Com. v. Pagels

• Citation: 870 N.E.2d 645,69 Mass. App. Ct. 607
• Decision Date: 26 July 2007
• Docket Number: No. 05-P-1435.,05-P-1435.
• Parties: COMMONWEALTH v. Stephen D. PAGELS.
• Court: Appeals Court of Massachusetts

870 N.E.2d 645

69 Mass. App. Ct. 607

COMMONWEALTH v. Stephen D. PAGELS.

No. 05-P-1435.

Appeals Court of Massachusetts, Barnstable.

Argued February 15, 2007.

Decided July 26, 2007.

Kenneth G. Littman, Fall River, for the defendant.

J. Thomas Kirkman, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, GREEN, & SIKORA, JJ.

SIKORA, J.

A Superior Court jury found the defendant, Stephen D. Pagels, guilty of assault and battery in violation of G.L. c. 265, § 13A, and of intimidation of a witness in violation of G.L. c. 268, § 13B, as amended through St.1996, c. 393, §§ 2-4. They acquitted him of assault with intent to murder. On appeal the defendant argues (1) that the evidence was insufficient to sustain his conviction of intimidating a witness; (2) that the judge should have allowed his motion for a new trial upon both convictions because the defendant's attorney provided ineffective assistance in multiple instances; and (3) that the judge's failure to conduct a hearing upon the defendant's motion for a new trial was error. We have consolidated the defendant's appeal from the denial of the motion for a new trial with his direct appeal. Because we conclude that the evidence was sufficient for the jury to find the defendant guilty beyond a reasonable doubt of witness intimidation, we affirm that conviction.¹ We affirm also the denial without a hearing of the defendant's motion for a new trial on the claim of ineffective assistance of counsel before and during the trial. Finally, as to the claim of ineffective assistance of counsel at the Appellate Division, we affirm the denial of relief without a hearing, by reason of the weak factual offering by the defendant.

Facts. The assault and battery charge resulted from an incident in the Cape Inn Motel in Provincetown, where the defendant was vacationing with his girlfriend, Deborah Rouvalis. The evidence at trial permitted the jury to find the following facts. The couple were staying in room 400 on the second floor. On August 17, 2003, they spent the day and early evening together, sitting near the ocean and consuming mixed drinks. They returned to their hotel at about 10:00 P.M., ordered pizza, and continued to drink. When the pizza arrived, Rouvalis ate some of it in bed, but left crumbs on the defendant's side of the mattress. This circumstance sparked an argument; it quickly escalated to the events underlying the assault and battery charge.

Rouvalis gave two divergent accounts of those events. She provided the first account to Sergeant Carrie Benjamin, a Provincetown police officer, who encountered Rouvalis in the immediate aftermath of the incident curled in a fetal position in the corner of a hallway. It was shortly before 1:00 A.M. on August 18. Rouvalis's legs were covered with blood. She was crying and shaking. Rouvalis kept repeating, "He tried to kill me. I'm afraid." Benjamin testified that she had assured Rouvalis that she was safe.

Rouvalis then gave her first account to Officer Benjamin. According to the officer's testimony, Rouvalis told her that during the argument in the room, Pagels had begun to beat her. She had fled into the hallway and screamed for help. The defendant had followed her and grabbed her by the throat. When she had screamed again, he had forced his thumb into her mouth and down her throat, cutting the tissue in the back of her mouth with his fingernail. Rouvalis had started to choke on blood and had experienced difficulty breathing. The defendant had "dragged her down the hall by the throat and [had] tried to throw her out the second-story window." The defendant had told her that he was going to kill her. Rouvalis had told Benjamin that the blood on her legs had resulted from spitting it out so that she could breathe. Benjamin also noticed that the skin around Rouvalis's neck was red and blotchy. The testimony of two hallway eyewitnesses supported Rouvalis's account to Officer Benjamin.

Provincetown police Officers James Golden and Thomas Steele arrived at the scene at about 12:45 A.M. and were directed to room 400. The police entered and found the defendant on the bed. They handcuffed him and escorted him from the room.²

Daniel Notaro, a paramedic who had arrived in the ambulance summoned to the scene, examined Rouvalis. He testified that he had seen a small laceration in the back of her throat, redness around her neck, and blood on her legs. He had accompanied Rouvalis in the ambulance to the Cape Cod Hospital. She had been treated, released, and brought back to the inn by the police. Officer Steele spoke to Rouvalis in her hotel room and obtained a written statement from her. The written account was similar to her initial disclosures to Officer Benjamin.³

At trial, however, Rouvalis (called by the Commonwealth) gave a different account of the incident. She maintained that the defendant had never threatened to kill her and that he had not assaulted her. She acknowledged that she had given the police a written statement of inculpatory allegations, but said that she had only written it because she was drunk, upset, and angry; and because she had not understood that, at the time, the defendant had only been trying to calm her down. She testified that she was still in love with the defendant and wanted the charges dropped.

