Opinion
13-P-67
10-09-2014
COMMONWEALTH v. KENNETH ROGERS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kenneth Rogers, appeals from an assault and battery conviction, which entered after a jury-waived trial on a two-count indictment. Rogers argues the judge erred in failing to conduct a colloquy on two occasions: first, when defense counsel abandoned his pursuit to have evidence admitted of the victim's propensity for violence pursuant to Commonwealt v. Adjutant, 443 Mass. 649, 664 (2005), and, next, when counsel agreed to the admission of the out-of-court statements of two percipient witnesses. Rogers further contends that the judge predetermined his guilt on the assault and battery charge by impermissibly limiting counsel's summation. We affirm.
Rogers was indicted on charges of assault and battery and mayhem. After a two-day jury-waived trial, Rogers was convicted of assault and battery and acquitted of mayhem.
Discussion. 1. The absence of a colloquy. Rogers argues that the trial judge was required to inquire whether he knowingly, intelligently, and voluntarily waived a personal right when trial counsel stipulated to his guilt on the assault and battery charge by failing to pursue the admission of evidence of the victim's propensity for violence pursuant to Commonwealth v. Adjutant, supra; and, again, when trial counsel agreed to the admission of the out-of-court statements of two percipient witnesses in deprivation of his right of confrontation.
Notably, "Massachusetts law currently requires a defendant's personal waiver for only a very short list of rights." Commonwealth v. Myers, 82 Mass. App. Ct. 172, 181 (2012). "Only a limited number of rights 'are [waivable by] the defendant alone,' including 'whether to plead guilty, to waive the right to trial by jury, to testify in one's behalf, to take an appeal, or to waive the right to counsel.'" Ibid., quoting from Commonwealth v. Conley, 43 Mass. App. Ct. 385, 391 (1997). "Others, often called strategic or tactical matters, rest ultimately in counsel, with the degree of required client consultation and participation dependant on the circumstances." Commonwealth v. Conley, supra. In our view, the two events Rogers describes fall within the scope of tactical and strategic matters that do not require a personal waiver or a judge-conducted colloquy.
a. Counsel's abandonment of Adjutant evidence. Rogers contends defense counsel essentially stipulated to his guilt on the assault and battery charge when he failed to pursue a claim that the victim, and not he, was the first aggressor. Commonwealth v. Adjutant, supra. His assertion is based upon a misconception that the admission of Adjutant evidence was available to him.
Adjutant arises when "the identity of the first aggressor is in dispute and the victim has a history of violence." Ibid. Upon this threshold showing, "the trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense." Ibid. As a prerequisite to raising Adjutant, the identity of the first aggressor must be in dispute. Ibid.
In Rogers's case counsel attempted to raise Adjutant; however, when the judge queried whether the identity of the first aggressor was in dispute, counsel indicated -- conceding neither the veracity nor the strength of the Commonwealth's evidence -- that the Commonwealth's evidence placed Rogers in the position of first aggressor, and, further, that he would be putting forth no affirmative evidence to the contrary. On that basis, the judge precluded counsel from pursuing Adjutant any further. At no time, however, did counsel relieve the Commonwealth of its burden of proving the crime beyond a reasonable doubt. Commonwealth v. Stevens, 379 Mass. 772, 774-775 (1980). While directing his efforts to the more serious crime, counsel still contested the lesser allegation in his opening, challenged the credibility of the Commonwealth's witnesses, and moved for a required finding of not guilty at the close of the evidence.
During his opening statement, counsel for Rogers informed the judge that he intended to use Adjutant evidence to show that Rogers bit off the victim's ear in self-defense. During his cross-examination of the victim, counsel attempted to elicit evidence of the victim's propensity for violence. However, after counsel indicated that the identity of the first aggressor was not at issue, the judge precluded counsel from pursuing this avenue any further.
The victim and one percipient witness attested to Rogers "sucker punch[ing]" the victim.
