Opinion
19-P-61
04-13-2021
COMMONWEALTH v. Brian HENRIQUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2016, a Superior Court jury convicted the defendant of assault and battery, G. L. c. 265, § 13A (a ) ; unlawful possession of a firearm, G. L. c. 269, § 10 (a ) ; resisting arrest, G. L. c. 268, § 32B ; and assault by means of a dangerous weapon, G. L. c. 265, § 15B (b ). Immediately thereafter, following a jury-waived trial, he was found guilty of being an armed career criminal with three prior convictions. G. L. c. 269, § 10G (c ). We affirm the defendant's convictions for unlawful possession of a firearm, resisting arrest, and assault by means of a dangerous weapon, but vacate the defendant's conviction for assault and battery, and so much of the order denying the defendant's motion for a new trial as related to that charge.
The defendant does not address in his brief the appeal from his conviction under G. L. c. 269, § 10G (c ), and thus the issue is waived. See Barkan v. Zoning Bd. of Appeals, 95 Mass. App. Ct. 378, 389 (2019).
1. Background. On the morning of March 4, 2015, Norberto Garcia, a security guard at Peter Pan bus terminal in Springfield, walked by the defendant. Garcia was in uniform, and was carrying his personal firearm, loaded, in a holster on his belt. The defendant began yelling insults at Garcia, who told him to leave. The defendant did not comply, instead swinging his fist at Garcia. Garcia punched the defendant in the face, and the defendant fell to the ground.
The defendant got up and ran into the nearby parking lot. Garcia told the defendant that if he returned to the terminal property, he would call the police. Nonetheless, the defendant quickly returned, shouting that he was going to fight Garcia. The defendant again attempted to punch Garcia, and Garcia again punched back. Garcia testified that when the defendant again "rushe[d]" at him, he "pick[ed] him up and [threw] him on the ground," then got on top of the defendant. The defendant repeatedly spat at, scratched, and punched Garcia, grabbing at him. Garcia also told the defendant that if he continued that conduct, Garcia would "retaliate." The defendant continued to spit at and punch Garcia, and Garcia responded with a slap or punch each time the defendant spat at or punched him. The defendant also bit Garcia on the nose. In the course of the struggle, Garcia felt his gun come loose from its holster at his side; he grabbed the gun and, in an unsuccessful effort to convince the defendant to stop fighting him, forced the flat of the gun onto the defendant's chest, with the barrel pointed toward the defendant's neck, and pressed the gun onto the defendant's sternum. The defendant, however, got the gun away from Garcia and pointed it at him, asking, "[h]ow's it feel? I'm going to kill you with your own gun," before Garcia or Adjani Peart, a motor coach operator employed by Peter Pan, wrested the gun from the defendant's control.
Springfield Police Sergeant Arthur D'Ambrosia arrived on the scene as Garcia and the defendant were fighting, and after Peart had recovered the gun. D'Ambrosia, who was soon followed by other police officers, attempted to take the defendant into custody. The defendant stiffened and pulled his arm away from D'Ambrosia while continuing to struggle with Garcia and other officers.
2. Discussion. a. Jury instructions. i. Necessity defense. The defendant argues that he was entitled to a necessity instruction on the charge of unlawful possession of a firearm because Garcia's placement of the gun on the defendant's chest, with the muzzle pointed toward the defendant's neck, put the defendant at risk of being shot. Because he requested the instruction, the issue was preserved, and we review for prejudicial error. See Commonwealth v. Brown, 481 Mass. 77, 86 (2018). A defendant is entitled to an instruction on the defense of necessity "only after the defendant has presented some evidence on each of the four underlying conditions of the defense," Commonwealth v. Kendall, 451 Mass. 10, 14 (2008) :
"(1) [he was] faced with a clear and imminent danger, not one which is debatable or speculative; (2) [he could] reasonably [have] expect[ed] that his action [would have been] effective as the direct cause of abating the danger; (3) there [was] [no] legal alternative which [would have been] effective in abating the danger; and (4) the Legislature [had] not acted to preclude the defense by a clear and deliberate choice regarding the values at issue."
