Opinion
15-P-34
05-09-2017
COMMONWEALTH v. Warner FABIAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Warner Fabian, was indicted for assault and battery by means of a dangerous weapon causing serious bodily injury, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A, stemming from his use of a metal pole in a physical altercation with his neighbor, and for assault and battery causing serious bodily injury, and assault and battery, G. L. c. 265, § 13A, stemming from the use of his fist. Following a jury trial, the defendant was convicted of all four offenses, which were charged in separate indictments and not as lesser included offenses. On appeal, the defendant claims that (1) several of his convictions must be vacated as duplicative, because the trial judge did not instruct the jury that the convictions must be based on separate and distinct acts, and (2) the motion judge improperly denied his motion for a new trial based on ineffective assistance of counsel. We conclude that the defendant's conviction of assault and battery by means of a dangerous weapon must be vacated as duplicative of his conviction of assault and battery by means of a dangerous weapon causing serious bodily injury, and that his conviction of assault and battery must be vacated as duplicative of his conviction of assault and battery causing serious bodily injury. We affirm the remaining judgments and the order denying the defendant's motion for a new trial.
1. Duplicative convictions. Convictions of both greater and lesser included offenses "must rest on separate and distinct acts." Commonwealth v. King, 445 Mass. 217, 225 (2005). "[A] lesser included offense is one whose elements are a subset of the elements of the charged offense." Commonwealth v. Kelly, 470 Mass. 682, 702 (2015) (quotation omitted). Relevant to this case, assault and battery by means of a dangerous weapon is a lesser included offense of assault and battery by means of a dangerous weapon causing serious bodily injury. Commonwealth v. Beal, 474 Mass. 341, 347 (2016). Likewise, assault and battery is a lesser included offense of assault and battery causing serious bodily injury. See G. L. c. 265, § 13A.
In cases involving lesser included offenses, the judge must "instruct[ ] the jury explicitly that they must find separate and distinct acts underlying the different charges." Kelly, 470 Mass. at 699 (quotation omitted). If the judge does not give such an instruction, "the conviction of the lesser included offense must be vacated as duplicative, even in the absence of an objection, if there is any significant possibility that the jury may have based convictions of greater and lesser included offenses on the same act or series of acts." Id. at 700.
In the present case, the trial judge did not give a separate and distinct acts instruction. The judge explained that "[e]ach of the four charges is a form of ... assault and battery. Two involve the defendant's alleged use of his fists ... and two involve his alleged use of a dangerous weapon ... that being a metal pole." The judge stated that the charges were brought in "separate indictments," and did not give a lesser included offense instruction. He defined "serious bodily injury" as "permanent disfigurement, loss, or impairment of a bodily function, limb or organ, or a substantial risk of death."
The prosecutor argued in her closing that the defendant's use of both the pole and fist caused "serious bodily injury" to the victim. She pointed to the victim's misaligned jaw, inability to close one eye completely, and hearing loss. The prosecutor also alleged that the pole and fist caused "other injuries" to the victim, such as his broken ribs and contusions on his chest and arms. Because the defendant did not request a separate and distinct acts instruction, we review his claim for a substantial risk of a miscarriage of justice. Kelly, 470 Mass. at 697.
The prosecutor argued:
"[T]he Commonwealth proved to you[ ] that the defendant committed an assault and battery by means of a dangerous weapon ... causing serious bodily injury, that dangerous weapon being the metal pole. You may find that the defendant committed an assault and battery causing serious bodily injury, his fist. Both of those circumstances [the] Commonwealth proved to you that ... [the victim] suffered permanent disfigurement of his face and impairment of bodily functions ... his jaw and his eye and his hearing loss. You may find and the Commonwealth also proved to you the defendant committed an assault and battery by means of a dangerous weapon, that metal bar, causing other injuries to [the victim]. Recall the testimony about broken ribs and his facial injuries. You may find, and the Commonwealth proved to you, that the defendant committed an assault and battery. Once again his fist. Causing other injuries to [the victim]. You recall the photographs and the testimony of contusions on his chest and arm."
The judge did not indicate in any way that the charges involving serious bodily injury and those not involving proof of any injury must be based on separate and distinct acts. See Commonwealth v. Thomas, 400 Mass. 676, 680-682 (1987). Although the judge differentiated between the charges involving the pole and fist, he did not "explain which of the alleged acts corresponded to each of the charges." Beal, 474 Mass. at 347. See Kelly, 470 Mass. at 699 (judge failed "to instruct on separate and distinct acts, or, at the very least, to make clear to the jury which alleged acts corresponded to which charges"). Contrast Commonwealth v. Gouse, 461 Mass. 787, 799 (2012) (judge "made perfectly clear" that indictments for assault and battery by means of a dangerous weapon [shod foot] and assault and battery [fist] "were based on separate acts"); Commonwealth v. Black, 50 Mass. App. Ct. 477, 479 (2000) (judge used examples that "paralleled the evidence"). Although the prosecutor briefly mentioned in her closing that the pole and fist caused "other injuries" to the victim, she did not articulate which blows did and did not cause serious bodily injury, or convey that the jury must find independent acts to convict of all four offenses. Contrast Commonwealth v. Mamay, 407 Mass. 412, 418 (1990) ("prosecutor consistently highlighted the different actions of the defendant"). The indictments also did not state the conduct that formed the basis for each charge.
