Opinion
20-P-701 20-P-703
03-16-2022
COMMONWEALTH v. WERNER FIGUEROA-GARCIA (and a companion case[1]) .[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a night of drinking at the Las Vegas Bar and Restaurant in Lynn, the defendants, brothers Werner Figueroa-Garcia and Selvin Figueroa-Garcia, attacked and beat brothers Sergio Sanchez and Antonio Sanchez. Surveillance video recorded parts of assault, including the defendants kicking Sergio in the head as he lay defenseless on the ground. Sergio did not survive. The defendants were charged with Sergio's murder in the first degree, armed robbery of Antonio, and assault and battery of Antonio causing serious bodily injury. A Superior Court jury convicted Werner and Selvin of the lesser included offenses of murder in the second degree and simple assault and battery. On appeal, Werner claims error in the denial of his motions to suppress statements and for severance, the admission of a brick found near Sergio's body, and the jury instruction on involuntary manslaughter. Werner also challenges the sufficiency of the evidence of second-degree murder. In a separate appeal, Selvin claims that the trial judge improperly limited his cross-examination of Antonio and that he was entitled to a jury instruction on assault and battery as a lesser included offense of murder. We affirm.
Because the defendants and the victims share last names, we refer to them by their first names to avoid confusion.
Both defendants were acquitted of armed robbery.
These related appeals have not been consolidated but are both addressed in this opinion.
Background.
1. The murder.
We summarize the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), reserving some facts for our discussion of the issues. Sergio and Antonio arrived at the Las Vegas Bar and Restaurant sometime after 6 P..M. on May 13, 2017. Drunk and tired, Antonio left around midnight and began walking home. Antonio returned after Sergio called and told him that "a couple of people were causing him trouble."
a. The first attack.
Sergio met Antonio outside the restaurant just after 1 A.M. and identified three men near the front door -- Werner, Selvin, and their friend, Mario -- as the people causing him trouble. While Sergio spoke with one of the waitresses as she was preparing to leave for the night, Antonio told Werner, Selvin, and Mario that he and Sergio did not want any problems. They replied that Sergio was "a son of a bitch."
In later police interviews, Selvin identified the third person as their friend Mario. Mario did not testify at trial.
After the waitress departed, Sergio approached Werner, Selvin, and Mario, who were standing just outside the restaurant. Sergio spoke to them, but Antonio could not hear the conversation. Shortly thereafter, Werner stepped out of the restaurant's vestibule and punched Sergio in the face. A fistfight ensued. As Antonio tried to stop Selvin from joining the fight, Selvin punched Antonio multiple times. Antonio fought back. Werner knocked Sergio to the ground, then Werner and Selvin walked away. The fight was brief, and neither Antonio nor Sergio sustained serious injuries.
This was depicted in Exhibit 25, a compilation of surveillance video footage from nine cameras at five different locations.
b. The second attack.
After gathering themselves and searching for Sergio's glasses, Sergio and Antonio left the area of the restaurant on foot and in search of a taxi. Meanwhile, surveillance video footage showed Werner and Selvin fleeing the scene of the first attack; they ran up the street away from the bar, toward the Omar & Oscar jewelry store. As Antonio and Sergio walked in the same direction and stood at the entrance of the jewelry store's parking lot, Werner and Selvin approached them and attacked Sergio a second time. Antonio tried to stop Selvin, but Selvin punched Antonio "really hard," as Werner continued to beat Sergio. Antonio ran into the street to call 911. Selvin followed for a short distance before returning to the parking lot, where Werner continued to beat Sergio. As he spoke to the 911 operator, Antonio yelled at Werner and Selvin to stop and told them the police were coming. Werner and Selvin then left the scene of the second beating. When Antonio returned to the parking lot, he saw Sergio lying face down on the ground, shaking.
A recording of the 911 call was admitted and played for the jury.
c. The third attack.
