Opinion
13-P-875
11-07-2014
COMMONWEALTH v. WILLIAM M. FLOOD.
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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a joint trial in the Superior Court, the defendant and Jake O'Connor were convicted of various criminal offenses stemming from the beating of Brian Sykes on the evening of December 29, 2011. The defendant raises a number of issues on appeal. In light of the Supreme Judicial Court's decision in Commonwealth v. Morse, 468 Mass. 360, 373-374 (2014), we conclude that the defendant's conviction of intimidation of a witness based on statements he made to a police officer must be reversed. We affirm the remaining convictions.
The defendant was convicted of one count of aggravated assault and battery of Brian Sykes by means of a dangerous weapon in violation of G. L. c. 265, § 15A(c); aggravated assault and battery of Brian Sykes in violation of G. L. c. 265, § 13A(b); assault and battery of Kyle Sykes in violation of G. L. c. 265, § 13A(a); and two counts of intimidation of a witness in violation of G. L. c. 268, § 13B.
Background. We summarize the evidence presented at trial in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). Brian Sykes and his brother, Kyle Sykes, were drinking and socializing at a bar known as Mike's Place in Orange when a group of men belonging to the Long Riders Motorcycle Club entered the bar. Tension arose between Brian, who was intoxicated, and some of the motorcycle club members including the defendant, who was a prospective member of the club. Feeling uncomfortable, Brian, Kyle, and another friend decided to leave the bar. Once outside, Brian was attacked by O'Connor and a third motorcycle club member, Scott Stevens, while the defendant held Kyle back, thereby preventing him from assisting his brother or from using his cellular telephone to call for help.
Because the victims share the same last name, we use their first names to avoid confusion.
The defendant, O'Connor, and Stevens left the area in the defendant's sport utility vehicle. Kyle flagged down a police officer who called for back-up and an ambulance. Soon thereafter, the defendant's vehicle was stopped, and all three men were arrested after Kyle identified them. The defendant subsequently spoke with the police and denied any involvement in the incident. He stated during a recorded interview that he left the bar to smoke a cigarette and that he didn't know anything about a fight.
Both the defendant and O'Connor testified at trial. The defendant claimed that he was only involved in a "little pushing and shoving" with Kyle. O'Connor denied that he was the culprit, asserting that Stevens was fighting with Brian, and he interceded to stop the fight. O'Connor acknowledged that he threw a couple of punches, but he claimed he did so only to defend himself. Stevens testified as the Commonwealth's rebuttal witness pursuant to a plea and cooperation agreement. He admitted that he was present during the beating, but claimed that he (and not O'Connor) had tried to break up the fight.
Discussion. 1. Joint venture. The Commonwealth proceeded at trial on the theory that the defendant was guilty of aggravated assault and battery by means of a dangerous weapon and aggravated assault and battery against Brian as a joint venturer. During deliberations the jury sent the following note to the judge: "Do we need to consider Flood only as a joint venturer with O'Connor, or can he be considered a joint venture[r] with either he or Stevens. In other words, is the joint venture with respect to the full crime or only O'Connor." The judge stated that he intended to answer the question by writing "full crime" on the jury note and return it to the jury. After discussing the issue with the prosecutor and trial counsel, the judge proceeded as he had proposed.
The defendant claims that the judge's response prejudiced him because the Commonwealth's evidence demonstrated that if he had aided or assisted another person in the commission of a crime, that person was O'Connor and no one else. This argument has no legal or factual support, and therefore we reject it.
As the Commonwealth notes in its brief, the issue for the jury was whether the defendant had aided or assisted another in the attack against Brian with the requisite intent, not the identity of the other persons who delivered the blows. See Commonwealth v. Zanetti, 454 Mass 449, 467-468 (2009). Furthermore, we agree with the Commonwealth that the defendant was not unfairly surprised. The Commonwealth's theory of joint venture was not limited to O'Connor. In his opening remarks the prosecutor told the jury that Stevens "had participated" in the offense, and the testimony at trial established that two people were beating Brian while the defendant held Kyle.
Kyle testified at trial that three people approached him and his brother: two people grabbed his brother while another person held him with his "arms behind his back."
2. The culture of the Long Riders Motorcycle Club. During his cross-examination of the defendant, the prosecutor asked questions about the motorcycle club and specifically solicited testimony about the significance of two of the emblems worn on the vest of a club member: a ball-peen hammer and the phrase "one percenter." The defendant offered an explanation only as to the latter emblem, stating that the phrase "one percenter" represented law enforcement's view that ninety-nine percent of motorcyclists are law abiding citizens, but the one percent involved in motorcycle clubs are not. The defendant argues that the prosecutor's questions were prejudicial because they suggested that he, as a prospective member of the club, had a propensity for lawlessness and violence.
The defendant's vest did not have a "one percenter" badge.
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The Commonwealth maintains that the questions were proper and the testimony admissible to dispel the notion that the motorcycle club was merely social in nature as the defendant had testified during direct examination. The Commonwealth further claims that the evidence was probative of the defendant's motive, because as a prospective member of the club, the defendant would come to the aid of a fellow member.
The admissibility of the evidence was questionable, and the judge appropriately recognized it as such. Nonetheless, given the judge's limiting instruction regarding the use of the evidence in his final charge to the jury, we discern no prejudice.
3. The defendant's statements. As noted, the defendant was questioned by the police on the night of the incident and denied any involvement in and knowledge of a fight. Based on these statements, the defendant was charged in count V of the indictment with intimidation of a witness in violation of G. L. c. 268, § 13B. The defendant argues on appeal that this conviction must be reversed because there was no proof that he had a specific intent to mislead the police. See Commonwealth v. Morse, 468 Mass. at 372, quoting from G. L. c. 268, § 13(1)(c)(v) ("In addition to the requirement that there be knowing or intentional conduct that is objectively misleading as defined, a statutory violation is not established unless there is also proof of a defendant's specific intent to 'impede, obstruct, delay, harm, punish, or otherwise interfere thereby' with a criminal investigation"). The Commonwealth concedes that in light of Morse, the defendant's statements did not constitute a violation of the statute. We have examined the issue and agree that the defendant's conviction on count V of the indictment must be reversed and a judgment entered for the defendant on that count.
4. Sufficiency of the evidence. We have reviewed the record carefully and conclude that there was ample evidence from which a rational trier of fact could reasonably infer beyond a reasonable doubt that Brian suffered numerous separate injuries while he was punched and kicked. Thus, the judge did not err in denying the defendant's motion for a required finding of not guilty.
Conclusion. The judgment on count V of the indictment is reversed and judgment shall enter for the defendant on that count. The remaining judgments are affirmed.
So ordered.
By the Court (Vuono, Meade & Carhart, JJ.),
Clerk Entered: November 7, 2014.