Commonwealth v. Andrew Brown. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-621
COMMONWEALTH
vs.
ANDREW BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A two-count complaint issued from the Roxbury Division of
the Boston Municipal Court charging the defendant, Andrew Brown,
with (1) violation of an abuse prevention order (G. L. c. 209A,
§ 7), and (2) stalking in violation of an abuse prevention order
(G. L. c. 265, § 43 [b]). On the first count, a jury returned a
guilty verdict, and on the second count returned a guilty
verdict of the lesser included offense of violation of an abuse
prevention order. The trial judge imposed concurrent suspended
sentences of fifteen months in the house of correction. Three
months later, leaving the conviction of the first count
undisturbed, the judge vacated the conviction of the second
count after concluding that the absence of a specific unanimity
instruction created a substantial risk of a miscarriage of
justice. The judge also stated that the Commonwealth could
retry the defendant on that count.
The defendant filed a direct appeal from his convictions
and filed a petition for interlocutory review of the judge's
postjudgment decision, raising a double jeopardy claim, with a
single justice of the Supreme Judicial Court pursuant to G. L.
c. 211, § 3. Allowing the defendant's petition, the single
justice transferred the case to this court for a determination
of the "defendant's claim that any retrial on count two of the
complaint is barred by principles of double jeopardy." Before
us now is the consolidated direct appeal and interlocutory
appeal. For the reasons set forth herein, we affirm the
defendant's conviction of the first count of the complaint and
conclude that the defendant cannot be retried on the second
count. We therefore reverse the judgment on count two of the
complaint, set aside the verdict, and enter judgment for the
defendant on that count.
Instruction on lesser included offense. Without any
objection by the defense, the trial judge provided a lesser
included offense instruction on the second count that charged
aggravated stalking. Consistent with the jury instruction, the
verdict slip gave jurors the option under the second count of
convicting the defendant of aggravated stalking or the lesser
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included 209A violation. On appeal, the defendant contends that
this instruction should not have been provided. We discern no
error and no "substantial risk of a miscarriage of justice."
Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (where defendant
did not object at trial appellate review limited to whether
there was any error, and if so, whether that error created
substantial risk of a miscarriage of justice).
Violation of a 209A order is a lesser included offense of
aggravated stalking. Edge v. Commonwealth, 451 Mass. 74, 77
(2008). "[W]hen the evidence permits a finding of a lesser
included offense, a judge must, upon request, instruct the jury
on the possibility of conviction of the lesser crime" (citation
omitted). Commonwealth v. Roberts, 407 Mass. 731, 737 (1990).
"This requirement applies to requests made by the Commonwealth."
Commonwealth v. Taylor, 486 Mass. 469, 485 (2020). The evidence
showed that the 209A order issued on July 20, 2021, and required
the defendant to refrain from abusing the victim, avoid
contacting the victim, and stay at least one hundred yards away
from the victim. While that order was in effect, on five
separate days the defendant engaged in at least five discrete
acts that the jury could consider as violations of the 209A
order, and a combination of these acts could constitute
aggravated stalking. Jurors could rationally acquit the
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defendant of stalking and still convict him of violating the
209A order. Thus, the judge did not err in providing an
instruction on a lesser included offense.
Specific Unanimity. We disagree with the defendant's
contention that the absence of a specific unanimity instruction
requires a new trial. As previously noted, the 209A order
required the defendant to refrain from abuse, to have no contact
with the victim, and to stay away from the victim. The evidence
at trial included a text message that the defendant sent to the
victim on October 20, 2021. In an effort to prove a pattern of
conduct for the aggravated stalking charge, the Commonwealth
attempted to link the October 20 text message to four prior
incidents where the defendant made some form of contact or came
within one hundred yards of the victim, on October 11, 14, 15,
and 18. For the first time on appeal, the defendant contends
that the trial judge should have provided, sua sponte, a
specific unanimity instruction that required jurors to agree on
one of these incidents for the 209A violation that was common to
both counts of the complaint. We discern no "substantial risk
of a miscarriage of justice." Freeman, 352 Mass. at 564.
The judge repeatedly instructed jurors on the need for a
unanimous verdict: "The presumption of innocence stays with the
defendant unless and until the evidence convinces you
unanimously as a jury that the defendant is guilty beyond a
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reasonable doubt. . . . Your verdict, whether it is guilty or
not guilty, must be unanimous." At the end of the instructions,
when referencing the verdict slips, the judge once again
reminded jurors of their obligation to "arrive at a unanimous
decision." These repeated instructions, especially when made in
reference to the verdict slips, implicitly called for jurors to
agree unanimously as to each incident reflected in the verdict.
Commonwealth v. Lemar, 22 Mass. App. Ct. 170, 172 (1986).
The absence of an additional, explicit instruction --
requiring unanimity as to at least one of the five incidents --
did not create a substantial risk of a miscarriage of justice.
"[W]hen a defendant does not request a specific unanimity
instruction nor timely object to its absence, 'no substantial
risk of a miscarriage of justice' exists where 'the evidence
satisfies each element of the statute and is sufficient to
defeat a motion for a required finding of not guilty.'"
Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003),
quoting Commonwealth v. Keevan, 400 Mass. 557, 567 (1987). See,
e.g., Lemar, 22 Mass. App. Ct. at 173 (no substantial risk of a
miscarriage of justice from absence of specific unanimity
instruction where indecent assault and battery charge supported
by evidence of three incidents).
Here, viewing the evidence in a light most favorable to the
Commonwealth, any one of the five incidents in October allowed
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jurors to find beyond a reasonable doubt that the defendant
knowingly violated an existing abuse prevention order under
G. L. c. 209A, § 7. Commonwealth v. Latimore, 378 Mass. 671,
676-678 (1979). That order, extended in the defendant's
presence and in existence when the incidents occurred,
prohibited the defendant from contacting the victim: "YOU ARE
ORDERED NOT TO CONTACT THE PLAINTIFF, in person, by telephone,
in writing, electronically or otherwise, either directly or
through someone else, and to stay at least 100 yards from the
Plaintiff even if the Plaintiff seems to allow or request
contact." Despite this order, the evidence showed that the
defendant intentionally positioned his car in view of the victim
and "revved" the engine (October 11), argued with the victim on
the courthouse steps (October 14), called the victim on a cell
phone (October 15), parked behind the victim's car, within 100
feet of where the victim stood, and opened a door of her car
(October 18), and texted the victim (October 20). Given that
contact is "broadly" interpreted as well as the fact that there
are "many ways to achieve a communication," Commonwealth v.
Basile, 47 Mass. App. Ct. 918, 919 (1999), jurors could readily
find a violation of the 209A order through any of the October
incidents. "Accordingly, it does not appear likely that the
jury verdict would have been different even if the judge had
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given the specific instruction now requested by the defendant."
Commonwealth v. Comtois, 399 Mass. 668, 677 (1987).
Duplicative convictions. After trial, the judge vacated
the conviction of the second count because he believed that the
absence of a specific unanimity instruction created a
substantial risk of a miscarriage of justice. We conclude that
the conviction of the second count must be reversed, and for a
different reason –- the conviction is duplicative of the
conviction of the first count. Consequently, the defendant
cannot be retried on the second count or any portion thereof.
The complaint identified the date of count one as October
20, 2021, and of count two as "various dates between On" October
20 and 21, 2021. A bill of particulars identified seven
additional dates involving incidents related to the stalking
count. As set forth in detail above, the evidence at trial
included incidents from four of the seven dates noted in the
bill of particulars (October 11, 14, 15, and 18) as well as the
date identified in the complaint (October 20). Neither the
prosecutor's opening statement nor closing argument attempted to
link any of the evidence to a particular count of the complaint.
At first glance, the bar against duplicative convictions and
double jeopardy would not seem to apply because we are dealing
with multiple discrete acts, any one of which could
theoretically be the basis for a jury verdict.
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We faced a similar situation in Commonwealth v. Mahoney, 68
Mass. App. Ct. 561 (2007). In that case, a jury convicted the
defendant of embezzlement and larceny of $44,000 through a
series of thefts over a year and one-half. Id. at 561, 566.
The Commonwealth argued that the convictions were not
duplicative because the convictions were derived from evidence
of separate and discrete acts of thefts, and jurors could have
found one of the thefts was a larceny while another was
embezzlement. Id. at 566. We noted, "The problem with the
Commonwealth's contention is that the thefts in this case were
neither charged nor tried in this manner." Id. The
Commonwealth did not charge the various thefts as separate
crimes, and the judge did not provide a specific unanimity
instruction. Id. Despite the various dates of the thefts, the
"convictions arose from the same conduct on the part of the
defendant." Id. As such, the convictions were duplicative.
We reach a similar result here. In the charging
instrument, the Commonwealth never attempted to distinguish the
defendant's discrete acts in violation of the 209A order as
separate crimes. At trial, the Commonwealth never attempted to
link the evidence to a particular count of the complaint. The
jury instructions also drew no distinctions and did not require
jurors to agree unanimously that any particular act constituted
a 209A violation. Given these circumstances, we believe that
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the defendant's convictions effectively "arose from the same
conduct on the part of the defendant" and are duplicative.
Mahoney, 68 Mass. App. Ct. at 566.
Resentencing. In a case such as this where the first count
(209A violation) is a lesser included offense of the second
count (aggravated stalking), the proper approach would have been
to "submit the [two] charges to the jury and, if guilty verdicts
were returned on more than one, to dismiss the less serious
charge or charges prior to entering a judgment of conviction and
sentencing on the most serious crime." Commonwealth v. Jones,
382 Mass. 387, 394-395 (1981). That did not happen here;
instead, in a postconviction hearing, the trial judge "vacated"
the judgment on the second count of the complaint, and he
considered, but declined, to impose a different sentence on the
conviction of the first count. In light of the judge's
consideration of the sentence following action on the conviction
that we now deem duplicative, we are satisfied that a further
sentencing hearing is not required in these circumstances.
The judgment on count one of
the complaint is affirmed;
the judgment on count two
of the complaint is
reversed, the verdict is
set aside, and judgment for
the defendant shall enter
on that count.
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By the Court (Neyman,
Hershfang & Hodgens, JJ. 1),
Clerk
Entered: August 14, 2024.
1 The panelists are listed in order of seniority.
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