Opinion
No. 11–P–1995.
2012-07-26
COMMONWEALTH v. Andrew S. THOMPSON.
By the Court (TRAINOR, GRAINGER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On September 21, 2011, after a jury trial, the defendant, Andrew S. Thompson, was convicted of one count of reckless assault and battery on a correction officer, G.L. c. 127, § 38B( b ); and one count of intentional assault and battery, G.L. c. 265, § 13A( a ). The events leading to the convictions took place on October 24, 2010, when the defendant was incarcerated in a house of correction with his brother, Peter Thompson (Peter), and one Abbot Hughlett. The defendant was accused of repeatedly striking Hughlett with his fists and knees with the help of Peter, and was also accused of striking Colleen Slattery, a correction officer, when she attempted to break up the fight. Regarding the assault on Slattery, the jury expressly found the defendant guilty of the crime only under a recklessness theory.
The defendant appeals the convictions, arguing that (1) the Commonwealth presented insufficient proof to satisfy the bodily injury requirement of the reckless assault and battery with regard to the attack on Slattery, (2) the trial judge failed to instruct the jury that they were required to find beyond a reasonable doubt that Slattery was a correction officer for the purposes of G.L. c. 127, § 38B( b ), (3) the judge improperly excluded evidence of Peter's prior relationship and altercations with Hughlett, thus depriving the defendant of his right to fully present his “defense of others” theory, (4) the judge's instruction to the jury on defense of others was confusing, and implied that the defendant himself must have had a right to self-defense, and (5) the judge improperly admitted evidence of Peter's prior convictions for the purposes of impeachment. We conclude that the arguments are unpersuasive, and we affirm the convictions.
Discussion. Where the defendant did not make a motion for a required finding of not guilty, our standard of review for an insufficiency of the evidence claim is whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 140 n. 8 (2001). In reviewing such a claim, “[w]e consider ‘whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime ...’ beyond a reasonable doubt.” Commonwealth v. McGillivary, 78 Mass.App.Ct. 644, 649 (2011), quoting from Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
Assault and battery, whether unarmed or committed by means of a dangerous weapon, may be proved under two separate theories. See Commonwealth v. Ford, 424 Mass. 709, 711 (1997). The first is intentional assault and battery, or “the intentional and unjustified use of force upon the person of another, however slight.” Commonwealth v. Porro, 458 Mass. 526, 529 (2010). The second theory of assault and battery, and the one at issue here, is “the intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another.” Commonwealth v. Cruzado, 73 Mass.App.Ct. 803, 807 (2009), quoting from Commonwealth v. Burno, 396 Mass. 622, 625 (1986). To prove a reckless assault and battery, “an uncontested touching is not sufficient.” Porro, supra. Rather, the Commonwealth must prove that the injury “interfered with the health or comfort of the victim. [The injury] need not have been permanent, but it must have been more than transient and trifling.” Burno, supra at 627. The defendant challenges the sufficiency of the evidence only as to the injury requirement.
Here, four photographs were submitted in evidence showing the bruise Slattery received on her jaw after being struck by the defendant.
The jury were also shown a videotape of the altercation in which Slattery claimed to have been struck. Though Slattery did not testify directly to any physical pain she felt as a result of the bruise, she did testify that after her shift she visited the emergency room at the suggestion of her coworkers, and that “fortunately [she] did not have a broken jaw.”
The defendant in his brief describes the bruise as “dime-sized .” Judging from the photographs in evidence this appears to be close to an accurate description, although it is possible that the bruise is slightly larger.
Slattery's use of the word “fortunately” to describe the fact that her jaw was not broken is further indication that the injury was “more than transient and trifling,” see Burno, 396 Mass. at 627, because it indicates that she thought there was a possibility that the injury was more serious.
We conclude that the injury Slattery suffered in this case is about as close to transient and trifling as an injury can be while still sustaining a conviction of reckless assault and battery. Nevertheless, we conclude that the jury could have properly inferred that the bruise on Slattery's jaw was caused by a reckless act by the defendant, and that the injury interfered with Slattery's health and comfort. The evidence was therefore sufficient to support a conviction of reckless assault and battery under G.L. c. 127, § 38B( b ). See Cruzado, 73 Mass.App.Ct. at 807–808.