About a minute later, Werner and Selvin returned to the parking lot. As they approached, they both put up the hoods of their sweatshirts. Selvin tapped Werner on the back, and they then moved quickly toward Antonio and Sergio. When Antonio saw Werner and Selvin, he retreated into the street. Werner and Selvin rushed Antonio and "beat [him] up." Antonio described a baseball-sized "brick or something like that" that Werner used to hit Antonio on the left side of the face, breaking Antonio's nose and teeth. Antonio escaped by jumping on the hood of a car and running down the street. Werner and Selvin then ran at Sergio, who lay motionless on the ground, and each kicked him once in the head; first Selvin, then Werner. Werner and Selvin then fled on foot.
2. The investigation.
Police officers arrived on the scene and found Sergio bloody and unresponsive. He had a "baseball size soft spot ... in the back of his skull" and struggled to breathe. One of the officers observed a red brick on the ground close to Sergio's body. Sergio was taken to the hospital, where he was pronounced dead later that morning. An autopsy revealed that Sergio died of subarachnoid hemorrhaging -- bleeding between the brain and its outer arachnoid membrane. His injuries were consistent with being punched, kicked, and hit with an object. Any one of the several blunt force injuries to the head could have caused Sergio's death.
The police seized the brick and it was admitted in evidence as Exhibit 31.
A few days after the murder, police arrested Werner and Selvin and executed a search warrant at their residence. Police seized clothing, including Werner's sweatshirt, which contained Sergio's blood and deoxyribonucleic acid (DNA). Werner and Selvin were interviewed after signing Miranda waivers. Werner and Selvin initially denied or minimized their involvement, but later acknowledged their participation when confronted with the surveillance video footage.
3. The defenses.
Neither defendant testified at trial. Werner called one witness, a pathologist who testified regarding Sergio's injuries and the cause of death. Through counsel, Werner acknowledged his participation in the fight, but denied any intent to kill Sergio. Selvin's counsel also argued that Selvin did not intend to kill Sergio, and that there was "no evidence of where Selvin was or what he was doing" when the fatal blow was struck. Selvin's counsel acknowledged that it was "reprehensible" for Selvin to kick Sergio in the head but argued that the kick did not cause Sergio's death.
Discussion.
1. Werner's appeal. a. Motion to suppress.
Werner argues that a judge other than the trial judge (motion judge) erred in denying his motion to suppress statements because the Commonwealth failed to prove that Werner knowingly, intelligently, and voluntarily waived his right to remain silent. More specifically, Werner claims that his "unclear responses . . . raised significant doubt as to [his] comprehension." We review the motion judge's decision under familiar standards. We accept his factual findings unless they are clearly erroneous. See Commonwealth v. Welch, 420 Mass. 646, 651 (1995). We defer to the judge's assessment of the credibility of the testimony taken at the evidentiary hearing on the motion to suppress, see Commonwealth v. Scott, 440 Mass. 642, 646 (2004), but we are in the same position as the motion judge when reviewing the video of the defendant's interrogation, and therefore make our own determination as to the weight of that evidence. See Commonwealth v. Novo, 442 Mass. 262, 266 (2004). We "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
Custodial statements are admissible at trial only if the Commonwealth proves beyond a reasonable doubt that the defendant made a knowing, intelligent, and voluntary waiver of his Miranda rights before speaking with police. Commonwealth v. Tremblay, 480 Mass. 645, 655-656 (2018). To make a knowing, intelligent, and voluntary waiver, the defendant must understand each of the Miranda warnings. See Commonwealth v. Libby, 472 Mass. 37, 54-55 (2015); Commonwealth v. Garcia, 379 Mass. 422, 429 (1980). While Miranda "does not require that its warnings be given in 'precise formulation, '" Commonwealth v. Lajoie, 95 Mass.App.Ct. 10, 13 (2019), quoting California v. Prysock, 453 U.S. 355, 359 (1981), it does require that the warnings "reasonably 'convey to [a suspect] his rights as required by Miranda.'" Duckworth v. Eagan, 492 U.S. 195, 203 (1989), quoting Prysock, supra at 361. In assessing whether the defendant understood his rights and thus knowingly and intelligently waived them, we consider "the totality of the circumstances, including the characteristics of the accused and the details of the interrogation." Commonwealth v. Hoyt, 461 Mass. 143, 153 (2011), quoting Commonwealth v. Silva, 388 Mass. 495, 501 (1983) .
