COMMONWEALTH vs. NEAL FARBER

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

COMMONWEALTH vs. NEAL FARBER

10-P-826

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On December 23, 2008, a Middlesex County grand jury filed a four-count indictment against the defendant, Neal Farber, charging him with one count of assault and battery on a person over sixty years of age, resulting in injury, G. L. c. 265, 13K(b), victim, Margaret Johns, (count 1); assault and battery, G. L. c. 265, § 13A, victim, Linda Noone, (count 2); and two counts of violating a person's civil rights, G. L. c. 265, § 37, victims Ms. Johns and Ms. Noone, respectively, (counts 3 and 4). The counts arose out of an incident that occurred on the front walkway of the defendant's home in Newton. After a four-day trial, a Superior Court jury convicted the defendant of all four counts. The defendant filed a timely appeal.

Background. The jury could have found the following facts. We reserve other details for discussion of particular issues. On August 13, 2008, Ms. Johns, then sixty-nine years old, and Ms. Noone, then sixty-one years old, both Jehovah's witnesses, joined with two other Jehovah's witnesses, Roy Reinhold and Bob Eckstein, to 'go out in service.' 'Service' involves Jehovah's witnesses going door to door to speak with people regarding the bible. On that day, the group planned to visit homes on Beacon Street in Newton with the men working in one group and the women in another. The groups would alternate houses as they walked down the street.

The two women arrived at the defendant's home and went up a walkway to the defendant's front door. Neither had been at the home before August 13. Ms. Noone led the way and rang the doorbell. The defendant, who had been working in his upstairs office, came downstairs and opened the door. Ms. Noone identified herself and Ms. Johns as Jehovah's witnesses and started to talk about a tract that was in her hand. The defendant had worked at home for many years and Jehovah's Witnesses had come to his home on several occasions. Each time he had told them that he did not want anyone coming to his home and trying to convert him to their religion. After learning the women's intentions to speak to him about the bible, the defendant yelled at them to leave. As they turned to leave, the defendant followed them outside, yelling, 'nobody wants you around here,' and 'your religion shits.' The two women went down the walkway followed by the defendant, who was still yelling at them. His voice got louder as he came closer to them.

As the women were going down the walkway to the sidewalk, Ms. Johns was slammed in her back by a hand. She lost her balance, her purse flew out of her hand, her glasses fell off, and she fell onto the grass. Ms. Noone was also pushed in the back, and stumbled, but did not fall to the ground. Mr. Eckstein saw the defendant use his two hands to shove both women. When Ms. Noone realized that Ms. Johns was injured, she said to the defendant, 'That's assault and battery, I hope you're proud of yourself.' The defendant responded, 'Oh, I shouldn't have done that, that was wrong of me.' The Newton police and an ambulance were summoned to the scene. Ms. Johns was taken to the hospital where it was discovered she had a broken bone in her arm and two fractures of her rotator cuff.

Officer John Daly arrived at the scene while Ms. Johns was being treated by the EMTs. After talking with the two women, Officer Daly arrested the defendant and took him to the police station.

The defendant testified in his own defense. He stated that he had told other Jehovah's witnesses numerous times not to come to his house. He stated that he was offended by the women's attempt to convert him, that he did yell at them that they were 'full of shit' as he followed them down the walkway, and that at no time did he touch or push them. Rather, according to the defendant, both women stumbled of their own accord on the walkway's broken tiles.

On appeal, the defendant claims that the judge committed error by (1) allowing Officer Daly to testify that the two women told him there had been a 'push' and pointed to the defendant, (2) allowing Officer Daly to testify that he gave Miranda warnings to the defendant and then arrested him after the defendant invoked his right to silence, (3) limiting evidence contained in Ms. Johns's medical history, (4) excluding evidence of repair estimates to the walkway, and (5) ordering the defendant 'not [to] face the jury during the trial.' The defendant also claims that the judge misinstructed the jury as to the civil rights statute, the evidence he violated it was insufficient, and that, in any event, the statute is unconstitutional.

Discussion. 1. Officer Daly's testimony. Officer Daly testified that he was dispatched to the defendant's home. When he arrived at the scene, an ambulance was already there and the EMTs were treating Ms. Johns. Officer Daly did not know Ms. Johns, Ms. Noone or the defendant and did not know what had happened. He spoke to the two women who told him there had been a 'push' and pointed out the defendant to him. Officer Daly testified that he then approached the defendant, informed him of the seriousness of the incident, proceeded to advise him of his Miranda rights, and asked him what happened. At that point in Officer Daly's testimony, defense counsel objected and a sidebar conference was held. Defense counsel told the judge that the defendant did not make any response and therefore the Commonwealth had violated the defendant's right to remain silent. The judge offered a curative instruction but defense counsel did not pursue it and no curative instruction was given. After the sidebar conference the prosecutor asked Officer Daly if he then arrested the defendant. At that point, Officer Daly testified, the defendant asked him if he could lock up the house before going to the police station. Officer Daly agreed and accompanied the defendant into the home. Once the home was secured, the defendant was placed in a police cruiser and driven to the police station. During the ride, the defendant volunteered to Officer Daly that he did not push the women; rather they fell because of the poor condition of the walkway.

