Commonwealth v. Grant Headley, Jr.

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

22-P-371

COMMONWEALTH

vs.

GRANT HEADLEY, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Boston Municipal Court, the

defendant was convicted of disturbing a correctional

institution, in violation of G. L. c. 268, § 30, and vandalizing

jail property, in violation of G. L. c. 266, § 130. The

defendant now appeals from the judgment and contends that the

judge punished the defendant in various ways for exercising his

right to a jury trial and improperly refused to examine

potential jurors as to racial bias and prejudice against

incarcerated individuals. The defendant also argues that his

motion for a required finding of not guilty should have been

granted as to the charge of vandalizing jail property and that

various errors of trial counsel necessitate a new trial. We

affirm.
Background. We recite the facts in the "light most

favorable to the Commonwealth," Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979), reserving certain details for later

discussion.

The defendant was being held at the Nashua Street jail. On

July 16, 2018, Sergeant Wooten, the housing control supervisor,

called in the emergency response team because an inmate had

refused to comply with an order to return to his cell. The

defendant was eating dinner when sheriff department Sergeant

Hackley and his five-officer emergency response team entered the

unit. When the officers entered, there was no commotion; the

prisoners were simply eating dinner. Sergeant Wooten pointed

out the defendant and the officers went over to the defendant,

seated at his table, and ordered him to place his hands behind

his back. The defendant cooperated and the officers escorted

him out of the unit.

As the defendant was walking out, he began shouting at

Sergeant Wooten and yelling profanities at her. He also spat at

the officers, who then placed him against the wall and attempted

to de-escalate the situation. Upon beginning the walk again,

the defendant again began to spit and he pulled away from the

staff. He then swung his right foot forward and "kicked the

glass out of the egress door for the adjacent unit" causing the

2
glass to spider. The "riot glass" was fractured from top to

bottom with forty to fifty cracks.

Discussion. 1. Refusal to permit voir dire of jurors. "A

criminal defendant is entitled to a trial by an impartial jury

pursuant to the Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights." Commonwealth v. Espinal, 482 Mass. 190, 194 (2019),

quoting Commonwealth v. Williams, 481 Mass. 443, 447 (2019).

"[P]art of the guarantee of a defendant's right to an impartial

jury is an adequate voir dire to identify unqualified jurors."

Espinal, supra, quoting Commonwealth v. Dabney, 478 Mass. 839,

848, cert. denied, 139 U.S. 127 (2018).

Certain categories of questions posed to the venire are

mandatory, General Laws c. 234A, § 67A, inserted by St. 2016,

c. 36, § 4 (formerly G. L. c. 234, § 28), and require the trial

judge in every criminal case to inquire into several subjects.

The second paragraph of § 67A requires additional inquiry of

jurors where "it appears that . . . a decision [may] be made in

whole or in part upon issues extraneous to the case, including,

but not limited to, community attitudes, possible exposure to

potentially prejudicial material or possible preconceived

opinions toward the credibility of certain classes of persons."

"We have interpreted this language to mean that, where a

defendant can show that there exists a substantial risk of

3
extraneous issues that might influence the jury, additional

questioning is required . . . [of] each prospective juror

individually and outside the presence of other persons"

(quotations and citations omitted). Espinal, 482 Mass. at 196.

Such inquiry is required, when requested by the defendant,

"whenever the victim and the defendant are of different races or

ethnicities, and the crime charged is murder, rape, or sexual

offenses against children." Id.

Here, the defendant requested attorney-conducted panel voir

dire on topics that included:

"2. Personal views on race, namely views on the implicit
bias that exists between race and views/perception of
dangerousness

"3. Personal views on prisoners who are accused of crime."

The judge denied counsel's request for attorney-conducted

panel voir dire but stated, "I'll allow some reasonable followup

questions to be asked of jurors at sidebar here if they indicate

that there's an issue where they raised their hand in response

to certain questions." Although trial counsel proposed

questions for attorney-conducted voir dire, she did not offer

questions for the judge to ask the venire, nor did she object

when the judge failed to query the venire about their views on

race, implicit bias, or prisoners who are accused of crimes.

Because the defendant did not object at trial, we consider

whether there was error, and, if so, whether the error created a

4
substantial risk of a miscarriage of justice. See Commonwealth

v. Heywood, 484 Mass. 43, 45 (2020).

We review a trial judge's decisions regarding the scope of

jury voir dire for abuse of discretion. See Commonwealth v.

Lopes, 440 Mass. 731, 736 (2004). "A judge need not probe into

every conceivable bias imagined by counsel," Espinal, 482 Mass.

at 198, and "is warranted in relying upon his [or her] final

charge to the jury to purge any bias from the jurors prior to

their deliberations," Commonwealth v. Estremera, 383 Mass. 382,

388 (1981). "A defendant's 'bare allegation' that there exists

a 'widespread belief' that could result in bias is not

sufficient to cause us to conclude that the judge abused his [or

her] discretion by declining to conduct voir dire on the issue"

(citation omitted). Espinal, 482 Mass. at 200.

