Commonwealth v. Obi , 475 Mass. 541 ( 2016 )

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SJC-11957
COMMONWEALTH vs. DAISY OBI.
Middlesex. January 8, 2016. - September 21, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1
Constitutional Law, Sentence. Practice, Criminal, Sentence,
Probation, Challenge to jurors, Jury and jurors, Conduct of
judge, Disqualification of judge. Jury and Jurors. Judge.
Complaint received and sworn to in the Somerville Division
of the District Court Department on August 28, 2012.
The case was tried before Paul M. Yee, Jr., J., and a
motion for resentencing was heard by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Kimberly M. Peterson for the defendant.
Mary F.P. O'Neill, Assistant District Attorney, for the
Commonwealth.
1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
2
LENK, J. The defendant, a landlord, was convicted of
assault and battery after pushing a tenant who is Muslim down a
flight of stairs. The defendant was sentenced to a term of
incarceration of two years in a house of correction, six months
to serve, with the balance suspended for a period of two years.
The judge imposed two special conditions of probation during the
period of suspension: that the defendant provide a written
disclosure to prospective tenants that she had been convicted of
assaulting a tenant and had had several harassment prevention
orders issued against her; and that the defendant attend an
introductory class on Islam. A single justice of the Appeals
Court stayed execution of the defendant's sentence pending this
appeal.
The defendant contends that imposition of this length of a
period of incarceration, and the special conditions of
probation, would violate her constitutional rights under both
the Federal and State Constitutions. She also asserts error in
a number of the judge's rulings at trial. We conclude that the
judge did not abuse his discretion in imposing the sentence of
incarceration or in requiring the defendant to provide written
disclosure to prospective tenants as a condition of probation.
We do not address the defendant's constitutional objections to
being required to attend the class on Islam as a condition of
probation, which were not raised in the trial court. We further
3
conclude that the judge's other contested rulings were not
error. Accordingly, we affirm.
1. Trial proceedings. We recite the facts the jury could
have found, reserving certain details for later discussion. The
defendant, a septuagenarian Christian minister, owns a three-
family apartment building in Somerville, where she lives on the
second floor. At the time of trial, the defendant had been a
landlord for almost twenty years. Gilhan Suliman, a Muslim
woman, leased the third-floor apartment from the defendant on a
short-term basis from April 1, 2012, through August 31, 2012;
she lived there with her husband and five children.
The relationship between the defendant and Suliman soured
over the course of Suliman's short tenancy. Suliman contacted
the defendant multiple times to complain that there was no
electricity or heat in her apartment. The defendant, for her
part, complained that Suliman and her family were too noisy, and
that more people were living in Suliman's apartment than were
permitted under the terms of her lease, an allegation that
Suliman denied. At one point, the defendant attempted to raise
Suliman's rent to compensate for Suliman's purportedly excessive
water usage. In addition, the defendant served Suliman with a
4
notice to quit, asserting that the additional occupants violated
the terms of Suliman's lease.2
The animosity between the defendant and Suliman, however,
went beyond typical landlord-tenant issues. According to
Suliman, the defendant also made disparaging remarks to Suliman
about her religious beliefs. One night in May, 2012, the
defendant stood on the stairs outside of Suliman's apartment,
screaming about "how Muslims are, they should be burned in hell,
and how [the] prophet should be burned in hell." On another
occasion, in June, 2012, after accusing Suliman's children of
throwing trash in the street, the defendant shouted that they
were "wicked kids" and "evil." She added, "[B]ecause they are
Muslims . . . they will be delivered in hell." Suliman reported
the latter incident to police.
The confrontation that resulted in the defendant's
conviction in this case occurred on August 28, 2012, three days
before Suliman's lease was to terminate. That morning, as
Suliman was walking up the stairs to the second floor of the
apartment building on the way up to her third-floor apartment,
the defendant accosted her. The defendant was upset because she
2
The record indicates that Suliman had obtained a
harassment prevention order against the defendant before August
28, 2012. The record is silent, however, about the basis for
that order. The order was not admitted in evidence, but was
considered by the judge during sentencing.
