Opinion
No. 14–P–1541.
12-09-2016
COMMONWEALTH v. Brittany A. GRESSER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Brittany A. Gresser, was tried by jury in the Superior Court with two codefendants on charges of mayhem, assault and battery, and assault and battery by means of a dangerous weapon. The charges arose from an altercation in a parking lot involving the three codefendants and two victims. One victim suffered a dislocated shoulder, while the other received a serious cut on her cheek. The defendant was convicted on one indictment for assault and battery. On appeal, she argues that: (1) the evidence did not warrant a joint venture instruction; (2) she was denied her right to a speedy trial; and (3) the judge erred in allowing the Commonwealth's motion for joinder. We affirm.
She was found not guilty on one indictment for mayhem, two indictments for assault and battery by means of a dangerous weapon, and an additional indictment for assault and battery.
The defendant's direct appeal and her appeal from the order denying her motion for a new trial were consolidated in this court. On appeal, she raises no issues concerning the denial of her motion for a new trial.
1. Joint venture. The Commonwealth presented sufficient evidence to support an instruction on joint venture where trial testimony established that the defendant and one of her codefendants together participated in the altercation against the victims. See Commonwealth v. Zanetti, 454 Mass. 449, 467–468 (2009) ("When there is evidence that more than one person may have participated in the commission of the crime, judges are to instruct the jury" on joint venture). Moreover, the judge's instruction on joint venture was essentially identical to the model jury instruction provided in Zanetti. See id. at 470–471, citing Massachusetts Superior Court Criminal Practice Jury Instructions § 4 .4 (Mass. Cont. Legal Educ.1999 & Supp.2003).
One witness testified that "it first started off like a big brawl. It was the five of us together."
That there may have been no prior plan between the defendant and her codefendants to attack the victims is irrelevant. "There is no need to have an ‘anticipatory compact.’ It is enough that ‘at the climactic moments the parties consciously acted together in carrying out the criminal endeavor.’ " Commonwealth v. Lugo, 89 Mass.App.Ct. 229, 233 (2016), quoting from Commonwealth v. Young, 35 Mass.App.Ct. 427, 435 (1993). The defendant's reliance on Commonwealth v. Longo, 402 Mass. 482 (1988), and Commonwealth v. Drew, 4 Mass.App.Ct. 30 (1976), is accordingly misplaced.
2. Speedy trial. The defendant was arraigned on June 12, 2013. She moved for a speedy trial, pursuant to rule 36 of the Massachusetts Rules of Criminal Procedure, 378 Mass. 909 (1979), on May 6, 2014. The motion was denied a few weeks later. Her trial commenced on July 16, 2014. We discern no error in the motion judge's denial of the defendant's motion. The delay totaled thirty-five days, all of which were excludable under rule 36(b) by reason of pending pretrial motions, including the defendant's speedy trial motion, the reasonable delay caused by the joinder of the defendant's case, and the delay caused by the defendant's motion for a protective order. See Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992) ; Commonwealth v. Rodgers, 448 Mass. 538, 540 n.4 (2007).
The motion judge and trial judge were not the same.
Such delay is excludable as here where the defendant has failed to demonstrate any cause for severance.
The defendant moved for a protective order from June 30, 2014, to July 15, 2014, because a "critical witness" would be out of town during that time.
3. Joinder. "[D]ecisions pertaining to severance and joinder are left to the sound discretion of the trial judge. Separate trials for codefendants are required only in cases where the defenses are mutually antagonistic or irreconcilable. Severance is not required when the trial strategies of the codefendants are merely inconsistent." Commonwealth v. Diaz, 448 Mass. 286, 290 (2007) (citations omitted). Here, as in Diaz, which we consider controlling in all material respects, the defenses were not mutually antagonistic or irreconcilable. On the contrary, the codefendants shared a common trial strategy of establishing that it was the two victims who were the aggressors, and the three codefendants were either defending themselves or attempting to keep the peace. See Commonwealth v. McAfee, 430 Mass. 483, 485–486 (1999). The judge did not abuse his discretion in allowing the motion for joinder.
The defendant's suggestion that she could not have been convicted as a joint venturer had the cases been severed is incorrect. See Commonwealth v. Cifizzari, 397 Mass. 560, 575 (1986). As to any other claims raised by the defendant, we have not overlooked them, but conclude they do not require discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.
Order denying motion for new trial affirmed.