Commonwealth v. Medina

• Decision Date: 04 April 2012
• Docket Number: No. 08–P–1821.,08–P–1821.
• Citation: 965 N.E.2d 201
• Parties: COMMONWEALTH v. Jose A. MEDINA.
• Court: Appeals Court of Massachusetts

965 N.E.2d 201

COMMONWEALTH

v.Jose A. MEDINA.

No. 08–P–1821.

Appeals Court of Massachusetts, Plymouth.

Argued Nov. 8, 2011.

Decided April 4, 2012.

David Hirsch for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

Present: BERRY, BROWN, & GRAINGER, JJ.

BROWN, J.

The defendant was convicted of two counts of the lesser included offense of armed assault with intent to kill, two counts of mayhem (second branch), and two counts of assault and battery by means of a dangerous weapon.¹ The defendant moved for a new trial, arguing that trial counsel was ineffective. The trial judge denied the motion and the defendant appealed. We consolidated his appeal from the denial of that motion with his direct appeal, in which the defendant presents the additional claims that (1) his two convictions of assault and battery by means of a dangerous weapon were duplicative of his two mayhem convictions, (2) the victim was not properly qualified to testify about her medical condition, and (3) the jury instructions were flawed.

We summarize the facts the jury could have found, leaving certain details for discussion with the relevant issue.

At about 6:00 P.M. on February 20, 2006, the defendant entered his cousin's apartment, where he had been staying for several days. In addition to his cousin, Brenda DeJesus, her four year old son and her boyfriend, Justin Ferrier, lived in the apartment. Ferrier testified that shortly thereafter, he came out of the bedroom to light a cigarette, and the defendant asked for help getting something he had dropped under the bathroom sink. As Ferrier bent down, the defendant grabbed his forehead and tried to slice his throat with a six-inch steak knife. Ferrier got his fingers between the blade and his neck, and the defendant sliced his fingers and gouged his forearm. The defendant accused Ferrier of robbing him. After cutting his fingers, the defendant started stabbing Ferrier in the head, neck, and face, while telling Ferrier he was a gangster. At one point when the defendant stabbed Ferrier in the temple, the blade snapped off the handle and fell to the floor. The defendant and Ferrier then struggled to get the blade. The defendant got it and continued to stab Ferrier.

From the bedroom, DeJesus heard a scuffle. She later realized it was coming from the bathroom. There, she saw the defendant standing over Ferrier, punching him, as Ferrier was on the floor trying to cover his head with his arms. It was only when she got closer, and tried to push the defendant away, that he turned on her and she could see he was holding a knife. The defendant tried to cut her throat and then stabbed her head, the back of her neck, and her fingers. The more she fought the angrier the defendant became, until finally she was on the floor. He told her he "would get [her] where it would hurt [her]" and sliced her face.

DeJesus's four year old son, who was watching, screamed and yelled for the defendant to stop. The defendant stopped for a minute, and DeJesus played dead; she then crawled to her son, grabbed him, and fled the apartment. She went to a neighbor's apartment on the second floor. The defendant and Ferrier fought for a few more seconds, before the defendant stopped and ran out of the bathroom. Ferrier followed and asked him where DeJesus was. The defendant said, "Fuck her. She's dead." Ferrier followed the blood trail to the second-floor apartment. There, he saw DeJesus with her son. Ferrier estimated the defendant had stabbed him more than fifteen times.

The police were dispatched to the scene at about 7:00 P.M. and arrived before the ambulance. They saw bloody footprints all over the floor. The most blood was in the bathroom, all over the room and on the door. The knife handle was stuck on the shower curtain in a pool of blood. Officer Vardaro began to administer first aid to DeJesus, who was covered in blood and appeared to be losing consciousness. Officer Czarnowski attended to Ferrier, who was in the kitchen. Vardaro saw blood coming out of DeJesus's back and put pressure on those wounds

. When Vardaro tried to replace the small washcloth on DeJesus's face because blood was pouring out of it, "her cheek had stuck to that towel and pulled away and [Vardaro] could see right into her teeth through the side."²

DeJesus and Ferrier were initially taken to Brockton Hospital, but they were quickly transferred to Boston hospitals. DeJesus went to Brigham and Women's Hospital, where she remained for five days. Ferrier was admitted to Beth Israel Hospital, where he was also treated for approximately five days.