5
believed that Suliman had been ringing her doorbell. According
to Suliman, however, construction workers, not she, had rung the
bell, in connection with work that they were doing in the
neighborhood. The defendant shouted, "Get out of my house," and
pushed Suliman, who fell down approximately fifteen to twenty
stairs, hitting her face on a railing. As a result of the fall,
Suliman cut her lip and tore a ligament in her shoulder.
Suliman immediately telephoned the police. When a police
officer arrived at the scene, Suliman's lip was bleeding and she
appeared to be in pain.3 Both Suliman and her children were
crying. The officer placed the defendant under arrest in
connection with the incident.
2. Procedural posture. The defendant was charged with one
count of violating an abuse prevention order, in violation of
G. L. c. 209A, § 7, and one count of assault and battery, in
violation of G. L. c. 265, § 13A (a). After a series of
pretrial hearings and a period of pretrial probation, a one-day
jury trial was conducted in the District Court on April 23,
2014, on the charge of assault and battery. The Commonwealth
3
Suliman did not testify that she received medical
treatment for her injuries. During the sentencing proceeding,
however, Suliman stated that, since the August 28, 2012
incident, she has taken prescription medication for shoulder
pain and has participated in physical therapy.
6
filed a nolle prosequi with respect to the charged violation of
an abuse prevention order.4
The defendant's theory of the case was that Suliman was
"the tenant from Hell." During her testimony, the defendant
denied that she had pushed Suliman down the stairs, and
maintained that she was in her apartment praying when police
knocked on her door and arrested her. The defendant argued that
Suliman had maneuvered to have her arrested in order to stave
off being evicted for having too many people living in her
apartment. In support of this view, the defendant emphasized
that Suliman repeatedly had called the police to complain about
the defendant, and that Suliman had filed a complaint with the
Massachusetts Commission Against Discrimination alleging that
the defendant had sought to evict her because of her religion.
The defendant denied ever shouting at Suliman or her children,
and denied that there were any issues with the hot water or
electricity in Suliman's apartment.
The jury found the defendant guilty of assault and battery.
The judge requested a mental health evaluation in aid of
sentencing, and ultimately sentenced the defendant on
4
As filed, the complaint incorrectly charged that the
defendant had violated an abuse prevention order, not a
harassment prevention order. See note 2, supra. The judge
denied the Commonwealth's motion to amend the complaint to
correct the error, on the ground that the motion was first made
on the day of trial.
7
June 2, 2014. On June 3, 2014, the defendant sought
postconviction relief, filing a notice of appeal and a motion to
be resentenced by a different judge. After a hearing on June
10, 2014, the trial judge denied the motion for resentencing.
On July 17, 2014, a single justice of the Appeals Court allowed
the defendant's motion for a stay of execution of sentence, and
directed the District Court to enter an order releasing her from
custody and relieving her from compliance with the conditions of
probation pending her appeal. We transferred the case to this
court on our own motion.
3. Discussion. The defendant argues that the trial judge
imposed an unconstitutional term of incarceration and
unconstitutional conditions of probation. She contends also
that it was error for the judge to deny a peremptory challenge
that defense counsel made during empanelment and that it was
error for the judge not to recuse himself from her case.
a. Sentencing. The judge heard additional information in
aid of sentencing that was not presented to the jury. A mental
health evaluation indicated that the defendant did not have a
history of mental illness or aggressiveness requiring treatment
or medication. The judge also learned, however, that several
other tenants had obtained harassment prevention orders against
the defendant, some of which were still in effect at the time of
8
sentencing.5 Furthermore, Suliman stated that "[t]he emotional
and health impact of what [the defendant] had done to [her]
family will be felt for years to come."
As noted, the judge sentenced the defendant to a term of
incarceration of two years in a house of correction, six months
to serve, with the balance suspended. The conditions of
probation included the following. The defendant was required to
provide "a written disclosure to every tenant that [the
defendant] rents property to," stating that the defendant "has
been convicted of assaulting a tenant in the past, and has had
several harassment prevention orders issued against her by the
Court in the past." In addition, the defendant was required to
enroll in and attend an introductory class on Islam, and to
provide her probation officer with written documentation that
she had done so. Moreover, the defendant was required to comply
with all Federal and State laws, including antidiscrimination
and housing laws. During the sentencing hearing, the judge told
the defendant, "You have to respect the rights of people of the
Muslim faith. You have to respect all people. All right.