Rogers does not contest this strategy, as he raises no claim of ineffective assistance of counsel. The strategy may have benefited Rogers, as he was acquitted of the more serious offense of mayhem. Cf. Commonwealth v. Myers, 82 Mass. App. Ct. at 183-184 ("[A] defendant's right to confront [a witness] falls within the list of rights related to 'strategic or tactical matters, resting ultimately in counsel'" [citation omitted]).
Although counsel's required finding argument concentrated on the mayhem charge, the judge made clear on the record that counsel's motion pertained to both charges.
b. Counsel's assent to the witnesses' hearsay statements. Rogers next asserts that he was entitled to a colloquy when counsel waived his right to confront the witnesses against him by agreeing to the admission of the out-of-court statements of two percipient witnesses. "If the accused, being present, manifests no dissent, it is usually fair to assume that he approves of, or at least acquiesces in, the decisions taken in open court in his behalf by his counsel." See Commonwealth v. Myers, 82 Mass. App. Ct. at 181.
Rogers's counsel agreed to admit the statements of two percipient witnesses into evidence, along with certified copies of the past convictions of both declarants.
Furthermore, these statements did not go unchallenged. Counsel impeached the veracity of the out-of-court declarants by introducing evidence of their prior convictions. He also argued against affording weight to their declarations. We conclude, therefore, that neither counsel's abandonment of an Adjutant claim nor his assent to the admission of the two out-of-court witness declarations resulted in a waiver of a personal right that required the judge to conduct a colloquy. Cf. Commonwealth v. Amirault, 424 Mass. 618, 651 n.23 (1997) ("The proliferation of such personal waiver requirements would lead a judge to intrude on the defense presentation in a manner that would jeopardize the primary responsibility our system places on counsel").
We also see no merit to Rogers's further claim that the judge failed to execute a proper jury-trial waiver. Rogers filed a written jury-trial waiver, and the judge properly advised him of his constitutional right to a jury trial. See Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 784 (1997).
2. Closing arguments. For the first time on appeal, Rogers claims that the judge predetermined Rogers's guilt on the assault and battery charge and interfered with Rogers's right to make an adequate closing argument when the judge stated: "Just cut away the fat and get to the meat . . . . Let me guide you with respect to this, only because of the [j]udicial economy involved. What I want to hear is, has the Commonwealth proven beyond a reasonable doubt, notwithstanding the specific intent to bite off an ear, . . . that [the defendant] did not act in self-defense?" Without an objection, we review for a "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). A substantial risk of a miscarriage of justice exists when we have "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
While we recognize that "closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial," Commonwealth v. Triplett, 398 Mass. 561, 568 (1986), we note that it is not an unfettered right. Cf. Commonwealth v. Colon, 449 Mass. 207, 224 (2007) (proper argument should be limited to "the evidence admitted or based on logical inferences drawn therefrom"). The judge here did not foreclose counsel from making an argument on Rogers's behalf. He simply asked counsel to tailor his argument to what was clearly the crux of the defense. Counsel was still afforded and did deliver a proper summation based upon the evidence. See ibid. In addition, that the judge kept an open mind and did not predetermine Rogers's guilt is plain from the judge's further comment that he also would be considering the parties' required finding arguments in summation.
Moreover, we assume that the judge properly self-instructed on the elements of each crime and held the Commonwealth to its burden of proof as to each of the offenses charged. See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005) ("[J]udges in jury-waived trials are presumed to know and correctly apply the law"). Accordingly, we see no error with the judge's suggestion here that counsel focus their arguments. In any event, even if it can be said that the judge remotely interfered with counsel's summation, it created no substantial risk of a miscarriage of justice.
The evidence of Rogers punching the victim without provocation was overwhelming and uncontroverted.
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Judgment affirmed.
By the Court (Fecteau, Sullivan & Maldonado, JJ.),
Clerk Entered: October 9, 2014.