Commonwealth v. Henderson

• Decision Date: 08 March 2001
• Docket Number: SJC-08431
• Citation: 434 Mass. 155,747 N.E.2d 659
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: (Mass. 2001) COMMONWEALTH vs. JERRY L. HENDERSON

747 N.E.2d 659 (Mass. 2001)

COMMONWEALTH vs. JERRY L. HENDERSON.

SJC-08431

Supreme Court of Massachusetts

March 8, 2001.

May 16, 2001.

County: Suffolk.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Summary: Practice, Criminal, Instructions to jury. Evidence, Opinion, Relevancy and materiality. Protective Order. Abuse Prevention. Due Process of Law, Abuse prevention, Notice.

Indictments found and returned in the Superior Court Department on December 11, 1996.

The cases were tried before Thomas E. Connolly, J.

The Supreme Judicial Court granted an application for direct appellate review.

Murray A. Kohn for the defendant.

Amanda Lovell, Assistant District Attorney (Andrea J. Cabral with her) for the Commonwealth.

IRELAND, J.

A Superior Court jury convicted the defendant, Jerry L. Henderson, on four indictments charging wilfully endeavoring to interfere with a witness, G. L. c. 268, § 13B; eight indictments charging violation of a protective order, G. L. c. 209A, § 7; and one indictment charging assault and battery, G. L. c. 265, § 13A. On appeal, the defendant claims that the judge's failure to instruct the jury on accord and satisfaction and his admission in evidence of opinion testimony warrant reversal of the interfering with a witness convictions. He also contends that convictions under G. L. c. 209A cannot stand because he was denied a meaningful opportunity to be heard on the underlying order. We granted the defendant's application for direct appellate review. Because the defendant received actual notice of the scheduled hearing, knew the order could be extended, and never expressed a desire to exercise his right to be heard, we reject the argument and affirm the convictions under c. 209A. The judge committed no error in his jury instructions and the convictions under G. L. c. 268, § 13B, as well as the assault and battery conviction, are affirmed.

1. Background.

The victim had a relationship with the defendant from 1991 until 1995. In December, 1995, the two got into an argument that resulted in the defendant's striking the victim in the face. This incident gave rise to the assault and battery charge.¹ While the defendant was incarcerated for an unrelated instance of abuse,² the victim sought a temporary protective order pursuant to G. L. c. 209A. As discussed infra, the court extended the order for a period of one year. During that time, the defendant remained incarcerated and sent approximately sixty letters to the victim.³ The content of the letters constituted the main evidence supporting the prosecution's case of interference with a witness. The letters consisted of repeated pleas, some linked to promises of financial compensation or marriage proposals, for the victim to extricate the defendant from both his confinement and the pending criminal sanctions. Although the content of the letters is further discussed below, we set out samples in the margin.⁴

2. Accord and satisfaction instruction.

In response to the four charges of endeavoring to influence or interfere with a witness in violation of G. L. c. 268, § 13B, the defendant asserted an "accord and satisfaction" defense pursuant to G. L. c. 276, § 55.⁵ Pursuant to the statute, "[a] judge may discharge the defendant from an indictment or complaint on 'a charge of assault and battery or other misdemeanor for which he is liable in a civil action . . .' when a victim appears in court acknowledging that she 'has received [monetary payment in] satisfaction for the injury.'" Commonwealth v. Gonzalez, 388 Mass. 865, 867 n.4 (1983), quoting G. L. c. 276, § 55. See J.R. Nolan & B.R. Henry, Criminal Law § 618, at 509 (2d ed. 1988). Once acknowledged and accepted, the payment is referred to as an accord and satisfaction. See Mahoney's Case, 371 Mass. 891, 891 (1976). At the charge conference, defense counsel requested an instruction including the text of the accord and satisfaction statute and that "the Commonwealth must also prove beyond a reasonable doubt that the defendant's offer of a promise, gift, or something of value to the witness was not a lawful endeavor authorized by [the accord and satisfaction statute]." After considering "those [approximately] fifty letters that are in testimony," including their repeated requests that the victim "lie" about the underlying incident, the judge declined to give the requested instruction. The defendant preserved his appellate rights and moved for a mistrial. "Because the defendant objected to the judge's refusal to give [the accord and satisfaction] instruction, we review the omission to determine if there was prejudicial error." Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 338 (1999), citing Commonwealth v. Grenier, 415 Mass. 680, 686-687 & n.8 (1993).

