Opinion
20-P-1105
02-11-2022
COMMONWEALTH v. Quinton WHITE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of assault and battery by means of a dangerous weapon, causing serious bodily injury, in violation of G. L. c. 265, § 15A (c ) (i). On appeal, the defendant contends that (1) the Commonwealth failed to prove that the victim suffered a serious bodily injury; and that the trial judge (2) improperly instructed the jury on the element of serious bodily injury, (3) improperly admitted certain statements, (4) should have provided a missing witness instruction, and (5) exhibited judicial bias and assisted the prosecutor at trial. We affirm.
Background. The jury could have found that the defendant stabbed the victim, Rodney Caraballo, three times with a knife -- once in the chest and twice in the left side of his torso -- late one morning in Fall River. An off-duty nurse saw Caraballo lying on the ground, stopped to render aid, and noticed that Caraballo was bleeding from multiple wounds and that blood was soaking though his shirt. She had difficulty stanching the bleeding and perceived that Caraballo was rapidly fading. She called 911 and did her best "to keep him alive until an EMT arrived."
Right after the defendant stabbed Caraballo, he felt like he was choking on blood and could not speak or catch his breath. Caraballo was in and out of consciousness while the nurse rendered aid and during the subsequent ambulance ride. At the hospital, a tube was inserted in Caraballo's lungs to remove blood and to help him breathe; it took him three weeks to feel like he was breathing normally again. At trial, about eight months after the stabbing, Caraballo had three scars on his torso, which he showed the jury.
Discussion. 1. Sufficiency of the evidence. The defendant contends that the evidence was insufficient to prove beyond a reasonable doubt that he caused "serious bodily injury," G. L. c. 265, § 15A (d ), and that the trial judge should have allowed his motion for a required finding of not guilty. "In reviewing a denial of a motion for a required finding of not guilty, our inquiry is whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact that the essential elements of the crime have been proven beyond a reasonable doubt." Commonwealth v. Vazquez, 69 Mass. App. Ct. 622, 626 (2007). "In satisfying that test, the Commonwealth may rely on reasonable inferences drawn from circumstantial evidence." Id., quoting Commonwealth v. Degro, 432 Mass. 319, 325 (2000).
General Laws c. 265, § 15A (d ), sets out three alternate ways to prove "serious bodily injury": bodily injury resulting in (1) "a substantial risk of death," (2) "a permanent disfigurement," or (3) "loss or impairment of a bodily function, limb or organ" (citation omitted). Commonwealth v. Inoa, 97 Mass. App. Ct. 262, 263 (2020). Here, the evidence was sufficient for a rational jury to find beyond a reasonable doubt that the defendant caused serious bodily injury by all three means.
a. Substantial risk of death and loss or impairment of a bodily function, limb, or organ. Based on the same set of facts, a rational jury could have concluded that Caraballo's injuries resulted in (1) a substantial risk of death and (2) the impairment of a bodily function. After the stabbing, Caraballo was in and out of consciousness; felt like he was choking on blood; bled profusely; was rapidly declining while the off-duty nurse did her best "to keep him alive until an EMT arrived"; needed a tube in his lungs to remove blood and assist him in breathing; and, for three weeks, could not breathe normally. These injuries permitted the jury to find beyond a reasonable doubt that the injuries resulted in a substantial risk of death. See Commonwealth v. Gerhardt, 477 Mass. 775, 788 (2017) ("Jurors are permitted to utilize their common sense in assessing trial evidence").
Impairment of a bodily function is "when a part or system of the body (other than an organ or limb) is significantly impeded in its ability to fulfill its role." Commonwealth v. Scott, 464 Mass. 355, 359 (2013). "The loss of a limb, organ, or bodily function would have a substantial impact on a victim on a par with injuries causing permanent disfigurement or risking death." Id. An impairment of a bodily function need not be permanent or life threatening to qualify as a serious bodily injury. See, e.g., Commonwealth v. Marinho, 464 Mass. 115, 118-119 (2013). Here, the jury could reasonably have concluded that the victim's inability to breathe normally for three weeks was an impairment of a bodily function.
b. Permanent disfigurement. "[P]ermanent disfigurement is a significant and enduring injury that affects the appearance or the character of a person's bodily integrity." Commonwealth v. Heywood, 484 Mass. 43, 50 (2020). Scars may be permanently disfiguring. See, e.g., Commonwealth v. Farrell, 322 Mass. 606, 618 (1948) (jury could permissibly have found that cigarette burns and slash marks were permanently disfiguring). See also, e.g., Commonwealth v. Johnson, 92 Mass. App. Ct. 538, 542 (2017) (under less exacting probable cause standard, grand jury could have found serious bodily injury based on victim's "permanent disfiguring scar on his head"). Caraballo's scars endured at the time of trial, approximately eight months after the stabbing, as the jury saw. Having witnessed the scars on Caraballo's torso, the jury were permitted reasonably to conclude that the scarring constituted permanent disfigurement.
2. Instruction on serious bodily injury. The defendant contends that the trial judge's instructions on G. L. c. 265, § 15A (d ), were incorrect because they did not outline the three means of proving serious bodily injury. "We evaluate jury instructions as a whole and interpret them as would a reasonable juror." Marinho, 464 Mass. at 122. "We do not require that judges use particular words, but only that legal concepts are properly conveyed." Id. "Because the defendant did not object to the jury instruction at trial, we review his claim to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice."Id. We conclude that the instructions that the trial judge provided were accurate and appropriately conveyed the law.
