Commonwealth v. Rocheleau , 90 Mass. App. Ct. 634 ( 2016 )

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14-P-870 Appeals Court
COMMONWEALTH vs. MATTHEW R. ROCHELEAU.
No. 14-P-870.
Bristol. September 8, 2016. - November 9, 2016.
Present: Green, Wolohojian, & Massing, JJ.
Breaking and Entering. Destruction of Property. Practice,
Criminal, Security measures, Fair trial, New trial,
Harmless error, Instructions to jury, Assistance of
counsel, Required finding. Constitutional Law, Fair trial,
Harmless error. Due Process of Law, Fair trial. Fair
Trial. Error, Harmless. Evidence, Impeachment of
credibility. Witness, Impeachment.
Complaint received and sworn to in the New Bedford Division
of the District Court Department on May 23, 2013.
The case was tried before Joseph I. Macy, J., and a motion
for a new trial was heard by him.
David M. Osborne for the defendant.
David B. Mark, Assistant District Attorney, for the
Commonwealth.
GREEN, J. Over objection, the defendant was ordered to
remain shackled in ankle restraints throughout his trial on
charges of breaking and entering in the daytime with intent to
2
commit a felony, assault and battery, and wanton destruction of
property over $250, and to remain seated as jurors entered and
left the courtroom (apparently to prevent jurors from observing
his shackles). On appeal, as he argued in a posttrial motion
for new trial denied by the trial judge, the defendant contends
that the shackling denied his rights to due process and the
presumption of innocence. We conclude that any error was
harmless beyond a reasonable doubt, and discern in the
defendant's other claims of error no cause to disturb the
judgments.1
Background. On May 22, 2013, at around 12:30 in the
afternoon, the defendant, Matthew Rocheleau, broke into the
victim's home. The victim, a sixty-two year old woman, was
sleeping on a couch when she was awakened by a "thump" and heard
her dog yelp. The victim went to her kitchen, where she found
the defendant standing next to her stove, having entered through
a closed but unlocked door. Frightened, the victim grabbed a
knife and confronted the defendant, asking him, "What are you
doing here?" The defendant did not respond, and left the house.
1
In addition to his claim based on shackling, the defendant
claims error in the jury instructions administered by the trial
judge, and that his trial counsel was constitutionally
ineffective. He also contends that the evidence was
insufficient to establish that the loss caused by his
destruction of property exceeded $250, and that the trial judge
improperly impeded his counsel's effort to impeach the victim.
3
The victim called 911 after the defendant went outside; as she
did so, she watched the defendant try to escape through her
backyard gate, which was secured by a padlock. The defendant
was unable to open or climb over the gate and began to "throw
himself into" the fence (which was made of a combination of
hardwood and vinyl), eventually breaking his way through the
fence. A police officer who responded to the scene testified
that he estimated the value of the defendant's destruction of "a
whole section of vinyl fence" to be in excess of $250. The
victim then followed the defendant out to her driveway where she
saw him "fiddling" with her car, and confronted him again.2 In
response, the defendant pushed the victim against the car.
Seeing a neighbor pass by, the victim called to him for help.
The defendant then pushed her again, and knocked her down into
the street.
Hearing the victim's call for help, the neighbor came to
her assistance; he stood in front of the defendant, telling
him, "Hey, look, guy. You ain't going nowheres till the police
show up." Shortly thereafter, as the defendant attempted to
2
The victim described the encounter as follows during her
testimony on direct examination:
"And I said, 'what are you doing?'"
"And he said -- he said, 'I've lost my keys.'"
"I said, 'That's my car. What were you doing in my house?'"
4
walk away, another neighbor came to assist. The defendant
continued to walk away until he and the two neighbors ran into
some sanitation workers. The defendant finally capitulated and
went back to the victim's house until the police arrived. The
defendant was subsequently taken into custody by the police. At
that time, the victim reported to the police that she was
missing a twenty dollar bill.
A few days later, an investigator for the Bristol district
attorney took a statement from one of the two neighbors, who
said that the defendant appeared "high" at the time of the
incident. At trial, that neighbor testified that the defendant
was acting nervous and mumbling at the time of the encounter.
However, the police officer who responded to the victim's 911
telephone call and arrested the defendant testified that the
defendant's speech seemed normal and he seemed balanced.
