Commonwealth v. Brown , 479 Mass. 163 ( 2018 )

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SJC-12313
COMMONWEALTH vs. JOHNELLE M. BROWN.
Middlesex. November 7, 2017. - March 16, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,
JJ.
Assault and Battery. Intimidation of Witness. Witness,
Intimidation. District Court, Jurisdiction. Practice,
Criminal, New trial, Assistance of counsel, Instructions to
jury, Sentence, Allocution, Restitution. Restitution.
Complaint received and sworn to in the Cambridge Division
of the District Court Department on May 2, 2014.
The case was tried before Michele B. Hogan, J.; a
restitution hearing was held before Daniel C. Crane, J.; and a
motion for postconviction relief was heard by Hogan, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Luke Rosseel for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.
CYPHER, J. A jury in the District Court convicted the
defendant, Johnelle M. Brown, of assault and battery and witness
2
intimidation. After beginning the sentencing hearing, the trial
judge revoked the defendant's bail and delayed sentencing for
four days. After reconvening, the judge imposed a sentence of a
one-year commitment to a house of correction, suspended for two
years, probation, and restitution. The defendant disputes the
District Court's jurisdiction over the witness intimidation
prosecution. The defendant also appeals from the denial of her
motion for a new trial, revocation of bail, and order of payment
of restitution. We affirm.
Facts. We recite the facts as the jury could have found
them, reserving certain facts for later discussion.
Mahboobe Aria and Mehdi Aria1 managed a restaurant. On
April 6, 2014, the restaurant closed at 2:30 A.M. At
approximately 2:40 A.M., Mahboobe and Mehdi were completing
tasks relevant to closing the restaurant. Mehdi was outside,
cleaning the outdoor seating. Mahboobe was inside.
The defendant and a man arrived in an automobile and parked
outside the restaurant. The man was not identified by name at
trial, but the defendant's motion for a new trial, appellate
brief, and affidavits identify this man as Tyrell Carr. Carr
remained in the automobile while the defendant went into the
1 We refer to Mahboobe Aria and Mehdi Aria by their first
names to avoid confusion.
3
restaurant. Mahboobe was near the cash register when the
defendant walked into the restaurant.
Mahboobe told the defendant that the restaurant was closed.
The defendant said that she needed to use the bathroom.
Mahboobe refused to allow the defendant to use the bathroom
because Mahboobe had already cleaned it. The defendant said
that she would "call [her] boyfriend" if Mahboobe refused her
use of the bathroom; Mahboobe still refused. The defendant took
a bottle of juice from a refrigerator in the restaurant, placed
it in front of the register, and told Mahboobe that she was
going to purchase it. Mahboobe replied that the credit card
machine and cash register were already closed so she could not
make any more sales. The defendant opened the door to the
restaurant and called out to someone. Carr came inside the
restaurant and loudly asked Mahboobe why she was not allowing
the defendant to use the bathroom. Mahboobe reiterated that the
bathroom was closed.
Carr waved a credit card at Mahboobe and offered to pay for
the bottle of juice the defendant had placed on the counter.
Mahboobe refused payment, explaining that the restaurant and
credit card machine were closed. Mehdi entered the restaurant
and asked the defendant and Carr to leave. The defendant took
the juice bottle off the counter and threw it in Mahboobe's
direction. The bottle struck glass that separates the cashier
4
from the kitchen. Carr grabbed Mehdi. Carr hit and slapped
Mehdi's face and pulled his shirt. While Carr struggled with
Mehdi, the defendant kicked the bathroom door. Mahboobe
retrieved a telephone from underneath the cash register and
moved out from behind the counter toward the defendant.
Mahboobe was standing one to two feet away from the defendant
when she tried to dial 911. The defendant grabbed the wrist of
the hand in which Mahboobe was holding the telephone and said,
"You're bad fuck." After approximately one minute, the
defendant let go of Mahboobe's wrist. As Mehdi and Carr
continued to fight, Mahboobe left the restaurant and telephoned
911. The defendant followed. The defendant asked Mahboobe why
she telephoned the police. The defendant then punched Mahboobe
in the face, causing Mahboobe to drop the telephone. The
telephone fell to the ground and broke. A man was inside of a
nearby bar when he "heard a commotion next door, like tables and
chairs being banged around." He and a bar security employee
went outside and saw Mahboobe being punched in the face.
