Opinion
12-P-1994
04-30-2015
COMMONWEALTH v. DANIEL VIDAL.
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 was convicted of assault and battery causing serious bodily injury. He now appeals, claiming that the judge of the Superior Court abused her discretion in denying the defendant's timely motion to sever this case from that of the codefendant, his sister. The defendant argues that the motion to sever should have been allowed on the basis that the defendant and his codefendant would present antagonistic and irreconcilable defenses at trial. See Commonwealth v. Stewart, 450 Mass. 25, 30-31 (2007). The codefendant intended to put forth a defense of mistaken identification, arguing that the Commonwealth could not meet its burden of proving beyond a reasonable doubt that she was present at and participated in the incident that formed the basis for the charges against her. By contrast, the defendant intended to argue defense of another (which is the defense that defendant's counsel informed the motion judge she intended to put forth on behalf of the defendant): that the victim's action of harassing or assaulting the codefendant caused the defendant to come to her aid and "precipitated and justified his actions." This defense would be inconsistent with his codefendant's defense that she was not present.
The jury found the codefendant guilty of assault and battery, a lesser included offense of a charged offense of assault and battery by means of a dangerous weapon causing serious bodily injury, and guilty of assault and battery causing serious bodily injury.
The defendant argues that his actions were precipitated by the victim's conduct toward the codefendant inside a bar. It is undisputed, however, that the assault on the victim took place sometime later, after the victim and his friends left the bar and as they were attempting to get into a taxicab, when the defendant came up to and punched the victim in the head. Viewing the evidence (and, indeed, even the representations of defendant's counsel with respect to the defendant's intended defense) in the light most favorable to the defendant, nothing appears that would support instructing the jury on defense of another. See Commonwealth v. Martin, 369 Mass. 640, 649 (1976) ("An actor is justified in using force against another to protect a third person when [a] a reasonable person in the actor's position would believe his intervention to be necessary for the protection of the third person, and [b] in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself"). As a consequence, we can find no abuse of discretion in the judge's denial of the defendant's motion to sever.
Judgment affirmed.
By the Court (Rubin, Brown & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 30, 2015.