MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was found guilty of (1) assault and battery on a household member, G. L. c. 265, § 13M (a); (2) assault by means of a dangerous weapon, G. L. c. 265, § 15B (b); (3) threatening to commit a crime, G. L. c. 275, § 2; (4) intimidation of a witness, G. L. c. 268, § 13B; and (5) assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). He now appeals.
The defendants first argument is that the jurys verdicts were coerced. See Commonwealth v. OBrien, 65 Mass. App. Ct. 291, 294-295 (2005) (describing jury coercion). The defendant was convicted after a two-day trial. On the first day, the jury were dismissed at 4 p.m. On the second day, however, they were sent to deliberate at 3:30 p.m. They were not instructed that they might go home without having first reached a verdict, there was no explanation by the judge of the timeline for their deliberation, they were not informed of any arrangements with respect to dinner, nor were they asked or told anything about arrangements for the end of the day with respect to personal issues that might affect their deliberations, such as medical or childcare matters. At 5:32 p.m. there was a question from the jury about the difference between assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon. The judge reinstructed them, and they resumed deliberations at 5:40 p.m. The verdict was returned approximately ten minutes later at 5:50 p.m.
The defendant raised no objection to any of these procedures at the time, but regardless of the standard of review that might be applicable to this claim, we are not persuaded on this record that jury coercion has been demonstrated.
We have no doubt that at some point a jury may be coerced by withholding food or rest, or, indeed, by failure to inform them that a break in deliberation, adjournment for the evening, a meal, or some other arrangement for their comfort or convenience, is forthcoming. The days are long past since when, “[u]nder early English law, juries could be coerced into agreement by withholding ‘meat, drink, fire, or candle, unless by permission of the judge, till they [were] all unanimously agreed.’ ” Commonwealth v. Jenkins, 416 Mass. 736, 737-738 (1994), quoting 3 W. Blackstone, Commentaries *375.
It is, of course, difficult to articulate a bright line beyond which deliberation cannot be allowed to continue without some explanation by the judge of the plan for the jurys continued deliberation, or some statement that they are permitted to deliberate at their own pace, and that their various needs will be met to permit them to do so. Indeed, it might be the better practice, in cases in which juries are required to deliberate later in the afternoon, to spell out for them the anticipated course of proceeding as evening approaches.
Nonetheless, we are not persuaded that what happened here can be described as a matter of law to have been coercive. The jury commenced deliberation at 3:30 and received all the exhibits, some of which required redaction, shortly after 4 p.m. At 5:30, they asked a relevant and appropriate question and at 5:50 reached a verdict. In the absence of any evidence of any of the jurors feeling coerced or having a circumstance that might have rendered the course of proceedings coercive, we conclude that the defendant has not met his burden to demonstrate coercion.
The defendant argues next that the conviction for assault and battery by means of a dangerous weapon must be vacated because that charge was not read to the jury at the outset of the case. The jury were properly instructed on the count and rendered a verdict of guilty.
There was no objection either to the failure of the clerk to read the charge, nor to the jury being instructed on the charge prior to beginning their deliberations. The defendant cites no case requiring that the charges be read at the outset to the jury. He cites no authority for the proposition implicit in his argument that in order to be tried on a count it must be read at the outset of the case by the clerk. To the extent the defendant argues that due process was violated because the failure to read the charge of assault and battery by means of a dangerous weapon meant that the jurors were not put on notice at the outset of what aspect of the case warranted their particular attention, we think in the circumstance of this case, the claim is without merit. Putting to one side the fact that the name of each charge does not necessarily inform the jurors of the elements of the offense, something that is explained to them only during the judges instruction following the close of all evidence, in this case the jury were informed during the reading of the charges that the defendant had been charged both with assault and battery on a household member and with assault by means of a dangerous weapon. Given this, we do not think that the omission of the assault and battery by means of a dangerous weapon charge would have left them inattentive to the evidence relevant to that latter charge.
The defendants next claim is based on the fact the jury were not instructed that the convictions for cognate charges were required to be based on separate and distinct acts. The defendant did not object or propose any such instruction. Whether this is framed as an unpreserved claim of error, or, as the defendant would have it, ineffective assistance of counsel, the defendant is entitled to relief only if he can demonstrate a substantial risk of a miscarriage of justice from the failure to instruct on separate and distinct acts. See Commonwealth v. Randolph, 438 Mass. 290, 296 (2002) (“when a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel ․ we do not evaluate the ineffectiveness claim separately. If we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice -- ineffectiveness is presumed if the attorneys omission created a substantial risk, and disregarded if it did not”).
The defendant argues first that assault by means of a dangerous weapon is a subset of assault and battery by means of a dangerous weapon, and that in the absence of a separate and distinct acts instruction, the defendant may have been convicted of both counts on the basis of the same act or series of acts. As the defendant notes, there is reversible error in the absence of an objection where there is “any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act or series of acts.” Commonwealth v. Kelly, 470 Mass. 682, 700 (2015).
Having reviewed the transcript of the trial, we conclude that there is no such significant possibility here. The only battery involving a dangerous weapon described in the evidence was contact between the victims head and the wall or floor.
2
Where there was also testimony that the defendant held a baseball bat with two hands as he was standing over the victim as if preparing to hit her with it while threatening her -- threats for which the defendant was convicted -- we do not think there is a significant possibility that the jurys conviction on the assault charge was based not on the incident with the baseball bat, but on some momentary fear on the part of the victim that her head would make contact with the floor or wall immediately before it actually did so.