The defendant opened the door to the restaurant and told
Carr that Mahboobe had telephoned the police. Carr came out of
the restaurant and drove away with the defendant in a vehicle
that had been parked on the street.
5
A police officer responded to the 911 call. Upon arrival,
he noticed that Mahboobe had a red mark on her face and Mehdi's
head and mouth were bleeding.
Discussion. 1. Jurisdiction. The defendant argues that,
following our decision in Commonwealth v. Muckle, 478 Mass. 1001
(2017), the District Court lacked jurisdiction over her case.2
General Laws c. 218, § 26 (jurisdiction statute), confers
jurisdiction upon the Boston Municipal Court (BMC) and District
Court over prosecutions for "intimidation of a witness or juror
under [G. L. c. 268, § 13B]." General Laws c. 268, § 13B (1)
(c) (i), (iii) (intimidation statute), proscribes intimidation
of, inter alia, "a witness or potential witness[,] . . . a
judge, juror, grand juror, prosecutor, police officer, [F]ederal
agent, investigator, defense attorney, clerk, court officer,
probation officer or parole officer." In Muckle, supra at 1003,
we held that, "the express inclusion of witnesses and jurors [in
G. L. c. 218, § 26,] excludes all other persons listed in [G. L.
c. 268, § 13B,] who are not expressly included." In that case,
the defendant was accused of intimidating an attorney in a case
2 The defendant raised this claim for the first time in a
letter pursuant to Mass. R. A. P. 16 (l), as amended, 386 Mass.
1247 (1982), because Commonwealth v. Muckle, 478 Mass. 1001
(2017), was decided after she had submitted her brief.
Nonetheless, we consider the defendant's argument because issues
of "subject matter jurisdiction 'may be raised at any time.'"
Commonwealth v. DeJesus, 440 Mass. 147, 151 (2003), quoting
Commonwealth v. Cantres, 405 Mass. 238, 240 (1989).
6
to which he was a party. Commonwealth v. Muckle, 90 Mass. App.
Ct. 384, 385-388 (2016). We therefore affirmed the dismissal of
the complaint in the BMC for lack of jurisdiction. Muckle, 478
Mass. at 1004.
The defendant seeks to analogize her case to Muckle,
arguing that the District Court did not have jurisdiction
because, at the time of the assault, Mahboobe was not a
"witness" but was a "potential witness." The defendant seeks to
draw a distinction between a "witness" and a "potential witness"
in the intimidation statute. However, when assessing the
District Court's jurisdiction, we must begin our interpretation
with the meaning of "witness" in the jurisdiction statute. We
interpret a statute's text, construing its words "by the
ordinary and approved usage of the language." Energy Express,
Inc. v. Department of Pub. Utils., 477 Mass. 571, 576 (2017),
quoting Meikle v. Nurse, 474 Mass. 207, 210 (2016). We are
bound to "interpret the statute so as to render the legislation
effective, consonant with sound reason and common sense."
Harvard Crimson, Inc. v. President & Fellows of Harvard College,
445 Mass. 745, 749 (2006).
The term "witness" is broadly used to characterize an
individual with information that is pertinent to an
investigation or case and is often used interchangeably with
"potential witness." See Commonwealth v. Rakes, 478 Mass. 22,
7
41 (2017) (describing individuals who might testify in future as
"witnesses" and "potential witnesses"); Commonwealth v. Squires,
476 Mass. 703, 711 (2017) (Gaziano, J., dissenting) (using
"potential witnesses" to describe those who might see crime
occurring); Commonwealth v. Williams, 475 Mass. 705, 708 (2016)
(using "potential witnesses" to describe people interviewed by
police); Commonwealth v. Watkins, 473 Mass. 222, 239-241 (2015)
(using "witnesses" to describe people who testified during trial
and those who did not testify but had relevant information that
could have been offered during trial); Commonwealth v. Brewer,
472 Mass. 307, 311 n.10, 313-315 (2015) (using "witness" to
describe person present at shooting who gave statement to
police, and describing people who had information to share at
trial but did not testify as "witnesses" and "potential
witnesses"); Commonwealth v. Collins, 470 Mass. 255, 270-273
(2014) (using "potential witness" to describe those on witness
list during trial); Commonwealth v. Robinson, 444 Mass. 102,
110-111 (2005) (using "witness" to describe person's status when
he was going to testify at hearing and after hearing had
concluded); Commonwealth v. Finn, 362 Mass. 206, 207-208 (1972)
(using "witnesses" to describe individuals present at scene of
crime when discussing investigatory conversations with police
and testimony at trial); Commonwealth v. McCreary, 45 Mass. App.
