Commonwealth v. Le
| Decision Date | 27 April 2021 |
| Docket Number | 20-P-78 |
| Citation | 167 N.E.3d 914 (Table),99 Mass.App.Ct. 1121 |
| Parties | COMMONWEALTH v. John D. LE. |
| Court | Appeals Court of Massachusetts |
The defendant, John D. Le, was convicted by a jury of assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon. He was sentenced to eighteen months’ probation, and as a condition of that probation, the defendant was ordered to abstain from alcohol and drugs and to submit to random testing. The defendant filed a direct appeal from his convictions arguing that the trial judge erred in (1) failing to instruct the jury on self-defense, (2) instructing the jury that a knife was a dangerous weapon as a matter of law, and (3) admitting certain statements at trial. The defendant also contends, on direct appeal, that his trial counsel provided ineffective assistance.
Subsequent to filing his direct appeal, the defendant filed a motion to revise and revoke his sentence arguing that the conditions of his probation requiring him to abstain from drugs and alcohol and to undergo random testing were unwarranted. His motion was denied. The defendant appealed from the order denying his motion, and his appeals were consolidated in this court. We vacate the portions of the judgments requiring the defendant to abstain from drugs and alcohol and to undergo random testing as conditions of his probation, and remand for further sentencing proceedings consistent with this memorandum and order. The judgments are otherwise affirmed.
Background. We summarize the facts as presented to the jury. On February 21, 2018, Sebastian McCarthy was staying with his boyfriend, Jackson Le,2 at Jackson's home, where he lived with his brother, the defendant.3 At approximately 1:00 P.M. on that date, the defendant was loudly banging on the walls of Jackson's bedroom from an adjacent room, and McCarthy and Jackson began to argue about whether they should leave the home.4 According to McCarthy, the defendant had behaved similarly on a number of occasions, and McCarthy wanted to leave because he feared the defendant would become violent.
After unsuccessfully urging Jackson to leave the home, McCarthy decided to leave the house on his own. As McCarthy reached his car, which was parked in the driveway, he heard "a loud bang" coming from the second floor. He then heard Jackson and the defendant arguing. In response, McCarthy ran back into the house, stood at the bottom of the stairs, and yelled at the defendant and Jackson to stop. After McCarthy yelled up the stairs, the defendant ran at him, holding what McCarthy described as a "butcher knife." McCarthy testified that the knife was approximately one foot long and was very sharp.
Once McCarthy saw the defendant descending the stairs holding the knife, he ran away. He ran out through a screen door, breaking it off its hinges and cutting his leg. He continued running down the hill next to the home, but he tripped and ultimately tumbled down the hill, hitting his head and sustaining scratches on his arms and legs. After falling down the hill, McCarthy turned back toward the house, concerned for Jackson's safety. In the front yard, he saw the defendant holding the same knife to the side of Jackson's neck. McCarthy testified that the knife "pricked" Jackson, causing little spots of blood to form on his neck.5 At that point, McCarthy began to scream and cuss at the defendant. Eventually, the defendant retreated inside the home and locked the door. McCarthy and Jackson called the police, and Officer Michael Eddy responded to the scene.
When Officer Eddy arrived, he observed McCarthy and Jackson standing in the middle of the street. He described them as "frantic." Officer Eddy observed that McCarthy had a number of scrapes on his hands and knees, and Jackson had a superficial cut on his pinky finger. Officer Eddy knocked on the door of the residence, but received no response, and as result, he waited for additional officers to arrive on the scene. When Sergeant Bonagonario arrived, the officers again knocked on the door, and this time, the defendant answered. The defendant informed the officers that Jackson and McCarthy were arguing, and when the defendant told them to quiet down, McCarthy "offered him out to fight." The defendant stated that he accepted the invitation and went outside to engage McCarthy in a fist fight. He stated that, once he got outside, McCarthy took off running and Jackson jumped on his back. The defendant then told the officers that he had a plastic knife in his hand during the incident, but that he had since flushed the knife down the toilet. Specifically, the defendant stated to the officers, Officer Eddy placed the defendant under arrest and another officer transported him to the police station.
Officer Eddy, Sergeant Bonagonario, and Jackson then looked for the knife inside of the home. Jackson brought the officers to the kitchen and showed them a twelve-inch knife and a four-inch knife. He stated to the officers that the knife used by the defendant was shorter than the larger knife, but longer than the shorter knife. Officer Eddy understood Jackson to be describing a "six-inch steak knife." Their search for the knife was ultimately unsuccessful, and the knife was never recovered by the police.
Discussion. 1. Jury instructions. Because the defendant did not object to the jury instructions as given, we review his claims to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Taranovsky, 93 Mass. App. Ct. 399, 405 (2018).
a. Self-defense instruction. The defendant first contends that the judge erred in failing to, sua sponte, give an instruction on self-defense. We disagree.
"A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present." Commonwealth v. Pike, 428 Mass. 393, 395 (1998). The predicate components of self-defense that must be present include: "(1) the defendant had a reasonable concern over his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness" (quotation and citations omitted). Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 369 (2004). "In determining whether sufficient evidence of self-defense exists [to warrant submission to the jury], all reasonable inferences should be resolved in favor of the defendant." Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 239 (2012), quoting Pike, supra.
Regarding the charge of assault by means of a dangerous weapon, no view of the evidence would support the conclusion that the defendant used all reasonable means to avoid physical combat. Viewing the evidence in light most favorable to the defendant and assuming that McCarthy did in fact challenge the defendant to a fist fight, the defendant still accepted that invitation and went outside to engage in the fight. Notably, he did so while holding a plastic knife in his hand. By agreeing to fight and then going outside armed with a knife, he clearly did not attempt to avoid combat, and he accordingly was not entitled to an instruction on self-defense with respect to that charge.
With respect to the charge of assault and battery by means of a dangerous weapon, "[i]t 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." Commonwealth v. Hakkila, 42 Mass. App. Ct. 129, 130-131 (1997). The defendant did not argue at trial that he used the knife only to defend himself against Jackson. Rather, the defendant asserted that that the evidence, specifically the absence of the knife, was insufficient to establish that he committed the charged offense. The focus of the defense was that what occurred was nothing more than a brotherly dispute. "[I]f the judge had given such an instruction on [his] own, [he] might well have interfered with the defendant[’s] right to present [his] chosen defenses" (citation omitted). Commonwealth v. Shippee, 83 Mass. App. Ct. 659, 661 (2013). See Commonwealth v. Norris, 462 Mass. 131, 144 n.12 (2012) ().
b. Dangerous weapon instruction. The defendant next contends, and the Commonwealth appropriately concedes, that it was error for the judge to instruct the jury that, as a matter of law, a knife is a dangerous weapon. The instruction was erroneous. See Commonwealth v. Bois, 476 Mass. 15, 29 (2016). As a result, we must determine whether the error created a substantial risk of a miscarriage of justice. We conclude that it did not.
A substantial risk of a miscarriage of justice is created only where there is "serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). If the jury had been properly instructed, they would have had to find, beyond a reasonable doubt, that the defendant used the knife "with the intent to use it in a dangerous or potentially dangerous fashion." Commonwealth v. Mattei, 455 Mass. 840, 845 (2010). Here, while brandishing the knife, the defendant chased McCarthy out of the home and down the hill. See Bois, 476 Mass. at 30 (). Further, it is undisputed that the defendant held the knife to Jackson's neck, which ultimately cut Jackson causing him to bleed.6 While the jury heard several descriptions of the knife, we are confident that, given the manner in which the knife was used, the jury's verdict would not have been different regardless of which description of the knife they accepted. See Mattei, sup...
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