Assault and battery by means of a dangerous weapon requires proof that (1) the defendant touched the victim; (2) the defendant intended to do so; and (3) the touching was done with a dangerous weapon. See Instruction 6.300 of the Criminal Model Jury Instructions for Use in the District Court (2009). Assault and battery by means of a dangerous weapon causing serious bodily injury requires proof of one additional element: (4) that the touching caused serious bodily injury to the victim. See Model Jury Instruction 6.320. See also G. L. c. 265, § 15A.
Assault and battery requires proof that (1) the defendant touched the victim; (2) the defendant intended to do so; and (3) the touching was either likely to cause bodily harm or offensive and done without consent. See Model Jury Instruction 6.140. Assault and battery causing serious bodily injury requires proof of one additional element: (4) that the touching caused serious bodily injury to the victim. See Model Jury Instruction 6.160. See also G. L. c. 265, § 13A.
The court in Kelly affirmed the defendant's conviction of assault and battery as not duplicative of his conviction of assault and battery for the purpose of intimidation, however. 470 Mass. at 702-704. The court reasoned that, although "the jury were not given the option of convicting [the defendant] of assault and battery as a lesser included offense," the jury "must" have based the convictions on separate and distinct acts considering the facts of the case. Id. at 703-704. Three justices disagreed with this result, however, concluding that there was a "significant possibility" that the jury based the convictions on the same act, even though the assault and battery charge was not presented as a lesser included offense. Id. at 704-707.
The judge's statements that the charges were brought in separate indictments did not "cure the error." Beal, 474 Mass. at 348. See Kelly, 470 Mass. at 701 ("That the judge instructed the jury several times that they must consider each indictment separately did not equate to informing the jury that these [greater and lesser included] offenses must be factually based on separate and distinct acts").
Under these circumstances, there is a "significant possibility" that the jury convicted the defendant of assault and battery by means of a dangerous weapon causing serious bodily injury and assault and battery by means of a dangerous weapon based on the same act or series of acts: the blow(s) to the head with the pole. Kelly, 470 Mass. at 701. The same possibility exists that the jury convicted the defendant of assault and battery causing serious bodily injury and assault and battery based on the same act or series of acts: the punch(es) to the head. See Black, 50 Mass. App. Ct. at 478-479 ("Unless the judge cautions otherwise, there is a theoretical possibility that the jury could base both ... convictions on the same act. If there is no indication in the record that such a possibility is insubstantial, the conviction of the lesser included offense will be vacated to avoid the possible miscarriage of justice").
The fact that the jury could have found separate and distinct acts based on the judge's definition of "serious bodily injury" and the prosecutor's closing description of the victim's injuries does not change this result. "We need not consider whether the evidence would support a finding of ... separate incidents in this case, because the judge did not instruct the jury that the convictions must be based on separate acts." Thomas, 400 Mass. at 681. See Kelly, 470 Mass. at 702 ; Beal, 474 Mass. at 348 ; Commonwealth v. Howze, 58 Mass. App. Ct. 147, 150 (2003). A "substantial risk of a miscarriage of justice was created by the potential confusion, and reversal of the conviction[s] ... is required on this basis alone." Id. at 152.
We cannot say that the same confusion existed with respect to the charges relating to the use of the pole and fist. Both the judge and the prosecutor "made perfectly clear" that the two charges involving the use of a dangerous weapon corresponded with the defendant's alleged use of the pole, and the other two charges corresponded with the use of his fist. Commonwealth v. Gouse, 461 Mass. at 799 (although judge did not use "exact words ‘separate and distinct act,’ " he reiterated that assault and battery by means of dangerous weapon charge referred to use of shod foot and assault and battery charge referred to use of fist). As such, we vacate only the defendant's convictions for assault and battery by means of a dangerous weapon and assault and battery as duplicative.
Two witness testified that they saw the defendant hit the victim with both the pole and his fist. See Mamay, 407 Mass. at 419.
2. Ineffective assistance of counsel. The defendant next claims that the motion judge, who was also the trial judge, improperly denied his motion for a new trial based on ineffective assistance of counsel. He claims that trial counsel was ineffective by failing to consult a forensic pathologist to opine on whether the victim's injuries were caused by a pole or fist, and by failing to call the defendant's girl friend as a witness at trial.
"[W]e examine the motion judge's conclusion only to determine whether there has been an abuse of discretion or other error of law." Commonwealth v. Staines, 441 Mass. 521, 530 (2004). "We give special deference to the action of a motion judge who was also the trial judge." Ibid.
Defense counsel's conduct did not fall "measurably below that which might be expected from an ordinary fallible lawyer" or "deprive[ ] the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Lane, 462 Mass. 591, 596 (2012), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant's girl friend was easily impeachable, and the "strategic and tactical" decision not to call her was not "manifestly unreasonable." Commonwealth v. Garvin, 456 Mass. 778, 783 (2010). Moreover, defense counsel strongly put forth the defense that the defendant did not use the pole in the fight. He effectively cross-examined the two witnesses who testified that they saw the defendant use the pole. The pathologist that appellate counsel consulted also could not opine that all of the victim's injuries were not likely caused by the pole, which might have weakened the defense if presented at trial.
Because the affidavits submitted in support of the defendant's motion for a new trial did not raise any "substantial issue[s]," the motion judge did not abuse his discretion in denying the defendant's motion without an evidentiary hearing. Commonwealth v. Smith, 449 Mass. 12, 24 (2007).
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Conclusion. The judgments of conviction of assault and battery by means of a dangerous weapon and assault and battery are vacated, the verdicts are set aside, and the indictments are dismissed. The remaining judgments and the order denying the defendant's motion for new trial are affirmed.
So ordered.
Vacated in part and affirmed in part.