions, the judge stated that the defendant did not act in self-defense if the Commonwealth proves beyond a reasonable doubt any one of five propositions which he listed and discussed in detail. He "remind[ed] [the jury] that the Commonwealth may satisfy its burden ... by proving any one of the[ ] propositions," and he also instructed them that a valid verdict requires unanimity. During deliberations, the jury asked, "[a]s far as self defense [sic ] do I have to agree with all 5 or disagree with all 5 for it to be guilty or not guilty? ? ?" The defendant asked the judge to instruct the jury that they unanimously must find any one of the propositions beyond a reasonable doubt. The Commonwealth "wholeheartedly disagree[d] with the proposition that they must all agree on which one it is." Relying on Commonwealth v. Gendraw , 55 Mass. App. Ct. 677 (2002), the judge concluded that the five propositions are evidentiary in nature and that "the jury need not be unanimous on any particular evidentiary proposition." He reinstructed the jury that "[t]he Commonwealth satisfies its burden of proving that the [d]efendant did not act in proper self-defense if it proves any one of the following five propositions beyond a reasonable doubt."
"The five propositions the Commonwealth can prove to satisfy it's [sic ] burden are first that the defendant did not actually believe that he ... was in immediate danger of death or serious bodily harm from which the defendant only could save himself ... by using force. The second is that a reasonable person in the same circumstances as the defendant would not have believed that he ... was in immediate danger of death or serious bodily harm from which the person could only save himself ... by using force. The third that the defendant did not use or attempt to use all proper and reasonable means under the circumstances to avoid physical combat before resorting to the use of force. Fourth, that the defendant used more force than was reasonably necessary under all of the circumstances or fifth that the defendant was the first to use or threaten force and did not withdraw in good faith from the conflict and announce to the person he ... provoked the defendant's intention to withdraw and end the confrontation without any use or additional use of force."
There was no error and no abuse of discretion. See Commonwealth v. Wood , 469 Mass. 266, 293 (2014), and cases cited (the response to a jury question is within the judge's discretion). The "propositions" described by the judge are "factors relevant to" a determination whether the defendant acted in self-defense. Commonwealth v. Rodriguez , 370 Mass. 684, 690 (1976). They are "theor[ies] of self-defense," Commonwealth v. Maguire , 375 Mass. 768, 772 (1978), and it is "the absence of self-defense," and not the theory thereof, that is subject to the reasonable doubt standard. Commonwealth v. Rodriguez , supra at 689. Requiring unanimity on the theory of self-defense "would effectively require unanimity as to minute factual details within a single episode, a form of unanimity that we have never required." Commonwealth v. Santos , 440 Mass. 281, 290 (2003), overruled on other grounds by Commonwealth v. Anderson , 461 Mass. 616, 633 (2012). There is no requirement that the jury be unanimous as to how the absence of self-defense was proved, compare Commonwealth v. Gendraw , supra at 690, and the judge's response was proper.
Judgment affirmed .