Opinion
09-P-1170
04-02-2012
COMMONWEALTH v. JUAN MEJIA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of armed assault with intent to kill, assault and battery, and assault and battery by means of a dangerous weapon. He argues that the judge improperly instructed the jury on the theory of joint venture and erroneously denied his motion for a required finding of not guilty. He also appeals from the denial of his motion for a new trial. We reverse the conviction for the crime of armed assault with intent to kill and affirm the other convictions.
The defendant was indicted for armed assault with intent to murder. He was acquitted of that charge and convicted of the lesser included offense of armed assault with intent to kill.
Background. The jury could have found the following facts: On March 16, 2005, at approximately 8:00 P. M., Jeff Joyce (Joyce) was walking on Oak Street in Clinton. A car pulled up and someone called to Joyce. Joyce approached the car and leaned into the driver's side rear window. Joyce felt a pain in his hand so he pulled away from the car. Several people got out of the car and began to kick and punch him. During the ensuing melee, Joyce was stabbed several times. The Commonwealth's theory of prosecution was that the defendant either committed or was a joint venturer in the stabbing. The defendant testified that he was at the scene, but denied participating in the assault. The defense offered evidence that a codefendant had a knife, but that none of the other occupants of the car had knowledge of the knife prior to the stabbing. The defendant was convicted as a joint venturer of the offense of armed assault with intent to kill.
It is not disputed that the defendant was a passenger in the car. It is unclear from the evidence whether he was in the front or back seat.
The verdict slip gave the jury the option of designating the defendant as a principal, a joint venturer, or both.
Discussion. 1. Instruction on joint venture. The defendant objected to the judge's refusal to instruct the jury that, to find him guilty as a joint venturer of armed assault with intent to kill, the Commonwealth was required to prove beyond a reasonable doubt that he knew one of his companions was armed with a dangerous weapon. The judge's failure to so instruct the jury was error. See Commonwealth v. Claudio, 418 Mass. 103, 111 (1994); Commonwealth v. Melendez, 427 Mass. 214, 215-216 (1998); Commonwealth v. Charles, 57 Mass. App. Ct. 595, 597-598 (2003). We review for prejudicial error, that is: 'whether there is a reasonable possibility that the error might have contributed to the jury's verdict.' Commonwealth v. Alphas, 430 Mass. 8, 23 (1999).
The Commonwealth argues that there was no prejudicial error because the defendant was convicted of assault with intent to kill, not armed assault with intent to kill. The docket sheet states that the defendant was convicted under G. L. c. 265, § 29. That statute punishes assault with intent to kill, a crime which does not require the Commonwealth to prove that the defendant was armed with a dangerous weapon. Thus, the Commonwealth argues, the judge was not required to instruct the jury that the defendant had to know that the principal was armed with a dangerous weapon. See Melendez, supra ('[J]oint venture guilt for the commission of a crime involving the use of a dangerous weapon may not be imposed on a defendant unless he knew that one of his companions was armed').
However, the docket sheet states that the defendant was convicted of armed assault with intent to kill. The verdict slip identified the lesser included offense as 'armed assault with intent to kill,' see Commonwealth v. Andino, 34 Mass. App. Ct. 423, 427 (1993) (noting that 'the verdict slip, if not of binding legal significance, is at least evidence of the jury's intended verdict '), and the jury stated in open court that it found the defendant guilty of 'armed assault with intent to kill.' 'Our law is clear' that the only valid verdict is one 'given in and assented to, in open court, as the unanimous act of the jury, and affirmed and entered of record, in the presence and under the sanction of the court.' Commonwealth v. Harris, 23 Mass. App. Ct. 687, 692 (1987), quoting from Lawrence v. Stearns, 11 Pick. 501, 502 (1831) (internal citations omitted). The defendant was therefore convicted of armed assault with intent to kill, which is a lesser included offense of armed assault with intent to murder. Commonwealth v. Vick, 454 Mass. 418, 430 (2009). Because both crimes involve the use of a dangerous weapon, the judge was required to instruct the jury on the Commonwealth's burden of proving beyond a reasonable doubt that the defendant knew one of his companions was armed. Melendez, supra; Charles, supra at 597. His failure to do so necessitates a new trial on that indictment. Melendez, supra at 216.
The judge properly instructed the jury on the elements of armed assault with intent to murder. He instructed on the lesser included offense of 'assault with intent to kill,' distinguishing the crimes by the presence or absence of mitigation. The 'armed' element of armed assault with intent to murder was never addressed again, and the judge referred to the lesser included offense later in his charge as 'armed assault with intent to kill.'
2. Required finding of not guilty. The defendant argues that the judge erroneously denied his motion for a required finding of not guilty on the charge of assault and battery by means of a dangerous weapon. He claims that there was insufficient evidence that he wielded a shod foot so as to render it a dangerous weapon. In reviewing a ruling on a motion for a required finding of not guilty, we analyze the evidence in the light most favorable to the Commonwealth to determine whether the Commonwealth has presented sufficient evidence to permit the jury to infer the existence of the essential elements of the crime charged. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
He also argues that the judge erroneously denied his motion for a required finding of not guilty of armed assault with intent to murder. Because he did not move at trial for a required finding of not guilty with respect to that charge, the issue is waived.
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Joyce testified that the group of individuals, including the defendant, repeatedly kicked him. He stated that they had sneakers or boots on their feet, and described being kicked all over his body including his head, which was 'stomped' on. Debra Rouleau, who was watching the scene from the second floor of her home, also testified that she saw the occupants of the car exit the car and surround the victim. She testified that they all began kicking him while he was on the ground. 'The kicking described in the evidence was not so minimal as to foreclose an inference that the shod feet of the defendants were being used as dangerous weapons,' and such evidence 'was adequate . . . to permit the jury to find beyond a reasonable doubt that the victim was kicked with shod feet in a manner which was capable of causing serious bodily injury.' Charles, supra at 599. While the defendant contends that there was insufficient evidence that a shod foot was used as a dangerous weapon, '[r]esolution of th[at] question[] is invariably for the fact finder [.]' Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984).
The defendant also posits that his motion for a required finding of not guilty should have been allowed because the jury convicted on that charge as a principal, and there was no evidence that he was wearing shoes or that he assaulted Joyce by kicking him. However, there was ample evidence that the defendant was part of a group that kicked Joyce with shod feet. The Supreme Judicial Court has 'renounce[d] the false distinction between a principal and an accomplice, and ha[s] recognized that the accomplice commits the crime no less than the principal.' Commonwealth v. Zanetti, 454 Mass. 449, 464 (2009). There was no error in the judge's denial of the defendant's motion.
3. Motion for a new trial. In a well reasoned, thorough decision, the motion judge addressed all issues raised by the defendant's motion for a new trial alleging ineffective assistance of counsel. We agree with the motion judge that the defendant has failed to show that his trial counsel's performance fell below that of an ordinary, fallible lawyer. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
4. Conclusion. The judgment of conviction of armed assault with intent to kill is reversed and the verdict is set aside. The judgments of conviction of assault and battery and assault and battery by means of dangerous weapon are affirmed. The order denying the motion for a new trial on the grounds of ineffective assistance of counsel is affirmed. The matter is remanded to the Superior Court for a new trial on the charge of armed assault with intent to kill and for resentencing on the other charges.
So ordered.
By the Court (Sikora, Carhart & Sullivan, JJ.),