Ct. 797, 800 (1998) (using "prospective witness," "potential
8
witness," and "witness" when describing facts of several witness
intimidation cases). The myriad uses of "witness" and its
frequent convergence with "potential witness" suggest the
ordinary meaning of "witness" encompasses victims of
intimidation who could also be described as "potential
witnesses." Such a holding is consistent with our decision in
Muckle, where we interpreted "juror" in the jurisdictional
statute to encompass "juror" and "grand juror" in the
intimidation statute.
The distinction advocated by the defendant would cause the
District Court to gain and lose jurisdiction repeatedly over
prospective witness intimidation prosecutions during the course
of a crime, investigation, trial, and subsequent proceedings.
Indeed, Mahboobe's status at the time of the assault could be
characterized as both a "witness" and a "potential witness."
She was a "witness" to the assault of Mehdi with information to
provide to the 911 operator and police officers and a "potential
witness" to further criminal activity. When the trial
commenced, she was a "potential witness" who might have been
called to testify and, upon being called, became a "witness."
Common sense dictates that "witness" in the jurisdictional
statute includes "a witness or potential witness at any stage of
a criminal investigation, grand jury proceeding, trial or other
criminal proceeding of any type," as protected by G. L. c. 268,
9
§ 13B (1) (c) (i). Therefore, the District Court properly
exercised jurisdiction over the prosecution of the defendant for
witness intimidation.
2. Motion for a new trial. The defendant moved for a new
trial, arguing that counsel was constitutionally ineffective,
the jury were improperly instructed, her right to allocution was
violated, her right not to be placed in jeopardy twice was
violated, and her restitution order was invalid.3 In support of
her motion for a new trial, the defendant submitted numerous
affidavits and exhibits. After a nonevidentiary hearing, the
judge denied the defendant's motion for a new trial "under all
theories" but did not issue a written decision.
The defendant appeals from the denial of her motion for a
new trial, repeating the grounds on which she sought relief
below. A judge may grant a motion for a new trial "if it
appears that justice may not have been done." Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001). The judge may
decide the motion on the basis of affidavits if those affidavits
and the motion raise no "substantial issue." Mass. R. Crim. P.
3 We address the merits of each of the defendant's claims,
but do not necessarily analyze each argument she advances in
support of those claims. To the extent that we have not
specifically addressed other points made by the defendant in her
brief, they "have not been overlooked. We find nothing in them
that requires discussion." Commonwealth v. Domanski, 332 Mass.
66, 78 (1954).
10
30 (c) (3), as appearing in 435 Mass. 1501 (2001). "The
decision on a motion for a new trial, as well as the decision
whether to decide the motion on the basis of affidavits or to
hear oral testimony, is left largely to the sound discretion of
the judge." Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).
We review the judge's denial of the defendant's motion for a new
trial for clear error, according greater deference to that
decision where, as here, the motion judge also presided over the
trial. Commonwealth v. Leng, 463 Mass. 779, 781 (2012) ("We
extend special deference to factual determinations made by a
motion judge who also was the trial judge . . ."); Commonwealth
v. Degro, 432 Mass. 319, 334 (2000) ("A motion judge's findings
will not be disturbed absent clear error").
a. Ineffective assistance of counsel. In his opening
statement, defense counsel argued that the defendant was
defending her property, a debit card that Mahboobe had taken
from her and refused to return. Defense counsel presented no
witnesses; instead, he elicited testimony in support of that
defense during cross-examination. The defendant claims that
trial counsel was ineffective in failing to develop sufficient
evidence of the defense of property and in advising her not to
testify. Specifically, she alleges that trial counsel should
have called Carr to testify in support of her defense and that
he should not have advised the defendant not to testify. As
11
explained infra, even if the information provided in the
affidavits were presented at trial, when considered in context
with the testimony of the Commonwealth's witnesses, "we are not
persuaded that [testimony] likely would have influenced the
jury's decision." Commonwealth v. Duran, 435 Mass. 97, 103-104
(2001) (no ineffective assistance of counsel where potential
testimony that could have resulted from investigation would have
been outweighed by "strong" contradictory evidence).
