Commonwealth v. Cintron, 2020 Mass. App. Unpub. LEXIS 1047 (MA Ct. App. 2020)
Appeals Court of Massachusetts
December 15, 2020, Entered
2020 Mass. App. Unpub. LEXIS 1047 | 99 Mass. App. Ct. 1103 | 2020 WL 7350266
Commonwealth vs. Enrique Cintron.
Judges: Kinder, Shin & Hand, JJ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In August, 2016, two complaints issued in the District Court against defendant Enrique Cintron. The first issued on August 26, 2016, charging the defendant with a variety of motor vehicle offenses;  as a result of this complaint, a warrant was issued for the defendant’s arrest. The second complaint issued on August 31, 2016, based on allegations arising from police efforts to arrest the defendant on the warrant for the first complaint.  The two complaints were joined and, after a three-day trial, a jury acquitted the defendant on all criminal charges in the first complaint and four of the six charges in the second complaint. The jury convicted the defendant of the two remaining charges in the second complaint — resisting arrest and one count of assault and battery on a police officer. This appeal followed.
1. Ineffective assistance of counsel. On appeal, the defendant argues for the first time that his trial counsel provided ineffective assistance in failing to request jury instructions on self-defense and the unreasonable use of force in connection with the charges in the second complaint.  He also contends that in the absence of such a request, the judge erred in failing to provide the instruction sua sponte. We are not persuaded.
We consider the defendant’s claim of ineffective assistance of counsel under the familiar test set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). The defendant bears the burden of demonstrating that his counsel’s performance “[fell] measurably below [that] which might be expected from an ordinary fallible lawyer,” and that counsel’s failure “likely deprived the defendant of an otherwise available, substantial ground of defen[se].” Id. Where, as here, the record demonstrates a strategic basis for counsel’s course of action, we “‘conduct our review with some deference . . .’ and ask whether the decision was manifestly unreasonable when made.” Commonwealth v. Gomes, 478 Mass. 1025, 1026, 89 N.E.3d 1148 (2018), quoting Commonwealth v. LaBrie, 473 Mass. 754, 771, 46 N.E.3d 519 (2016).
We briefly summarize the evidence relevant to this aspect of the defendant’s appeal in the light most favorable to the defendant. See Commonwealth v. Williams, 53 Mass. App. Ct. 719, 720-721, 723, 761 N.E.2d 1005 (2002). Officer James LaFlamme of the Orange Police Department testified that on August 31, 2018, he attempted to arrest the defendant on a warrant issued in connection with the first complaint. LaFlamme testified that the defendant was uncooperative with his efforts to arrest him, refused to comply with his instructions, and engaged LaFlamme in a fight, lunging at LaFlamme and ultimately using LaFlamme’s own Taser against him.
The defendant’s girlfriend, Christine Matthews, testified for the defense. According to Matthews, she was present on August 31, 2018, from the time LaFlamme first interacted with the defendant through the time of the defendant’s arrest. In sharp contrast to LaFlamme’s account, Matthews testified that the defendant was compliant with all of LaFlamme’s instructions and immediately did as he was instructed, “[doing] everything that the officer [directed him to do].” Matthews testified that the defendant did not lunge at LaFlamme; instead, LaFlamme approached the defendant, “zapping [the defendant] with the [T]aser gun” as the defendant lay on the sidewalk. Matthews testified that the defendant “never ran,” and that when he stood after being Tased, “stagger[ing] around like he was  super-duper drunk,” LaFlamme shocked him with the Taser again. At that point, according to Matthews, the defendant fell to the ground, LaFlamme “stomped on his shoulder,” then handcuffed him.
In closing, trial counsel explicitly argued that LaFlamme’s account of the events of August 31, 2018, was not credible;  she highlighted Matthews’s testimony — “He didn’t run. He didn’t fight.”
A properly-supported request for the instructions on which the defendant now focuses would have required trial counsel to concede that there was at least some credibility to LaFlamme’s testimony that the defendant had used a degree of force against LaFlamme, a position inconsistent with the testimony of the defendant’s percipient witness, Matthews. See Williams, 53 Mass. App. Ct. at 722, quoting Commonwealth v. Moreira, 388 Mass. 596, 601, 447 N.E.2d 1224 (1983) (“where [a police] officer uses excessive or unnecessary force to subdue the arrestee, regardless of whether the arrest is lawful or unlawful, the arrestee may defend himself by employing such force as reasonably appears to be necessary”); Commonwealth v. Alebord, 49 Mass. App. Ct. 915, 915-916, 733 N.E.2d 169 (2000) (“To be entitled to an instruction about self-defense by nondeadly force, the evidence, taken in the light most favorable to the defendant, must warrant reasonable apprehension by the defendant that he:  [was] in danger of personal harm;  [could] avoid that harm only by resort to force;  attempted to avoid physical combat or was unable to do so before resorting to force; and  used only the force necessary in the circumstances”).