The defense called no witnesses but played for the jury a video recording of the defendant's interview with the police.³ In his statement, the defendant claimed that shortly after he entered the apartment, Ferrier asked to talk to him in the bathroom. When he went into the bathroom, Ferrier was bending down and accused the defendant of taking Ferrier's Oxycontin pills. According to the defendant, Ferrier lunged at him and was trying to stab him with a knife. DeJesus joined the fray and jumped on his back. The defendant described "these two people jumping on me. One is choking me and the other is trying to stab me. So I snapped the knife...." Then he "blacked out." The defendant said both Ferrier and DeJesus were "all fucked up [on Oxycontin]" and that he was afraid they were "going to kill me." The next thing he remembered was seeing a lot of blood. He told the police that he "would never hurt his cousin."

Discussion. 1. Duplicative convictions. The defendant argues that his conviction of assault and battery by means of dangerous weapon on DeJesus is duplicative of the mayhem conviction related to DeJesus. He repeats the claim with respect to the same charges involving Ferrier. Because this issue was not raised below, the defendant must show that the error, if any, created a substantial risk of a miscarriage of justice. See Commonwealth v. King, 445 Mass. 217, 225, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (2006).

Assault and battery committed by means of a dangerous weapon is a lesser included offense of second-branch mayhem,⁴ as charged here. See Commonwealth v. Martin, 425 Mass. 718, 721–723, 683 N.E.2d 280 (1997). Convictions of both the greater and lesser offenses are permitted as long as they "rest on separate and distinct acts." Commonwealth v. King, 445 Mass. at 225, 834 N.E.2d 1175. See Commonwealth v. Berrios, 71 Mass.App.Ct. 750, 753, 886 N.E.2d 748 (2008).

Here, although the better practice would have been for the judge to instruct the jury specifically that the convictions had to be based on separate acts, see Commonwealth v. Maldonado, 429 Mass. 502, 509, 709 N.E.2d 809 (1999), the jury nonetheless received substantial guidance as to how they should view the evidence. We thus discern no reversible error (if error at all) in this regard.

With respect to DeJesus, it was clear at trial that the mayhem charge was based on the vicious attack to her face. Only after DeJesus had succumbed to multiple stab wounds

and had fallen to the floor did the defendant tell her that he "would get [her] where it would hurt [her]" and drive the knife into her face hard enough to separate a portion of her cheek from her head. This blow stood in stark contrast to the other wounds he inflicted, not merely because of the accompanying statement and the wound's severity, but because the wound was to her face, an area of the body for which a disfiguring injury is particularly egregious. See Commonwealth v. Drew, 67 Mass.App.Ct. 261, 262, 853 N.E.2d 215 (2006) (undisputed that damage to victim's face, caused by contact with heater, was of type contemplated by mayhem statute); Commonwealth v. McPherson, 74 Mass.App.Ct. 125, 128–129, 904 N.E.2d 488 (2009) (targeting of face with baseball bat).

The prosecutor emphasized in his closing argument what was obvious from the evidence, that with respect to the mayhem charge, the defendant's statement when "he slice[d] her face open" was instructive. We note that when defense counsel moved for a required finding of not guilty, he impliedly recognized that the defendant's statement combined with the injury to DeJesus's face was the basis for the mayhem charge.⁵

With respect to Ferrier, the evidence may have been less dramatic, but it was no less clear. During the opening struggle, the defendant sliced Ferrier's fingers and arm, leaving a disfiguring injury. The rest of the defendant's blows were directed primarily to Ferrier's head, neck, and back. The prosecutor drew the jury's attention to these two separate and distinct series of blows in his closing argument when he stated that the defendant "slashe[d] at the hand so much that it injure[d] the hand. And there is a photograph. It shows the gouge in Mr. Ferrier's forearm that resulted from that. And then he continue[d] to stab him. Multiple stab wounds

to the shoulder, to the chest, to the temple."⁶

The likelihood that the jury would have differentiated the separate and distinct acts that maimed DeJesus and Ferrier from the multiple additional stab wounds

inflicted upon them by the defendant is bolstered by the judge's instruction on the elements of both offenses. With respect to mayhem, the judge used the term "maim" or "disfigure" no fewer than eighteen times to describe the crime and specifically instructed no fewer than six times that the offense requires proof of an injury that "disfigures, cripples, or inflicts serious or permanent physical injury." In contrast, the judge instructed the jury that the crime of assault and battery by means of a dangerous weapon requires a "touching" of the victim, "however slight," and that the touching must be committed by means of a dangerous weapon.

In sum, the presentation of the evidence that elucidated a series of separate and distinct acts, combined with the prosecutor's closing argument and the judge's instructions that clearly...