With regard to the defendant's second argument, since the defendant did not object to the judge's instruction on the reckless assault and battery charge, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Zimmerman, 441 Mass. 146, 150 (2004). See also Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967) (“An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[ ]’ the guilty verdict”). To satisfy a conviction under G.L. c. 127, § 38B( b ), the Commonwealth must prove the defendant's knowledge of the fact that the victim was a correction officer. See Commonwealth v. Deschaine, 77 Mass.App.Ct. 506, 515 (2010). Here, the judge erroneously failed to instruct the jury on this requirement. However, we conclude that the error could not have influenced the guilty verdict. The facts left no question that the defendant knew that Slattery was a correction officer, and the defendant never made a contrary argument at trial. Slattery, who was on duty and in uniform at the time of the fight, attempted to restrain the defendant once the fight was underway, and testified that during “the whole time,” she was “giving [the defendant] and his brother several orders to stop resisting.” Furthermore, the defendant apologized to Slattery after the altercation, indicating that he was aware of her position. There is no chance that the incomplete instruction materially influenced the guilty verdict. See Alphas, supra.
With regard to the defendant's third argument, we review a judge's decision to admit or to exclude evidence of a victim's prior violent conduct that tends to show reasonable apprehension on the part of the defendant under an abuse of discretion standard. See Commonwealth v. Campbell, 51 Mass.App.Ct. 479, 481 (2001). “[A] defendant ... may introduce evidence of recent, specific instances of the victim's violent conduct, known to the defendant at the time of the [alleged crime], to support his assertion that he acted justifiably in reasonable apprehension of bodily harm.” Commonwealth v. Fontes, 396 Mass. 733, 735–736 (1986) (in homicide context). “A defendant's constitutional right to present evidence does not ‘detract[ ] from a judge's authority to assess the relevance of proffered evidence and to exclude evidence that is of marginal relevance.’ “ Campbell, supra, quoting from Commonwealth v. Merola, 405 Mass. 529, 540 (1989).
In this case, while the defendant's brother Peter was on the stand, defense counsel attempted to elicit testimony from Peter describing prior altercations that Peter had had with Hughlett while in prison. There was no foundation established to show the defendant's knowledge of any prior acts by Hughlett.
The Commonwealth objected to questions posed to Peter about the prior altercations, and the judge sustained the objections. The judge was within his discretion to conclude that the line of questioning failed to raise the issue of reasonable apprehension on the part of the defendant, and thus did not err in excluding the testimony as irrelevant. See G.L. c. 233, § 23F; Campbell, 51 Mass.App.Ct. at 481–482.
The defendant did not testify at trial, and Peter was not asked about the defendant's history with Hughlett.
With regard to the defendant's fourth argument, as the defendant did not object to the judge's instruction on defense of another, we review any error in the instruction under the substantial risk of a miscarriage of justice standard. See Alphas, 430 Mass. at 13. We conclude that no such risk was present here. The judge's instruction was flawed in that it could have been interpreted to direct the jury to determine Peter's mindset in addition to the defendant's. In fact, the relevant mindset for a proper defense of another instruction is what the defendant believed the third party's situation to be when he intervened. See Commonwealth v. Young, 461 Mass. 198, 208 (2012), citing Commonwealth v. Martin, 369 Mass. 640, 649 (1976). However, although the instruction was flawed, the evidence in this case overwhelmingly established that the defendant used excessive force in his attack on Hughlett. When the attack was interrupted by Slattery, the defendant and his brother were standing above the bent-over Hughlett and “punching and kneeing” him in the face. As Slattery attempted to restrain first Peter and then the defendant, whichever brother she was unable to restrain continued to beat Hughlett as the other urged him on. The justification of defense of another is lost if excessive force is used, and here overwhelming evidence of such force was presented at trial through Slattery's testimony and the videotape of the fight. See Commonwealth v. Wolmart, 57 Mass.App.Ct. 780, 783 (2003). We conclude that the error in the instruction could not have materially influenced the guilty verdict. See Alphas, supra.
With regard to the defendant's final argument, for substantially the reasons stated in pages 25–28 of the Commonwealth's brief, and after consideration of the relevant factors listed in Commonwealth v. Little, 453 Mass. 766, 773 & n. 4 (2009), we conclude that the judge was within his discretion when he admitted Peter's prior convictions for the purposes of impeachment. See Commonwealth v. Leftwich, 430 Mass. 865, 869 (2000).
Judgments affirmed.