Werner's affidavit in support of the motion to suppress stated that Werner was nineteen years old when he was arrested, with a second grade education and no prior experience with the criminal justice system. He did not speak English and could not read English or Spanish. Werner communicated with the police officers verbally and only in Spanish. The interview was conducted by two officers, one of whom spoke Spanish and served as an interpreter.
A Spanish transcript of the interview with an English translation, introduced in evidence at the hearing on the motion to suppress, shows the officers began by telling Werner that he had the right to remain silent and that anything he said could be used against him in court or other proceedings. The officers then told Werner that he had "the right to consult a lawyer before answering any questions and [to] have [the lawyer] present during the interview." Werner indicated that he understood. The officers further explained that "if you can't hire a lawyer and you want one the state will assign one to you without cost to you." Again, Werner indicated that he understood.
The officers next explained that Werner could waive his rights, stating:
"And this is what is most important. You can also give up the right to a lawyer and your right to remain silent and can answer any question or make any declaration that you want. If you decide to answer questions, you can stop at any time to consult a lawyer or for any reason. So if you decide that you want to talk to us and I ask you a question, and you don't want to answer it, you don't have to answer it, you don't have the obligation to answer it. ... [S]o having those rights in mind, [d]o you want to talk to us or not?"
Werner responded, "Mhm ... ok yes ehhh . . . because why are you detaining me." The officers said they would talk about that shortly, then handed Werner a Spanish-language Miranda waiver. Werner told them that he could not read. At that point, the officers informed Werner that he was being charged with murder and again asked him to sign the waiver. The following exchange ensued:
Officer: "I'm going to read this to you if it's for sure you want to talk with us, sign here, or put your mark, what, that is what I read to you."
Werner: "Aaaand . . . if I don't want to sign, do I have the right to an attorney?"
Officer: "If you don't if you don't want to talk to us they will give you a lawyer amhm . . . tomorrow when you go to court."
Werner: "Oh . . . and if I talk to you will they give me court oh . . . ."
Officer: "Yes, whatever happens, with such a serious crime, tomorrow you are going to go to court."
The officers proceeded to explain the booking procedure that would follow their conversation and told Werner that he would remain in jail that evening and go to court the next day. The officers then said, "So the decision to talk is yours. Know that, like I explained to you before, that if you decide to talk, and and [sic] at any moment you want to stop talking, you can stop or if . . ."; the defendant interjected, "That's fine ok." Werner then signed the Spanish-language Miranda waiver and answered the questions posed to him.
The officers' characterization "[a]nd this is what is most important," immediately before explaining that Werner could waive his right to remain silent, was improper. Werner's right to speak to the officers was not more important than his right to remain silent and the officers should not have suggested otherwise. But we consider this error in context and in light of the totality of the circumstances. But for that characterization, the Miranda warnings were accurate. The officers' tone was conversational and professional. There was no evidence that Werner was under the influence of any drugs or alcohol, and his responses indicated that he understood the Miranda warnings. We conclude from our de novo review of the recorded interview that the officers reasonably conveyed the substance of the defendant's rights, see Duckworth, 492 U.S. at 203, that Werner understood those rights, and that Werner knowingly, intelligently, and voluntary waived them.
Even were we to decide otherwise, the admission of Werner's statements was harmless. In reaching this conclusion, we consider, among other things, "the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; . . . the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; . . . and the weight or quantum of evidence of guilt." Commonwealth v. Mendes, 463 Mass. 353, 359 (2012), quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).
Here, Werner's statements were cumulative of other evidence and were not critical to the Commonwealth's case. The surveillance video footage and DNA evidence linked Werner to the attacks and to Sergio's death. The video footage showed Werner initiating the attacks on Sergio and kicking him in the head after he had lost consciousness. Accordingly, the prosecutor focused on the surveillance video footage in his closing argument and did not mention Werner's interview. By contrast, defense counsel used the recorded statement to Werner's advantage. He argued that Werner's words in the interview, "I never thought this would happen," supported his defense that Werner never intended to kill Sergio. In these circumstances, even if denial of the suppression motion had been error, it was harmless beyond a reasonable doubt. See Hoyt, 461 Mass. at 154.