During cross-examination, defense counsel elicited from the
responding police officer that Mahboobe gave him the defendant's
debit card. In contrast, Mahboobe testified that the police
found the debit card on the restaurant's floor. Counsel sought
to exploit the difference between these statements to suggest
that Mahboobe had kept the defendant's debit card, so the
defendant had had to use force to recover the card. The judge
declined counsel's request for a "defense of property" jury
instruction and permission to argue that theory in his closing
argument.4
4 A defendant may successfully assert a defense of property
defense if "(1) the defendant used only nondeadly force, and (2)
the force used was 'appropriate in kind and suitable in degree,
to accomplish the purpose.'" Commonwealth v. Haddock, 46 Mass.
App. Ct. 246, 248-249 (1999), quoting Commonwealth v. Goodwin,
57 Mass. 154, 158 (1894). The defendant must present "credible
evidence" that she was defending her property in order to raise
such a defense. Haddock, supra at 248.
12
In furtherance of her claim in the motion for a new trial,
the defendant submitted affidavits from Carr and herself about
what their testimony would have been had defense counsel called
them as witnesses.5 Implicit within the defendant's argument is
the contention that, after investigating, counsel would have
introduced Carr as a defense witness. See Commonwealth v. Lang,
473 Mass. 1, 15–16 (2015) (Hines, J., concurring) ("a claim of
ineffective assistance of counsel that focuses on counsel's
asserted failure to investigate a . . . defense is generally,
and perhaps necessarily, linked to a claim that counsel was
ineffective for not presenting . . . [that] defense at trial").
On appeal, the defendant has not demonstrated that the judge
committed a clear error in denying the motion for a new trial.
Counsel was ineffective if his conduct fell "measurably
below that which might be expected from an ordinary fallible
lawyer" and "likely deprived the defendant of an otherwise
The defendant's ineffective assistance of counsel argument
is premised on the theory that counsel was ineffective for not
introducing sufficient evidence to merit a defense of property
instruction. In making such an argument and failing to raise
any claim that the judge erred, the defendant implicitly
concedes that the evidence presented at trial was insufficient
to warrant a defense of property instruction.
5 Mahboobe is not identified by name in the affidavits, but
it appears that both parties are referring to Mahboobe when
describing their interactions with the woman working at the
restaurant. Therefore, when summarizing the affidavits, we use
Mahboobe's name where appropriate.
13
available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). "In regard to the latter
requirement, there ought to be some showing that better work
might have accomplished something material for the defense"
(quotations omitted). Commonwealth v. Bell, 460 Mass. 294, 303
(2011), quoting Commonwealth v. Johnson, 435 Mass. 113, 123
(2001).
Carr's affidavit, considered with the evidence presented by
the Commonwealth, is insufficient to show that his testimony
"might have accomplished something material for the defense."
See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Carr's affidavit is best summarized as follows: Carr followed
the defendant into the restaurant after he witnessed an argument
inside the restaurant; the defendant told Carr that Mahboobe had
her debit card; both the defendant and Carr left the restaurant
at the urging of Mahboobe; Mahboobe held the defendant's debit
card over her head while the defendant struggled to get the
card; the defendant's "hand came into contact with [Mahboobe's]
face"; and both Carr and the defendant left the area in Carr's
automobile. This potential testimony is only credible if all
percipient witnesses are disbelieved. See Commonwealth v.
Jenkins, 458 Mass. 791, 809 (2011) ("Even had the attorney's
advice been substandard, it would have made no difference. For
14
the defendant to prevail, the jury would have had to disbelieve
the testimony of virtually every other witness").
Counsel exploited inconsistencies in the testimony about
whether the debit card was found on the floor or given to police
by Mahboobe as skillfully as the facts permitted. Although this
discrepancy could have bolstered the proposed defense testimony,
such a sliver of support is not enough to yield a conclusion
that this testimony would have changed the outcome. Therefore,
the defendant was not prejudiced by the lack of testimony and
the judge did not err in denying the motion for a new trial.
The second claim raised under the rubric of ineffective
assistance of counsel is the defendant's claim that counsel's
advice caused her to unknowingly waive her right to testify.
Testifying in one's own criminal defense is a fundamental right
that must be waived knowingly and intelligently. Jenkins, 458
Mass. at 803. The defendant has the burden of proving by a
preponderance of the evidence that, absent counsel's advice, she
would have testified. Commonwealth v. Lucien, 440 Mass. 658,
671 (2004). "It is not enough to say that counsel had
discouraged [her] from testifying." Id.