The defendant now claims that Officer Daly's testimony that the two women told him about a 'push' and pointed out the defendant was inadmissible hearsay that vouched for the victims' credibility. In response, the Commonwealth argues that Officer Daly's testimony was not hearsay because it was not offered for the truth of the matter asserted.

The Supreme Judicial Court has 'permitted the use of carefully circumscribed extrajudicial statements in criminal trials to explain the state of police knowledge.' Commonwealth v. Rosario, 430 Mass. 505, 508 (1999). See Commonwealth v. Miller, 361 Mass. 644, 658-659 (1972) (statements admissible to show 'state of police knowledge which impelled the approach to the defendant '). Here, Officer Daly did not know what had occurred when he arrived at the scene. As part of his investigation, he was entitled to talk to witnesses at the scene. Officer Daly's testimony that the two women told him about a 'push' was not offered for the truth of that statement, but was part of the event as described by the victims. See Commonwealth v. Jenkins, 458 Mass. 791, 793 (2011). In any event, any error in admitting the officer's testimony was harmless, because it was merely cumulative of the victims' testimony that they were pushed by the defendant. Id. at 794. Officer Daly's testimony that the two women pointed out the defendant was not hearsay but rather offered for the purpose of explaining why Officer Daly approached the defendant. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992).

The defendant's claim that his right to remain silent was violated is also without merit. Officer Daly did not testify as to whether the defendant made any response to his question asking what had happened. Further, there was no evidence that the defendant invoked his right to silence. See Commonwealth v. Womack, 457 Mass. 268, 276-277 n.9 (2010). In fact, after being advised of his Miranda rights, he spoke to Officer Daly and explained that the women fell not because they were pushed by him but rather because of the poor condition of his walkway.

2. Limitation of evidence in medical records; exclusion of contractor's estimates. The defendant asked the judge for permission to read to the jury the portion of Ms. Johns's medical records that contained the fall-risk assessment during his cross-examination of her. The judge denied the request. Defense counsel, however, did read to the jury during his closing argument those pages of the record concerned with the fall-risk assessment. Further, the jury had the records during their deliberations. There was no error.

The defendant further claims that the judge committed error in excluding contractors' estimates for work to be performed on his walkway. The defendant testified that his walkway was in poor condition and that he had received four estimates from contractors in regard to the repair of the walkway prior to the date of the incident. The estimates were for removal and rebuilding of the walkway, and other work to be done on the defendant's property. The defendant was allowed to testify as to the alleged defects in the walkway and introduce photographs of the walkway that were taken shortly after the incident in question. The exclusion of the estimates was within the judge's discretion. There was no error.

3. Correction of defendant's conduct by judge. During a sidebar conference on an objection by defense counsel during Ms. Johns's testimony, the judge instructed defense counsel to have the defendant face the judge and not the jury. Defense counsel asked for an explanation, which the judge did not furnish. The defendant claims error because the judge's comment interfered with his right to a fair trial, and prejudiced him by making him appear guilty to the jury, and by preventing him from monitoring the jurors' reactions to the evidence.

There is no evidence that the jury heard the judge's comment to defense counsel and the judge did not raise the matter again. Further, the order did not interfere with the defendant looking at the jury but rather prohibited him from facing the jury. We hold that the order was well within the judge's role in controlling the trial. See generally Adoption of Seth, 29 Mass. App. Ct. 343, 350 (1990).

4. Civil rights convictions. The defendant raises a laundry list of claims in regard to G. L. c. 265, § 37 (civil rights statute). He claims the statute is unconstitutionally vague, overbroad, and that the evidence at trial was insufficient under the statute. There is nothing in the record that establishes that the vagueness argument was raised below. Further, there was no pretrial motion to dismiss the indictments on grounds of vagueness, see Commonwealth v. Moses, 436 Mass. 598, 605 n.4 (2002), or a motion for a required finding of not guilty in regard to the statute being overbroad. Accordingly, we analyze whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Bell, 455 Mass. 408, 419 (2009). Considering the evidence in the light most favorable to the Commonwealth, the evidence and the reasonable inferences drawn from it were sufficient to support the defendant's convictions for the reasons stated in the Commonwealth's brief, pages 17 through 18.

The defendant claims that the judge committed error because she declined to include in her instructions to the jury an instruction regarding the defendant's right to express his views strongly. Here, the basis of the indictment was not the defendant's statements to the two women about their religion, but the use of force against them.

Finally, the defendant claims that the judge prevented him from producing evidence of his commitment to civil rights. The defendant testified that his brother's wife, to whom he had been close, had died just before the incident occurred and he sympathized with her views and values. In that regard, the defendant started to explain that his sister-in-law had chaired her town's 'civil rights committee.' The prosecutor objected and the judge sustained the objection. There was no error. The defendant's views on civil rights issues were not relevant to the case.

Judgments affirmed.

By the Court (Trainor, Smith & Meade, JJ.),

Entered: August 2, 2011.