Commonwealth v. Medina
Commonwealth v. Medina
Opinion of the Court
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.
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
From the bedroom, DeJesus heard a scuffle. She later realized it was coming from the bathroom. There, she saw the defendant standing over Perrier, punching him, as Perrier 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 Perrier fought for a few more seconds, before the defendant stopped and ran out of the bathroom. Femer followed and asked him where DeJesus was. The defendant said, “Fuck her. She’s dead.” Perrier followed the blood trail to the second-floor apartment. There, he saw DeJesus with her son. Perrier 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 at
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.
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 Com
Assault and battery committed by means of a dangerous weapon is a lesser included offense of second-branch mayhem,
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 (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, 61 Mass. App. Ct. 261, 262 (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 (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
With respect to Ferrier, the evidence may have been less dramatic, but it was no less clear. During the opening struggle, the defendant sliced Perrier’s fingers and arm, leaving a disfiguring injury. The rest of the defendant’s blows were directed primarily to Perrier’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. Perrier’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.”
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.
2. Medical testimony. DeJesus testified without objection that in the two years that followed, a knife wound she had suffered to her throat during the incident, which had “cut into [her] main artery,” led to further tearing of the artery and caused her “to have a stroke and have to have reconstructive surgery on [her] main artery.” The defendant argues that only a properly qualified expert is competent to give such testimony and that its erroneous admission created a substantial risk of a miscarriage of justice. We disagree, as the evidence was unrelated to any live issue at trial. Even if we assume that the testimony should have been excluded, the defendant has not articulated how the evidence influenced the result, nor do we discern any such effect from the record.
On the appeal from the denial of his motion for new trial, the defendant’s argument pressed under the rubric of ineffective assistance fares no better. See, e.g., Commonwealth v. Balliro, 437 Mass. 163, 170 (2002).
3. Jury instructions. The defendant argues that the judge gave improper instructions in the following four instances.
a. Self-defense. The defendant argues on appeal, as he did at the conclusion of the judge’s final instructions to the jury, that the judge should have included additional language specifically elucidating factors relevant to the third element of self-defense — the so-called proportionality element — in conformity with
The third element of self-defense, as correctly explained by the judge, is that the defendant “must have used no more force than was reasonably necessary in the circumstances to defend himself.” See id. at 211. While it would have been advisable to accede to the defendant’s request, we discern no reversible error in the circumstances of the case.
The judge repeatedly instructed the jury on all three elements of self-defense,
b. Witness’s prior statements. Contrary to the defendant’s contention on appeal, the judge’s instruction to the jury regarding the permitted use of prior inconsistent statements did not
“[I]f a person comes into court and makes a statement on a particular topic, and had previously given a statement on the same topic,. . . and the two statements are inconsistent with each other, then we will allow into evidence the statement that was given before the trial on the issue of whether you wish to believe the trial testimony of that witness.”
The jury would not have applied this instruction to the defendant’s recorded statement where he clearly did not testify at trial. Moreover, the judge explicitly informed the jury that the evidence in the case consisted of “the testimony of the witnesses” and “forty-one exhibits.” The defendant’s recorded statement was among the forty-one exhibits; it was not introduced as a prior inconsistent statement. The prosecutor began his closing argument with the observation that the defendant’s “statement is in evidence. And that evidence can be evaluated by you when you think about this case.”
c. Disbelief of a witness. The defendant concedes, as he must, that the judge correctly instructed the jury in accordance with Commonwealth v. DiRusso, 60 Mass. App. Ct. 235, 241 (2003), that “disbelief of a witness’s testimony does not constitute evidence of the contrary proposition.” The defendant argues however, somewhat confusingly, that this instruction prevented the jury from considering their disbelief of Dejesus’s and Perrier’s testimony as proof that their version did not happen and, therefore, prevented the jury from considering their statements as evidence of consciousness of guilt.
As already mentioned, disbelief of any statement — including, in this case, disbelief of the victims’ testimony that they were injured during an entirely unprovoked attack — does not alone establish the opposite conclusion. See Commonwealth v. Michaud, 389 Mass. 491, 498 (1983); Commonwealth v. Camerano, 42 Mass. App. Ct. 363, 367 (1997).
To the extent the defendant claims the instruction prevented the jury from using the victims’ purportedly false statements as consciousness of guilt evidence, the claim misses the mark.
d. First aggressor instruction. The judge instructed the jury in accordance with Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005), that they could properly consider Perrier’s past behavior in determining who was the first aggressor. The defendant contends that drawing and using the knife is an act that is additional to being the “first aggressor” and that absent an explanation that being the first aggressor may include drawing and using the knife, the instruction is unduly narrow. The defendant parses the language too finely. The instruction and the term “first aggressor” include within it the notion of an individual being the first one to draw and use the weapon without a separate explanation to that effect. See Commonwealth v. Niemic, 427 Mass. 718, 720 (1998), quoting from Commonwealth v. Perez, 390 Mass. 308, 313 (1983) (we do not parse language of judge’s final instructions and “scrutiniz[e] bits and pieces removed from their context”). There was no error.
