Opinion
13-P-955
04-10-2015
COMMONWEALTH v. EDWARD F. HARRINGTON.
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
On a charge of assault and battery by means of a dangerous weapon, the defendant was convicted of the lesser included offense of assault and battery after a bench trial in the District Court. The defendant now appeals, asserting that there was insufficient evidence to support his conviction. We affirm.
The defendant made a motion for a required finding of not guilty at the close of the Commonwealth's case, renewed at the close of the evidence, which was denied by the judge.
The defendant asserts that the judge did not properly weigh the credibility of the witnesses at trial. He claims that the judge did not consider the inconsistencies in the testimony from the victim and his girlfriend. While there may have been inconsistencies on the precise details of the event, these were thoroughly explored on cross-examination and each witness testified consistently about the basic events of the assault. Second, the defendant claims that the judge did not properly consider the victim's bias in his credibility determination. The victim's potential pecuniary interest in the case was thoroughly explored during the cross-examination of the victim's girlfriend and emphasized during closing arguments. The judge, sitting as fact-finder, found the Commonwealth's evidence credible, which he was entitled to do and we decline to disturb his findings on appeal. See Commonwealth v. John, 442 Mass. 329, 335 (2004). Further, the defendant was convicted of the lesser-included offense of assault and battery, demonstrating that the judge carefully considered the evidence in the case.
The victim's personal injury attorney was present in the gallery at trial.
In colloquy with the defense attorney for a codefendant during his closing argument, the judge acknowledged the potential effect of the personal injury attorney's presence on both the victim's testimony and the bar owner's testimony.
Finally, the defendant asserts that he was not identified at trial as one of the assailants. The victim and his girlfriend both testified that three men were kicking the victim while he was on the ground. The girlfriend specifically identified the defendant as one of the assailants. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), there was sufficient evidence identifying the defendant as the assailant presented at trial.
While the victim admitted on cross-examination that he could not see his assailants' faces while he was on the ground, he testified that he was positive at least three people were kicking him. On direct examination he testified as follows: Q: "Did you see who was kicking you?" A: "As I got up later on I did, yes." Q: "Okay. Who was kicking you?" A: "Both of the Harrington brothers, and Richard Ciapinni."
Judgment affirmed.
By the Court (Grainger, Brown & Milkey, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 10, 2015.