Opinion
11-P-205
03-13-2012
COMMONWEALTH v. MICHAEL SHOCKETT.
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
After a jury trial, a Newton man was convicted of assault and battery on his neighbor during a dispute over the noise created by his lawnmower. He appeals, arguing that his renewed motion for a required finding of not guilty was wrongly denied, and that the prosecutor created a substantial risk of a miscarriage of justice by improperly referring to matters not in evidence during his closing argument. We affirm.
The jury heard evidence that the defendant was mowing his lawn at approximately eight o'clock in the evening, when his neighbor, Scott Dalitzky, approached him and asked him twice to turn off the lawn mower. The defendant did not respond and Dalitsky put his hand, holding his cell phone, on the handle of the lawn mower. Thereafter, the defendant pushed Dalitsky's hand away, knocking his cell phone to the ground, punched him in the head, and knocked his glasses off. Dalitsky put his arms up in defense and the defendant 'just started swinging.' Dalitsky testified that 'the next thing [he] knew [he] was on the ground in the middle of the street with [the defendant] on top of [him].' A neighbor intervened and Dalitsky was taken to the hospital where he spent two nights; he was treated for a broken arm.
The neighbor, Tony Cartwright, also testified that he was driving down the street when he saw a 'commotion on the sidewalk.' He had known the defendant since he was a child; he saw the defendant punch Dalitsky four or five times in the upper body and the head. When the defendant tried to kick Dalitsky, they both lost balance and fell into the street with the defendant on top. As Cartright drove up, the defendant got up and walked to the sidewalk.
Cartwright did not recognize the two until he saw Dalitsky lying in the road.
A police officer arrived: Dalitsky was in the middle of the street 'yelling that he was hurt and his shoulder was killing him.' Dalitsky told the officer that he had attempted to grab the throttle of the defendant's lawn mower to shut it down. The defendant told the officer that Dalitsky had attacked him when he was mowing the lawn and that he had punched him in self-defense.
This evidence, viewed in the light most favorable to the Commonwealth, is 'sufficient for a reasonable jury to infer the existence of each essential element' of assault and battery beyond a reasonable doubt. Commonwealth v. Rivera, 460 Mass. 139, 141 (2011). See Commonwealth v. Latimore, 378 Mass. 671, 676-77 (1979). The defendant, who did not testify, argues that he was acting lawfully in defense of his property and himself. However, the trial judge gave clear and accurate instructions on both theories, instructions to which the defendant did not object, and does not challenge on appeal. Apparently, neither his self-defense nor his defense of property argument raised a reasonable doubt in the minds of the jurors, who were charged with making that decision. We agree that the motion for a required finding of not guilty was properly denied.
In response to a question from the jury about the elements of assault and battery, the judge, at the defendant's request, read the self-defense and defense of property instructions a second time.
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The defendant also argues that the prosecutor erroneously referred to facts not in evidence during his closing argument. In response to the defendant's argument that Dalitzky was intoxicated at the time of the incident, the prosecutor stated 'We don't know how much a pint of vodka affects Mr. Dalitzky. There is no evidence to that. And I'd ask you, the jury, to remember alcohol can affect people in different ways. A pint of vodka can affect Mr. Dalitzky in a certain way compared to somebody else. A hundred and ten pound person would be affected by a pint of vodka differently than a hundred and ninety pound person.' There was no objection.
The fact that alcohol may affect different people in different ways is common knowledge. See Douillard v. LMR, Inc., 433 Mass. 162, 166 (2001). To the extent that the prosecutor's weight comparison went beyond the supporting trial evidence, we do not see a substantial risk of a miscarriage of justice. The judge instructed the jury that the arguments of counsel are not evidence, and the evidence against the defendant was overwhelming. See Commonwealth v. Randolph, 438 Mass. 290, 298 (2002).
Judgment affirmed.
By the Court (Berry, Trainor & Hanlon, JJ.),