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14-P-870                                            Appeals Court

            COMMONWEALTH    vs.   MATTHEW R. ROCHELEAU.


                            No. 14-P-870.

      Bristol.        September 8, 2016. - November 9, 2016.

           Present:   Green, Wolohojian, & Massing, JJ.


Breaking and Entering. Destruction of Property. Practice,
     Criminal, Security measures, Fair trial, New trial,
     Harmless error, Instructions to jury, Assistance of
     counsel, Required finding. Constitutional Law, Fair trial,
     Harmless error. Due Process of Law, Fair trial. Fair
     Trial. Error, Harmless. Evidence, Impeachment of
     credibility. Witness, Impeachment.



     Complaint received and sworn to in the New Bedford Division
of the District Court Department on May 23, 2013.

     The case was tried before Joseph I. Macy, J., and a motion
for a new trial was heard by him.


     David M. Osborne for the defendant.
     David B. Mark, Assistant District Attorney, for the
Commonwealth.


    GREEN, J.    Over objection, the defendant was ordered to

remain shackled in ankle restraints throughout his trial on

charges of breaking and entering in the daytime with intent to
                                                                     2


commit a felony, assault and battery, and wanton destruction of

property over $250, and to remain seated as jurors entered and

left the courtroom (apparently to prevent jurors from observing

his shackles).     On appeal, as he argued in a posttrial motion

for new trial denied by the trial judge, the defendant contends

that the shackling denied his rights to due process and the

presumption of innocence.     We conclude that any error was

harmless beyond a reasonable doubt, and discern in the

defendant's other claims of error no cause to disturb the

judgments.1

     Background.    On May 22, 2013, at around 12:30 in the

afternoon, the defendant, Matthew Rocheleau, broke into the

victim's home.     The victim, a sixty-two year old woman, was

sleeping on a couch when she was awakened by a "thump" and heard

her dog yelp.    The victim went to her kitchen, where she found

the defendant standing next to her stove, having entered through

a closed but unlocked door.     Frightened, the victim grabbed a

knife and confronted the defendant, asking him, "What are you

doing here?"    The defendant did not respond, and left the house.


     1
       In addition to his claim based on shackling, the defendant
claims error in the jury instructions administered by the trial
judge, and that his trial counsel was constitutionally
ineffective. He also contends that the evidence was
insufficient to establish that the loss caused by his
destruction of property exceeded $250, and that the trial judge
improperly impeded his counsel's effort to impeach the victim.
                                                                     3


The victim called 911 after the defendant went outside; as she

did so, she watched the defendant try to escape through her

backyard gate, which was secured by a padlock.   The defendant

was unable to open or climb over the gate and began to "throw

himself into" the fence (which was made of a combination of

hardwood and vinyl), eventually breaking his way through the

fence.   A police officer who responded to the scene testified

that he estimated the value of the defendant's destruction of "a

whole section of vinyl fence" to be in excess of $250.   The

victim then followed the defendant out to her driveway where she

saw him "fiddling" with her car, and confronted him again.2     In

response, the defendant pushed the victim against the car.

Seeing a neighbor pass by, the victim called to him for help.

The defendant then pushed her again, and knocked her down into

the street.

     Hearing the victim's call for help, the neighbor came to

her assistance; he stood in front of the defendant, telling

him, "Hey, look, guy.   You ain't going nowheres till the police

show up."   Shortly thereafter, as the defendant attempted to

     2
       The victim described the encounter as follows during her
testimony on direct examination:

     "And I said, 'what are you doing?'"

     "And he said -- he said, 'I've lost my keys.'"

     "I said, 'That's my car. What were you doing in my house?'"
                                                                      4


walk away, another neighbor came to assist.     The defendant

continued to walk away until he and the two neighbors ran into

some sanitation workers.   The defendant finally capitulated and

went back to the victim's house until the police arrived.       The

defendant was subsequently taken into custody by the police.       At

that time, the victim reported to the police that she was

missing a twenty dollar bill.

     A few days later, an investigator for the Bristol district

attorney took a statement from one of the two neighbors, who

said that the defendant appeared "high" at the time of the

incident.   At trial, that neighbor testified that the defendant

was acting nervous and mumbling at the time of the encounter.

However, the police officer who responded to the victim's 911

telephone call and arrested the defendant testified that the

defendant's speech seemed normal and he seemed balanced.

     We provide additional factual detail as needed in our

discussion of the defendant's several claims.