On this record, we conclude that trial counsel’s failure to request instructions on self-defense and unreasonable use of force was the result of a reasonable tactical decision to seek an across-the-board acquittal on all charges by arguing that the jury should reject LaFlamme’s testimony and instead accept Matthews’s account of the defendant’s conduct. Accordingly, we conclude that the defendant has failed to demonstrate that counsel’s conduct in failing to request instructions on these defenses created a substantial risk of miscarriage of justice or otherwise fell “measurably below” the required standard of practice.  Saferian, 366 Mass. at 96. See Commonwealth v. Kolenovic, 471 Mass. 664, 673-674, 32 N.E.3d 302 (2015) (defense counsel’s tactical decisions reasonable and did not justify new trial).
We are also unpersuaded that, given the state of the evidence and trial counsel’s apparent strategy, the judge abused his discretion in failing, unasked, to instruct the jury on self-defense and excessive use of force. See Williams, 53 Mass. App. Ct. at 720, citing Commonwealth v. MacDonald, 371 Mass. 600, 603, 358 N.E.2d 1005 (1976) (“A trial judge has broad discretion in the giving of instructions”). The trial judge, who heard the evidence and arguments, did not err in deferring to counsel’s reasonable trial strategy. See Commonwealth v. Souza, 428 Mass. 478, 486, 702 N.E.2d 1167 (1998) (judge must instruct on self-defense only where evidence warrants reasonable doubt as to factors to prove self-defense); Commonwealth v. Pike, 428 Mass. 393, 395, 397, 701 N.E.2d 951 (1998) (explaining self-defense instruction not required where defense fails to present evidence to create reasonable doubt as to elements of self-defense theory); Commonwealth v. Hakkila, 42 Mass. App. Ct. 129, 130-131, 675 N.E.2d 401 (1997) (self-defense instruction not required where defense did not rely on theory of self-defense and denied responsibility for alleged injuries).
2. Consciousness of guilt. The defendant next challenges the propriety of the judge’s instructing the jury on consciousness of guilt.  Our review, in light of the defendant’s objection at trial, is for prejudicial error. See Commonwealth v. Alphas, 430 Mass. 8, 14 n.7, 712 N.E.2d 575 (1999). We conclude that the judge acted within his discretion in giving the instruction. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 553, 953 N.E.2d 139 (2011).
As we have noted, supra, the defendant was tried on two joined complaints. The first complaint issued against the defendant after a motorcyclist whom the Orange police believed, based on an identification by an officer familiar with the defendant and his family, to be the defendant led LaFlamme on a high-speed chase. The operator of the motorcycle was not apprehended at that time; based on the police officers’ identification of the defendant as the motorcyclist, a warrant issued for the defendant’s arrest.
At trial, LaFlamme testified that on August 31, 2016, while driving a marked police cruiser, he saw the defendant riding in a car driven by Matthews. LaFlamme testified that the defendant, who had an unobstructed view in the direction of where LaFlamme’s cruiser was stopped, looked in the direction of his cruiser, then, to Matthews, pointed in the opposite direction. Matthews turned the car and drove in the direction the defendant indicated, away from LaFlamme. Based on this evidence, the judge instructed the jury on flight as evidence of consciousness of guilt.
“Consciousness of guilt instructions are permissible when there is an inference of guilt that may be drawn from evidence of flight, concealment, or similar acts . . . .” (quotation omitted). Siny Van Tran, 460 Mass. at 553, quoting Commonwealth v. Tu Trinh, 458 Mass. 776, 780, 940 N.E.2d 871 (2011). Here, there was evidence that the defendant had been involved in a high-speed police chase on August 26, in the course of which he had successfully evaded the police. This evidence, coupled with LaFlamme’s testimony that on August 31 — less than a week later — he saw the defendant look at his cruiser, then direct Matthews to change direction and drive a route that took the defendant away from the cruiser, was sufficient to permit the inference that the defendant was attempting to avoid contact with the police in order to avoid arrest for his dangerous driving on August 26.  See Commonwealth v. Prater, 431 Mass. 86, 97, 725 N.E.2d 233 (2000) (flight from police).
3. Tuey-Rodriquez charge. Finally, we are not persuaded by the defendant’s argument that the judge abused his discretion by giving, at the defendant’s request, a Tuey-Rodriquez charge on the second day of the jury’s deliberations, after receiving a note indicating that the jury had deadlocked. See Commonwealth v. Rodriquez, 364 Mass. 87, 300 N.E.2d 192 (1973); Commonwealth v. Tuey, 62 Mass. 1, 8 Cush. 1 (1851). See also Commonwealth v. O’Brien, 65 Mass. App. Ct. 291, 295, 839 N.E.2d 845 (2005) (decision to give Tuey-Rodriguez instruction within judge’s discretion). Reviewing for a substantial risk of miscarriage of justice, we discern no such risk created by either the decision to give the instruction or its timing. See Commonwealth v. Figueroa, 468 Mass. 204, 223, 9 N.E.3d 812 (2014).
The case was submitted to the jury on the second day of this three-day trial. After deliberating for a total of approximately three hours and forty-five minutes over the course of two days, the jury foreperson sent word that deliberations had stalled. Trial counsel for the defendant suggested that the judge give the Tuey-Rodriquez charge at that time, and the prosecutor agreed. The judge so instructed the jury, and the jury deliberated for an additional two hours before reaching their verdicts.
