Opinion
10-P-297
11-18-2011
COMMONWEALTH v. JERMAINE BERRY.
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
In December, 2005, the defendant, Jermaine Berry, was convicted on four counts of assault with intent to kill, in violation of G. L. c. 265, § 18(b); one count of unlawful possession of a firearm, in violation of G. L. c. 269, § 10(a); three counts of unlawful possession of ammunition, in violation of G. L. c. 269, § 10(h); three counts of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A(b); and three counts of assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B(b).
At sentencing in January, 2006, the judge dismissed as duplicative two counts of assault and battery by means of a dangerous weapon and one count of assault by means of a dangerous weapon.
The defendant appeals from the convictions on the eleven remaining counts, arguing (1) that trial counsel was ineffective for failing to pursue a criminal responsibility instruction, and that the lack of such instruction created a substantial risk of a miscarriage of justice, (2) that trial counsel was ineffective in failing to request an instruction on the lesser included offense of assault by means of a dangerous weapon, and that the absence of the instruction created a substantial risk of a miscarriage of justice, (3) that the prosecutor's cross-examination of defense experts at trial was a fundamentally unfair attempt to undermine credibility through baseless innuendo, and constituted prejudicial error, and (4) that the judge's instruction that intent to kill could be inferred from the use of a deadly weapon was prejudicial error. We affirm the judgments.
Discussion. For the defendant's claims of ineffective assistance of counsel to succeed, we must determine that the conduct in question fell 'measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found . . . whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Further, any strategic decisions by defense counsel do not amount to ineffective assistance of counsel unless they are 'so manifestly unreasonable as to be unprotected by the labels of 'trial strategy' or 'trial tactics." Commonwealth v. Smith, 459 Mass. 538, 551 (2011), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978). 'A strategic decision by counsel will be deemed constitutionally ineffective only if it was manifestly unreasonable at the time it was made.' Commonwealth v. Bell, 455 Mass. 408, 421 (2009).
Here, the defendant pursues his ineffective assistance claim on direct appeal rather than through a motion for new trial. The record thus contains no affidavits or hearing testimony from either the defendant or from trial counsel, making it difficult to determine whether 'defense counsel's asserted failures may in fact have been the considered product of a tactical decision.' Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 108 (1999). An ineffectiveness claim 'made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.' Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Cf. Commonwealth v. Britto, 433 Mass. 596, 607 (2001) (no ineffectiveness found when defendant offered no affidavit explaining the adverse effects of counsel's actions at trial). Without such affidavits or hearing testimony, we must examine the trial record itself to determine whether it shows that defense counsel's failure to request a criminal responsibility instruction was manifestly unreasonable.
In Massachusetts, '[a] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.' Commonwealth v. Urrea, 443 Mass. 530, 535 (2005), quoting from Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967). The defense of lack of criminal responsibility may be raised by the admission of evidence that, 'if believed, might create a reasonable doubt concerning the defendant's criminal responsibility at the time of the [crime].' Commonwealth v. Berry, 457 Mass. 602, 612 n.5 (2010), quoting from Commonwealth v. Mills, 400 Mass. 626, 627 (1987).
The defendant argues that the issue of criminal responsibility was raised by witnesses testifying for the defense at trial. Defense expert Dr. Maryanne Galvin testified that in her examination of the defendant in April, 2005, two years after the shootings, he displayed both a paranoid personality and a thought disorder that could fall under the rubric of schizophrenia. Defense expert Dr. Amani Wilson testified that after his December, 1998, examination of the defendant, he concluded that the defendant suffered from a 'substantial disorder of thought, perception and mood.' The defendant's mother and grandmother, as well as a neighbor who knew and had employed the defendant, all testified that the defendant had in the past displayed various forms of bizarre and unexpected behavior. Importantly, no defense witness testified to a belief that the defendant's mental capacity at the time of the shootings was such that he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
Instead of focusing on criminal responsibility, defense counsel chose to pursue a mental impairment defense, which 'allows a defendant to argue that an abnormal mental condition negates his capacity to form a specific intent or his ability to make a decision in a normal manner.' Urrea, 443 Mass. at 535. Here, the specific intent in question is the malicious intent to murder, a required element of assault with intent to murder. See Commonwealth v. Vick, 454 Mass. 418, 428 (2009). Ultimately, the jury did not find malicious intent, and the defendant was convicted of the lesser included offense of assault with intent to kill.
There is no evidence before the court to suggest that counsel's decision to pursue a mental impairment defense, in an effort to mitigate the most serious charges of assault with intent to murder, was something other than a considered strategic or tactical decision. The testimony of the defense experts and lay witnesses was not such that it made a failure to request a criminal responsibility instruction manifestly unreasonable. It is not manifestly unreasonable for an attorney to pursue a trial strategy that aims to reduce the most serious charges against his client, while avoiding an insanity defense that he reasonably may deem unsupported by the evidence. See Commonwealth v. LaCava, 438 Mass. 708, 715 (2003); Commonwealth v. Cutts, 444 Mass. 821, 828- 829 (2005).