We provide additional factual detail as needed in our
discussion of the defendant's several claims.
Discussion. Shackles. Prior to empanelment, the trial
judge explained to defense counsel that his usual practice is to
remove handcuffs from criminal defendants during trial, but to
leave on the ankle restraints.3 He explained that he would not
require the defendant to stand when jurors entered the court
3
The restraints consisted of metal shackles connected by a
metal chain approximately one foot long.
5
room, and in that manner prevent jurors from seeing that the
defendant was restrained. The defendant's counsel objected, and
the judge "noted her objection." Following his conviction, the
defendant again raised the use of shackles during trial in a
motion for a new trial. In denying the motion, the judge
observed that:
"The defendant is a large individual charged with crimes of
a violent nature, including assault and battery. He was in
custody indicating a need for security. The court house is
essentially a single story building in which all court
rooms are located on the ground floor. The court room in
which he was to be tried was secure in its front, where the
judge's bench is located, and along its two sides, one side
being a solid wall and the other containing the jury box.
However, the rear of the court room where the public sits
has swinging, nonlocking doors [that] open directly into a
small lobby and then into the outside parking lot. The
ease of escape is noticeably present, as is the need to be
able to contain and control a potentially difficult
prisoner."
In Deck v. Missouri, 544 U.S. 622, 629 (2005), the United
States Supreme Court held that "the Fifth and Fourteenth
Amendments [to the United States Constitution] prohibit the use
of physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are
justified by a [S]tate interest specific to a particular trial."
Although a judge has discretion to order shackling for court
room security, resort to such a measure must be "case specific
6
. . . reflect[ing] particular concerns . . . related to the
defendant on trial," and appropriate "findings" must be placed
on the record at the time shackling is ordered. Id. at 633.
Massachusetts law likewise has long restricted the practice
of shackling. For a "[f]air trial by an impartial jury, . . .
[s]hackling and other unusual security measures are of course to
be avoided if possible. These displays tend to create prejudice
in the minds of the jury by suggesting that a defendant is a bad
and dangerous person whose guilt may be virtually assumed."
Commonwealth v. Brown, 364 Mass. 471, 475-476 (1973). Before a
defendant may be tried in shackles, a judge should "state [the]
reasons . . . in the presence of counsel and defendant . . . and
provide an opportunity for counsel to make their objections
known," thereby making a record. Id. at 479. See
Mass.R.Crim.P. 45(a) (if trial judge determines that shackling
is "reasonably necessary to maintain order . . . he shall enter
into the record of the case the reasons therefor").
In the present case, the judge made no particularized
findings on the record at the time he imposed his shackling
order, and the record contains no indication that the defendant
threatened violence, behaved in a threatening or disruptive
7
manner, or otherwise posed an evident risk of flight.4 Nor do
the concerns cited by the judge in his order denying the
defendant's motion for a new trial reflect a particularized
concern: the configuration of the court room (with an unlocked
door at its rear) hardly sets it apart from others in the
Commonwealth, and many defendants are both large and in custody
at the time of their trial.5 In short, the record does not
justify the use of shackles to restrain the defendant in the
present case.
The Commonwealth nonetheless contends that no relief is
warranted, for two independent reasons. First, it observes, the
motion judge (who was also the trial judge) found that the
shackles were not visible to the jury during either empanelment
or the trial. Second, it contends that even if the shackles
were visible, any error in their use was harmless beyond a
reasonable doubt in light of the strength of the evidence
against the defendant.6 We agree with the latter, and
accordingly need not address the defendant's contention (based
4
Indeed, we note that the defendant was persuaded without
force by the victim and two of her neighbors to remain in place
pending arrival of the police after the victim called 911.
5
The trial judge has since retired.
6
Because the claim of error was preserved by objection at
trial, the burden is on the Commonwealth to establish the
"absence of prejudice beyond a reasonable doubt." Commonwealth
v. Bresnahan, 462 Mass. 761, 767 (2012).
8
on photographs of the court room layout) that the judge's
finding that the shackles were not visible to jurors is clearly
erroneous.