That's the message I'm sending out to you. That is the message
that I'm sending out to the community. All right. Even you,
5
The basis for these harassment orders is not in the
record.
9
wanting to be a person of God, have to [show] respect for all
people."
1. Term of incarceration. The defendant argues that the
term of her incarceration is so disproportionate to her offense
that it violates the Eighth Amendment to the United States
Constitution and art. 26 of the Massachusetts Declaration of
Rights. In the defendant's view, the sentence of two years in a
house of correction with six months to serve is
disproportionately harsh, because she was a seventy-one year old
woman with no criminal record at the time of her conviction, and
because Suliman suffered relatively minor injuries as a result
of the assault and battery.6 "A judge has considerable latitude
within the framework of the applicable statute to determine the
appropriate individualized sentence." Commonwealth v. Goodwin,
414 Mass. 88, 92 (1993). Although some sentences may "be so
disproportionate to the offense as to constitute cruel [or]
unusual punishment," Commonwealth v. Sanchez, 405 Mass. 369, 379
(1989), quoting Cepulonis v. Commonwealth, 384 Mass. 495, 496
& n.2 (1981), and cases cited, a sentenced defendant must meet
the "heavy burden" of showing that the sentence "shocks the
conscience and offends fundamental notions of human dignity"
6
The judge told the defendant during the sentencing hearing
that some portion of her punishment "has to be incarceration.
So that you can reflect on what you have done and what you will
be doing in the future, that this shall never happen again."
10
(citations omitted). Commonwealth v. Jackson, 369 Mass. 904,
910 (1976).
The defendant has not met the burden of showing that her
sentence was disproportionate to the seriousness of the offense,
and certainly not so disproportionate as to be cruel or unusual
punishment. During the sentencing hearing, Suliman explained
that the defendant's assault and battery has had a "deep
physical impact" on her, that she has been unable to sleep at
night, and that she does not trust people in the same way she
did before the incident. She added that her children are now
afraid of going outside, and that her six year old son had
started wetting his bed. Compare Commonwealth v. Sanchez, supra
at 379-380 (imposition of two consecutive life sentences and two
other concurrent life sentences for defendant was not
disproportionate given extent of psychological harm, stigma, and
lasting injuries suffered by victims). The sentence was within
the maximum permitted by statute. See G. L. c. 265, § 13A
(authorizing sentence of up to two and one-half years in house
of correction for conviction of assault and battery).7 Cf.
Commonwealth v. Tart, 408 Mass. 249, 267 (1990) (short sentence
of incarceration was not disproportionate to offense of fishing
7
The record indicates that the defendant could face adverse
immigration consequences as a result of her conviction and
sentence. This issue was not, however, raised on appeal.
11
commercially without required permit). Simply put, the
defendant's sentence does not "shock[] the conscience and
offend[] fundamental notions of human dignity" (citation
omitted). Commonwealth v. Jackson, supra at 910.
2. Written disclosure as condition of probation. The
defendant argues that the condition of probation requiring her
to disclose in writing to prospective tenants that she has been
convicted of assaulting a tenant in the past, and has had
harassment prevention orders issued against her, violates art. 1
of the Massachusetts Declaration of Rights. A trial judge
generally may impose a term of probation "for such time and upon
such conditions as [the judge] deems proper." G. L. c. 276,
§ 87. "A probation condition is enforceable . . . so long as
the condition is 'reasonably related' to the goals of sentencing
and probation." Commonwealth v. Lapointe, 435 Mass. 455, 459
(2001), citing Commonwealth v. Pike, 428 Mass. 393, 403 (1998).
"The principal goals of probation are rehabilitation of the
defendant and protection of the public." Commonwealth v.
Lapointe, supra. Other goals include "punishment, deterrence,
and retribution" (citation omitted). Id. The goals "are best
served if the conditions of probation are tailored to address
the particular characteristics of the defendant and the crime"
(citation omitted). Id.
12
Although a judge "may place restrictions on probationers'
freedoms that would be unconstitutional if applied to the
general public," Commonwealth v. Pike, supra, such restrictions
are not without limits, and merit "special scrutiny." United
States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975).