Rouvalis's testimony was similar to the statements of an affidavit that she had signed on October 22, 2003, the date of the defendant's bail hearing in this case. Between October 5 and October 17, 2003, the defendant made a series of telephone calls to Rouvalis from jail in which he discussed the contents of the affidavit and her expected testimony at his bail hearing on October 22, 2003.⁴ Rouvalis signed the affidavit after those telephone calls from the defendant. Six of these recorded calls form the basis for the witness intimidation charge. The determination of intimidation requires a detailed evaluation of them.

The first call is fourteen minutes and thirty-six seconds long. Three minutes into the call, Rouvalis, referring to her affidavit, states, "This is what your lawyer wrote up. I didn't write any of that." Fifty seconds later the defendant responds, "Motherfuckers better get together, and get fucking smart, quick!" in specific reference to Rouvalis and his lawyer. For the next minute, the defendant explains why he wants Rouvalis to alter the affidavit and what he does not want in it. Two minutes later, he states, "You fucking change your attitude with me right now." The call continues with the parties arguing and the defendant telling her to pay attention. At the ten minute and twenty second mark, Rouvalis asks, "Just tell me what to do!" At the eleven minute mark, the defendant says, "You are gonna fucking follow my directions," to which Rouvalis replies, "I am gonna hang up right now." The defendant responds with, "You are not gonna fucking hang up, Deb, do not fucking dare."

The second call is very short. The defendant states, "Are you ready to respect me!" Rouvalis becomes upset and hangs up.

The third call is thirteen minutes and thirty-three seconds long. At the outset the defendant tells Rouvalis, "Deb, listen, you put me in here. We are doing this my way.... I said you are going to do it my way, ok? Now, are you ready to listen to every word I say?" A number of outbursts follow from both parties. The defendant tells Rouvalis at the eight minute and twenty-two second mark, "You better straighten [the affidavit] the fuck out." After more discussion, the defendant, at the eleven and one-half minute mark, demands that she "change it, to what I say [the affidavit] said. . . ."

In the fifth call, after the defendant blames the August 18, 2003, events on Rouvalis because she left the room, Rouvalis becomes exasperated and asks the defendant, "Should I really write down the truth?" At the five minute and fifty second mark, Rouvalis proposes to include in the affidavit her version of the altercation between them one weekend prior to the August 18 incident in Provincetown. The defendant reacts vigorously. "You are not going to fucking fuck this up. . . . Do not even go there with any other fucking weekend. There were no police that.... Listen, you fucking idiot, what is wrong with you? Why are you so sick in the head, Debbie? Out to fuck things up."

At trial, the defendant testified in his own behalf. He claimed that, after he had criticized Rouvalis about the crumbs in bed, she had run out of the room and begun screaming. He had followed her down the hall. He had caught up to her and put his hand over her mouth and told her not to make a scene. He had begun to move her toward the room by placing his other hand on her back. Then his hand had accidentally slipped into her mouth as she continued to scream. Rouvalis had bitten him and not let go, so he had pushed his thumb further down her throat to cause a gag reflex. Only then was he able to get his thumb out. As he had assisted her back to their room, she had started to fall toward an open window and he had "pulled her in." When he had heard a hallway observer yell, "Let go of that woman," he had gone downstairs and later returned to the room.

Discussion. 1. Denial of motion for required finding of not guilty. The defendant argues that the trial judge wrongly denied his motion for a required finding of not guilty on the charge of intimidation of a witness, brought after the Commonwealth had rested, because no rational trier of fact could have found beyond a reasonable doubt that the defendant had tried to influence Rouvalis by means of intimidation or threat of force.

a. Standard of review. A finding of not guilty shall be entered "if the evidence is insufficient as a matter of law to sustain a conviction on the charge." Mass.R.Crim.P. 25(a), 378 Mass. 897 (1979). In reviewing the denial of a motion for a required finding of not guilty, "we must look at the evidence in the light most favorable to the Commonwealth to...