     Discussion.   Shackles.    Prior to empanelment, the trial

judge explained to defense counsel that his usual practice is to

remove handcuffs from criminal defendants during trial, but to

leave on the ankle restraints.3    He explained that he would not

require the defendant to stand when jurors entered the court

     3
       The restraints consisted of metal shackles connected by a
metal chain approximately one foot long.
                                                                    5


room, and in that manner prevent jurors from seeing that the

defendant was restrained.   The defendant's counsel objected, and

the judge "noted her objection."   Following his conviction, the

defendant again raised the use of shackles during trial in a

motion for a new trial.   In denying the motion, the judge

observed that:

    "The defendant is a large individual charged with crimes of
    a violent nature, including assault and battery. He was in
    custody indicating a need for security. The court house is
    essentially a single story building in which all court
    rooms are located on the ground floor. The court room in
    which he was to be tried was secure in its front, where the
    judge's bench is located, and along its two sides, one side
    being a solid wall and the other containing the jury box.
    However, the rear of the court room where the public sits
    has swinging, nonlocking doors [that] open directly into a
    small lobby and then into the outside parking lot. The
    ease of escape is noticeably present, as is the need to be
    able to contain and control a potentially difficult
    prisoner."

    In Deck v. Missouri, 544 U.S. 622, 629 (2005), the United

States Supreme Court held that "the Fifth and Fourteenth

Amendments [to the United States Constitution] prohibit the use

of physical restraints visible to the jury absent a trial court

determination, in the exercise of its discretion, that they are

justified by a [S]tate interest specific to a particular trial."

Although a judge has discretion to order shackling for court

room security, resort to such a measure must be "case specific
                                                                    6


. . . reflect[ing] particular concerns . . . related to the

defendant on trial," and appropriate "findings" must be placed

on the record at the time shackling is ordered.     Id. at 633.

    Massachusetts law likewise has long restricted the practice

of shackling.   For a "[f]air trial by an impartial jury, . . .

[s]hackling and other unusual security measures are of course to

be avoided if possible.   These displays tend to create prejudice

in the minds of the jury by suggesting that a defendant is a bad

and dangerous person whose guilt may be virtually assumed."

Commonwealth v. Brown, 364 Mass. 471, 475-476 (1973).    Before a

defendant may be tried in shackles, a judge should "state [the]

reasons . . . in the presence of counsel and defendant . . . and

provide an opportunity for counsel to make their objections

known," thereby making a record.   Id. at 479.    See

Mass.R.Crim.P. 45(a) (if trial judge determines that shackling

is "reasonably necessary to maintain order . . . he shall enter

into the record of the case the reasons therefor").

    In the present case, the judge made no particularized

findings on the record at the time he imposed his shackling

order, and the record contains no indication that the defendant

threatened violence, behaved in a threatening or disruptive
                                                                        7


manner, or otherwise posed an evident risk of flight.4      Nor do

the concerns cited by the judge in his order denying the

defendant's motion for a new trial reflect a particularized

concern:    the configuration of the court room (with an unlocked

door at its rear) hardly sets it apart from others in the

Commonwealth, and many defendants are both large and in custody

at the time of their trial.5    In short, the record does not

justify the use of shackles to restrain the defendant in the

present case.

     The Commonwealth nonetheless contends that no relief is

warranted, for two independent reasons.       First, it observes, the

motion judge (who was also the trial judge) found that the

shackles were not visible to the jury during either empanelment

or the trial.    Second, it contends that even if the shackles

were visible, any error in their use was harmless beyond a

reasonable doubt in light of the strength of the evidence

against the defendant.6    We agree with the latter, and

accordingly need not address the defendant's contention (based

     4
       Indeed, we note that the defendant was persuaded without
force by the victim and two of her neighbors to remain in place
pending arrival of the police after the victim called 911.
     5
         The trial judge has since retired.
     6
       Because the claim of error was preserved by objection at
trial, the burden is on the Commonwealth to establish the
"absence of prejudice beyond a reasonable doubt." Commonwealth
v. Bresnahan, 462 Mass. 761, 767 (2012).
                                                                   8


on photographs of the court room layout) that the judge's

finding that the shackles were not visible to jurors is clearly

erroneous.