At trial, the sole element contested by the defendant on
the charge of breaking and entering with intent to commit a
felony was his criminal intent.7 As to that element, the
defendant pursued a theory that he could not form the requisite
criminal intent by reason of mental impairment.8 In support of
that theory, the defendant requested, but was denied, an
instruction permitting the jury to consider whether the
defendant was so intoxicated by drugs or alcohol that he was
incapable of forming the specific intent to commit a felony. On
appeal, the defendant does not challenge the denial of the
requested instruction, implicitly (and correctly) recognizing
that the evidence at trial furnished no basis to support it.9
7
At the outset of her closing argument, defense counsel
conceded that the evidence established that the defendant
entered the victim's home and then ran through the fence in an
attempt to leave the victim's property; indeed, no other view of
the evidence at trial was possible.
8
We discuss below the defendant's claim that trial counsel
was ineffective by reason of her unsuccessful efforts to develop
evidence that the defendant was intoxicated.
9
The only evidence even hinting at possible impairment or
intoxication was testimony that he was "fiddling" with the
victim's car, mumbling, "sweating," and "appeared confused."
The arresting officer testified that his speech seemed normal,
and that he was balanced on his feet. The prosecutor's
objection to the defendant's attempt to elicit from one of the
9
During her closing, counsel for the defendant attempted to argue
that the defendant lacked the ability to form criminal intent,
but the prosecutor's objection to that argument was sustained (a
ruling the defendant likewise does not challenge on appeal).
Because the evidence of guilt (much of which was
uncontested) was overwhelming, and because there was scant
evidence to support the sole theory on which the defendant
sought to defend the charges against him, we are satisfied that
any error in the order to keep the defendant in ankle shackles
during trial "did not have an effect on the jury and did not
contribute to the jury's verdicts." Commonwealth v. Tyree, 455
Mass. 676, 701 (2010).10
Jury instruction. The defendant also claims error in the
jury instruction administered by the trial judge on the charge
of breaking and entering in the daytime with intent to commit a
felony. Specifically, the trial judge instructed the jury that
"[l]arceny is a felony. The Commonwealth must prove that the
victim's neighbors that the defendant "seemed like he was high
on something" was sustained.
10
The defendant defended the charge of wanton destruction
of property with a value over $250 on essentially the same
theory -- that he could not form the requisite criminal intent
due to mental impairment. Though, as discussed below, he also
moved for a required finding that the evidence was insufficient
to establish that the cost of the damage he caused to the
victim's fence was greater than $250, any prejudice caused by
his shackles did not bear on the jury's assessment of the cost
of the damage he caused.
10
defendant intended to commit a felony, a larceny, at the time he
broke and entered into the building." As the defendant
correctly observes, not all larcenies are felonies.11 The
defendant did not object to the instruction at trial; we
accordingly consider whether there was error and, if so, whether
it created a substantial risk of a miscarriage of justice. In
the circumstances, we conclude it did not.
Though not all larcenies are felonies, "larceny in a
building is a felony regardless of the value of the items
stolen." Commonwealth v. Cruz, 430 Mass. 182, 188 (1999). In
much the same way as in Cruz, the evidence in the present case
established that the defendant's intent at the time of the
breaking and entering was larceny in a building. In the
circumstances, the judge's statement that the Commonwealth must
prove that the defendant intended to commit a larceny at the
time he entered the building, though perhaps imprecise, was not
erroneous. Accordingly, no substantial risk of a miscarriage of
justice arose by reason of the judge's instruction. See ibid.12
11
Ordinarily, under G. L. c. 266, § 30, whether a larceny
constitutes a felony depends on the value of the property
stolen; only if the value of the property exceeds $250 is the
crime a felony.
12
The defendant's reliance on Commonwealth v. Hill, 57
Mass. App. Ct. 240 (2003), is unavailing. In that case, the
defendant was charged with breaking and entering a vehicle in
the nighttime with intent to commit a felony. See id. at 247.
Because it is possible to commit a misdemeanor larceny upon
11
Other issues. We discern no abuse of discretion in the
motion judge's order denying the defendant's motion for a new
trial, which was based on a claim of ineffective assistance of
counsel.13 The defendant contends that his trial counsel failed
adequately to develop evidence that the defendant did not have
any stolen property in his possession at the time of his arrest.
However, trial counsel asked the arresting officer whether the
officer observed any stolen property in the vicinity of the
defendant or on his person, and received "no" as the response.