It was within the judge’s discretion to interpret the jury’s question as an indication that the jury were “deadlocked on one charge.” Cf. O’Brien, 65 Mass. App. Ct. at 296 (reasonable for judge to acknowledge jury’s perception that it had reached impasse in deliberations). The same was true of the judge’s implicit determination that by the time the question was asked, the jury had completed “due and thorough deliberation.” See G. L. c. 234A, § 68C. See also Commonwealth v. Carnes, 457 Mass. 812, 826, 933 N.E.2d 598 (2010). In reaching our conclusion, we consider that although the evidence in the case was sharply conflicting, the case was not complex. See Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 171-172, 72 N.E.3d 1059 (2017), quoting Carnes, supra. The question suggested that of the ten charges before them, the jury was at an impasse as to only one. We also consider that by the time the judge gave the Tuey-Rodriquez instruction, the jury had been deliberating for nearly four hours — almost half as long as the trial itself (not including jury selection) had taken.  See id.
By the Court (Kinder, Shin & Hand, JJ. ),
Entered: December 15, 2020.
- The first complaint, docket number 1642CR476, charged the defendant with (1) operating a motor vehicle after his license had been revoked as a habitual traffic offender, G. L. c. 90, § 23; (2) number plate violation to conceal identification, G. L. c. 90, § 23; (3) failure to stop for police, G. L. c. 90, § 25; (4) reckless operation of a motor vehicle, G. L. c. 90, § 24 (2) (a); and (5) two civil infractions on August 26, 2016.
- The second complaint, docket number 1642C492, alleged that on August 31, 2016, the defendant (1) resisted arrest, G. L. c. 268, § 32B; (2) assaulted and battered a police officer, G. L. c. 265, § 13D; (3) assaulted and battered a police officer by means of a dangerous weapon (a Taser), G. L. c. 265, § 15A (b); (4) attempted to commit a crime (larceny of a motor vehicle), G. L. c. 274, § 6; (5) assaulted and battered a police officer, G. L. c. 265, § 13D; and (6) wantonly destroyed property under $250 (uniform shirt), G. L. c. 266, § 127.
- As the defendant concedes, the preferred method for raising a claim of ineffective assistance of counsel is through a motion for new trial. See Commonwealth v. Zinser, 446 Mass. 807, 810-811, 847 N.E.2d 1095 (2006). There exists, however, a narrow exception to that rule, applicable here, permitting a defendant to raise the issue on direct appeal where the claim can be decided on the trial record. Id. at 811, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344, 639 N.E.2d 1092 (1994). See Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 23-24, 943 N.E.2d 477 (2011) (exception applied to ineffective assistance claim where defendant’s entitlement to jury instruction depended entirely on evidence in trial record).
- In doing so, we are mindful of the fact that “[where] an alleged failure by counsel to request a jury instruction does not create a substantial risk of a miscarriage of justice, then there can be no basis for an ineffective assistance of counsel claim.” Commonwealth v. Rubeck, 64 Mass. App. Ct. 396, 397-398, 833 N.E.2d 650 (2005), citing Commonwealth v. Pike, 52 Mass. App. Ct. 650, 654 n.4, 756 N.E.2d 1157 (2001).
- Counsel argued, for example, that “there is very little probability” “that [the defendant] [was] attacking the police officer,” and stated that “[t]his [case] is about credibility . . . . I’m Xing out Officer LaFlamme on that[.]”
- While not a dispositive consideration, we note that the jury’s acquittal of the defendant of the majority of the charges in the second complaint suggests the jury did not credit LaFlamme’s testimony in all respects.
- The defendant does not challenge the substance of the instruction as the judge gave it, only the fact that it was given.
- LaFlamme testified that he, too, was familiar with the defendant, and that he recognized the defendant as the operator of the motorcycle.
- Moreover, the instruction manifestly “did not influence the jury, or had but very slight effect” (quotations and citation omitted). Commonwealth v. Morris, 465 Mass. 733, 737 n.2, 991 N.E.2d 1081 (2013). On our record, the only offenses of which the defendant could consciously feel guilt on August 31, 2018, when he directed Matthews to drive away from LaFlamme, were those charged in the first complaint; the defendant was acquitted of all criminal charges in that complaint. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923-924, 818 N.E.2d 176 (2004) (jury’s acquittal of charge to which prosecutor’s remarks were directed permits fair inference that error was nonprejudicial).
- The foreperson sent a note reading, “What happens if we can’t make a guilty, not guilty decision on one . . . point (charge) if we don’t have a consensus? The charge we are struggling with affects our ability to decide on two other charges.”
- Even if we were to conclude otherwise, however, we discern no substantial risk of a miscarriage of justice. Returned to their deliberations after the judge’s Tuey-Rodriquez charge, the jurors continued to work for an additional two hours before returning their verdicts. From this, we conclude that the jury were not coerced into agreement by the administration of the instruction. Rodriquez, 364 Mass. at 100 (recognizing “sting” and potential for coercion inherent in Tuey-Rodriquez charge).
- The panelists are listed in order of seniority.