Opinion
09-P-1973
09-23-2011
COMMONWEALTH v. KENNETH D. TEMBE.
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
Following a jury trial, Kenneth Tembe, the defendant, was convicted of a number of charges, the most serious of which were armed assault with intent to kill and aggravated assault and battery by means of a dangerous weapon causing substantial bodily injury. On appeal, the defendant argues that the trial judge made several errors of law, that his trial counsel provided ineffective assistance, and that two of the charges were duplicative. We disagree and affirm.
The defendant had been indicted for armed assault with intent to murder and was convicted of the lesser included offense of armed assault with intent to kill.
Although the other convictions were encompassed by the defendant's generally worded notice of appeal, he waived his appeal therefrom by not raising arguments concerning them; accordingly, we affirm those judgments. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Commonwealth v. Hampton, 26 Mass. App. Ct. 938, 938 & n.1, 941 (1988); Commonwealth v. Thomas, 67 Mass. App. Ct. 738, 738 n.1 (2006).
The defendant first claims that the trial judge erred by failing to instruct the jury on the defense of accident. The defendant neither requested an accident instruction nor objected to its absence. A judge is required to give an accident instruction if the issue is fairly raised by the evidence and the instruction is specifically requested. Commonwealth v. Podkowka, 445 Mass. 692, 699 (2006). See Commonwealth v. Doyle, 73 Mass. App. Ct. 304, 308-309 (2008). See also Commonwealth v. Jewett, 442 Mass. 356, 370 (2004). Assuming that the issue was fairly raised -- the defendant claimed that his .45 caliber semiautomatic pistol went off five times, wounding the victim each time, while he and the victim were struggling -- the lack of an instruction did not create a substantial risk of a miscarriage of justice. See Jewett, 442 Mass. at 370. The jury were properly instructed on the Commonwealth's burden to prove intent and also on the levels of intent required for conviction on the charges of armed assault with intent to kill and armed aggravated assault and battery. The defendant does not dispute the propriety of those instructions. As both crimes require proof of specific intent, the jury could not have found the defendant guilty of either crime if they believed, as defense counsel argued in his closing, that the event was an accident. See Commonwealth v. Zaccagnini, 383 Mass. 615, 618 (1981); Commonwealth v. Moran, 75 Mass. App. Ct. 191, 194- 195 (2009). Because the 'omission of counsel does not present a substantial risk of a miscarriage of justice . . . there is no basis for [the defendant's] ineffective assistance of counsel claim' insofar as failure to request an accident instruction is concerned. Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994). See Commonwealth v. Wilson, 441 Mass. 390, 400 n.8 (2004); Commonwealth v. Mahar, 442 Mass. 11, 13 n.4 (2004).
Second, on this record, defense counsel's summation did not amount to 'behavior . . . falling measurably below that which might be expected from an ordinary fallible lawyer.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In his summation, counsel called his client 'a small-time weed dealer, kind of a wanna-be gangbanger.' He reiterated that the defendant testified to having marijuana and owning guns, and explained that 'he's thinking he's a gangster.' Counsel also told the jury that he did not like his client or any of the young people involved in the case and that he specifically did not like or believe the victim. But he also argued that despite the defendant's distasteful activities and lifestyle, he was not a killer -- he did not go to the victim's house 'with any intention of killing anyone.'
The defendant did not file a motion for a new trial based on the summation and it is only the rare case in which an appellate court can find ineffective assistance on the trial record alone. See Commonwealth v. Zinser, 446 Mass. 807, 811-812 (2006); Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). This is not one of those rare cases.
The evidence about the events that occurred on the night the victim was shot was, except for the defendant's testimony about the struggle for the pistol, unchallenged and unequivocally unfavorable to the defendant. The defendant testified at trial and the Commonwealth's cross-examination can be fairly be characterized as devastating. In that context and on the record before us, defense counsel's statements must be seen as tactical and not manifestly unreasonable. See Commonwealth v. Adams, 374 Mass. 722, 728 (1978); Commonwealth v. Hudson, 446 Mass. 709, 715 (2006); Commonwealth v. Hamm, 19 Mass. App. Ct. 72, 76 (1984). Indeed, although the defendant had been charged with armed assault with intent to murder, the jury convicted him of the lesser offense of armed assault with intent to kill, which is at least some indication that counsel's strategy was successful.
To be sure, counsel should not have injected any of his personal views into his summation. See Commonwealth v. Ferreira, 381 Mass. 306, 317 (1980). The judge, however, issued a focused corrective instruction.
Third, there was no error in indicting the defendant both for armed assault with intent to murder and for aggravated assault and battery by means of a dangerous weapon, or in convicting him of both the latter charge and of armed assault with intent to kill. We look at the elements of the offenses to determine whether charges are duplicative. See Commonwealth v. Vick, 454 Mass. 418, 431-435 (2009). Whether aggravated assault and battery by means of a dangerous weapon is compared to armed assault with intent to murder or to armed assault with intent to kill, '[e]ach offense contains elements that the other does not,' id. at 432, and thus there is no issue of duplicative charges here. Id. at 433. In this regard, Vick is squarely controlling.
Fourth, the judge omitted definitions of 'justification' and 'excuse' from the instruction he gave on aggravated assault and battery by means of a dangerous weapon. In the instruction, the judge stated that an essential element of the charge was that the touching 'was committed without justification or excuse' but he did not define either justification or excuse. No objection was lodged. While a judge should define technical terms where the possibility of confusion exists, Commonwealth v. Fuller, 421 Mass. 400, 411 (1995), there was no possibility of confusion here and thus no substantial risk of a miscarriage of justice. See Commonwealth v. Bly, 444 Mass. 640, 649-650 (2005); Commonwealth v. Jordan, 49 Mass. App. Ct. 802, 815 (2000). This case is distinguishable from Commonwealth v. Brown, 10 Mass. App. Ct. 935 (1980), because although 'justification' and 'excuse' have 'particular judicially defined meaning[s],' id. at 935, there are few viable justifications or excuses for using deadly force. Of those, the evidence raised (albeit barely) only the justification of self-defense and, on that issue, the defendant received a separate and entirely proper instruction.
Contrary to the defendant's argument, the defenses of necessity and duress, even assuming they may be used to justify or excuse the use of deadly force, were not raised by the evidence.
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Finally, the judge's instruction on self-defense was appropriate. The evidence showed that the defendant used deadly force and the judge's instruction accurately informed the jury of the elements the Commonwealth was required to disprove in order to show the absence of self-defense when deadly force is used. See generally Commonwealth v. Santos, 454 Mass. 770, 772-773 (2009).
Judgments affirmed.
By the Court (McHugh, Sikora & Fecteau, JJ.),