Com. v. Barnette

• Decision Date: 22 September 1998
• Docket Number: No. 97-P-1477,97-P-1477
• Citation: 699 N.E.2d 1230,45 Mass.App.Ct. 486
• Parties: COMMONWEALTH v. Aubrey BARNETTE.
• Court: Appeals Court of Massachusetts

Page 1230

699 N.E.2d 1230

45 Mass.App.Ct. 486

COMMONWEALTH v. Aubrey BARNETTE.

No. 97-P-1477.

Appeals Court of Massachusetts,

Middlesex.

Argued May 4, 1998.

Decided Sept. 22, 1998.

Jon R. Maddox, Belmont, for defendant.

Abra C. Siegel, Assistant District Attorney, for the Commonwealth.

Before KASS, GILLERMAN and LENK, JJ.

LENK, Justice.

This case arises out of an altercation between next door neighbors in Lexington. The victims, Maria Acuna and her son Israel Rodriguez, are Mexican-American. The defendant is predominately African-American. During the incident, the defendant allegedly threatened to kill Acuna and Rodriguez, calling them, among other things, "damn Mexicans" and telling them to "Get out of here." After trial, a jury convicted the defendant of two counts of assault or battery for the purpose of intimidation, G.L. c. 265, § 39, and two counts of threatening to commit a crime, G.L. c. 275, § 2. ¹ On appeal, the defendant contends that the trial judge erred in: (1) denying the defendant's motion for a required finding of not guilty on the two counts of assault or battery for the purposes of intimidation; (2) improperly instructing the jury on intent; and (3) denying the defendant's motion for new trial on the grounds of ineffective assistance of counsel. We affirm.

Facts. Taking the facts in the light most favorable to the Commonwealth, the incident unfolded as follows. In the early evening of September 21, 1995, Maria Acuna (Acuna) was working at her computer on the second floor of her home in Lexington, where she had been living with her son, Israel Rodriguez (Rodriguez), since May, 1995. The defendant was next door at his sister's house babysitting his niece. Acuna heard a loud noise, like someone banging or shaking a wooden fence, looked out her window, and saw the defendant trying to enter her back yard to retrieve his niece's ball. Concerned that the defendant was going to break her fence, Acuna called through the window to the defendant to please not trespass, and that she would come downstairs to help him out.

The defendant shouted, "You bitch, I just came to pick up my ball." Acuna went downstairs and walked into her backyard, and observed that the defendant had entered her yard, and was turning to leave. As the defendant left her yard, he repeatedly called her a "bitch" and told her that she could keep the ball the next time. Acuna walked towards the fence to latch the gate and the defendant said: "You bitch. You don't fit here. What are you doing here, you damn Mexican. Why don't you go back to your country? All of you come and get our jobs and our houses. Get out of here. You don't fit here. I'll kill you and your son." ²

While standing next to the fence shouting at Acuna, the defendant thrust his fist towards her face so that she "could almost feel the hit of his fist" in her nose and face. The defendant then threw his fingers in a forking motion towards her, coming to within an inch of her eyes. The defendant was yelling at Acuna so loudly that Rodriguez awoke from his nap and came outside to the backyard. Rodriguez testified that he could hear the defendant shouting "fuck," "shit," and "Mexican," "Get the hell out of the country," "You don't belong here," and "Mexicans don't belong here" at his mother. He pulled his mother away from the fence and demanded to know from the defendant what was going on. The defendant now attempted to hit Rodriguez with his fists, from the other side of the fence, rattling the gate, trying to enter the backyard, and saying: "You little shit. Come up here. I'm going to take the fucking shit out of you and your mother together. I will beat you both to death." The defendant continued saying, "Damn Mexicans. What are you doing here?" Acuna and Rodriguez both testified that they felt afraid and threatened by the defendant's rage and determination to hit them.

At the time of the incident, the defendant's neighbor, Michael Townes, was barbecuing in his backyard, approximately twenty feet away. Townes heard the defendant yell at Acuna and Rodriguez "You should go back to where you're from," and refer to "whupping" Rodriguez's ass. Townes came over and, smelling alcohol on the defendant's breath, told the defendant to "Let it go" and to go home and "sleep it off." Townes put his hands on the defendant and led him away. Rodriguez went inside and, after calling Townes to express his gratitude, called the police.

Officer Paul Callahan responded to the call and arrived at Acuna's residence to find her and her son visibly upset. Callahan filed an incident report and tried, unsuccessfully, to locate the defendant. The next day, Detective Charles Mercer returned to the neighborhood and interviewed the defendant.