Werner also argues that several statements made by police officers during the custodial interview were impermissible hearsay. Given the strength of the evidence, we are satisfied that admission of the officers' statements in the custodial interview, even if error, "had but very slight effect" on the jury's guilty verdict. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) .
b. Severance.
Werner claims that his trial should have been severed from Selvin's because he and Selvin pursued mutually antagonistic defenses. "Absent a constitutional requirement for severance, joinder and severance are matters committed to the sound discretion of the trial judge." Commonwealth v. McAfee, 430 Mass. 483, 485 (1999). Because Werner does not claim constitutional error, we review for abuse of discretion.
It is generally "presumed that '[w]hen criminal charges against two or more individuals arise out of the same criminal conduct, those individuals will be tried together'" (citations omitted). Commonwealth v. Watson, 487 Mass. 156, 167-168 (2021). Severance is required only where defenses are mutually antagonistic and irreconcilable such that the "sole defense of each [defendant] [is] the guilt of the other" (citation omitted) . Id. at 168. "It is not enough that a joint trial may cause a defendant to pursue a different strategy, or that a defendant would stand a better chance of acquittal if tried alone. Where some defenses overlap, while others are independent, a joint trial is appropriate" (citation omitted). Commonwealth v. DePina, 476 Mass. 614, 629 (2017).
Here, each defendant's primary defense was that he did not intentionally or knowingly kill Sergio. Werner's counsel argued that Werner "is not guilty of murder. He committed an involuntary manslaughter, and he did it after drinking all night." Selvin's counsel acknowledged that Selvin participated in the fight and even that Selvin kicked Sergio in the head when he was down. This was not a situation in which "acceptance of one party's defense [would have] precluded the acquittal of the other" (citation omitted) . Id. That Selvin also suggested in closing argument that Werner was the primary aggressor does not render their defenses mutually exclusive. The trial judge acted within her discretion in denying Werner's motion for severance.
c. Admission of the brick.
Werner argues that the trial judge erred in admitting the brick in evidence because the brick was "alleged without adequate foundation to have been the instrumentality of the decedent's death." We review the trial judge's evidentiary ruling for abuse of discretion. See Commonwealth v. Denton, 477 Mass. 248, 250 (2017).
The evidentiary foundation for admission of the brick was sufficient. First, a responding police officer testified that he observed the brick in the vicinity of Sergio's body. There was expert testimony that Sergio's injuries were consistent with having been struck with an object. And Antonio testified that Werner was carrying a baseball-sized "brick or something like that" and that Werner hit Antonio with it, breaking his nose and teeth. This evidence provided an adequate foundation for admission of the brick, which, in the circumstances here, was not substantially more prejudicial than probative. See Commonwealth v. Zitano, 23 Mass.App.Ct. 403, 407 (1987); Mass. G. Evid. § 403 (2021). The judge did not abuse her discretion.
Werner's arguments regarding gaps in the chain of custody go to the weight of the evidence, not its admissibility. See Commonwealth v. Sutherland, 93 Mass.App.Ct. 65, 71 (2018).
d. Involuntary manslaughter instruction.
Werner claims that the judge's jury instruction on involuntary manslaughter conflated the mental states for that offense and second-degree murder. We disagree. The judge's instructions closely tracked the language of the Supreme Judicial Court's Model Jury Instructions on Homicide (2018) and accurately explained the elements of each offense, properly distinguishing between the mental states required for involuntary manslaughter and second-degree murder. The judge instructed that "[i]nvoluntary manslaughter is an unlawful killing, unintentionally caused by a battery that the defendant knew or should have known endangered human life." See Commonwealth v. Fitzmeyer, 414 Mass. 540, 547 (1993). The judge correctly explained that a battery endangers human life if it "create[s] a high degree of likelihood that substantial harm [will] result to the victim." See Commonwealth v. Sneed, 413 Mass. 387, 394 (1992). Read as a whole, the judge's instructions clearly expressed that second-degree murder requires a more culpable mental state than involuntary manslaughter. See Commonwealth v. Lyons, 444 Mass. 289, 293 (2005) (discussing distinction between second-degree murder based on "plain and strong likelihood of death" and involuntary manslaughter based on "high degree of likelihood of substantial harm"). We presume that the jury followed those instructions. Commonwealth v. Silva, 482 Mass. 275, 290 (2019) .