4. Motion for new trial. The defendant argues that the trial judge erred in denying his motion for new trial grounded on the following claims of ineffective assistance.
a. Cross-examination and impeachment. The defendant told police that he had moved in with his cousin a few days earlier and was able to protect her from her boyfriend when he tried to hit her. Discovery revealed, however, that Perrier had reported to the police that the defendant was living there because his mother had thrown him out of her house several days earlier. The defendant argues on appeal, therefore, that counsel was
Nor was counsel ineffective for failing to call the defendant’s mother as a witness, to impeach DeJesus on the basis that his mother did not throw him out. See Commonwealth v. Fisher, 433 Mass. 340, 357 (2001) (“Generally, failure to impeach a witness does not amount to ineffective assistance of counsel”).
b. Failure to prepare. The defendant’s summary claim that errors outlined above occurred because of counsel’s lack of preparation fails for the reasons already noted.
Judgments affirmed.
Order denying motion for new trial affirmed.
An indictment for armed assault in a dwelling was dismissed because there was no evidence of an illegal entry.
DeJesus testified to the serious extent of her injuries, and her medical records and photographs of her appearance after the attack were put in evidence.
The recording was admitted in evidence, but not played, during the Commonwealth’s case. The recording is before the panel and we have viewed it. Additionally, the defendant has included a transcription of the recording in his record appendix.
“[T]he second branch of the mayhem statute, G. L. c. 265, § 14, . . . applies to ‘whoever, with intent to maim or disfigure, assaults another person with a dangerous weapon, substance or chemical, and by such assault disfigures, cripples or inflicts serious or permanent physical injury upon such person.’ ” Commonwealth v. Drew, 61 Mass. App. Ct. 261, 262 (2006).
In his argument on the motion, defense counsel plainly acknowledged that the evidence of a specific intent to maim DeJesus was sufficient to go to the jury, and he instead focused on the purported lack of evidence to prove a specific intent to maim Ferrier.
Although the photographic trial exhibits showing Perrier’s injury have not been made part of the record on appeal, it is clear from the trial transcript that they depict significant scarring on his hand. In addition to the prosecutor’s statement recited above, which notably drew no objection, the prosecutor relied on the photographs during the bench conference addressing the defendant’s motion for a required finding of not guilty. The prosecutor argued that “the pictures show that [Ferrier] received grievous injuries to the fingers, [and] to the forearm.” The defendant did not dispute the point; rather, he argued the evidence of intent to cause those injuries was lacking.
Other than the single statement by the victim, this testimony was not mentioned again during the trial, and the prosecutor omitted any reference to the injury during his closing argument. Perhaps most demonstrative of its nonprejudicial effect is the jury’s conviction of the defendant on only the lesser included charge of armed assault with intent to kill on the indictment alleging armed assault with intent to murder.
The defendant sought an instruction substantially reciting the following language of Kendrick:
“In passing upon the reasonableness of the force used by the defendant, ... the jury should consider evidence of the relative physical capabilities of the combatants, the characteristics of the weapons used, and the availability of maneuver room in, or means of escape from, the . . . area.”
Commonwealth v. Kendrick, 351 Mass, at 212. See Commonwealth v. Shaffer, 367 Mass. 508, 512 (1975).
Where self-defense is raised, the Commonwealth bears the burden of proving beyond a reasonable doubt the negation of at least one of three elements. See Commonwealth v. Glacken, 451 Mass. 163, 167 (2008), where the three elements are rehearsed.
There was overwhelming physical evidence of the defendant’s use of excessive force. See Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 464 (2004), quoting from Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986) (“[N]o harm accrues to a defendant if an error [in instruction] does not relate to an issue actively contested at trial”). We note that on the indictments charging armed assault with intent to murder, the jury returned verdicts of armed assault with intent to kill, an outcome consistent with their instructions on the effect of a finding of excessive force.
In an effort to bolster his statement that the victims attacked him first, the defendant offered evidence that Perrier had two prior convictions of assault and battery by means of a dangerous weapon.
The defendant’s first claim of ineffective assistance has been addressed in part 2, supra, where we concluded that counsel was not ineffective for failing to object to the victim’s single reference to the attack having led to her suffering a stroke two years later.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.