Opinion
13-P-1430
11-10-2014
COMMONWEALTH v. PATRICK E. RIVERA.
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 jury trial in District Court, the defendant was convicted of assault and battery. He was acquitted of five other charges. On appeal, the defendant principally argues that his conviction must be overturned because the judge did not sua sponte provide the jury a specific unanimity instruction with regard to the assault and battery charge. We affirm.
The defendant was acquitted of carrying a firearm without a license, discharging a firearm within 500 feet of a building, possession of ammunition without an FID card, assault by means of a dangerous weapon (gun), and assault by means of a dangerous weapon (knife).
All of the charges arose from the defendant's presence at a party at a residence in Taunton. The defendant arrived at the party with three female friends even though he had not been invited. After the defendant had been there awhile, one of the hosts of the party, Matthew Savini, asked him to leave. When the defendant refused to do so, Savini and his friend Sean Doherty physically removed him from the premises in what Savini described as a "struggle." All five of the eyewitnesses to this incident (including Savini, Doherty, and three witnesses called by the defendant) portrayed Savini and Doherty as the parties who initiated the altercation. Doherty specifically admitted that in addition to pushing the defendant out of the house, he threw a punch at him. Doherty also characterized the defendant's actions as "resist[ing]" being expelled. According to him, the defendant "shoved" him during their interaction, but did not do "anything else" to him.
Hours later, the defendant returned to the party with at least three other males. Two of the other males drew guns, and the men rushed Savini and what remained of the partygoers. According to Savini, one of the armed men cornered him and held a gun to his head, while three others (including the defendant) went to "beat up Sean Doherty." In the course of this "struggle," one of the men "pistol whipped" Doherty in the head, and one of them stabbed him in the hand. The two men with the guns fired a number of shots into the air, and then they and the others scattered and drove off.
The testimony of Savini and Doherty varied somewhat as to the details of the chaotic events, e.g., exactly where Doherty was when the three men attacked him. Although Doherty did not see which of the men stabbed him, he stated that the defendant was holding a knife when he charged him (the only evidence that placed a knife in the defendant's hand). There was no testimony that the defendant himself held a gun.
In arguing that a specific unanimity instruction should have been given, the defendant points out that the jury potentially could have convicted him of the assault and battery based on numerous different actions: the "shove" before he left the party, and the pistol whipping, stabbing, and any other actions the men took in "beating up" Doherty after he returned. Because the defendant never requested a specific unanimity instruction, our review is limited to whether the judge's failure to give one sua sponte created a substantial risk of a miscarriage of justice. Commonwealth v. Federico, 70 Mass. App. Ct. 711, 719 (2007).
Although the defendant is correct that his allegedly shoving Doherty during the first incident theoretically could support an assault and battery conviction, it is highly unlikely that the jury convicted him on that basis. Indeed, as the defendant acknowledged at oral argument, by the time the Commonwealth presented its closing argument, it was not contending that the defendant's actions before he left the party constituted an assault and battery. Instead, the Commonwealth relied on how the defendant was treated during the first incident as the explanation for why he came back to the party to attack Doherty.
The defendant also accurately contends that the trial evidence provided some reason for the jury to doubt Doherty's specific claim of having seen the defendant holding a knife when he was charging him (thus in turn raising doubt about whether it was the defendant who stabbed him during the melee). In fact, doubt about the accuracy of Doherty's recollection on this specific point may well explain why the jury acquitted the defendant of assault by means of a dangerous weapon (knife). However, regardless of the precise actions the defendant took after returning to the party, there was overwhelming evidence that he came back to avenge his earlier treatment by Doherty, and that he was an active participant in a group attack on Doherty during which Doherty was beaten and stabbed. Under these circumstances, it is extremely unlikely that the presence of a specific unanimity instruction would have altered the jury's verdict. The absence of such an instruction therefore could not have created a substantial risk of a miscarriage of justice.
As came out at trial, when Doherty was interviewed by police the aftermath of the attack, he did not mention seeing a knife in the defendant's hands.
Under Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009), one can be convicted of a crime if he "knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." The judge charged the jury in accordance with Commonwealth v. Zanetti. Moreover, apart from whatever direct role the defendant played in the pistol whipping and stabbing, Savini testified that he saw the defendant himself "beating [Doherty] up."
We need not decide whether the defendant would have been entitled to a specific unanimity instruction had he requested one.
The defendant also argues that Savini and Doherty were inadequately counseled as to their rights against self-incrimination (on the theory that their testimony might incriminate them with regard to assault and battery or underage drinking). He speculates that had they received adequate advice about their rights, they might not have provided the testimony that served as the basis of his conviction. This argument requires little discussion, because the defendant has no standing to assert Savini and Doherty's rights. Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 629-630 (2010).
Even if the defendant were correct that he could raise such issues if he could demonstrate that the absence of adequate warnings somehow rendered his trial fundamentally unfair, he has made no such showing here.
--------
Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Clerk Entered: November 10, 2014.