According to the defendant, without the benefit of the desired instruction, the jury were ill equipped to discern whether the letters were an unlawful attempt to influence the victim or a lawful attempt to reach an accord and satisfaction vis-a-vis the outstanding assault and battery charge. Because most jurors are not familiar with the accord and satisfaction doctrine, it should be charged in cases where it is adequately supported by the evidence. Here, however, no view of the evidence could lead a reasonable jury to find that the defendant intended to enter into an accord and satisfaction. See Commonwealth v. Medina, 430 Mass. 800, 809 n.11 (2000). We thus conclude that the judge's omission was not error.

As the evidence makes clear, the letters invite the victim to participate in a scheme of dishonesty, not one of accord and satisfaction. To effectuate an accord and satisfaction, the victim need only proffer a written acknowledgment "that I have received satisfaction for my injury and request that the charges be dropped." R. M. Kantrowitz & R. Witkin, Criminal Defense Motions § 15.11, at 544 (2d ed. 1998). If this is all the defendant sought to accomplish, there would be no need for the repeated requests for the victim to lie on his behalf. Given this context, statements such as, "please tell [them] that you got jumped and I didn't hit you," and "I know it is a lie, but that is the only way," linked to offers for financial compensation, can only be understood as prohibited attempts to influence the witness.

The defendant's desire that the victim remain secretive about the proposed scheme also contradicts the plain operation of the accord and satisfaction doctrine that requires presentation to the court.⁶ See G. L. c. 276, § 55. The defendant's theory is even less plausible given his history of encouraging the victim to lie to law enforcement agencies in order to protect his penal interests.⁷ Here, a party encouraged a witness to lie, and to keep the proffered payment a secret. This is a far cry from the accord and satisfaction doctrine that enables two parties to strike a publicly approved, judicially sanctioned arrangement. G. L. c. 276, § 55. For these reasons, no view of the record would support the elements of an accord and satisfaction defense, and the judge's refusal to give the requested charge was therefore proper. See Commonwealth v. Champagne, 399 Mass. 80, 91 (1987).

3. Opinion testimony.

At trial, the prosecutor asked the victim, "When the [d]efendant offered you $150 plus the food stamps, what did you think he was offering you that for?" When she answered, "Just to bribe me to get him out of jail," defense counsel objected and moved to strike the response. At sidebar, the prosecutor argued that the contested statement was relevant, because "[i]t goes to the accord and satisfaction [theory]. . . . What I intend to show is he repeatedly made offers [that] she repeatedly rejected, so that even doing accord and satisfaction was unreasonable because she rejected the offers." Defense counsel countered that the victim's "subjective . . . evaluation of what the offer was for" was not relevant; rather, it was a question for the triers of fact to decide. Given the viability of an accord and satisfaction defense at that juncture, the judge overruled the objection.⁸ We review for prejudicial error. See Commonwealth v. Martinez, 431 Mass. 168, 173 (2000).

"A judge's decision that evidence is relevant and that the probative value of relevant evidence is not outweighed by its prejudicial effect will be upheld on appeal absent palpable error." Commonwealth v. DiMonte, 427 Mass. 243, 243-244 (1998). From his opening statement, the defendant manifested an intent to portray the letters as attempts to negotiate a lawful accord and satisfaction. To the extent that any accord and satisfaction requires a "meeting of the minds," the victim's interpretation of the defendant's intention is relevant. Although the sheer weight of subsequently admitted evidence would ultimately undermine the accord and satisfaction defense, the theory was very much a live issue at the time the victim testified.⁹ Given this context, the challenged testimony was probative.

In addition to the statements' probative value, our conclusion is bolstered by its limited prejudicial effect, if any. First, the victim's opinion was hardly the only evidence proffered against the defendant. See Commonwealth v. Prater, 431 Mass. 86, 94 (2000). The jury saw the most compelling evidence, i.e., the letters, and were free to draw their own inferences regarding the drafter's intent. Second, to the extent the parties maintained an affectionate relationship for several years, the victim's understanding of the defendant's expressions and use of language is similar to evidence properly admitted in other cases.¹⁰ See, e.g., Commonwealth v. Anderson, 425 Mass. 685, 687 & n.5 (1997) (witness testified that "cap him" meant to fire pistol or shoot); Commonwealth v. Strahan, 39 Mass. App. Ct. 928, 929 (1995) (ship's mate "took the defendant's remarks as a threat to sink the boat"). Third, the prosecutor's closing argument diluted whatever impact the challenged...