Opinion
16-P-286
03-16-2017
COMMONWEALTH v. Robert A. GREEN, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Robert A. Green, Jr., was convicted of unarmed robbery, assault and battery by means of a dangerous weapon (ABDW), and assault and battery. He appeals, claiming error in the jury instructions and that he was convicted of duplicative indictments. We affirm in part and vacate in part.
Jury instructions . As to the conviction of unarmed robbery, the defendant claims that the judge should have, sua sponte, instructed the jury on the lesser included offenses of larceny from a person and larceny. We disagree.
The defendant did not request instructions on the lesser included offenses and did not object to the instructions given. Rather, he contends that he raised the issue in his closing argument. Whether we review for prejudicial error or a substantial risk of a miscarriage of justice, the result is the same.
An instruction on a lesser included offense is required when the evidence so permits and "upon request" by one of the parties. Commonwealth v. Hobbs , 385 Mass. 863, 871 (1982). The duty of a trial judge to charge a lesser included offense does not arise just because a lesser offense is possible in theory. Commonwealth v. Olivera , 48 Mass. App. Ct. 907, 909 (1999). Here, it is undisputed that the defendant used force when he stole the victim's wallet. The defendant claimed that he acted in self-defense. Indeed, a lesser included offense instruction may have run contrary to the heart of the defense. In addition, "tendering the alternative crime to the jury might increase the chance of a conviction." Commonwealth v. Lashway , 36 Mass. App. Ct. 677, 683 (1994). There was no error, let alone prejudicial error or a substantial risk of a miscarriage of justice.
Duplicative convictions . The defendant claims that the convictions of ABDW and assault and battery are duplicative, requiring dismissal of the assault and battery conviction. Convictions of both an offense and a lesser included offense may stand where the convictions are predicated on separate and distinct acts. Commonwealth v. Vick , 454 Mass. 418, 435-436 (2009). Here, the defendant was indicted for ABDW based on the allegation that he kicked the victim with a shod foot and for assault and battery based on the allegation that he punched the victim. While the Commonwealth is quick to point out that the judge's instructions referenced separate indictments on multiple occasions, the argument is flawed as the judge failed to instruct the jury that convictions on these two indictments must be based on separate and distinct acts, or "at the very least, to make clear to the jury which alleged acts corresponded to which charges." Commonwealth v. Kelly , 470 Mass. 682, 699 (2015). "The appropriate inquiry [on substantial risk review at least] is whether there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act." Id . at 701. This possibility is borne out by the initial verdict of the jury which purported to convict the defendant of both ABDW and the lesser included crime of assault and battery on one verdict slip, and assault and battery on a separate verdict slip. In the circumstances here, we conclude that there is a significant possibility that the jury based the convictions on the same act and, therefore, the conviction of assault and battery must be vacated.
The Commonwealth contends that this issue was not preserved as the defendant did not object to the verdict slips, the jury instructions, or the prosecutor's closing argument, and because the defendant did not file a motion to dismiss. Whether we review the issue for prejudicial error or a substantial risk of a miscarriage of justice, the result is the same.
Conclusion . As to the charges of unarmed robbery and assault and battery by means of a dangerous weapon, the judgments are affirmed. On the indictment charging assault and battery, the judgment is vacated and the verdict is set aside.
Resentencing is not required. The sentence to the house of correction on the assault and battery conviction was to be served concurrently with the longer sentence to State prison on the ABDW conviction. Accordingly, the goals of the original sentencing scheme will not be materially affected. Cf. Commonwealth v. Rivas , 466 Mass. 184, 195 n.9 (2013).
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So ordered .
Affirmed in part; vacated in part.