The defendant also argues that “[a]s instructed, ‘threats’ [to commit a crime] was a lesser included offense of intimidation of a witness” (emphasis added). The jury were instructed that in order to convict the defendant of intimidation of a witness, the Commonwealth had to prove that the defendant “either directly or indirectly threatened another person,” that the person was a potential witness, and that the defendant “did so willfully, with [the] specific intent to impede, obstruct, or delay, or otherwise interfere with a criminal investigation.” The Commonwealth argues that threat to commit a crime in this case is not a lesser included offense of intimidation of a witness, although it acknowledges that “[t]hese two charges arose from when the defendant stood over the victim wielding a bat as she lay on the floor, ready to hit her, and told her he would kill her if she went to the police.” The Commonwealth argues that there is no error because threat to commit a crime requires as an additional element not present in the intimidation of a witness charge “that the defendant made the threat under circumstances which could reasonably have caused the person to whom it was conveyed to fear that the defendant had both the intention and the ability to carry out the threat.” Instruction 6.700 of the Criminal Model Jury Instructions for Use in the District Court (2013). We agree that since the defendant limited his argument to the jury instructions the judge gave, and under those instructions, this additional element for threat to commit a crime was absent from the elements required to convict an individual of intimidation of a witness on the basis of a threat, there was no error.
3
The defendant next raises arguments as to two of the judges evidentiary rulings. With respect to the first, we see no abuse of discretion in the admission of a Facebook message sent by the victim immediately after the attack. Defense counsel had suggested that the victim was not credible both because she had been “cruising” on Facebook immediately after the attack and because she had not reported it to the police for two days. In these circumstances, the prior consistent statement contained in the Facebook message was admissible. See Commonwealth v. Kindell, 44 Mass. App. Ct. 200, 203 (1998). And where defense counsel utilized the victims restraining order affidavit to impeach her on cross-examination, we see no abuse of discretion in the judge permitting the Commonwealth to introduce the entire affidavit under the “doctrine of completeness.” See Commonwealth v. Watson, 377 Mass. 814, 829-830 (1979).
The defendant next argues that the prosecutor erred in closing. Having found no abuse of discretion in the judges evidentiary rulings, we see no error in the prosecutors restatement of both the restraining order affidavit and the statement made by the victim on Facebook following the incident at issue in this case. Nor do we see any error in the prosecutor asking the jury to infer that Dr. Price, a defense witness who testified regarding the victims medical records, was less credible because, as he said on the stand, he was testifying because he thought the defendant “was doing good things for the [t]own of Bourne” as a Selectman and he was concerned about “taking [the defendant] out of our government.”
The reference in closing to the victim appearing to be “emotional, upset, [and] crying” while a detective took a report from her, even if it amounted to an improper appeal to sympathy, something we need not decide, did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967) (“An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[ ]’ the guilty verdict”). The prosecutor comparing the terminology used by the defendant and his son during their testimony, which might have been understood as a suggestion that they had prepared their testimony in concert, did not violate the rule articulated in Commonwealth v. Person, 400 Mass. 136, 139-143 (1987), that it is improper to comment on the ability of a defendant who exercises his right to sit through his own trial to tailor his testimony to match that of witnesses he has heard as a consequence of doing so.
Lastly, even assuming that the prosecutors comment on the defendant having waited two and one-half weeks to take a photograph of an injury he claimed to have received in the altercation with the victim was error, the delay was the result, as the prosecutor knew, but the jury did not, of the Commonwealth arresting and incarcerating the defendant -- something that is a question of fact on which no finding has been made by the trial court -- we do not think that it was sufficiently serious to create a substantial risk of a miscarriage of justice given the record in this case.
The defendant argues next that trial counsel was ineffective. In addition to failing to object to the claimed errors articulated by the defendant, trial counsel in closing twice referred to a police officer as having testified, when he had not: Officer Spurlain did not testify, yet counsel said, “You heard from a Patrolman Spurlain. You then heard from a Stowe.” He later asked the jury rhetorically whether it recalled part of the testimony of either officer: “Nothing. Nothing. None of that. Did you hear from Officer Spurlain? Did you hear from Stowe?” In addition, in opening and closing, trial counsel referred to the victim as “Ms. Shannon Smith,” which is not her name.
These errors are not explained on the record, and they suggest, at best, serious inattention of counsel, inattention that we think fell below what might be expected of an ordinary lawyer. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (to prevail on ineffective assistance of counsel claim, defendant must show that “behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer” and that such inadequacy “likely deprived the defendant of an otherwise available, substantial ground of defence”). Nonetheless, the defendant has not demonstrated that these errors deprived him of a substantial ground of defense nor, having read the closing in its entirety, do we perceive any such deprivation. As for the failure to object to the various errors claimed by the defendant, as described above, we have found no merit to most of these claims, and, with respect to those which we have assumed to be valid, because we have concluded none created a substantial risk of a miscarriage of justice, the failure to object could not have met the standard articulated in the second prong of Saferian. See Randolph, 438 Mass. at 296 (“when a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel ․ ineffectiveness is presumed if the attorneys omission created a substantial risk, and disregarded if it did not”).
Finally, the defendant argues that the cumulative effect of the claimed errors and counsels deficiencies warrant a new trial. But again, we conclude that, even assuming it was error for the prosecutor to attempt to undermine the defendants credibility with respect to his photo based on the delay in having taken it, that the prosecutor should not have described the witness as “emotional, upset, [and] crying” during her interview with the detective, and that counsel should not have misstated who testified and misstated the victims name, neither singularly nor together did these errors create a substantial risk of a miscarriage of justice.
Judgments affirmed.
FOOTNOTES
2
. The victim testified that the defendant slammed her head into the hardwood floor three times. The defendant testified that he pushed the victim away from him, and she went backward and hit a wall with the back of her head and upper back.
3
. We need not determine whether in the abstract or in another set of circumstances, threat to commit a crime might be a lesser included offense of intimidation of a witness where that intimidation is wrought through threats to commit a crime.