The judge did not abuse her discretion when she denied the
motion for a new trial. The defendant's affidavit is best
summarized as follows: she asked Mahboobe to use the restroom;
Mahboobe said the defendant would have to make a purchase in
15
order to use the restroom; the defendant gave Mahboobe her debit
card and tried to make a purchase; Mahboobe took the defendant's
debit card but told the defendant she did not meet the ten-
dollar minimum required for all debit card purchases; the
defendant asked for her debit card; Mahboobe refused to return
the debit card; Carr entered the restaurant and encouraged the
defendant to leave; Mahboobe ushered both Carr and the defendant
out of the restaurant, still holding the defendant's debit card;
outside, Mahboobe held the defendant's debit card over the
defendant's head; while the defendant reached for the card, her
hand hit Mahboobe; the defendant never saw Mahboobe holding a
telephone and did not knock a telephone from Mahboobe's hand;
she and Carr left in Carr's automobile.
The defendant's affidavit alleges that she would have
testified had counsel informed her that her testimony would have
been necessary to advance a defense of property defense. When
asking for a jury instruction on defense of property, counsel
indicated that he had discussed the decision to testify with the
defendant after Mahboobe testified. The defendant was aware of
all testimony against her. Although counsel may have misjudged
the minimum showing required to merit a defense of property jury
instruction, the defendant nonetheless knew that the jury had
heard no testimony about Mahboobe's keeping the defendant's
debit card and the defendant seeking to recover it. "It can
16
reasonably be inferred that the defendant, after listening to
the testimony of the Commonwealth witnesses, realized that the
jury would not hear [her] version of the events unless [she]
placed it before them." Degro, 432 Mass. at 337. Nothing in
the record, including the defendant's affidavit, indicates that
counsel denied the defendant the opportunity to make her own
decision. See Commonwealth v. Marrero, 459 Mass. 235, 242
(2011) (defendant did not prove that counsel sharing his "view"
that defendant should not testify caused defendant involuntarily
to waive right to testify). The judge did not abuse her
discretion by concluding that the defendant simply did not meet
the burden of proving that her waiver was involuntary,
unintelligent, or unknowing.
b. Inadequate jury instructions. The judge told the
jurors: "It's essential that you confine your deliberations
only to the evidence which is presented to you in the
courtroom." The defendant contends that because the judge did
not instruct the jury to refrain from researching the case on
the Internet, jurors could have searched for information about
the defendant and found two news articles published online about
the defendant's past alleged criminal activity. The defendant
did not object to this omission at trial or request that the
judge specifically instruct the jury to refrain from Internet
research. Therefore, we consider whether the omission was error
17
and, if so, whether it created a substantial risk of a
miscarriage of justice. Commonwealth v. Horne, 476 Mass. 222,
225-226 (2017).
The absence of a jury instruction specifically prohibiting
research on the Internet is not, in and of itself, reversible
error. The judge instructed the jury to refrain from outside
research, using social media, visiting the scene of the
incident, and "talk[ing] to anyone outside of the jury about the
case." The better practice would have been to include in the
instructions a prohibition on Internet research. See
Commonwealth v. Rodriguez, 63 Mass. App. Ct. 660, 678 n.11
(2005) ("[G]iven the simplicity, speed, and scope of Internet
searches, allowing a juror to access with ease extraneous
information about the law and the facts, trial judges are well
advised to reference Internet searches specifically when they
instruct jurors not to conduct their own research or
investigations"). But this omission was not error where the
judge's instruction forbade consideration of any outside
information.
Further, the defendant has demonstrated no substantial risk
of a miscarriage of justice. Jurors are presumed to have
followed the judge's instruction not to consider any outside
information. See Commonwealth v. Watkins, 425 Mass. 830, 840
(1997) ("We presume that a jury follow all instructions given to
18
it"). Nor is there any evidence in the record to rebut that
presumption. The record is devoid of evidence of any jurors
using the Internet for any outside research, including
discovering any information about the defendant.6 Without any
indication that the jury were exposed to extrajudicial
information about the defendant, there is no substantial risk of
a miscarriage of justice in allowing the defendant's convictions
to stand.
c. The sentencing hearing. After her convictions, the
judge held a sentencing hearing. The Commonwealth recommended a
one-year sentence in a house of correction, with the defendant
serving ninety days and the balance of the sentence suspended
for two years. Defense counsel requested probation. The judge
allowed defense counsel to present mitigating information about
the defendant, including details of her background and that she
6 The defendant's argument that she could not build such a
record because she could not contact jurors is without merit.
