Opinion
13-P-1541
03-11-2015
COMMONWEALTH v. JAMES R. HARMON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, James R. Harmon, was convicted in a jury-waived trial of assault and battery after he punched a security guard. He challenges the sufficiency of the evidence and argues that counsel was ineffective for failing to argue a particular matter of law related to the charge. We affirm.
Sufficiency of the evidence. The defendant asserts that no rational fact finder could have found him guilty of assault and battery because the Commonwealth failed to prove that he acted with the requisite intent to strike the guard. We disagree.
The defendant was charged with two counts of assault and battery under G. L. c. 265, § 13A(a). The first count, against a woman, was dismissed for failure to prosecute.
On June 23, 2012, Springfield police brought the defendant to Baystate Hospital on a medical stretcher with his right arm handcuffed to the railing. The defendant was taken to an isolated room, where he got up and tried to yank his hand free. A uniformed security guard, Ernest Nemeth, entered the room, as did a police officer and staff members. Nemeth ordered the defendant to get back in the bed and attempted to put him there.
No testimony was produced to explain why the defendant was brought to the hospital. Defense counsel later told the judge that police became involved because of a domestic dispute.
Nemeth was the Commonwealth's only witness. He testified that the defendant looked at him, closed his fist, and struck him twice in the chest area. In an attempt to subdue the defendant, Nemeth struck him in the face. The defendant was then returned to the bed. Nemeth testified that he did not smell the defendant's breath.
The defendant testified that he had consumed "[a]bout a pint and a half" of liquor and that his feet were shackled together, but not to the bed. The defendant stated that he had a "panic attack" and did not recall striking anyone. He said that he had been hit "at least two times." The judge denied his motions for a required finding, found him guilty of assault and battery, and sentenced him to probation.
We review a sufficiency claim under the familiar Latimore standard, considering "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." Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
Assault and battery may be shown under two theories, either (1) "the intentional and unjustified use of force upon the person of another, however slight," or (2) the "intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another." Commonwealth v. Ford, 424 Mass. 709, 711 (1997) (citations omitted). "[A]ssault and battery is considered a typical general intent crime not requiring a specific intent to injure." Commonwealth v. Deschaine, 77 Mass. App. Ct. 506, 514 (2010).
Here, Nemeth's testimony was sufficient to prove the charges. A rational trier of fact, after considering all of the evidence, could conclude that the defendant intentionally and unjustifiably struck Nemeth, and reject the defendant's theory.
Ineffective assistance of counsel. The defendant argues that counsel was ineffective because he failed to adequately respond to a question from the judge concerning the second theory of assault and battery.
A claim of ineffective assistance of counsel should usually be raised in a new trial motion and not argued for the first time on direct appeal. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). An exception to the rule occurs "when the factual basis of the claim appears indisputably on the trial record." Id. at 811, quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
Here, the theory upon which the Commonwealth proceeded and argued was well supported by the evidence. The defendant has not shown that his counsel provided ineffective assistance. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (a defendant must show "that better work might have accomplished something material for the defense"); Commonwealth v. Valentin, 470 Mass. 186, 189-190 (2014), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (to establish ineffective assistance of counsel, a defendant must show "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and that such incompetence "has likely deprived the defendant of an otherwise available, substantial ground of defence").
For these reasons, and for substantially those in the brief of the Commonwealth, we affirm.
Judgment affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 11, 2015.