The more tenuous the relationship between a given condition and
the goals of probation, and the more extensively a
constitutional right is burdened, the less likely the condition
is to be permissible. In Commonwealth v. Lapointe, supra at
457, 460, for example, we upheld a condition that prohibited a
probationer convicted of indecent assault and battery on his
daughter from living with most of his minor children, on the
basis that the condition substantially advanced the public
safety, rehabilitation, and deterrence goals of probation.
Although we recognized that the condition might restrict his
constitutional rights, including freedom of association, we
concluded that it struck "an appropriate balance between the
facts of [his] case and the goals of sentencing and probation."
Id. at 461.8 In Commonwealth v. Power, 420 Mass. 410, 412-413,
418 (1995), cert. denied, 516 U.S. 1042 (1996) (Power), we
similarly upheld a condition that prohibited a probationer who
8
Contrast Commonwealth v. Pike, 428 Mass. 393, 405 (1998)
(determining that condition of probation banishing probationer
from Massachusetts did not bear reasonable relationship to
permissible goals of probation).
13
had been convicted of armed robbery of a bank, after spending
twenty-three years as a fugitive, from profiting from the story
of her crime. The condition was deemed permissible in the
circumstances to deter the probationer and others similarly
situated from seeking to profit from criminality. Id. at 418.
Although we recognized that the condition "implicate[d]" the
probationer's constitutional right to freedom of speech, we
concluded that it did not burden that right unduly, because the
probationer remained free to speak about her crime if she did
not benefit financially from doing so. Id. at 415.
Had the probationer in Power, supra, been prohibited from
speaking about her crime outright, however, we might well have
reached a different result.9 We previously have rejected a
condition of probation that subjected probationers to a "blanket
threat of warrantless searches," see Commonwealth v. LaFrance,
402 Mass. 789, 795 (1988), notwithstanding the fact that such a
condition might aid in the probationers' rehabilitation and help
to ensure their compliance with other conditions of probation.
Id. at 792-793. The condition was determined to be simply too
restrictive of the probationer's rights under art. 14 of
9
See Commonwealth v. O'Brien, 86 Mass. App. Ct. 1124 (2014)
(decision pursuant to Appeals Court rule 1:28 vacating condition
of probation that prohibited probationer from making oral or
written communications about victim to the probationer's
family).
14
Massachusetts Declaration of Rights. Id. at 795. Accordingly,
we consider the extent to which the contested condition of
probation advances the goals of probation, and the extent to
which it burdens a constitutional right.
The defendant maintains that requiring the written
disclosure as a condition of probation violates her right under
art. 1 to "acquir[e], possess[] and protect[] property." As we
noted in Power, supra at 418, however, some limitation on a
probationer's ability to make a profit is permissible where that
limitation substantially advances an enumerated probationary
goal. The condition here substantially advances one such goal -
- public safety. The record does not indicate what caused
tenants to seek harassment prevention orders against the
defendant, but the fact that several tenants have sought such
orders suggests that her behavior towards tenants is a recurring
problem. Complying with the notice condition in this case
likely will affect the defendant's ability to earn the same
level of rental income from her property as she has been able to
previously. To the extent that the condition is
constitutionally burdensome at all, however, it is not so
burdensome as to be invalid.10
10
The defendant also argues, incorrectly, that the
condition violates the criminal offender record information
statute, G. L. c. 6, § 172 (d), which makes it "unlawful to
15
Although courts have split on whether conditions of
probation seeking to shame the probationer by requiring him or
her to provide public notice of a conviction are
constitutionally permissible,11 that is not squarely at issue
here. The condition imposed on the defendant in this case is
directed narrowly at ensuring that future tenants are aware of
the risk they take by agreeing to rent one of the defendant's
apartments.12
3. Class on Islam as condition of probation. The
defendant additionally argues that requiring her to attend a
class on Islam as a condition of probation is unduly restrictive
of her rights under the establishment and free exercise clauses
of the First Amendment to the United States Constitution, and
the cognate provisions of the Massachusetts Declaration of
request or require a person to provide a copy of his criminal
offender record information" in certain circumstances.
