Commonwealth v. Taylor
| Decision Date | 06 November 2020 |
| Docket Number | 19-P-56 |
| Citation | 157 N.E.3d 116 (Table),98 Mass.App.Ct. 1118 |
| Parties | COMMONWEALTH v. Mark TAYLOR. |
| Court | Appeals Court of Massachusetts |
The defendant appeals from his convictions, after a Superior Court jury trial, of home invasion (two counts), aggravated assault and battery by means of a dangerous weapon (ABDW), and armed assault with intent to rob. On appeal, he argues that a substantial risk of a miscarriage of justice resulted from four unpreserved trial errors: (1) the judge's instruction that a knife was a dangerous weapon as a matter of law; (2) her decision not to conduct individual voir dire on how a midtrial court house bomb threat might have affected the jury; (3) her assertedly inadequate curative instruction regarding a knife struck from evidence; and (4) her instruction to the deadlocked jury to continue deliberating, assertedly in violation of G. L. c. 234A, § 68C. Seeing no substantial risk that justice miscarried because of the error on the first issue, and no abuse of discretion as to the other issues, we affirm.
Background. The jury could have found that the defendant and a coventurer, Nicholas Martinez, armed with a knife or knives and accompanied by two friends, went to the apartment of David Bastarache and his girlfriend, Kerri Salvi, in order to rob Bastarache of cocaine. Bastarache opened the apartment door to one of the friends, whereupon the defendant (followed by Martinez) entered the apartment and stabbed Bastarache multiple times, causing him serious bodily injury.
1. Knife instruction. The defendant contends that the judge erroneously (but without objection) instructed on an element of home invasion, creating a substantial risk of a miscarriage of justice. A conviction of home invasion requires proof, among other things, that the defendant entered the dwelling while armed with a dangerous weapon. See Commonwealth v. Bois, 476 Mass. 15, 28 (2016), citing G. L. c. 265, § 18C. Home invasion also requires proof that the entry was unlawful. See Commonwealth v. Mahar, 430 Mass. 643, 647 (2000), S.C., 442 Mass. 11 (2004). A consensual entry is not unlawful; but an occupant's purported consent to entry is ineffective, and the entry remains unlawful, if the occupant is not "aware that the person at the door is armed with a dangerous weapon and is about to commit an assault once inside." Commonwealth v. Putnam, 75 Mass. App Ct. 472, 477 (2009), S.C., 481 Mass. 1045 (2019), quoting Mahar, 430 Mass. at 652-653.
Here, accordingly, the Commonwealth could have proved that the defendant's entry was unlawful by proving that the defendant, unbeknownst to Bastarache, either was armed with a dangerous weapon or intended to commit an assault once inside. As there was no evidence that Bastarache knew either of these things, the unlawful entry question for the jury reduced to whether the defendant was armed with a dangerous weapon or intended to commit an assault once inside.2 The judge instructed the jury that "a knife is a dangerous weapon as a matter of law." Thus, if the jury credited the evidence that the defendant was carrying any knife (which they did, given their guilty verdicts on aggravated ABDW and armed assault with intent to rob), they could have found that his entry was unlawful without considering whether he intended to commit an assault once inside the apartment.
The judge's instruction was erroneous, however, as the Commonwealth rightly concedes, because there was no evidence (let alone undisputed evidence) that the knife with which the defendant stabbed Bastarache, possessed the particular characteristics necessary to make it dangerous per se, as opposed to merely dangerous as used. See Bois, 476 Mass. at 29-30. The defendant now argues that, had the erroneous instruction not been given, the jury would have had to grapple with the question whether he intended to commit an assault once inside the apartment -- a question on which the defendant asserts that the evidence was equivocal.
We are not persuaded. The Bois decision plainly demonstrates that a conviction of home invasion may rest on proof that an object the defendant brought into the dwelling, even if not a weapon that is dangerous per se, was used as a dangerous weapon once inside. See Bois, 476 Mass. at 28-30. In Bois, the judge erroneously instructed, in connection with the dangerous weapon element of home invasion, that knives are inherently dangerous.3 See id. at 28-29. The court held that this was error, and that the jury should instead have been instructed to "determine whether [the knife] was dangerous as used."4 Id. at 29-30. Although the Bois court went on to conclude that the evidence in that case was insufficient to find that the knife was dangerous as used, and thus required a verdict for the defendant, see id. at 30, this case is different.