The trial judge instructed the jury that " ‘serious bodily injury’ is defined as bodily injury that results in permanent disfigurement, loss or impairment of a bodily function, lymph or organ, or a substantial risk of death." This definition of "serious bodily injury" tracks the statutory definition and mirrors the model jury instructions, and thus was not in error. See Commonwealth v. Garcia, 94 Mass. App. Ct. 91, 99 (2018) (judge correctly instructed jury where instruction closely tracked statutory definition of serious bodily injury).
The word in the statute is "limb," not "lymph." Whether the trial judge misspoke, or this is an error in the transcript, it is minor and without consequence, as the case does not involve the loss of a limb.
3. Improper testimony. The defendant also contends that the trial judge should have excluded two statements by Sergeant McDonald, an officer who investigated the stabbing, as hearsay and violations of the confrontation clause. Because the defendant withdrew his objection to the first statement, and because his objection to the second was sustained, this amounts to an argument that the trial judge should, sua sponte, have struck this testimony. We review unpreserved errors for a substantial risk of a miscarriage of justice, asking whether the error, if any, was "sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error" (citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Here, we conclude that the error, if any, did not rise to this level. The Commonwealth's strong case included the following: testimony from the victim and from the off-duty nurse as to the seriousness of the victim's injuries; the victim's testimony about his inability to breathe normally for three weeks; and evidence, in the form of scars, of the lasting effect of the injuries. Furthermore, the trial judge provided a general curative instruction by telling the jury, "If I sustained an objection to a question, you cannot draw any inference from the wording of the question." See Commonwealth v. Amirault, 404 Mass. 221, 232 (1989) (judge may rely on curative instructions as adequate means to correct any error and to remedy any prejudice to defendant). Because neither statement materially influenced the verdict, there was no substantial risk of a miscarriage of justice.
The challenged statements were the following: (1) "They weren't sure if [the victim] was going to make it, he had a couple of stab wounds," and (2) "Detective Reis told me [a witness] was reluctant to sign" the photo array.
4. Missing witness instruction. The defendant contends that the trial judge should have given a missing witness instruction because Bobby Botelho, who was with Caraballo when he was stabbed, did not testify. We review for abuse of discretion and, here, find none. Whether a missing witness instruction ought to be given depends on the posture of the particular case and the state of the evidence, as "there is no hard and fast rule" as to when a jury may be permitted to draw a negative inference from the failure to call a witness (citation omitted). Commonwealth v. Williams, 450 Mass. 894, 900 (2008). Because such an inference may "have a seriously adverse effect on the noncalling party ... it should be invited only in clear cases, and with caution." Id. at 900-901, quoting Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986).
Here, there was ample evidence of who stabbed Caraballo and his resulting injuries. In these circumstances, testimony from Botelho would have been cumulative. See, e.g., Commonwealth v. Morales, 453 Mass. 40, 52 (2009) (missing witness "would have added nothing of significance to the Commonwealth's case"); Williams, 450 Mass. at 901 ; Commonwealth v. Andrade, 98 Mass. App. Ct. 395, 400 (2020) (no missing witness instruction required where witness's testimony would have been cumulative). There is also no basis for an inference that if Botelho had testified, he would have given testimony unfavorable to the Commonwealth. See, e.g., Commonwealth v. Keniston, 423 Mass. 304, 314 (1996). Additionally, it appears that Botelho had no fixed address, and that neither party could find him. Furthermore, as the trial judge explained to defense counsel, Botelho's anticipated assertion of his Fifth Amendment privilege provided another reason for the Commonwealth to not call Botelho as a witness. Botelho had lied and attempted to mislead the police when they interviewed him. In these circumstances, it was not an abuse of discretion for the trial judge to deny the defendant's request for a missing witness instruction.
Around the time of the incident, approximately eight months before trial, Botelho was homeless.
At trial, when the judge asked defense counsel why the defendant did not call Botelho, defense counsel responded, "I don't know where he is. I mean they can't find him. How am I going to find him?"
5. Judicial misconduct. The defendant maintains that the trial judge exceeded her role as a neutral arbiter and interjected herself in the trial to assist the Commonwealth. We disagree. Both instances cited by the defendant were proper exercises of the court's charge of controlling the trial and guarding against improper conduct of counsel. See Commonwealth v. Perez, 390 Mass. 308, 316 (2017). See also Commonwealth v. Wilson, 381 Mass. 90, 118 (1980) (judge must be trial's "directing and controlling mind" and "not a mere functionary to preserve order and lend ceremonial dignity to the proceedings" [citation omitted]).
In the first instance, the trial judge intervened during cross-examination to preclude the admission of hearsay testimony. After thoroughly considering both the sought-after testimony and the context in which it was sought, the trial judge permitted counsel to ask the questions, but he chose not to. Because nothing was excluded, there is no basis for appeal. In the second, the trial judge merely asked the prosecutor to identify his theory of the case as part of the charge conference. Neither of the instances cited by the defendant suggests that the trial judge went beyond her role and assisted the Commonwealth. There was no abuse of discretion.
The trial judge asked the prosecutor, "[T]here are three ways the Commonwealth can prove serious bodily injury, and you're only proceeding on one?" This prompted a discussion about the Commonwealth's theory of the case.
Judgment affirmed.