"[C]riminal offender record information," however, is defined
only to include "records and data . . . compiled by a
Massachusetts criminal justice agency." See G. L. c. 6, § 167.
That information is distinct from the disclosure required here.
11
See Comment, The Ideology of Shame: An Analysis of First
Amendment and Eighth Amendment Challenges to Scarlet-Letter
Probation Conditions, 77 N.C. L. Rev. 783, 787-803 (1999)
(cataloging inconsistent treatment of "shame" conditions
considered by courts).
12
The judge explained, "There has to be a written
disclosure to every tenant that you rent property to. I cannot
take away your rental property, but any tenants or prospective
tenants that are renting need to know the type of person you
are."
16
Rights. While conditions of probation that touch on religion
and risk incursion upon constitutionally protected interests
should be imposed only with great circumspection, the defendant
raised no such concerns before the trial court judge, and there
is no information in the record that would allow us to evaluate
her claims. Because she raises these claims for the first time
on appeal, they have been waived. See Commonwealth v. Cowels,
470 Mass. 607, 617 (2015).
4. "Respect" as condition of probation. The defendant
contends further that the judge should not have required as a
condition of her probation that she "respect the rights of
people of the Muslim faith," because that requirement was
impermissibly vague. While "[t]he constitutional rule against
vague laws applies as equally to conditions of probation as it
does to legislative enactments," Power, supra at 421, in context
the judge's statement was clear. "Respect" for Muslims was not
an independent condition of probation; the judge merely was
explaining his reasoning for requiring that the defendant comply
with all Federal and State laws, including antidiscrimination
and housing laws. The requirement that the defendant obey
local, State, and Federal laws and court orders is a standard,
permissible condition of probation. See Commonwealth v. Maggio,
414 Mass. 193, 194 (1993) (condition of probation requiring
17
compliance with all existing laws is "essentially . . . imposed
on all defendants who are placed on probation").
b. Peremptory challenge. During jury empanelment, defense
counsel used a peremptory challenge to remove from the panel a
prospective juror who was wearing a headscarf of the sort
commonly worn by Muslim women. Although the juror did not
indicate her religious beliefs on her juror questionnaire, the
Commonwealth requested that the judge confirm defense counsel
had not exercised the peremptory challenge for a "religious
purpose." The judge then asked defense counsel why he had
exercised the peremptory. Defense counsel replied, "I don't
have any particular reason, just a gut feeling that she wouldn't
be sympathetic to my client, and I'm exercising my peremptory
based on that, Your Honor, nothing to do with her religion,
race, creed, or national origin." The judge found that the
response was not a "sufficient answer" to overcome the
Commonwealth's objection, and sat the juror over the defendant's
objection. As a result of a randomized process,13 the juror
later served as foreperson of the jury.
The defendant argues that the judge's denial of her trial
counsel's peremptory challenge deprived her of her right to a
13
The judge's practice was to select as foreperson of the
jury the juror sitting closest to him. In this case, the juror
at issue was sitting closest to the judge after the only juror
sitting closer was chosen randomly as an alternate.
18
fair and impartial jury. She also contends, for the first time
on appeal, that there was insufficient evidence in the record
that the juror was Muslim, and that the judge should have
conducted an individual voir dire regarding the juror's
religion. In addition, the defendant maintains that her trial
counsel incorrectly was required to articulate a credible reason
for his peremptory challenge. These arguments are without
merit.
Defendants have a right under the United States
Constitution and the Massachusetts Declaration of Rights to be
tried by an impartial jury. Commonwealth v. Wood, 389 Mass.
552, 559 (1983). "The right to use peremptory challenges,
however, is not absolute." Commonwealth v. Prunty, 462 Mass.
295, 305 (2012) (Prunty). Although "[w]e presume that
peremptory challenges are properly made," that presumption can
be rebutted by a prima facie showing that there is "a pattern of
challenges of members of the same discrete group" (citation
omitted). Id. at 306. The presumption can also be rebutted by
a prima facie showing that a challenge was made to "a single
prospective juror within a protected class, . . . where there is
a likelihood that [the prospective juror is] being excluded from
the jury solely on the basis of . . . group membership"
(citation and quotation omitted). Id. Discrete groups that are
protected include groups defined by potential jurors' sex, race,
19
color, creed, or national origin. See id. at 305 n.13, citing
Commonwealth v. Soares, 377 Mass. 461, 488-489 & n.33, cert.
denied 444 U.S. 881 (1979). After a prima facie showing has
been made, the burden shifts to the challenging party to provide
"a neutral explanation establishing that the challenge is
unrelated to the prospective juror's group affiliation."
