Opinion
No. 10–P–1825.
2013-02-6
COMMONWEALTH v. William E. NEW.
By the Court (GRASSO, MEADE & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Taking the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth, as we must, see Commonwealth v. Kilburn, 426 Mass. 31, 33 (1997), there is sufficient evidence to support the defendant's conviction of assault and battery by means of a dangerous weapon, a shod foot. Indeed, it was the testimony of a single witness, Brian Frederick, that the defendant kicked the victim twice in the head with a shod foot. That alone suffices, though the Commonwealth's brief details additional evidence supporting the jury's verdict.
The defendant was also convicted of assault and battery. He does not challenge that conviction on appeal.
We see no abuse of discretion in the denial by the motion judge, who was also the trial judge, of the defendant's motion for a new trial. According to his affidavit, trial counsel, after discussion with the defendant and the judge, and as noted on the record by the judge, decided not to seek a lesser included offense instruction on the assault and battery by means of a dangerous weapon count. Such an instruction was inconsistent with the defendant's defense that he did not kick the victim at all, and would have been contrary to the evidence that his foot was, indeed, shod. Consequently, the failure to request it did not amount to ineffective assistance of counsel. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). At trial, defense counsel agreed that the jury not be given an additional instruction on intent that also emphasized that a slight touching with a dangerous weapon was sufficient. Again, given the defense, that there was no kick, not that there was an accident—the decision not to request the additional instruction does not amount to ineffective assistance of counsel under Saferian.
Finally, the defendant argues that counsel should have requested an instruction on accident, but this claim was not raised below and we will not address it. See Commonwealth v. Zinser, 446 Mass. 807, 810–811 (2006). For these same reasons, the defendant has likewise not demonstrated that the judge's failure to give these instructions, sua sponte, created a substantial risk of a miscarriage of justice.
Judgments affirmed.
Order denying motion for new trial affirmed.