Commonwealth v. Lockwood, 95 Mass. App. Ct. 189, 197 (2019), quoting Commonwealth v. Pike, 428 Mass. 393, 400 (1998). "In determining whether the defendant met this burden, we review the evidence in the light most favorable to him, see Kendall, supra at 11 ..., and treat his testimony, ‘no matter how incredible ..., as true,’ and resolve all reasonable inferences in his favor." Lockwood, supra at 197-198, quoting Commonwealth v. Magadini, 474 Mass. 593, 600 (2016).
Even if we assume that Garcia's pressing the gun flat to the defendant's chest presented a "clear and imminent danger" to the defendant, the defendant was not entitled to a necessity instruction here because any necessity permitting the defendant to possess Garcia's gun extended only until Garcia was disarmed, at which point the danger presented by Garcia's use of the gun against the defendant would have been abated. Lockwood, 95 Mass. App. Ct. at 197. Cf. Commonwealth v. Ben B., 59 Mass. App. Ct. 919, 919-920 (2003) (defendant not entitled to necessity defense to charge of unlawful possession of firearm where he remained in possession of firearm after imminent danger had abated); Commonwealth v. McCambridge, 44 Mass. App. Ct. 285, 291–92 (1998) (defendant entitled to necessity defense where legal alternative to defendant's unlicensed possession of firearm would not have been effective). "Where there is an effective alternative available which does not involve a violation of the law, the defendant will not be justified in committing a crime." Pike, 428 Mass. at 401, quoting Commonwealth v. Brugmann, 13 Mass. App. Ct. 373, 379 (1982). We discern no error or abuse of discretion in the judge's denial of a request for a necessity instruction.
ii. Self-defense. The defendant argues that he was entitled to an instruction on self-defense as to the charge of assault and battery; the Commonwealth's theory on this charge was that the defendant hit, scratched, spat at, and bit Garcia as the two men struggled on the ground. "An instruction on self-defense must be given if any view of the evidence, viewed in the light most favorable to the defendant, ‘is sufficient to raise the issue.’ " Commonwealth v. Teixeira, 486 Mass. 617, 622 (2021), quoting Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). Specifically, there must be evidence that "(1) the defendant had a reasonable concern over his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used was reasonable in the circumstances" (citations and quotations omitted). Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368–369 (2004).
The fact that the defendant threw the first punches would ordinarily deprive him of his entitlement to an instruction on self-defense, as "[t]he right of self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault unless that person withdraws in good faith from the conflict and announces his intention to retire" (emphasis omitted). Commonwealth v. Naylor, 407 Mass. 333, 335 (1990), quoting Commonwealth v. Maguire, 375 Mass. 768, 772–773 (1978). Although the defendant briefly withdrew to the nearby parking lot, he renewed the fight by rushing back at Garcia and taking another swing at him. See Commonwealth v. Espada, 450 Mass. 687, 693-694 (2008) (defendant who "initiated the altercation and created the circumstances by which he alleges he could not retreat" not entitled to self-defense instruction); Commonwealth v. Niemic, 427 Mass. 718, 722 (1998) ("no privilege to use force in self-defense" where defendant fails to take advantage of opportunity to retreat). On appeal, however, the defendant argues that his right to self-defense was revived by Garcia's use of excessive force. As the defendant did not make this argument before the trial judge and did not object on that basis to the instructions the judge gave, we review any error by the judge in not giving a self-defense instruction for a substantial risk of a miscarriage of justice. See Commonwealth v. Thomas, 401 Mass. 109, 117-118 (1987).