Rule 3.5 (c) of the Massachusetts Rules of Professional Conduct,
as appearing in 471 Mass. 1428 (2015), permits attorneys to
initiate contact with jurors after a verdict. The attorney must
notify counsel for the opposing party five business days before
contacting any juror. This rule went into effect on July 1,
2015. An attorney may contact jurors who were discharged before
July 1, 2015, "if the case was on appeal as of that date."
Commonwealth v. Moore, 474 Mass. 541, 551 (2016). The defendant
filed her notice of appeal from the verdicts on February 5,
2015, and submitted her motion for a new trial on April 6, 2016.
The defendant filed her notice of appeal from the denial of the
motion for a new trial on January 3, 2017, allowing her notice
of both the rule and our interpretation of its retroactivity.
19
was "very sorry" about the incident. The judge then allowed the
defendant to speak. The defendant told the judge that she
wished she had testified. The judge told the defendant that she
had had an opportunity to testify at trial and, now that the
trial was over, the judge was "not going to hear [the
defendant's] side." The defendant further indicated her
willingness to testify or to be subjected to the Commonwealth's
cross-examination. The judge then adjourned and ordered the
defendant held without bail until the hearing resumed four days
later.7
When the hearing resumed, defense counsel spoke more about
the defendant's background and requested mercy in the
defendant's sentencing, reporting that she had been "absolutely
distraught" while in custody. The judge addressed the
defendant, saying, "I trust that I got your attention by holding
you over the weekend in custody." The judge then sentenced the
defendant to one year in a house of correction, suspended for
two years, and ordered her to pay restitution.8
7 The final day of trial and the first sentencing hearing
were held on Thursday, January 22, 2015. The judge adjourned
the hearing and held the defendant without bail until Monday,
January 26, 2015.
8 The judge also required the defendant to have no contact
with the Arias or their restaurant, to have a mental health
evaluation, and to attend anger management.
20
i. Right to allocution. The modern meaning of
"[a]llocution is . . . the right to make a statement to the
sentencing judge before he pronounces sentence." United States
v. Foss, 501 F.2d 522, 530 n.3 (1st Cir. 1974). The defendant
urges us to find a constitutional right to allocution and to
hold that the judge violated that right by not allowing the
defendant to finish speaking during the sentencing hearing. We
have never held that a defendant has a constitutional right to
allocution, and we decline to do so now.
A defendant's right to speak in his or her own defense was
recognized by the common law as early as 1682. Marshall,
Lights, Camera, Allocution: Contemporary Relevance or
Director's Dream?, 62 Tul. L. Rev. 207, 209 (1987). This was an
opportunity for the defendant to offer what would now be
considered defenses as defendants were not permitted to testify
on their own behalf. Id. In 1689, the court's failure to ask
the defendant if he had anything to say before a sentence was
imposed required reversal. Green v. United States, 365 U.S.
301, 304 (1961), citing Anonymous, 3 Mod. 265, 266, 87 Eng. Rep.
175 (K.B.). Allocution has survived in our modern Federal
criminal justice system as a mandate that a judge "permit the
defendant to speak or present any information to mitigate the
sentence." Fed. R. Crim. P. 32(i)(4)(A)(ii). "Allocution,
although always required under [F]ederal procedure to be invited
21
and allowed, is not -- at least so far as the invitation is
concerned -- a constitutional right essential to fundamental
fairness." United States v. Leavitt, 478 F.2d 1101, 1104 (1st
Cir. 1973). There is no Federal constitutional right to
allocution. Id.
Our approach in the Commonwealth, Mass. R. Crim. P. 28 (b),
378 Mass. 842 (1979), is a similar, but more narrow view.9 Here,
the defendant may speak for herself or have her attorney
"present mitigating factors prior to sentencing." Commonwealth
v. Rancourt, 399 Mass. 269, 278 (1987). We discern no source of
a constitutional or common-law right to allocution separate from
the opportunity provided by rule 28, and we see no reason to
read one into the State Constitution, as the defendant has an
opportunity to be heard and to testify on her own behalf.