The defendant, who is Black, was charged with a property

crime. To the extent that it matters -- which we need not

decide -- the incident involved at least one Black jail guard,

and at least one white. Espinal does not require the judge to

probe ethnic or racial bias by voir dire in this instance. See

id. at 196.

The judge also declined to probe potential juror bias

either against prisoners or in favor of law enforcement.

Because the Supreme Judicial Court has not ruled that these

types of biases produce a "substantial risk of extraneous

5
influence" on a juror's ability to impartially hear a case, the

decision of whether to examine such potential biases is left to

the sound discretion of the judge. Espinal, 482 Mass. at 197.

We would conclude that the judge abused his discretion only if

the record demonstrated "some reason to suspect that jurors may

be so prejudiced." Id. at 198.

Here, defense counsel suggested to the judge that some

people hold biases either against prisoners or in favor of law

enforcement, but did not allege that any juror was so biased.

We therefore discern no abuse of discretion in the judge's

determination not to conduct the requested voir dire in this

case.

2. Sufficiency of the evidence. In reviewing the

sufficiency of the evidence, we ask "whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Latimore, 378 Mass. at

677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

"A conviction may be based on circumstantial evidence and the

permissible inferences drawn therefrom." Commonwealth v. Roy,

464 Mass. 818, 824 (2013). "The inferences that support a

conviction 'need only be reasonable and possible; [they] need

not be necessary or inescapable.'" Commonwealth v. Ross, 92

Mass. App. Ct. 377, 378 (2017), quoting Commonwealth v. Waller,

6
90 Mass. App. Ct. 295, 303 (2016). "Because the defendant moved

for required findings at the close of the Commonwealth's case

and again at the close of all the evidence, '[w]e consider the

state of the evidence at the close of the Commonwealth's case to

determine whether the defendant's motion should have been

granted at that time.'" Commonwealth v. O'Laughlin, 446 Mass.

188, 198 (2006), quoting Commonwealth v. Sheline, 391 Mass. 279,

283 (1984).

In order to be convicted of vandalizing jail property, in

violation of G. L. c. 266, § 130, the Commonwealth must prove

beyond a reasonable doubt that the defendant acted willfully,

which requires proof that the defendant intended the proscribed

conduct and its consequences, see Commonwealth v. Redmond, 53

Mass. App. Ct. 1, 4 n.2 (2001), and maliciously, which requires

a "spirit of cruelty, hostility or revenge," Commonwealth v.

Williams, 110 Mass. 401, 402 (1872).

"In determining whether the evidence was sufficient to show

that the defendant harbored [a certain] intent, [a court will]

not reweigh the evidence in order to decide whether the

determination that the jury reached is correct." Commonwealth

v. Schoener, 491 Mass. 706, 719 (2023). "Rather, after

considering the evidence and the inferences to be drawn

therefrom in the light most favorable to the Commonwealth, [the

court will] decide only whether the jury made a rational

7
decision based on the evidence before them." Id. The defendant

was yelling obscenities at the officers, spat at them, was angry

at them, and kicked a riot glass panel with enough force to

break the glass. This evidence was sufficient to support the

inference that the defendant intended to break the glass and did

so maliciously.

3. Judicial bias. In conversation with the prosecutor and

defense counsel after motions in limine, the judge discussed the

possibility of the case resolving short of trial:

"Have the parties tried to resolve this case short
of trial? Because Mr. Headley's looking at two and
a half years house of correction on the vandalizing,
prison vandalizing jail property, and another three
months on disturbing a correctional
institution. . . . Because once it goes forward,
then all bets are off. And if your client's
convicted and [sic] he's looking at some serious
time. . . . Well, you know, you can always get a
from and after sentence, counsel. I don't know if
you discussed that with your client. So you know,
it's up to the parties as to whether you want to try
to resolve it, but always before a trial I try to
see if counsel can resolve the case because this is
the last, the last stand as it is. So if this case
can be resolved, I suggest that you try to do so,
because there are always consequences that you may
not anticipate in these matters if that's a big --
if your client's convicted."

A defendant has a right to be tried by a fair and impartial

judge. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)

("The Due Process Clause entitles a person to an impartial and

disinterested tribunal"). See also Varga v. Board of

Registration of Chiropractors, 411 Mass. 302, 305 n.3 (1991),

8
quoting King v. Grace, 293 Mass. 244, 247 (1936) ("The

provisions of art. 29 are 'at least as rigorous in exacting high

standards of judicial propriety as are those of the Fourteenth

Amendment'"). We look to a set of factors on the issue of

vindictiveness. See Commonwealth v. Johnson, 27 Mass. App. Ct.