Having done so, we conclude that, viewed in the light most favorable to the defendant, the evidence that Garcia "pick[ed] [the defendant] up and ... [threw] him on the ground" raised a question about Garcia's use of unreasonable force. See Commonwealth v. Miranda, 77 Mass. App. Ct. 76, 78, 80 (2010) (viewed in light most favorable to defendant, evidence of trooper's throwing subject to ground, then kneeling on her back, hurting her, sufficient to establish excessive force needed for instruction on defense of another). Had the jury found that Garcia used excessive force, they could also have found that his doing so restored the defendant's right to self-defense. See id. at 80 ("though [defendant] may have been the initial aggressor, the jury could have found [the officer's] use of excessive force restored [defendant's] right to self-defense"). Where the Commonwealth's case on the assault and battery charge was almost exclusively dependent on Garcia's testimony, and Garcia himself provided the evidence from which a jury could have determined that the defendant's punching, spitting, and biting while on the ground could have been a response to Garcia's use of excessive force, we are not persuaded that the judge's failure to give the self-defense instruction "did not ‘materially influence[ ]’ the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). On this record, the defendant was entitled to an instruction on self-defense and, accordingly, we vacate the defendant's conviction on the assault and battery charge.
Given our conclusion, to the extent that the defendant argues that Garcia's pressing the side of his gun into the defendant's chest was evidence of Garcia's use of excessive force, we need not decide the question. See Miranda, 77 Mass. App. Ct. at 78.
b. Sufficiency of the evidence of resisting arrest. In reviewing a claim of insufficient evidence, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation and quotation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
"A defendant resists arrest if ‘he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.’ "
Commonwealth v. Soun, 82 Mass. App. Ct. 32, 33–34 (2012), quoting Commonwealth v. Tavernier, 76 Mass. App. Ct. 351, 356 (2010). At trial, D'Ambrosia testified that as he attempted to take the defendant into custody, "[the defendant] resisted my handcuffing techniques and flailed around still fighting with ... Garcia and myself"; Garcia's testimony was consistent with this account. See Commonwealth v. Lender, 66 Mass. App. Ct. 303, 305-306 (2006) (collecting cases providing examples of resisting). Additionally, a video recording of the incident introduced in evidence at the trial depicts the defendant, who was handcuffed, continuing to resist the police officers as they escorted him to the patrol car. See Soun, supra at 34 & n.6, quoting Commonwealth v. Knight, 75 Mass. App. Ct. 735, 738-739 (2009) (effecting arrest "is a process that ... ends when the person is fully detained by his submission to official force or placed in a secure location"). The evidence here was sufficient to sustain the defendant's conviction.
To the extent the defendant argues that the video directly contradicts the Commonwealth's evidence on this point, we disagree. In any event, as we have said, we view any lesser conflicts in the evidence in the light most favorable to the Commonwealth. See Latimore, 378 Mass. at 677. In that light, the video evidence corroborates D'Ambrosia’s testimony.
c. Ineffective assistance of counsel. A judge "upon motion in writing may grant a new trial at any time if it appears that justice may not have been done." Commonwealth v. Lane, 462 Mass. 591, 597 (2012), quoting Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We will "only disturb the denial of a motion for a new trial where there has been a ‘significant error of law or other abuse of discretion.’ " Commonwealth v. Hernandez, 481 Mass. 189, 195 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion). Where, as here, the motion judge was not the trial judge, and the motion was decided without an evidentiary hearing, we are "in the same position as the motion judge to evaluate the record." Commonwealth v. Fortini, 68 Mass. App. Ct. 701, 703 (2007).
In the Superior Court, the defendant argued that counsel was ineffective in failing to challenge the sufficiency of the evidence of resisting arrest. Because he has not briefed this argument as part of his challenge to the denial of his motion for new trial, we do not consider it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
To succeed on an ineffective assistance claim, a defendant must prove (1) that his attorney showed "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then typically, [(2) that] it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Phinney, 446 Mass. 155, 162 (2006), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If "the defendant's ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was " ‘manifestly unreasonable" when made.’ " Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
i. Excited utterances. At trial, the Commonwealth introduced a video recording of a portion of the fight between the defendant and Garcia; the video was made by an unidentified bystander. The judge allowed the Commonwealth's motion to redact the audio from the recording on the grounds that the statements recorded were hearsay. The video was played without sound for the jury.
The recording was begun approximately three to five minutes into the fight. The first portion of the video is recorded from inside a building (presumably the bus terminal), and does not capture the upper portions of Garcia's or the defendant's bodies; its later portion is recorded while the camera is moved to the outdoor area where Garcia and the defendant are struggling.
