Com. v. Hakkila, 96-P-710

• Citation: 675 N.E.2d 401,42 Mass.App.Ct. 129
• Decision Date: 28 March 1997
• Docket Number: No. 96-P-710,96-P-710
• Parties: COMMONWEALTH v. Robert HAKKILA.
• Court: Appeals Court of Massachusetts

Page 401

675 N.E.2d 401

42 Mass.App.Ct. 129

COMMONWEALTH v. Robert HAKKILA.

No. 96-P-710.

Appeals Court of Massachusetts,

Middlesex.

Argued Oct. 22, 1996.

Decided Jan. 30, 1997.

Further Appellate Review Denied March 28, 1997.

James R. Knudsen, Boston, for defendant.

David W. Cunis, Assistant District Attorney (Karen Wells, Assistant District Attorney, with him), for the Commonwealth.

Before ARMSTRONG, PERRETTA and KASS, JJ.

KASS, Justice.

Robert Hakkila appeals his conviction of assault and battery on the grounds that the trial judge erred in (1) failing to instruct the jury on self-defense; (2) failing immediately to order the jury to stop deliberating after they submitted questions; (3) accepting the jury's verdict before their questions were addressed; and (4) denying the defendant's motion for a new trial.

These are the relevant facts. Trial of the defendant in the District Court before a jury of six began and concluded on October 17, 1995. The jury began deliberations but were unable to conclude them that day. Aware that she would not be present October 18, 1995, the trial judge arranged for another District Court judge to preside over the jury deliberations and to accept a verdict, if one were returned the following day.

Two hours into deliberations on day two, the jury submitted questions to the court. After reviewing the questions and discussing them with counsel, the substitute judge decided to reserve them for the trial judge when she returned the next day. When a court officer went to the jury deliberation room to impart this information to the jurors, they told him they were near the end of their deliberations. As we shall describe in some greater detail below, the jury returned a verdict of guilty.

1. Instruction on self-defense. Hakkila argues that the trial judge erred in failing to instruct the jury on self-defense. Trial counsel did not request such an instruction, nor did counsel object to the absence of such instruction before the jury began deliberations. Accordingly, we look only to see if there exists a substantial likelihood that a miscarriage of justice has occurred. See Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979), and Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967).

A defendant is entitled to a self-defense instruction when the evidence, viewed in the light most favorable to him, sufficiently raises the issue. Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475 (1980). Commonwealth v. Morgan, 422 Mass. 373, 383, 663 N.E.2d 247 (1996). Here, self-defense was not a theory on which the defendant relied at trial. Hakkila did not, as he might have, argue that: I didn't do it (namely, batter Kimberly Willard, his former woman-friend) but if I did do it, it was self-defense. Rather, he flatly denied inflicting Willard's injuries, admitting only to placing her in a bear-hug. Although Hakkila testified that he feared Willard would reach his hobby table, on which sharp tools and model airplanes were placed, his testimony speaks more to concern about his "very, very expensive equipment" than his person. That view of the evidence accords with defense counsel's request, which the trial judge honored, for an instruction on defense of property. It was not incumbent upon the judge sua sponte to instruct the jury on a theory upon which the defense had placed no reliance at trial. There was in Hakkila's testimony, indulgently read, only the germ of concern about his person.

2. Jury deliberations, acceptance of the verdict, and the motion for a mistrial. On the second day of deliberations, the jury submitted four questions to the court. ¹ The substitute judge, who was unfamiliar with the record of the trial, concluded that the prudent course was to reserve the jury's questions for the judge who had presided over the trial. The substitute judge had not familiarized himself with the record of the trial, nor was he serving by reason of the death, sickness, or disability of the trial judge. See Mass.R.Crim.P. 38(a), 378 Mass. 916 (1979) ²; Commonwealth v. Carter, 423 Mass. 506, 513-514, 669 N.E.2d 203 (1996). When the court officer informed the jury that the judge was prepared to address them (some forty-five minutes had elapsed since the jurors had given a paper with their questions written on it to a court officer), they indicated that they were close to reaching a verdict and wanted five more minutes to deliberate and get to a vote. About ten minutes later, the jury signalled the court officer with a buzzer. He opened the door to the deliberation room, and the jury said they had arrived at a verdict. The court officer reported that news to the substitute judge, who asked the jury be brought to the courtroom. There the jurors returned a verdict of guilty. Under Mass.R.Crim.P. 38(b), 378 Mass. 916 (1979), the...