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-950
COMMONWEALTH
vs.
CLAYDEN CHANCE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the
defendant was convicted of assault and battery on a correctional
facility employee (assault and battery), G. L. c. 127,
§ 38B (b).1 He appeals, claiming that the evidence was
insufficient to support his conviction and that his trial
counsel was ineffective for not requesting an instruction on
self-defense. We affirm.
Background. "Because the defendant challenges the
sufficiency of the evidence presented, we summarize the facts
the [judge] could have found in the light most favorable to the
1The defendant was found not guilty of assault and battery with a dangerous weapon, G. L. c. 265, § 15A (b). Commonwealth." Commonwealth v. Tavares, 471 Mass. 430, 431
(2015). In April 2021, the defendant was an inmate at the
Barnstable house of correction. He was placed in the quarantine
unit where, to mitigate exposure to COVID-19, the correction
officers were instructed to allow only one inmate out of their
cell at a time.
On the morning of the incident, the defendant requested a
plunger from a correction officer because the toilet in his cell
had overflowed. Because there was another inmate out of his
cell, the correction officer told the defendant that he would
open his cell door and give him a plunger when the other inmate
returned to his respective cell. The defendant became unhappy
and agitated and said, "Fuck you, bitch," to the correction
officer.
Sometime later, the canteen clerk delivered food to the
defendant by placing a bag on a metal table outside of the
defendant's cell. The defendant was instructed to retrieve his
food items from the metal table and then return to his cell
"without wandering anywhere else." When the clerk opened the
defendant's cell door, instead of going to the table to get his
food, the defendant went over to a sink some distance away,
which was in the opposite direction of the table. The defendant
walked at a fast pace with his head down while carrying an empty
2 shampoo bottle. The correction officer instructed the defendant
that it was not time for him to do anything other than retrieve
his food and return to his cell. The defendant ignored the
correction officer's instructions multiple times. Once at the
sink, the defendant began filling up the shampoo bottle with hot
water from the instant hot water tap. The instant tap "produces
hot water that is at a higher temperature than the normal sink";
it is "typically used for cooking, such as ramen noodles, soups,
rice and making coffee."
The correction officer ordered the defendant to put the
bottle down and to return to his cell. In response, the
defendant said, "I've got something special for you." The
correction officer perceived the statement as a threat and
thought "that [he] was maybe in jeopardy of being assaulted with
the hot water." The correction officer again ordered the
defendant to put the bottle down; the defendant again ignored
the command. Consequently, the correction officer "felt it was
necessary to go hands on to try and disarm [the defendant] of
that weapon." The correction officer proceeded to push the
defendant against the table and tried to knock the bottle out of
his hands. In response, the defendant turned toward the
correction officer, swung his right arm up, and splashed the hot
water on the side of the correction officer's head. The hot
3 water caused minor blistering to the correction officer's head
and neck.
The entire encounter between the defendant and the
correction officer is on videotape and was viewed by the trial
judge. The canteen clerk also saw the altercation and testified
at trial.
Discussion. 1. Sufficiency of the evidence. The
defendant asserts there was insufficient evidence to support the
conviction of intentional assault and battery. The canteen
clerk's testimony that he saw the defendant throw the hot water
at the correction officer, if credited, plainly was sufficient
to establish the elements of assault and battery on a correction
officer. See Commonwealth v. Porro, 458 Mass. 526, 529-530
(2010) (setting forth elements of assault and battery).2
"[M]aking judgments about witness credibility and the weight of
witness testimony is the function of the [fact finder]."
Commonwealth v. Celester, 473 Mass. 553, 562 (2016), abrogated
on other grounds by Commonwealth v. Wardsworth, 482 Mass. 454,
464 n.18 (2019). The trial judge also had the benefit of
watching the video footage of the encounter. Lastly, the
2 On appeal, the defendant only challenges the Commonwealth's evidence that there was an intentional touching sufficient to support a conviction of assault and battery on a correction officer.