Discerning no error in the instruction, we need not address Werner's claim that his trial counsel was constitutionally ineffective for failing to object to the instruction.
e. Sufficiency of the evidence.
Werner claims that the evidence was insufficient to prove he acted as a joint venturer with the mental state required for second-degree murder. See Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009). We consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Latimore, 378 Mass. at 677-678, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
Second-degree murder is an unlawful killing with malice aforethought. Commonwealth v. Casale, 381 Mass. 167, 171-172 (1980). Malice can be established by proof that "the defendant committed an intentional act which, in the circumstances known to the defendant, a reasonable person would have understood created a plain and strong likelihood of death." Commonwealth v. Earle, 458 Mass. 341, 346 (2010) . To be convicted of second-degree murder as a joint venturer, the defendant must have "knowingly participated in the commission of the crime . . . with the intent required for that offense." Zanetti, 454 Mass. at 468. The jury is permitted to "infer the requisite mental state from the defendant's knowledge of the circumstances and subsequent participation in the offense" (quotation and citation omitted) . Commonwealth v. Lendon, 35 Mass.App.Ct. 926, 927 (1993) .
Viewed in the light most favorable to the Commonwealth, the evidence was sufficient to establish that Werner killed Sergio with malice. Medical experts testified that Sergio died of subarachnoid hemorrhaging that could have been caused by any one of the blunt force injuries to the head that Sergio suffered. The surveillance video footage showed Werner and Selvin initiated three separate attacks on Sergio, kicking him in the head after he had already lost consciousness. From these facts, a rational jury could conclude that Werner knowingly participated in the attacks on Sergio and should have understood that the blows he was inflicting posed a plain and strong likelihood of death. See Commonwealth v. Fahey, 99 Mass.App.Ct. 304, 307 (2021); Commonwealth v. Costa, 18 Mass.App.Ct. 956, 957 (1984) .
2. Selvin's appeal.
a. Limitation on cross-examination.
Selvin argues that the trial judge erred in limiting the scope of his cross-examination of Antonio. Specifically, Selvin asserts that precluding inquiry into Antonio's hiring of a lawyer deprived him of his constitutional right to demonstrate Antonio's potential bias. The Commonwealth concedes that it was error to limit cross-examination in this way. Nevertheless, we decide the issue independently. See Commonwealth v. McGann, 484 Mass. 312, 323 (2020).
"The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights entitle a defendant to cross-examine prosecution witnesses for bias or prejudice." Commonwealth v. Chicas, 481 Mass. 316, 320 (2019) . A trial judge may not "bar all inquiry into the subject" when the defendant makes a "plausible showing" of "alleged bias." Commonwealth v. Moorer, 431 Mass. 544, 547 (2000), quoting Commonwealth v. Bui, 419 Mass. 392, 400-401 (1995).
Here, Selvin made a "plausible showing" that Antonio had a possible motive to minimize his role in the fights and to overstate Selvin's role. Specifically, Selvin directed the trial judge to two separate comments Antonio made about retaining a lawyer. First, before the police interviewed Antonio following the attacks, he asked them: "Should I get a lawyer?" Second, Antonio refused to speak to Selvin's investigator and told him that he needed to check with his attorney first. This proffered evidence at least plausibly suggested that Antonio was concerned about potential criminal liability, that he had retained counsel in contemplation of a civil suit, or both. We agree with the defendant that it was error to bar all inquiry regarding Antonio's retention of counsel.