     At trial, the sole element contested by the defendant on

the charge of breaking and entering with intent to commit a

felony was his criminal intent.7   As to that element, the

defendant pursued a theory that he could not form the requisite

criminal intent by reason of mental impairment.8   In support of

that theory, the defendant requested, but was denied, an

instruction permitting the jury to consider whether the

defendant was so intoxicated by drugs or alcohol that he was

incapable of forming the specific intent to commit a felony.    On

appeal, the defendant does not challenge the denial of the

requested instruction, implicitly (and correctly) recognizing

that the evidence at trial furnished no basis to support it.9


     7
       At the outset of her closing argument, defense counsel
conceded that the evidence established that the defendant
entered the victim's home and then ran through the fence in an
attempt to leave the victim's property; indeed, no other view of
the evidence at trial was possible.
     8
       We discuss below the defendant's claim that trial counsel
was ineffective by reason of her unsuccessful efforts to develop
evidence that the defendant was intoxicated.
     9
       The only evidence even hinting at possible impairment or
intoxication was testimony that he was "fiddling" with the
victim's car, mumbling, "sweating," and "appeared confused."
The arresting officer testified that his speech seemed normal,
and that he was balanced on his feet. The prosecutor's
objection to the defendant's attempt to elicit from one of the
                                                                     9


During her closing, counsel for the defendant attempted to argue

that the defendant lacked the ability to form criminal intent,

but the prosecutor's objection to that argument was sustained (a

ruling the defendant likewise does not challenge on appeal).

     Because the evidence of guilt (much of which was

uncontested) was overwhelming, and because there was scant

evidence to support the sole theory on which the defendant

sought to defend the charges against him, we are satisfied that

any error in the order to keep the defendant in ankle shackles

during trial "did not have an effect on the jury and did not

contribute to the jury's verdicts."     Commonwealth v. Tyree, 455

Mass. 676, 701 (2010).10

     Jury instruction.     The defendant also claims error in the

jury instruction administered by the trial judge on the charge

of breaking and entering in the daytime with intent to commit a

felony.   Specifically, the trial judge instructed the jury that

"[l]arceny is a felony.    The Commonwealth must prove that the


victim's neighbors that the defendant "seemed like he was high
on something" was sustained.
     10
       The defendant defended the charge of wanton destruction
of property with a value over $250 on essentially the same
theory -- that he could not form the requisite criminal intent
due to mental impairment. Though, as discussed below, he also
moved for a required finding that the evidence was insufficient
to establish that the cost of the damage he caused to the
victim's fence was greater than $250, any prejudice caused by
his shackles did not bear on the jury's assessment of the cost
of the damage he caused.
                                                                    10


defendant intended to commit a felony, a larceny, at the time he

broke and entered into the building."   As the defendant

correctly observes, not all larcenies are felonies.11    The

defendant did not object to the instruction at trial; we

accordingly consider whether there was error and, if so, whether

it created a substantial risk of a miscarriage of justice.     In

the circumstances, we conclude it did not.

     Though not all larcenies are felonies, "larceny in a

building is a felony regardless of the value of the items

stolen."   Commonwealth v. Cruz, 430 Mass. 182, 188 (1999).    In

much the same way as in Cruz, the evidence in the present case

established that the defendant's intent at the time of the

breaking and entering was larceny in a building.   In the

circumstances, the judge's statement that the Commonwealth must

prove that the defendant intended to commit a larceny at the

time he entered the building, though perhaps imprecise, was not

erroneous.   Accordingly, no substantial risk of a miscarriage of

justice arose by reason of the judge's instruction.     See ibid.12


     11
       Ordinarily, under G. L. c. 266, § 30, whether a larceny
constitutes a felony depends on the value of the property
stolen; only if the value of the property exceeds $250 is the
crime a felony.
     12
       The defendant's reliance on Commonwealth v. Hill, 57
Mass. App. Ct. 240 (2003), is unavailing. In that case, the
defendant was charged with breaking and entering a vehicle in
the nighttime with intent to commit a felony. See id. at 247.
Because it is possible to commit a misdemeanor larceny upon
                                                                   11


     Other issues.   We discern no abuse of discretion in the

motion judge's order denying the defendant's motion for a new

trial, which was based on a claim of ineffective assistance of

counsel.13   The defendant contends that his trial counsel failed

adequately to develop evidence that the defendant did not have

any stolen property in his possession at the time of his arrest.

However, trial counsel asked the arresting officer whether the

officer observed any stolen property in the vicinity of the

defendant or on his person, and received "no" as the response.