4 defendant's comment, "I've got something special for you,"
permits an inference that the defendant's action of throwing hot
water on the correction officer was intentional. Viewing the
evidence in the light most favorable to the Commonwealth, we
conclude that the judge could find, beyond a reasonable doubt,
that the Commonwealth proved the elements of assault and battery
on a correction officer. See Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979).
2. Ineffective assistance of counsel. The defendant also
claims that his counsel was ineffective for failing to ask for
an instruction on self-defense. "Under the familiar Saferian
test, a defendant is denied constitutionally effective
assistance of counsel if the representation fell 'measurably
below that which might be expected from an ordinary fallible
lawyer,' and that the performance inadequacy 'likely deprived
the defendant of an otherwise available, substantial ground of
defence.'" Commonwealth v. Kolenovic, 471 Mass. 664, 673
(2015), S.C., 478 Mass. 189 (2017), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). In other words, "the
defendant must demonstrate that better work might have
accomplished something material for the defense" (quotation and
citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442
(2006).
5 We see no deficiency in trial counsel's performance for two
reasons. First, "[i]n a jury-waived or nonjury case, the judge
need not expressly instruct [themself]. This is because we
presume that the judge 'correctly instructed [themself]' on the
law of evidence" (citations omitted).
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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-950
COMMONWEALTH
vs.
CLAYDEN CHANCE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the
defendant was convicted of assault and battery on a correctional
facility employee (assault and battery), G. L. c. 127,
§ 38B (b).1 He appeals, claiming that the evidence was
insufficient to support his conviction and that his trial
counsel was ineffective for not requesting an instruction on
self-defense. We affirm.
Background. "Because the defendant challenges the
sufficiency of the evidence presented, we summarize the facts
the [judge] could have found in the light most favorable to the
1The defendant was found not guilty of assault and battery with a dangerous weapon, G. L. c. 265, § 15A (b). Commonwealth." Commonwealth v. Tavares, 471 Mass. 430, 431
(2015). In April 2021, the defendant was an inmate at the
Barnstable house of correction. He was placed in the quarantine
unit where, to mitigate exposure to COVID-19, the correction
officers were instructed to allow only one inmate out of their
cell at a time.
On the morning of the incident, the defendant requested a
plunger from a correction officer because the toilet in his cell
had overflowed. Because there was another inmate out of his
cell, the correction officer told the defendant that he would
open his cell door and give him a plunger when the other inmate
returned to his respective cell. The defendant became unhappy
and agitated and said, "Fuck you, bitch," to the correction
officer.
Sometime later, the canteen clerk delivered food to the
defendant by placing a bag on a metal table outside of the
defendant's cell. The defendant was instructed to retrieve his
food items from the metal table and then return to his cell
"without wandering anywhere else." When the clerk opened the
defendant's cell door, instead of going to the table to get his
food, the defendant went over to a sink some distance away,
which was in the opposite direction of the table. The defendant
walked at a fast pace with his head down while carrying an empty
2 shampoo bottle. The correction officer instructed the defendant
that it was not time for him to do anything other than retrieve
his food and return to his cell. The defendant ignored the
correction officer's instructions multiple times. Once at the
sink, the defendant began filling up the shampoo bottle with hot
water from the instant hot water tap. The instant tap "produces
hot water that is at a higher temperature than the normal sink";
it is "typically used for cooking, such as ramen noodles, soups,
rice and making coffee."
The correction officer ordered the defendant to put the
bottle down and to return to his cell. In response, the
defendant said, "I've got something special for you." The
correction officer perceived the statement as a threat and
thought "that [he] was maybe in jeopardy of being assaulted with
the hot water." The correction officer again ordered the
defendant to put the bottle down; the defendant again ignored
the command. Consequently, the correction officer "felt it was
necessary to go hands on to try and disarm [the defendant] of
that weapon." The correction officer proceeded to push the
defendant against the table and tried to knock the bottle out of
his hands. In response, the defendant turned toward the
correction officer, swung his right arm up, and splashed the hot
water on the side of the correction officer's head. The hot
3 water caused minor blistering to the correction officer's head
and neck.