In any event, the defendant's conviction rested on the obvious
inference that he intended to steal property when he broke and
entered the victim's home. Whether he in fact stole any
property after he entered, but before the victim discovered him
in her kitchen, is irrelevant as to intent. We likewise find no
constitutionally ineffective assistance in trial counsel's
failure to preserve objection to the trial judge's ruling
excluding testimony of a neighbor that the defendant "seemed
like he was high on something." See note 9, supra. While lay
opinion on the question whether someone is intoxicated by
entry into a vehicle, it was error for the trial judge in Hill
to instruct the jury that any larceny after entering the vehicle
would constitute a felony. See id. at 248-249.
13
Because the motion judge was also the trial judge, we
extend "special deference" to his action on the motion.
Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
12
alcohol is generally admissible because the effects of alcohol
intoxication are widely known, see Commonwealth v. Canty, 466
Mass. 535, 540 (2013), we are aware of no authority for the
proposition that a lay witness may offer an opinion that a
person is "high" on something other than alcohol. Moreover, the
defendant presented no evidence at the hearing on his motion for
a new trial suggesting that trial counsel could have laid a
foundation to support the admission of such an opinion.
There is likewise no merit to the defendant's contention
that the evidence was insufficient to establish that the damage
to the victim's fence exceeded $250. At trial, one of the
officers who responded to the 911 call testified that he
estimated that the damage to the section of the fence destroyed
by the defendant was over $250.
Finally, the defendant claims error in a ruling by the
trial judge that he claims limited his opportunity to impeach
the victim's testimony. At trial, the victim testified that she
observed the defendant "fiddling with [her] car" and that, when
she asked him what he was doing, he responded, "I've lost my
keys." In response, the victim said, "That's my car." Defense
counsel then sought to impeach the victim with a statement she
had made in an earlier proceeding that the defendant contends
13
was inconsistent with her trial testimony.14 In that statement,
the victim said, "I got to my driveway. And he was trying to
get into my car. I said, 'It's not your car. Just wait. The
police are on their way.'" The trial judge expressed skepticism
that the prior statement was inconsistent with the victim's
trial testimony, but allowed its admission, subject to possible
redirect examination concerning the context in which the victim
made the statement. Concerned that the redirect examination
might include the fact that the victim made the statement
incident to an aborted attempt by the defendant to enter a
guilty plea, the defendant chose not to pursue this line of
impeachment.15 Like the trial judge, we are skeptical that the
14
The victim had given a victim impact statement during a
proceeding at which the defendant pleaded guilty, but then
withdrew his plea when the proposed sentence was unsatisfactory
to him.
15
The trial judge explained:
"For example, the jury is entitled to know that this was a
statement not under oath. The jury is entitled to know
it's a statement not as a result of a hearing subject to
cross-examination, but the context in which she is
testifying at a sentencing hearing.
"So, I mean, you've got to . . . get it in somewhere. And
she's got to be able to say when she made that statement.
And if you don't ask her, she's entitled to."
The judge concluded the sidebar discussion with the
following comment:
"And [the trial prosecutor] also can -- and I'll note your
objection to this -- ask the context in which those
14
prior statement was inconsistent with the victim's trial
testimony. In any event, we discern no prejudice from the
omission of the prior statement. The defendant contends that
the prior statement would have supported his claim that he was
mentally impaired at the time of the incident and, therefore,
lacked the capacity to form the requisite criminal intent,
because it would illustrate that the defendant was so confused
he did not realize the car he was trying to get into was not
his. However, the same inference is plainly supported by the
victim's trial testimony, in which she saw the defendant trying
to enter her car and told him that the car was hers. In any
event, it would have been a straightforward matter for trial
counsel to draw out that suggestion through further questioning
of the victim in cross-examination, without reliance on her
prior victim impact statement, but trial counsel made no attempt
to do so. Moreover, the statement, even if admitted, would have
added little weight to the defendant's unsuccessful effort to
develop evidence warranting instruction on mental impairment.
Judgments affirmed.
Order denying motion for new
trial affirmed.
statements were made. And if the woman -- who seems to be
a fairly responsive witness -- says, Yeah, I remember that.
I was in court when your guy [pleaded] guilty, and then he
changed his mind -- I'm going to let that stand."