In response to the detective's questions, the defendant asserted that he entered the yard to retrieve the ball only after knocking on the fence and not receiving a response, that Acuna had appeared and yelled at him for not going around to ring the bell, and that he did not swear at or threaten Acuna. Nonetheless, the defendant did admit that he had said that Acuna should "go back to where she came from," but claims to have said it to his neighbor Townes, not directly to Acuna.

1. Motion for required finding of not guilty. The defendant argues that the judge erred in denying his motion for a required finding of not guilty on the two counts of assault or battery for the purpose of intimidation. The defendant claims that the Commonwealth presented insufficient evidence that he acted "for the purpose of intimidation."

In reviewing the denial of a motion for directed verdict in a criminal case, we must "consider and determine whether the evidence, in the light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged...." Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979) (citations omitted). The evidence and the inferences permitted to be drawn therefrom must be of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt. Ibid.

General Laws c. 265, § 39, as inserted by St.1983, c. 165, § 1, is a so-called "hate crime" statute. It provides that "[w]hoever commits an assault or a battery upon a person ... for the purpose of intimidation because of said person's race, color, religion, or national origin, shall be punished...." ³ As instructed by the trial judge, the essential elements of the crime are: (1) the commission of an assault or battery (2) with the intent to intimidate (3) because of a person's race, color, religion, or national origin. In general, a hate crime is "a crime in which the defendant's conduct was motivated by hatred, bias, or prejudice, based on the actual or perceived race, color, religion, national origin, ethnicity, gender, or sexual orientation of another individual or group of individuals." Commonwealth v. Anderson, 38 Mass.App.Ct. 707, 709 n. 5, 651 N.E.2d 1237 (1995). Thus, hate crime laws such as G.L. c. 265, § 39, operate to "enhance the penalty of criminal conduct when it is motivated by racial hatred or bigotry." Ibid. It is not the conduct but the underlying motivation that distinguishes the crime.

Here, the defendant was convicted of assaulting the victims for the purpose of intimidation. The intent required by G.L. c. 265, § 39, was not only that required to establish the underlying assault, i.e., the intent either to cause a battery or to cause apprehension of immediate bodily harm, but also the intent to intimidate because of the victim's membership in a protected class. The defendant argues that, in order to satisfy the intimidation element, the Commonwealth was required to but did not prove that he had the specific intent to put Acuna and Rodriguez in fear for the purpose of compelling or deterring their conduct.

The defendant urges us, in construing G.L. c. 265, § 39, to employ a definition of "intimidation" that has been used in the context of the Massachusetts Civil Rights Act, G.L. c. 12, § 11H. ⁴ There, the concept of intimidation has been defined as "putting in fear for the purpose of compelling or deterring conduct." Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, 631 N.E.2d 985 (1994). See also Tatro v. Kervin, 41 F.3d 9, 19 (1st Cir.1994). ⁵ We decline this invitation.

General Laws c. 12, § 11H, is not a criminal statute. It provides a civil cause of action against those who interfere or attempt to interfere with a person's constitutional rights by threats, intimidation, or coercion. In the context of c. 12, § 11H, intimidation describes the prohibited conduct itself and not any underlying intent. We discern neither reason nor necessity to transplant this definition of intimidation to the hate crime at issue. Webster's Third New International Dictionary 1184 (1993), to which this court often resorts in construing criminal statutes, Commonwealth v. Green, 27 Mass.App.Ct. 762, 767 n. 8, 543 N.E.2d 424 (1989); Commonwealth v. DiPietro, 33 Mass.App.Ct. 776, 777, 604 N.E.2d 1344 (1992); Commonwealth v. Belete, 37 Mass.App.Ct. 424, 425-426, 640 N.E.2d 511 (1994), defines the verb intimidate as: "to make timid or fearful: inspire or affect with fear." Commonwealth v. Potter, 39 Mass.App.Ct. 924, 926, 655 N.E.2d 1288 (1995). Commonwealth v. Gordon, 44 Mass.App.Ct. 233, 235, 694 N.E.2d 2 (1998). This straightforward definition of intimidation is all that we think is meant in G.L. c. 265, § 39. ⁶

The defendant next argues that, if intimidation does not mean to compel or deter the victim's conduct but simply means to put the victims in fear, the intimidation element of the hate crime becomes redundant of the intent requirement of the underlying assault. The intent requirement of the underlying assault, namely, the intent to cause a battery or...