The entire encounter between the defendant and the
correction officer is on videotape and was viewed by the trial
judge. The canteen clerk also saw the altercation and testified
at trial.
Discussion. 1. Sufficiency of the evidence. The
defendant asserts there was insufficient evidence to support the
conviction of intentional assault and battery. The canteen
clerk's testimony that he saw the defendant throw the hot water
at the correction officer, if credited, plainly was sufficient
to establish the elements of assault and battery on a correction
officer. See Commonwealth v. Porro, 458 Mass. 526, 529-530
(2010) (setting forth elements of assault and battery).2
"[M]aking judgments about witness credibility and the weight of
witness testimony is the function of the [fact finder]."
Commonwealth v. Celester, 473 Mass. 553, 562 (2016), abrogated
on other grounds by Commonwealth v. Wardsworth, 482 Mass. 454,
464 n.18 (2019). The trial judge also had the benefit of
watching the video footage of the encounter. Lastly, the
2 On appeal, the defendant only challenges the Commonwealth's evidence that there was an intentional touching sufficient to support a conviction of assault and battery on a correction officer.
4 defendant's comment, "I've got something special for you,"
permits an inference that the defendant's action of throwing hot
water on the correction officer was intentional. Viewing the
evidence in the light most favorable to the Commonwealth, we
conclude that the judge could find, beyond a reasonable doubt,
that the Commonwealth proved the elements of assault and battery
on a correction officer. See Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979).
2. Ineffective assistance of counsel. The defendant also
claims that his counsel was ineffective for failing to ask for
an instruction on self-defense. "Under the familiar Saferian
test, a defendant is denied constitutionally effective
assistance of counsel if the representation fell 'measurably
below that which might be expected from an ordinary fallible
lawyer,' and that the performance inadequacy 'likely deprived
the defendant of an otherwise available, substantial ground of
defence.'" Commonwealth v. Kolenovic, 471 Mass. 664, 673
(2015), S.C., 478 Mass. 189 (2017), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). In other words, "the
defendant must demonstrate that better work might have
accomplished something material for the defense" (quotation and
citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442
(2006).
5 We see no deficiency in trial counsel's performance for two
reasons. First, "[i]n a jury-waived or nonjury case, the judge
need not expressly instruct [themself]. This is because we
presume that the judge 'correctly instructed [themself]' on the
law of evidence" (citations omitted). Commonwealth v. Sepheus,
468 Mass. 160, 170 (2014). Defense counsel's theory at trial
was that the correction officer initiated the physical
altercation with the defendant. The trial judge specifically
acknowledged during closing arguments that the defendant's
actions "could be a defensive move or reaction" when he threw
the hot water on the correction officer. Therefore, we assume
that the judge appropriately applied the law to the facts on the
issue of self-defense.
Secondly, because the victim is a correction officer, the
defendant has a right to self-defense only if the officer uses
excessive or unnecessary force. See Commonwealth v. Francis, 24
Mass. App. Ct. 576, 579 (1987). The testimony and video footage
make clear that the correction officer pushed the defendant and
in response, the defendant turned directly toward the officer
and raised his right arm, throwing the hot water at the officer.
The correction officer's actions were directly related to the
defendant refusing to comply with the repeated instructions to
drop the bottle and return to his cell and thus, were not
6 excessive or unnecessary. Even in a light most favorable to the
defendant, he had no valid right to use self-defense against the
correction officer at the time he threw the hot water. See
Commonwealth v. Gomez, 450 Mass. 704, 708 (2008) ("We view
evidence pertaining to self-defense in the light most favorable
to the defendant").
Judgment affirmed.
By the Court (Meade, Desmond & D'Angelo, JJ.3),
Clerk
Entered: February 14, 2025.
3 The panelists are listed in order of seniority.