The requirements of rule 28 were satisfied when her
attorney made a statement during sentencing and the judge
permitted the defendant to speak. The defendant contends that
because the judge allowed her to speak at all, the judge erred
in ceasing the defendant's allocution before the defendant
finished speaking. The judge had no obligation to do more than
satisfy the requirements of rule 28, either through statements
9 "Before imposing sentence the court shall afford the
defendant or his counsel an opportunity to speak on behalf of
the defendant and to present any information in the mitigation
of punishment." Mass. R. Crim. P. 28 (b), 378 Mass. 842 (1979).
22
from the defendant or the defendant's attorney. Even in
satisfying rule 28, some reasonable limits are necessary. See
Commonwealth v. McKay, 23 Mass. App. Ct. 966, 968 (1987) (no
error where sentencing judge allowed two people familiar with
defendant "to address the court on the defendant's background
and character but refused" to allow testimony about
circumstances of crime). The judge did not abuse her discretion
by limiting the defendant's statements to permissible and
relevant topics within rule 28. The rule 28 opportunity to
speak is not an unlimited right of a defendant to speak
endlessly on irrelevant subjects or in a disruptive manner.
Here, the defendant contested the facts presented at trial.
Such statements are extraneous in a sentencing hearing and were
therefore properly excluded.
ii. Double jeopardy. The defendant contends that the
judge punished her twice for a single offense, in violation of
double jeopardy principles, when the judge held the defendant
without bail pending the completion of the sentencing hearing
and then imposed a sentence during the sentencing hearing.
In order to determine whether a penalty violates double
jeopardy principles, we analyze the statute that authorizes the
restriction on the defendant's liberty. See Hudson v. United
States, 522 U.S. 93, 99-100, 103 (1997). The defendant argues
that the restriction on her liberty was imposed pursuant to
23
G. L. c. 276, § 58 (bail statute). The bail statute does not,
however, apply to postconviction confinement. Rather, the bail
statute governs pretrial detention. Commonwealth v. Morales,
473 Mass. 1019, 1020 (2016) (bail statute "establishes
conditions for a defendant's initial release after arraignment,
pending adjudication of the charges against him"). Once a
conviction is attained, bail issues are moot. Commesso v.
Commonwealth, 369 Mass. 368, 374 (1975) ("Trial should not
ordinarily be delayed pending bail review even though a
conviction will make the bail issue moot"). Cf. Mendonza v.
Commonwealth, 423 Mass. 771, 777 (1996) ("both cases are moot
since both [defendants] have admitted guilt and are no longer
subject to [G. L. c. 276,] § 58A"). The defendant's bail was
revoked after she was convicted. She was not punished twice for
the same conviction.10,11
10The defendant's time in custody was not a punishment, as
the defendant urges us to hold. Even if it were a punishment,
the defendant would nonetheless not have been punished twice in
violation of double jeopardy protections. Had the judge
sentenced the defendant to any period of incarceration or had
the defendant violated the terms of her probation and had to
serve her suspended sentence, the four nights in custody would
have been credited toward that sentence. See G. L. c. 279,
§ 33A.
11Because the bail statute does not apply, we do address
the defendant's additional argument that the judge did not
comply with the statute's procedural requirements.
24
Further, judges have discretion to revoke bail after a
conviction. See Mass. R. Crim. P. 28 (b). At the conclusion of
a criminal trial resulting in conviction, a judge is in the best
position to determine whether it is necessary to revoke bail.
The Commonwealth moved for sentencing immediately after the jury
delivered their verdicts, but was not obligated to do so for
seven days. See G. L. c. 279, § 3A. The judge's decision was
not an unreasonable delay where the sentencing hearing was still
held earlier than required by statute. Despite the defendant's
contention, the judge's statement that she hoped she "got [the
defendant's] attention by holding [her] over the weekend in
custody" was not an abuse of discretion.12 That statement came
after defense counsel requested that the judge place the
defendant on probation and reported "the last few days being
held in custody has really opened her eyes." The defendant's
argument is essentially a contention that the judge simply could
not revoke bail.13 Bail revocation after a conviction is
decidedly within a trial judge's powers. We discern no error.
12A judge, of course, must be careful not to create the
appearance of intemperance.
13The defendant's suggestion that a judge could not revoke
bail and postpone a sentencing hearing for a reasonable time
encourages hasty decision-making that could harm many defendants
in the future. Postponing sentencing provides a judge the
opportunity to think about the sentence.
