Commonwealth v. Hamilton
| Decision Date | 16 May 2016 |
| Docket Number | No. 12–P–1655.,12–P–1655. |
| Citation | 50 N.E.3d 219 (Table),89 Mass.App.Ct. 1123 |
| Parties | COMMONWEALTH v. Tilfor HAMILTON. |
| Court | Appeals Court of Massachusetts |
Following a jury trial, the defendant, Tilfor Hamilton, was convicted of assault and battery by means of a dangerous weapon and witness intimidation.1 In consolidated appeals, the defendant argues, among other things, that (1) he was denied due process when the trial judge failed to instruct the jury on affirmative defenses to the assault and battery charge; and (2) there was insufficient evidence to support his conviction of witness intimidation. Because we agree that there was insufficient evidence to support his witness intimidation conviction and that the failure to properly instruct the jury with respect to the offense of assault and battery by means of a dangerous weapon gave rise to a substantial risk of a miscarriage of justice, we reverse the convictions. Judgment shall enter for the defendant with respect to the witness intimidation conviction. On the charge of assault and battery by means of a dangerous weapon, the order denying the motion for a new trial is reversed. A new order shall enter allowing the motion. On that charge, the judgment is reversed and the verdict is set aside.
Discussion. 1. Jury instructions. Because the challenge is to the failure to charge the jury on affirmative defenses, we recite the facts in the light most favorable to the defendant. See Commonwealth v. Pike, 428 Mass. 393, 395 (1998). It is undisputed that Jackeline Grant, the defendant's then girl friend, testified that on the day of the incident she was upset with the defendant because she was told by a friend that the defendant had been cheating on her. Grant waited with her sister-in-law, Fenemae Eden–Grant, and Grant's niece, Nayobe Eden–Grant,2 in Grant's and the defendant's shared home, until the defendant came home from work, to confront him. Grant became increasingly upset as the defendant denied her allegations. Grant became enraged, went into the kitchen, returned with a knife, and tried to stab the defendant.
The defendant repeatedly asked Fenemae to call the police, but she refused. Grant testified that as she attempted to stab the defendant, he grabbed her by the hand, the knife broke and dropped to the floor. She attempted to retrieve the broken knife to continue her attack. Grant further testified that she believed that the defendant was carrying a box cutter because he used it for his job and that while she did not see the defendant holding the box cutter during the altercation, she tried to get it from him, and then she fell onto the defendant and realized her neck was wet with blood. Grant testified that she did not know how she was injured, but that after she fell, she realized that she was cut. The police did not recover a box cutter at the scene or on the defendant. Grant also testified that the defendant had never hurt her physically before.
The defendant contends that he was denied due process when the trial judge failed to instruct the jury on the affirmative defenses of self-defense and accident. We agree.3 The defendant requested both instructions at the charge conference and the judge declined to give the instructions, but the defendant did not renew his objection at trial. “Because the defendant failed to object to the instructions given, ‘we review to determine whether the alleged error created a substantial risk of a miscarriage of justice.’ “ Commonwealth v. Botelho, 87 Mass.App.Ct. 846, 849 (2015), quoting from Commonwealth v. Dussault, 71 Mass.App.Ct. 542, 544 (2008).
“In determining whether the failure to give an instruction created a substantial risk of a miscarriage of justice we consider ‘(1) whether the Commonwealth presented a strong case against the defendant; (2) whether the error is 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; and (3) whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision.’ “
Botelho, supra at 851, quoting from Dussault, supra.
a. Self-defense. “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.” Pike, 428 Mass. at 395. “In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant.” Ibid., citing Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975). A defendant is entitled to a self-defense instruction, when deadly force is used, where he:
“(1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case.”
Commonwealth v. Pring–Wilson, 448 Mass. 718, 733 (2007), quoting from Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). Cf. Commonwealth v. Allen, 474 Mass. 162, 166–173 (2016).
Here, viewing the facts in the light most favorable to the defendant, the defendant was entitled to a self-defense instruction. See Pring–Wilson, supra. Grant testified that she attempted to stab the defendant with a deadly weapon. After the defendant disarmed her, she attempted to retrieve the knife and grab his box cutter to harm the defendant. Furthermore, there was no evidence that the defendant used excessive force in his attempt to defend himself from Grant's attack. See ibid. Additionally, Grant's testimony was unclear regarding how much time elapsed between when she was disarmed and attempted to grab the broken knife or the defendant's box cutter, and when she fell onto the defendant and was cut. Grant merely testified that the knife broke, she fell on top of the defendant, and her neck was cut. Grant testified that she did not see the defendant holding or swinging the box cutter at her. Based on Grant's testimony, in the light most favorable to the defendant, the jury could have reasonably believed that the events occurred quickly, the defendant feared for his life or serious bodily harm, and acted in self-defense. See Pike, supra at 396.
The trial judge's failure to instruct the jury on self-defense gave rise to a substantial risk of a miscarriage of justice. See Botelho, 87 Mass.App.Ct. at 851. Based on the evidence above, the jury's verdict might have been different but for the error. Ibid. Additionally, trial counsel requested the self-defense instruction, thus it is clear from the record that his failure to object was not a reasonable tactical decision. Ibid. Because we are not persuaded that the absence of the self-defense instruction did not “ ‘materially influence[ ]’ the guilty verdict,” this error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
b. Accident. “Accident, like provocation, self-defense, and defense of others, is treated as if it is an affirmative defense, which, when it negates an essential element of the crime ... must be disproved beyond a reasonable doubt.” Commonwealth v. McGuane, 77 Mass.App.Ct. 371, 375 (2010), quoting from Commonwealth v. Podkowka, 445 Mass. 692, 699 (2006). “When the issue of accident is ‘fairly raised,’ the judge, at least on request, must instruct the jury that the Commonwealth must disprove accident beyond a reasonable doubt.” Podkowka, supra. “[W]e examine the evidence in the light most favorable to the defendant.” McGuane, supra.
Grant testified that she fell onto the defendant and was cut. She further testified that she did not see the defendant holding the box cutter, that she attempted to grab the box cutter from his pocket, and that she did not know how she had been cut. Based on the facts recited above, the defendant was entitled to an accident instruction and its absence was a significant error. We conclude that the absence of the accident instruction also created a substantial risk of a miscarriage of justice. See Botelho, 87 Mass.App.Ct. at 851.
2. Sufficiency of the evidence—witness intimidation. In the light most favorable to the Commonwealth, the jury could have found the following facts based on the Commonwealth's evidence. On November 21, 2011, days after Grant was injured, she applied for and received a restraining order against the defendant.4 On May, 8, 2012, Grant invited the defendant to her home to discuss the defendant's trial scheduled for the next day. As the defendant and Grant sat on her bed, Grant called their mutual friend from church, Janet McBean, so that McBean could pray for Grant. Grant testified that during the call, McBean opined that Grant's injury had been an accident, and when Grant countered that she did not know what happened, McBean stated that if Grant did not know how she was injured, that meant it was an accident. Grant also testified that the defendant repeatedly stated: 5 Grant testified that she replied, “Okay, it were accident.” Grant testified that the call ended after about thirty to forty-five minutes, and Grant told McBean that she would call McBean if she needed to pray and McBean told her that she would indeed pray for her. The defendant left after the phone call ended.
The next morning, before the court proceedings began, McBean approached Grant and told her that she believed in God and that she believed that “the truth will come out.” After McBean spoke to Grant, McBean sat near the defendant. Grant's victim witness advocate, Nicole Castillo, testified that she observed Grant's and McBean's conversation and...
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