Here, the jury found the defendant guilty of aggravated ABDW, the aggravating factor being causation of serious bodily injury. The defendant does not challenge either the jury instructions or the sufficiency of the evidence supporting that verdict. The dangerousness of the knife as used was not an issue at trial. No substantial risk of a miscarriage of justice arises from an erroneous instruction on an element of an offense (here, home invasion) where another verdict demonstrates that the jury necessarily found the element in question. See, e.g., Commonwealth v. Britt, 465 Mass. 87, 98-99 (2013) ; Commonwealth v. Woods, 94 Mass. App. Ct. 761, 768 (2019) ; Commonwealth v. McCray, 93 Mass. App. Ct. 835, 847-848 (2018).
2. Bomb threat. The defendant argues that the judge abused her discretion by not inquiring more thoroughly into how a bomb threat during the trial might have affected the jury. The threat required the court house to be evacuated. The next day, the judge told the jury that the evacuation had been due to a bomb threat. The judge then informed the jury about various scheduling issues, and then asked if any juror had read, seen, or heard anything about any aspect of the case that might affect the juror's ability to remain fair and impartial, or whether there was any serious matter or concern that any juror needed to bring to her attention. No juror responded in the affirmative. Without objection from the defendant, testimony then resumed.
The defendant now claims a violation of the rule that where "the entire jury were exposed to extraneous material, the judge is required to conduct individual voir dire ‘to determine the extent of [each] juror's exposure to the material and its effects on the juror's ability to render an impartial verdict.’ " Commonwealth v. DaCosta, 96 Mass. App. Ct. 105, 110 (2019), cert. denied, 140 S. Ct. 2813 (2020), quoting Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). "An extraneous matter is one that involves information not part of the evidence at trial ‘and raises a serious question of possible prejudice’ " (citation omitted). Commonwealth v. Guisti, 434 Mass. 245, 251 (2001), S.C., 449 Mass. 1018 (2007). We review the judge's decisions on such issues, including whether the information in question is "extraneous matter," for abuse of discretion. See Commonwealth v. Mendes, 441 Mass. 459, 477-478 (2004).
We see no abuse of discretion in the judge's implicit determination that the bomb threat did not raise any "serious question of possible prejudice" requiring further inquiry. Guisti, 434 Mass. at 251. The subject matter of the trial had nothing to do with bombs or with attempts to interfere with the operation of the criminal justice system. There was no information connecting the threat to the defendant or any of the other participants in the trial. No juror responded to the judge's questions concerning recent exposure to information that might have affected the juror's ability to remain fair and impartial, or any other serious matter or concern that warranted the judge's attention. Neither defense counsel nor counsel for the codefendant, Martinez, voiced any question or concern about the bomb threat's possible effect on the jury. Cf. Commonwealth v. Toro, 395 Mass. 354, 360 (1985) (). In these circumstances, individual voir dire about the effect of the bomb threat could well have done more harm than good, by suggesting to the previously unconcerned jurors that they did indeed have cause for concern.5 There was no abuse of discretion, and thus no risk of a miscarriage of justice.
3. Instruction regarding knife struck from evidence. The defendant argues that the judge abused her discretion by giving an assertedly inadequate curative instruction regarding a knife that she had struck from evidence. The issue arose because the Commonwealth had offered in evidence a steak knife found in the defendant's apartment. The knife was different from the one described by two witnesses to the stabbing, which was never found. The judge admitted the steak knife de bene, over the defendant's objection, based on the Commonwealth's assertion that it was relevant because a later witness would testify to the presence of human blood on the knife.
After that witness failed to so testify, the judge allowed the defendant's and his codefendant's motions to strike the knife from evidence. She instructed the jury that the steak knife The defendant did not argue to the judge that this instruction was inadequate. He now makes that argument to us. We review for whether any abuse of discretion created a substantial risk of a miscarriage of justice. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).
We see no abuse of discretion. First, the jury are presumed to have followed the judge's...
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