We conclude that counsel was not ineffective in failing to seek admission of the audio portion of the recording because we are not persuaded that the defendant had a reasonable likelihood of obtaining the admission of the audio, or otherwise accomplishing anything material for the defense, by arguing that the statements included in it were excited utterances. See Commonwealth v. Lally, 473 Mass. 693, 703 n.10 (2016). "In determining whether an out-of-court statement qualifies as an excited utterance, the ‘essential issue is whether the statement was made under the stress of an "exciting event and before the declarant has had time to contrive or fabricate the remark, and thus ... has sufficient indicia of reliability." ’ " Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018), quoting Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017). See Mass. G. Evid. § 803(2) (2021). In making that assessment, a judge considers the location and timing of the statements relative to the "startling event," as well as the "age, spontaneity, and degree of excitement of the declarant." Wilson, supra, citing Baldwin, supra. See Commonwealth v. Joyner, 55 Mass. App. Ct. 412, 415 (2002) (list of considerations "neither exhaustive nor mandatory").
Although, in the abstract, statements referring to the use of a gun often reflect a speaker's excitement at a startling event, the tone and substance of the statements in the recording appear to be part of an effort by the speakers to provide a strategic narrative to the events on the video rather than a spontaneous account of those events. See Commonwealth v. Dunn, 56 Mass. App. Ct. 89, 93 (2002), quoting Commonwealth v. Hardy, 47 Mass. App. Ct. 679, 685 (1999) (excited utterance exception unavailable where "statement's proponent fails to ‘reasonably negate[ ]’ the presence of [premeditation or fabrication]"). Accordingly, counsel was not ineffective for failing to raise the issue. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004). Moreover, the defendant has failed to show how any of the statements at issue were exculpatory or that he was prejudiced by counsel's failure to argue for their admission. See Commonwealth v. Despasquale, 86 Mass. App. Ct. 915, 917 (2014) (ineffective assistance claim fails where defendant fails to demonstrate prejudice stemming from counsel's substandard performance).
This is particularly true given the inclusion of repeated comparisons between the events being described and accounts of Garcia's past ill-treatment of the speakers. See Commonwealth v. Dunn, 56 Mass. App. Ct. 89, 93 (2002).
ii. Advice not to testify. The defendant did not testify at trial, purportedly on counsel's advice. The defendant has failed to show that this advice was deficient. First, counsel's alleged assessment that the case was "looking good for [the defendant]" and "going very well" was not unreasonable. Having prudently deferred the defendant's decision about testifying until the Commonwealth's case was complete, counsel could have considered that he had shown the jury weaknesses in the Commonwealth's case by effectively highlighting inconsistencies in the prosecution witnesses’ testimony, weak points in the investigation into the incident, and potential irregularities in the preservation of evidence, including Garcia's gun holster. Under these circumstances, the judge could properly have concluded that counsel's recommendation that the defendant not testify was not " ‘manifestly unreasonable’ when made." See Kolenovic, 471 Mass. at 674, quoting Acevedo, 446 Mass. at 442.
Second, the defendant was present in the court room when the trial judge ruled that the Commonwealth could refer only to the defendant's larceny convictions in impeachment. Accordingly, the defendant's averment that his counsel failed to advise him of the judge's limiting ruling need not be credited. See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002) (motion judge not obligated to credit even undisputed allegations of defendant's affidavit).
Third, the defendant's contention that he would have testified had he known that without his account, the judge might deny his request for jury instructions on necessity and self-defense, is speculative. Even if it were not, however, that "in hindsight, [counsel] could have done more or made different choices" does not render the strategic choice that he made at trial "manifestly unreasonable." See Kolenovic, 471 Mass. at 674-675. A tactical decision is not manifestly unreasonable simply because it ultimately proves unsuccessful; "reasonableness does not demand perfection." Id. at 674.
