Commonwealth v. Campbell

747 N.E.2d 190, 51 Mass. App. Ct. 479, 2001 Mass. App. LEXIS 280
CourtMassachusetts Appeals Court
DecidedMay 7, 2001
DocketNo. 99-P-1175
StatusPublished
Cited by11 cases

This text of 747 N.E.2d 190 (Commonwealth v. Campbell) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Campbell, 747 N.E.2d 190, 51 Mass. App. Ct. 479, 2001 Mass. App. LEXIS 280 (Mass. Ct. App. 2001).

Opinion

Cypher, J.

Richard Campbell appeals from his conviction for assault and battery on Deputy Sheriff Melvin Massucco of the [480]*480Nashua Street jail.1 The defendant claims (1) that the judge erred when he excluded the defendant’s testimony regarding problems between the defendant and Massucco alleged to have occurred earlier on the day of the offense; and (2) that the judge abused his discretion when he failed to replace a juror who had complained about the inefficiency of the trial and also failed to conduct individual voir dire of the jurors to determine whether they had been improperly influenced by the complaining juror. There was no error.

Factual background. On August 8, 1997, the defendant was in the Nashua Street jail awaiting trial. At approximately 9:20 p.m., he was watching television in the multi-purpose room with six or seven other inmates when Massucco entered the room during a routine patrol of the jail. Massucco smelled smoke and asked the inmates who was smoking. The defendant sarcastically responded, “Yes, we’re smoking dope.” After some further discussion, Massucco ordered the defendant to turn off the television and approach him. Massucco intended to lock the defendant in his cell for the night.

The defendant struck Massucco in the left side of his jaw with a closed fist. Massucco tried to “take him to the ground.” As they struggled, the men fell to the floor and Massucco injured his shoulder, rendering his arm useless. The defendant punched Massucco in the face and head between ten and twenty times. Deputy Sheriff Mark Lowre witnessed the end of the altercation, and saw the defendant punch Massucco six to ten times while Massucco was incapacitated and bleeding from his nose and mouth. Lowre pulled the defendant from Massucco and attempted to restrain him. The defendant was kicking and flailing. The jail’s emergency response team arrived.2 The defendant was so combative that it took two teams to restrain him. Deputy Sheriff Anthony Nuzzo accompanied Massucco to the clinic and observed that Massucco was bleeding heavily from his mouth, that he was bleeding from his head, face, and shoulder, that his [481]*481eyes were swollen, and that his left arm was extended, rigid, and shaking. Massucco was out of work for three months following the incident.

The defendant denied punching Massucco. He testified that he did not assault Massucco, but rather, that Massucco assaulted him and wrestled him to the ground, and that he tried to get away.

1. Evidentiary ruling. During direct examination, defense counsel asked the defendant whether something had happened at the defendant’s cell on the day of the altercation. The prosecutor objected, and the judge requested a sidebar conference. The prosecutor explained that his objection was based on the relevance of the expected testimony. Counsel for the defendant responded, “Let me make my proffer fast. I expect my client to testify that the, that he had had problems with them prior to this incident,” and explained that the testimony was relevant to Massucco’s state of mind and to “what transpired between them.” The judge did not permit the testimony. Counsel did not pursue the matter.

The judge did not abuse his discretion by excluding the defendant’s testimony regarding unspecified problems with the guards. A defendant’s constitutional right to present evidence does not “detracts from a judge’s authority to assess the relevance of proffered evidence and to exclude evidence that is of marginal relevance.” Commonwealth v. Merola, 405 Mass. 529, 540 (1989).

On proper offer of proof, testimony concerning events immediately preceding the assault generally would be admissible. See, e.g., Commonwealth v. Seit, 373 Mass. 83, 90 & 94 (1977) (where defendant was sole witness to any part of event, evidence that victim was mean and violent, proved by specific acts, supported the probability that victim was the aggressor); Commonwealth v. Noble, 24 Mass. App. Ct. 421, 422 (1987) (in assault and battery case, evidence of the victim’s hostile statements toward defendant could be probative of the victim’s state of mind and, therefore, admissible to show victim was aggressor).

Here, however, defense counsel’s question was not particularized to the time immediately preceding the assault, and the offer [482]*482of proof failed to supply detail or clarity to the expected testimony or to its purpose and theory of admissibility.3 See Commonwealth v. Fontes, 396 Mass. 733, 735-736 & 738 (1986) (vague and generalized offer of proof which does not clearly show the purpose and the theory under which the evidence was offered is inadequate); Commonwealth v. Cavanaugh, 7 Mass. App. Ct. 33, 35 (1979); Commonwealth v. Smith, 26 Mass. App. Ct. 673, 680 (1988). This is not a case where the judge did not need an offer of proof to make the correct ruling because counsel’s wide open question may also have elicited inadmissible, irrelevant evidence. Cf. Commonwealth v. Chase, 26 Mass. App. Ct. 578, 582 (1988). The relevance of such testimony was not readily apparent in light of the evidence of the severe and excessive beating delivered by the defendant, particularly since the defendant denied striking even a single blow. In the circumstances, the judge reasonably could have excluded the testimony. Compare Commonwealth v. Zitano, 23 Mass. App. Ct. 403, 405-406 (1987) (rejecting defendant’s argument that trial judge improperly excluded testimony of specific incidents of the victim’s violent behavior where there was not a “hint in the transcript . . . that defense counsel wished to inquire of the witnesses about . . . specific incidents” relied upon in the defendant’s brief).

The defendant also argues, for the first time on appeal, that the testimony of previous “problems” should have been admitted to shed light on the defendant’s state of mind. This would have permitted the defendant to demonstrate the reasonableness of his apprehension of violent behavior by Massucco and, therefore, would justify his actions on a theory of self-defense. See, e.g., Commonwealth v. Rubin, 318 Mass. 587, 588 (1945) (evidence of threats by victim to defendant and of victim’s violent character, if known by defendant, may be admitted to show defendant’s apprehension for his own safety and reasonableness of that apprehension). Although defense counsel requested a self-defense instruction, the case was not tried on a theory of self-defense. The theory at trial, as shown by the [483]*483defendant’s testimony and counsel’s closing argument, was that the defendant did not assault Massucco at all.4 A party “is not permitted to raise an issue before the trial court on a specific ground, and then to present that issue to [the reviewing] court on a different ground.” Commonwealth v. Tyree, 387 Mass. 191, 213 (1982), cert. denied, 459 U.S. 1175 (1983), quoting from Commonwealth v. Flynn, 362 Mass. 455, 472 (1972). Self-defense would have been an implausible defense in any case given the requirement that the force used be “no greater than required in the circumstances.” Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 248 (1999).5

2. Juror dismissal.

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Bluebook (online)
747 N.E.2d 190, 51 Mass. App. Ct. 479, 2001 Mass. App. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-campbell-massappct-2001.