We therefore conclude that the evidence did not raise, and certainly did not require the pursuit of, a criminal responsibility defense, and as such counsel's failure to request a criminal responsibility instruction was not manifestly unreasonable.
The defendant also argues that trial counsel was ineffective when he failed to request instructions on assault by means of a dangerous weapon as a lesser included offense on all four armed assault with intent to murder charges (for all four officers who were shot at), or as a lesser included offense on all three assault and battery by means of a dangerous weapon charges (for the three officers who were hit).
'[A] defendant's entitlement to a lesser included offense instruction depends not only on the existence of a possible factual scenario justifying a conviction of the lesser but not the greater offense, but also on evidence of a dispute at trial about the element that distinguishes the two offenses.' Commonwealth v. Porro, 458 Mass. 526, 536 (2010). 'There is no requirement . . . that a judge give an instruction on a lesser included offense that might be supported by the trial evidence in the absence of a request by the defendant or the Commonwealth.' Commonwealth v. Miller, 457 Mass. 69, 81 (2010). Only when counsel's failure to object to a lesser included offense instruction is 'manifestly unreasonable' may the judge need to give such an instruction sua sponte 'to protect the case from the risk of reversal on appeal.' Commonwealth v. Glover, 459 Mass. 836, 843 n.8 (2011).
As to the three indictments for armed assault with intent to murder relating to the three officers who were hit by bullets fired by the defendant, the evidence here did not support a lesser included charge of assault by means of a dangerous weapon. The battery on all three officers was uncontested by the defense. As to the one armed assault with intent to murder indictment relating to the one officer who was not hit by a bullet fired by the defendant, the jury appropriately could have been instructed on assault by means of a dangerous weapon as a lesser included offense, had defense counsel requested such an instruction. However, absent affidavits and hearing testimony from defense counsel and the defendant, there is no evidence to suggest that defense counsel's failure to request the instruction was anything other than reasonable trial strategy. It is a reasonable trial strategy to avoid a lesser included offense instruction if it is possible that the jury may acquit on the greater charge, particularly if they do not have the opportunity to settle for the lower offense. See Commonwealth v. Roberts, 407 Mass. 731, 737-739 (1990) (affirming convictions where defense counsel did not request instruction on lesser included offense and pursued strategy of presenting 'an all-or-nothing choice to the jury'). Here, counsel may have reasonably believed that the absence of such an instruction increased his client's chances of acquittal, and the judge was not required to give such an instruction sua sponte. Counsel's failure to request the instruction was not manifestly unreasonable, and thus did not constitute ineffective assistance of counsel.
Furthermore, we do not agree that the prosecutor used unsubstantiated innuendo as a basis of his hypothetical questions to Dr. Galvin. The defendant has not identified a question by the prosecutor that was not, as is required, 'based on the facts in evidence.' Commonwealth v. Burgess, 450 Mass. 422, 434 (2008), quoting from Commonwealth v. Federico, 425 Mass. 844, 850 (1997). These can include 'facts . . . testified to by [the expert witness] or . . . facts assumed in the questions put to [the witness] and supported either by admitted facts or by the testimony of other witnesses already given or to be given at the trial, or . . . facts derived partly from one source and partly from the other.' Burgess, supra, quoting from Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 527 (1986). Here, all the hypothetical questions were based on the facts in evidence.
In Burgess, certain hypothetical questions were held to be improper because an expert was asked to 'perform the jury function of evaluating whether his own testimony was consistent with other testimony.' 450 Mass. at 436. Conversely here, the prosecutor restricted his hypothetical questions to those relating to the basis of Dr. Galvin's expert opinion. The prosecutor inquired whether Dr. Galvin knew about specific incidents of the defendant's conduct around the time of the shootings, and whether the incidents were consistent with Dr. Galvin's expert opinion of the defendant's ability to form the requisite intent. This tactic was not improper. See, e.g., Commonwealth v. Snell, 428 Mass. 766, 779 (1999) (hypothetical questions proper when prosecutor asked medical expert if victim's injuries were consistent with facts described by the prosecutor). We therefore conclude that the prosecutor's cross-examination of defense expert Dr. Galvin was proper.
Finally, the judge's instruction that the jury could infer intent to kill based on the use of a firearm was proper. See Commonwealth v. Oliveira, 445 Mass. 837, 842-843 (2006); Commonwealth v. Smith, 456 Mass. 476, 488 (2010) ('It was not error to instruct that one may infer an intent to kill from the use of a firearm'). The challenged instruction did not impermissibly require the jury to infer the malice element of intent to murder from the use of a firearm. Contrast Commonwealth v. Burkett, 396 Mass. 509, 512-514 (1986). Indeed, here the defendant was acquitted of every assault with intent to murder charge initially brought against him, and was convicted instead of the lesser included offense of assault with intent to kill.
Judgments affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),