746, 751-752 (1989). These include evidence of pressure on the

defendant to accept a plea or of the judge's displeasure in the

defendant's refusal of the offer; the severity of the sentence

in relation to the sentence authorized by statute; and the

Commonwealth's recommended sentence. Id.

After careful review of the record, we are not persuaded

that the judge's comments to defense counsel and rulings on

motions show that he was not impartial or was vindictive towards

the defendant. Nor does the imposition of the sentences after

the defendant chose to go to trial suggest that he was being

punished for his decision. Provided that the decision is based

on appropriate considerations, "[a] trial judge is permitted

'great latitude' in sentencing." Commonwealth v. Derouin, 31

Mass. App. Ct. 968, 970 (1992), quoting Commonwealth v. Celeste,

358 Mass. 307, 310 (1970). A judge may consider punishment,

deterrence, rehabilitation, the defendant's behavior, character,

background, and the nature of the offense and the circumstances

surrounding the commission of the crime. Commonwealth v.

Goodwin, 414 Mass. 88, 92 (1993); Derouin, supra.

9
The defendant maintains that the judge's expressions of

bias began with his pretrial comments about sentencing. In

context, those comments were an expression of appropriate

sentencing considerations. A defendant's admission of guilt "is

a proper factor in more lenient sentencing," although failure to

do so may not be considered as an aggravating factor. Johnson,

27 Mass. App. Ct. at 751. See Commonwealth v. Souza, 390 Mass.

813, 820 (1984). Additionally, "[t]rial judges are permitted to

inform defendants about their options and about the

ramifications of a decision to enter a plea or proceed to

trial." Commonwealth v. Carter, 50 Mass. App. Ct. 902, 903

(2000).

The focal point of the sentencing hearing was the

defendant's criminal record. The judge stated that he was

"shocked by this criminal history," which included three firearm

offenses in eleven years, the last of which resulted in an eight

to ten year State prison sentence. Even defense counsel

acknowledged that the defendant "does have a lengthy record, and

some of those offenses are serious offenses."

The fact that the sentence exceeded the one discussed by

the judge prior to trial does not establish a "reasonable

likelihood" of "vindictiveness." See Commonwealth v. Ravenell,

415 Mass. 191, 194-195 (1993). After all, a plea bargain

regularly results in a more lenient sentence. See Johnson, 27

10
Mass. App. Ct. at 750-751 ("The willingness of the defendant to

admit guilt . . . is a proper factor in more lenient

sentencing").

The defendant also argues that the judge's decision to

revoke jail credits is evidence of the judge's vindictiveness.

"If a defendant is held in custody before trial, G. L. c. 279,

§ 33A, and G. L. c. 127, § 129B, mandate that he or she be

credited with those days spent incarcerated toward the sentence

eventually received." Commonwealth v. Caliz, 486 Mass. 888, 891

(2021). "[W]here the statute does not strictly control,

considerations of fairness and fair treatment of the defendant

guide the determination of whether to give jail credit."

Commonwealth v. Maldonado, 64 Mass. App. Ct. 250, 251 (2005).

Here, the defendant's pretrial incarceration resulted from

his serving another sentence. The application of jail credits

is within the discretion of the judge. While the judge's

decision not to credit the defendant's previous sentence time

after originally crediting the time significantly increased the

defendant's incarceration time, this change was within the

judge's authority because the defendant was not entitled to that

credited time.

We conclude that the defendant was not unfairly tried or

vindictively sentenced. Because the sentence was prescribed by

11
the Legislature, it was not cruel and usual for the judge to

impose the sentence.

4. Ineffective assistance of counsel. The defendant

points to several instances where counsel failed to take certain

actions. However, because no motion for new trial was filed and

heard, we can only speculate as to the reasons for these

omissions. See Commonwealth v. Rice, 441 Mass. 291, 304 (2004).

In any event, the alleged deficiencies do not warrant relief.

The defense at trial was the inadequacy of the

investigation and the destruction of a video of the incident.

It mattered not that counsel failed to request a Bowden

instruction. Commonwealth v. Bowden, 379 Mass. 472, 485-486

(1980). Bowden does not mandate an instruction; it "simply

holds that a judge may not remove the issue from the jury's

consideration." Commonwealth v. O'Brien, 432 Mass. 578, 590

(2000). Here, counsel developed the issue and argued it in

closing. Because the defendant cannot demonstrate that a Bowden

instruction would have accomplished something material for the

defense, he cannot establish that his attorney was ineffective

for failing to request one.

The failure of defense counsel to object to answers given

by Lieutenant Hackley that the defendant was "familiar with the

routine" of being escorted into segregation and that the jail

12
was a "pretty violent facility," did not create a substantial

risk of a miscarriage of justice.

Judgments affirmed.

By the Court (Meade,
Hershfang, & D'Angelo,
JJ. 1),

Clerk

Entered: September 27, 2023.

1 The panelists are listed in order of seniority.

13