In any event, the defendant's conviction rested on the obvious

inference that he intended to steal property when he broke and

entered the victim's home.   Whether he in fact stole any

property after he entered, but before the victim discovered him

in her kitchen, is irrelevant as to intent.   We likewise find no

constitutionally ineffective assistance in trial counsel's

failure to preserve objection to the trial judge's ruling

excluding testimony of a neighbor that the defendant "seemed

like he was high on something."   See note 9, supra.   While lay

opinion on the question whether someone is intoxicated by



entry into a vehicle, it was error for the trial judge in Hill
to instruct the jury that any larceny after entering the vehicle
would constitute a felony. See id. at 248-249.
     13
       Because the motion judge was also the trial judge, we
extend "special deference" to his action on the motion.
Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
                                                                  12


alcohol is generally admissible because the effects of alcohol

intoxication are widely known, see Commonwealth v. Canty, 466

Mass. 535, 540 (2013), we are aware of no authority for the

proposition that a lay witness may offer an opinion that a

person is "high" on something other than alcohol.   Moreover, the

defendant presented no evidence at the hearing on his motion for

a new trial suggesting that trial counsel could have laid a

foundation to support the admission of such an opinion.

    There is likewise no merit to the defendant's contention

that the evidence was insufficient to establish that the damage

to the victim's fence exceeded $250.   At trial, one of the

officers who responded to the 911 call testified that he

estimated that the damage to the section of the fence destroyed

by the defendant was over $250.

    Finally, the defendant claims error in a ruling by the

trial judge that he claims limited his opportunity to impeach

the victim's testimony.   At trial, the victim testified that she

observed the defendant "fiddling with [her] car" and that, when

she asked him what he was doing, he responded, "I've lost my

keys."   In response, the victim said, "That's my car."    Defense

counsel then sought to impeach the victim with a statement she

had made in an earlier proceeding that the defendant contends
                                                                      13


was inconsistent with her trial testimony.14      In that statement,

the victim said, "I got to my driveway.    And he was trying to

get into my car.    I said, 'It's not your car.    Just wait.   The

police are on their way.'"    The trial judge expressed skepticism

that the prior statement was inconsistent with the victim's

trial testimony, but allowed its admission, subject to possible

redirect examination concerning the context in which the victim

made the statement.    Concerned that the redirect examination

might include the fact that the victim made the statement

incident to an aborted attempt by the defendant to enter a

guilty plea, the defendant chose not to pursue this line of

impeachment.15   Like the trial judge, we are skeptical that the


     14
        The victim had given a victim impact statement during a
proceeding at which the defendant pleaded guilty, but then
withdrew his plea when the proposed sentence was unsatisfactory
to him.
     15
          The trial judge explained:

     "For example, the jury is entitled to know that this was a
     statement not under oath. The jury is entitled to know
     it's a statement not as a result of a hearing subject to
     cross-examination, but the context in which she is
     testifying at a sentencing hearing.

     "So, I mean, you've got to . . . get it in somewhere. And
     she's got to be able to say when she made that statement.
     And if you don't ask her, she's entitled to."

     The judge concluded the sidebar discussion with the
following comment:

     "And [the trial prosecutor] also can -- and I'll note your
     objection to this -- ask the context in which those
                                                                    14


prior statement was inconsistent with the victim's trial

testimony.    In any event, we discern no prejudice from the

omission of the prior statement.   The defendant contends that

the prior statement would have supported his claim that he was

mentally impaired at the time of the incident and, therefore,

lacked the capacity to form the requisite criminal intent,

because it would illustrate that the defendant was so confused

he did not realize the car he was trying to get into was not

his.    However, the same inference is plainly supported by the

victim's trial testimony, in which she saw the defendant trying

to enter her car and told him that the car was hers.    In any

event, it would have been a straightforward matter for trial

counsel to draw out that suggestion through further questioning

of the victim in cross-examination, without reliance on her

prior victim impact statement, but trial counsel made no attempt

to do so.    Moreover, the statement, even if admitted, would have

added little weight to the defendant's unsuccessful effort to

develop evidence warranting instruction on mental impairment.

                                     Judgments affirmed.

                                     Order denying motion for new
                                       trial affirmed.




       statements were made. And if the woman -- who seems to be
       a fairly responsive witness -- says, Yeah, I remember that.
       I was in court when your guy [pleaded] guilty, and then he
       changed his mind -- I'm going to let that stand."
