Opinion
10-P-2067
01-30-2012
COMMONWEALTH v. KEVIN A. JEFFERSON.
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
After a jury-waived trial, the defendant appeals from convictions of two counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B(b). The defendant argues that the evidence on one count was insufficient, that there was structural error because he was handcuffed at trial, and that the judge obviously misunderstood the elements of the charges. The defendant also appeals from the order denying his motion for a new trial. We affirm.
1. Background. There is general agreement on the circumstances. Around 10:30 P. M., the defendant and his girlfriend were engaged in a loud, emotional, and public argument in the street in front of the house where John Reynolds and Jerry Williams lived. Reynolds and Williams heard the argument, went outside, and observed the woman crying as the defendant continued to shout at her. When Williams and Reynolds approached the defendant, he pulled a utility knife out of his pocket and held it aloft, telling the men to mind their own business and go back inside, specifically adding, 'if you want to live to see tomorrow then you'll get in your house right now.' Both men immediately retreated to the house and phoned the police. A responding policeman observed the defendant to be intoxicated and agitated and found the knife on his person. Reynolds and Williams confirmed the defendant's identity, and he was arrested. Williams did not testify.
Prior to the trial, the defendant participated in a number of court proceedings. At a plea hearing on the day of trial the defendant became agitated and withdrew his previous plea, urgently proclaiming his innocence and willingness to dispute the witnesses' accounts. At his arraignment eight weeks earlier, he similarly had become distraught and obstreperous, angrily proclaiming 'I haven't done anything' repeatedly, even as he was being led from the courtroom. During trial, the judge ordered that the defendant be handcuffed, with his hands in front so that he could still move papers, stand up in his seat, and move around at counsel table, where he acted pro se. The judge then refused his request to remove the handcuffs temporarily for him to demonstrate the gestures and motions he had used when showing Williams and Reynolds the knife and instructing them not to intercede.
At trial, the defendant's girlfriend testified as a defense witness. The judge asked the witness whether the defendant had been physically able to retreat, if he wished, when Williams and Reynolds first approached. The witness confirmed opportunity.
2. Discussion. A. Sufficiency of evidence. The defendant argues that, for proof of threatened battery against Williams, the Commonwealth must show that he was placed in apprehension of imminent battery. Because Williams did not testify, the defendant argues that the Commonwealth has not shown that Williams actually feared imminent harm; instead, he argues that Williams may have been satisfied that the sidewalk altercation was verbal only and did not require his further presence outside.
We use the familiar standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The Commonwealth's theory of assault was threatened battery, which has three elements: that 'the defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat.' Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010). 'The victim need not actually be in fear but must apprehend the risk of an imminent battery.' Id. at 531.
In Porro, the court stated that 'it is sufficient that a defendant engages in menacing conduct that would place a reasonable person in fear of being struck, that the defendant intends by this conduct to place the victim in fear of an imminent battery, and that the victim recognizes the conduct to be threatening an imminent battery.' Ibid. What is required, then, is an understanding of the threat, not actual subjective fear in response.
Viewing the evidence under the Latimore standard, all essential elements were met. The defendant, freshly engaged in an intoxicated, loud, and angry public dispute, brandished a knife and uttered threats against Williams and Reynolds, at close quarters, and after having defiantly ordered them to mind their own business. He explicitly said that if they did not leave immediately, they would not 'live to see tomorrow.' A fact finder could find such utterances and gestures, in these circumstances, to be objectively menacing; that their entire purpose was to compel Williams and Reynolds to leave rather than face a hazard to their lives; and that both men would reasonably recognize this conduct as posing precisely such a threat.
B. Handcuff order. The defendant invokes Deck v. Missouri, 544 U.S. 622 (2005), to further his argument that being handcuffed during his trial violated his due process rights. However, Deck concerned a capital crime, tried to a jury, and a defendant who was shackled with leg irons, handcuffs, and belly chain. The Court cast its opinion in terms of jury trials, noting that it applied when the shackling was 'without adequate justification.' Id. at 635. The Massachusetts Supreme Judicial Court read Deck similarly in Commonwealth v. Petetabella, 459 Mass. 177 (2011), ruling that there had been no structural error, under Deck, when the defendant had been shackled and under armed guard during a jury trial, as the judge had discretion to address reasonable courtroom security concerns. See Id. at 187. This would be even more true with a bench trial.
The question, therefore, is whether there was adequate justification for the judge, in her discretion, to order the defendant handcuffed during the bench trial. There was no error. There existed reasonable security concerns and no reasonable chance of prejudicing the fact finder. The defendant acted pro se, sitting forward at the counsel's table, and questioned hostile witnesses. His conduct and ability to maintain self-control were critical issues of courtroom order. We have reviewed the audio tapes of the exchanges between the judge and the defendant during the plea hearing and the arraignment. The defendant became in turn tearful, indignant, and distraught, interrupting the judge's attempts to reassure him and continuing to yell repeated denials even while being removed. The judge also was aware of the defendant's record of convictions of violent crimes. A judge can consider a defendant's criminal record as a basis for assessing courtroom security needs. Commonwealth v. Montgomery, 23 Mass. App. Ct. 909, 911 (1986). The prior convictions include five for assault on a police officer, three for assault or assault and battery by means of a dangerous weapon, and seven for assault and battery, along with additional convictions of resisting arrest. No error has been shown. [FN1]
C. Duty to retreat. Because the judge asked the defendant's girlfriend several questions about the defendant's ability to physically retreat from the confrontation, he argues that the judge mistakenly thought that the defendant had a duty to retreat before making his threat in self-defense. The defendant then argues that the judge may have erroneously convicted him on this basis. We are not persuaded.
Mere questions from a judge to a witness are not legal rulings. The case law instructs that comments in colloquy between judge and counsel 'are not taken as tantamount to a ruling of law by the judge.' Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992). So, too, questions to a witness are even less appropriately so construed. The judge correctly presented her understanding of the germane legal principles in her thoughtful memorandum and order on the defendant's motion for a new trial and request for a hearing.
The defendant argues that there is no duty to retreat before, acting in self-defense, one issues a purely deterrent threat to induce an aggressor to desist. This, however, is begging the question: the threat is purely deterrent and requires no prior attempt to retreat only if one is acting in self-defense. 'The proper inquiry . . . is whether the defendant reasonably believed his menacing actions were necessary in the interests of protecting life or against serious bodily harm.' Commonwealth v. Yazbeck, 31 Mass. App. Ct. 769, 772 (1992). If there were no reasonable basis to believe self-defense was necessary, a fact finder would never have cause to make a subsequent assessment whether the one issuing a deterrent threat should have retreated. Here, the judge stated in her memorandum that 'the Commonwealth had proven beyond a reasonable doubt that the defendant did not have a reasonable belief that he was being attacked, was about to be attacked or that he was in immediate danger.' Nor does the record indicate any overt act by Reynolds or Williams to place the defendant in fear of harm. No error has been shown.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Mills, Milkey & Carhart, JJ.),