Prunty, supra at 306, quoting Commonwealth v. Harris, 409 Mass.
461, 464 (1991). We review the denial of a peremptory challenge
for abuse of discretion. See Prunty, supra at 304.
Here, the Commonwealth objected to the defendant's exercise
of a peremptory challenge on the basis that the prospective
juror, like Suliman, was Muslim. Although the defendant argues
on appeal that there was insufficient evidence that the juror
actually was Muslim, the judge observed that the juror's
headscarf was of a type traditionally worn by Muslim women, and
that no other prospective jurors appeared to be Muslim. The
Commonwealth further pointed out that Suliman, who identified
herself as Muslim, wore a similar headscarf. Accordingly, there
was a prima facie showing that defense counsel exercised a
peremptory challenge based on the prospective juror's religion.
See Commonwealth v. Issa, 466 Mass. 1, 9 (2013) (considering
percentage of group members excluded, and "whether the
challenged jurors are members of the same constitutionally
protected group as the defendant or the victim"). Given this,
20
the burden shifted to the defendant to provide a group-neutral
explanation for the challenge.
We defer to the judge's determination that the defendant's
burden was not met here. In Prunty, supra at 307, 309-310 &
n.21, we deferred to a judge's conclusion that a proffered
reason for exercising a peremptory challenge of the only
African-American in the venire was a "mere sham," noting that
the judge "made clear findings as to both [the] adequacy and
[the] genuineness" of that reason. Here, although defense
counsel stated that the challenge was not motivated by religious
considerations, his only other explanation for the challenge was
a "gut feeling" that the juror would not be sympathetic to the
defendant. Like the judge in Prunty, supra at 309-310, the
judge in this case found clearly that that explanation was
inadequate. We discern no abuse of discretion in the judge's
ruling.
c. Recusal. During the posttrial hearing on the
defendant's motion for resentencing by a different judge, the
defendant argued that the trial judge relied on improper
considerations in his sentencing decision, including a dislike
of her that was based on the judge's interactions with her at
prior proceedings. According to the record, the judge
previously had presided at a hearing with respect to a
harassment prevention order that Suliman had sought against the
21
defendant. In addition, the judge had presided over a civil
complaint that Suliman had filed against the defendant to
recover her security deposit.
The judge rejected these arguments, noting that he was one
of three judges who regularly sat in the District Court in
Somerville, where the defendant's trial was held, and that "some
familiarity" with defendants passing through that court house
was to be expected. He added, "In this particular case I didn't
see anything, when I searched my own mind, that I could not be
fair and impartial towards [the defendant] whether or not during
the trial or whether or not during sentencing." On appeal, the
defendant argues for the first time that the trial judge should
have recused himself for the entirety of the trial. In the
alternative, the defendant argues, as she did after sentencing,
that her motion for resentencing by a different judge should
have been allowed.
Posttrial recusal motions, however, "are presumptively
untimely at least absent a showing of good cause for tardiness."
Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 547
(1998). Although the defendant's trial counsel stated that he
was unaware of the judge's involvement in prior proceedings
against her, he was at least aware that those proceedings had
occurred; the Commonwealth attempted unsuccessfully to introduce
Suliman's harassment prevention order in evidence at the start
22
of trial. In addition, defense counsel cross-examined Suliman
regarding her civil complaint. Accordingly, the defendant has
not shown good cause for waiting to raise this claim until after
her conviction. See Anthony's Pier Four, Inc. v. HBC Assocs.,
411 Mass. 451, 464 (1991) ("The judicial process can hardly
tolerate the practice of a litigant with knowledge of
circumstances suggesting possible bias or prejudice holding
back, while calling upon the court for hopefully favorable
rulings, and then seeking recusal when they are not forthcoming"
[citation omitted]).
Judgment affirmed.