The defendant did not support his motion for a new trial with an affidavit from trial counsel explaining counsel's strategy regarding whether the defendant should testify. Nor does the affidavit from defendant's posttrial counsel recount any attempt to obtain an affidavit from trial counsel on this point. In denying a motion for a new trial, a "judge may take into account the suspicious failure to provide pertinent information from an expected and available source." Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004).
As we have indicated, the statements on the audio portion of the recording of the fight were not admissible as excited utterances, so to the extent the defendant argues that he relied upon the exclusion of those statements in deciding not to testify, his reliance was justified.
iii. Preservation of evidence. The defendant's argument that counsel was ineffective in not pursuing a remedy based on lost evidence is speculative; he did not and does not identify any evidence to show what retention or testing protocols applied to Garcia's gun or holster, or that any deoxyribonucleic acid or fingerprint evidence could have been obtained from them, or was lost. As we discern on this record no reasonable likelihood that the defendant would have been successful in moving for relief on the bases identified here, we conclude that there was no error in the rejection of this argument for a new trial. See Lally, 473 Mass. at 703 n.10.
Indeed, the record evidence is to the contrary.
We are not persuaded by the defendant's critique of trial counsel's closing argument. Counsel effectively cross-examined the Commonwealth's witnesses about the thoroughness of their investigation, highlighting the failure of the police to make prompt requests for video surveillance of the bus station, to interview all available witnesses to the event, or to examine Garcia's gun and holster before returning it to him, and argued these points persuasively to the jury. On this record, we are not convinced that counsel would have accomplished a better result by arguing that the police failed to conduct testing that the evidence suggested would have been, in any event, inconclusive.
d. Potential conflict of interest. Finally, the defendant averred that his trial counsel failed to disclose to him that trial counsel's wife worked for the Hampden County District Attorney during the time trial counsel was appointed to represent him, and argued that he was entitled to a new trial on that basis. In a letter, which was attached as an exhibit to the defendant's motion for a new trial, however, trial counsel unequivocally denied the defendant's claim. Contrast Commonwealth v. Croken, 432 Mass. 266, 271 (2000). The defendant does not identify any actual conflict of interest in trial counsel's representation; at most, his affidavit makes out a potential conflict. See Commonwealth v. Stote, 456 Mass. 213, 218, 222 (2010) (defining and distinguishing "actual" conflict of interest and "potential" conflict of interest, and noting defendant's burden to prove conflict). The defendant has also failed to demonstrate any prejudice, material or otherwise, resulting from such a potential conflict, and we discern none. As the defendant's conflict claim fails in the absence of prejudice resulting from the potential conflict, see id. at 222, quoting Commonwealth v. Mosher, 455 Mass. 811, 823 (2010) (defendant's entitlement to new trial depends on establishing " ‘material prejudice’ to his defense resulting from the alleged conflict"), the judge properly denied the motion. See Comita, 441 Mass. at 91.
Counsel wrote, "Mr. Henriquez's claim that he ‘recently discovered’ information pertaining to my wife's employment in the Hampden County District Attorney's Office is false. Mr. Henriquez was timely informed of all relevant information and consented to my representation."
Reviewing the judge's denial of the defendant's motion for a new trial without a hearing for an abuse of discretion, see Commonwealth v. Sanchez, 476 Mass. 725, 742 (2017), citing Commonwealth v. Tucceri, 412 Mass. 401, 409 (1992), we discern none. For the reasons we have discussed, we are not persuaded that the defendant's showing on any of his arguments in support of his motion for new trial was adequate to demonstrate the need for a hearing. See Sanchez, supra.
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3. Conclusion. On the indictment charging assault and battery, the judgment is vacated and the verdict is set aside, and judgment shall enter for the defendant on that indictment. On the indictments charging unlawful possession of a firearm, resisting arrest, and assault by means of a dangerous weapon, the judgments are affirmed. The guilty finding on the sentence enhancement portion of the indictment charging possession of a firearm is affirmed. The portion of the order denying the motion for a new trial which relates to the defendant's conviction of assault and battery is vacated. The remainder of that order is affirmed.
So ordered.
Reversed in part and set aside; affirmed in part; vacated in part