25
d. Restitution hearing. At the close of the sentencing
hearing, the judge scheduled a restitution hearing and said,
"I'm going to hold it because I know the facts of the case." On
the day of the hearing, the trial judge was not at the court
house and a different judge presided over the restitution
hearing. The defendant requested a continuance so that the
trial judge could preside over the hearing. The hearing judge
denied this request and proceeded with the hearing. Mahboobe
testified about the damage the defendant caused to the
restaurant and her telephone. Defense counsel conceded that
each item was broken during the assault. Mahboobe provided
written estimates of repair costs and a receipt for replacing
the telephone. The judge ordered the defendant to pay $3,100 in
restitution.
The defendant identifies three issues in the disposition of
her restitution hearing: the restitution judge did not follow
orders entered by the trial judge; her restitution order was not
supported by adequate evidence; and counsel at the restitution
hearing was ineffective.
The defendant urges us to vacate her restitution order
because a judge other than the trial judge conducted the
restitution hearing. We review the decision to proceed with the
hearing for abuse of discretion. Commonwealth v. Baro, 73 Mass.
App. Ct. 218, 224 (2008). A judge may preside over another
26
judge's proceedings following a verdict if the trial judge is
"absen[t]" or "unavail[able]" and the judge believes he or she
is able to fulfil the needs of the hearing. Mass. R. Crim. P.
38 (c), 378 Mass. 916 (1979). Here, the trial judge was absent,
and the restitution hearing judge's decision to preside over the
hearing was far from an abuse of discretion. A restitution
hearing addresses the discrete issue of damages. The judge
needed no special knowledge of the trial unique to the trial
judge to assess the evidence presented at the hearing. He was
capable of presiding over the hearing with no prejudice to
either party.
The defendant claims that the Commonwealth did not meet its
burden of proving the amount of the loss. The facts at the
restitution hearing need only to be proved by a preponderance of
the evidence, not to the higher standard required at the
criminal trial. See Commonwealth v. Denehy, 466 Mass. 723, 740
(2014). We review the judge's assessment of restitution for
abuse of discretion. Commonwealth v. McIntryre, 436 Mass. 829,
836 (2002). Restitution provides for the victim's economic
losses caused by the defendant. Id. at 834. A valid
restitution order is supported by evidence, including a victim's
documentation of losses. Id.
27
The defendant conceded that she caused the harm,14 and the
Commonwealth properly proved the amount damaged. Mahboobe
submitted a receipt for replacing the broken telephone and
estimates from contractors to fix the window and bathroom door
damaged by the defendant. The final determination of
restitution was less than the "actual loss" proffered by
Mahboobe. See Commonwealth v. Henry, 475 Mass. 117, 129 (2016)
("the amount of restitution may not exceed the victim's actual
loss"). Therefore, the judge did not abuse his discretion when
he ordered the defendant to pay restitution.
The defendant also contends that counsel was ineffective at
the restitution hearing for not disputing that the defendant
caused the damage and for not cross-examining Mahboobe about the
time gap between the incident and the invoices. We evaluate
whether counsel's behavior fell measurably below that which can
be expected of an "ordinary fallible lawyer" and prejudiced the
defendant. Saferian, 366 Mass. at 96. Counsel is not
ineffective simply for not making a possible argument when that
tactic had little chance of success. See Commonwealth v.
Kolenovic, 471 Mass. 664, 673-674 (2015), S.C., 478 Mass. 189
14 The defendant asserts that defense counsel's concession
amounts to ineffective assistance of counsel. We address that
argument infra. Assuming for the purpose of analysis that
counsel's concession was proper, the judge did not err in
relying upon it when determining restitution.
28
(2017) (counsel was not ineffective for not pursuing defense
that was unlikely to succeed). Mahboobe's testimony that the
defendant caused the damage was consistent with her trial
testimony. Defense counsel had been unsuccessful in impeaching
Mahboobe at trial and had no new tools with which to impeach
Mahboobe. Therefore, it was not unreasonable for defense
counsel to concede that the defendant caused the damage.
Similarly, defense counsel was not unreasonable in not cross-
examining Mahboobe about the difference between the alleged
damage and the invoices she introduced to support her claim.
Counsel did attempt to impeach Mahboobe's credibility about the
amount of the damage, albeit through a different tactic.
Counsel argued the invoices were not itemized or thorough enough
and questioned Mahboobe about the high cost of each repair.
Counsel did so with some success, obtaining a restitution order
of more than $700 less than that requested by the Commonwealth.
There was no error.
Conclusion. None of the defendant's claims merits
disturbing the jury's verdicts.
Judgment affirmed.