As this is a preserved error of constitutional dimension, we review to determine whether the error was harmless beyond a reasonable doubt. See Commonwealth v. Vardinski, 438 Mass. 444, 452 (2003); Commonwealth v. Wilson, 94 Mass.App.Ct. 416, 432 (2018). We are satisfied that it was. As we have noted, the evidence in this case was strong. Although Antonio testified regarding the confrontations with Werner and Selvin, the Commonwealth relied heavily on the surveillance video footage, which corroborated Antonio's testimony in all material respects. The jury's decision, therefore, did not rest particularly heavily on Antonio's credibility. Contrast Commonwealth v. Polk, 462 Mass. 23, 39 (2012) (reversal warranted where "Commonwealth's case rested wholly on [complainant's] credibility"); Vardinski, 438 Mass. at 451 (reversal warranted where "Commonwealth's entire case rested on [eyewitness's] direct testimony identifying the defendant").
Ultimately, Selvin's defense was that the Commonwealth had failed to prove beyond a reasonable doubt the malice required for second-degree murder. But it was undisputed that Selvin kicked Sergio in the head while he lay unconscious; the jury saw it on the video, and Selvin admitted as much in argument. Even were the jury to discredit Antonio's testimony, there was ample other evidence that Selvin knowingly participated in the attacks and acted with malice.
b. Instruction on assault and battery as a lesser included offense.
Selvin claims that the trial judge erred in denying his request to instruct the jury on assault and battery as a lesser included offense of second-degree murder. Specifically, he argues that "the jury could have determined that Selvin was not a joint venturer to the murder but that he kicked [Sergio] at one point."
"Assault and battery is a recognized lesser included offense of murder," Commonwealth v. Miller, 457 Mass. 69, 81 (2010), citing Commonwealth v. Myers, 356 Mass. 343, 350 & n.l (1969), and a defendant is entitled to an instruction on a lesser included offense when "the evidence at trial presents a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser" (citation omitted). Commonwealth v. Russell, 470 Mass. 464, 480 (2015). Accord Commonwealth v. Taylor, 486 Mass. 469, 485 (2020). Here, we are not persuaded that there was a rational basis for acquitting Selvin of second-degree murder and convicting him of assault and battery instead. See Myers, 356 Mass. at 351 ("Such a verdict could only have resulted from a distorted and palpably unrealistic view of the evidence"). Contrary to Selvin's assertion, the Commonwealth was not required to prove that Selvin's "kick contributed to [Sergio's] death." As Selvin was tried as a joint venturer, the Commonwealth was required to prove only that he knowingly participated in the attack on Sergio and did so with malice. Zanetti, 454 Mass. at 467-468. For reasons we have previously discussed, the surveillance video footage introduced at trial was powerful evidence of Selvin's malice. See Commonwealth v. Johnson, 425 Mass. 609, 611 (1997) (sufficient evidence of malice where defendant punched and kicked victim, watched joint venturer stab victim, and kicked victim in face as victim lay on floor dying). In short, "[w]hen it is obvious . . . that the risk of physical harm to the victim created a plain and strong likelihood that death will follow, an instruction on [assault and battery as a lesser included offense of murder] is not required." Commonwealth v. Pierce, 419 Mass. 28, 33 & 35 n.7 (1994). See also Commonwealth v. Sanchez, 100 Mass.App.Ct. 644, 652 (2022).
Finally, this is not a case where the jury was left with an all or nothing choice between conviction or acquittal. Contrast Commonwealth v. Gilliard, 46 Mass.App.Ct. 348, 351 (1999). The jury here were properly instructed on involuntary manslaughter, a lesser included offense that was consistent with Selvin's theory of defense. Nevertheless, the jury found him guilty of second-degree murder. In these circumstances, where the jury had the opportunity to find Selvin guilty of the lesser included offense of involuntary manslaughter but rejected that option, we cannot reasonably conclude that, if given the opportunity, the jury would have convicted Selvin only of assault and battery. Accordingly, Selvin suffered no prejudice.
Judgments affirmed.
The panelists are listed in order of seniority.