Com. v. Raedy

• Decision Date: 13 March 2007
• Docket Number: No. 06-P-43.,06-P-43.
• Citation: Com. v. Raedy, 862 N.E.2d 456, 68 Mass. App. Ct. 440 (Mass. App. 2007)
• Parties: COMMONWEALTH v. Thomas P. RAEDY.
• Court: Appeals Court of Massachusetts

862 N.E.2d 456

68 Mass. App. Ct. 440

COMMONWEALTH v.Thomas P. RAEDY.

No. 06-P-43.

Appeals Court of Massachusetts.

Plymouth.

Argued October 12, 2006.

Decided March 13, 2007.

Edward J. Juel for the defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, C.J., LAURENCE, & GREEN, JJ.

LAURENCE, J.

After a one-day jury trial in August, 2005, the defendant, Thomas P. Raedy, was convicted of one charge of assault by means of a dangerous weapon (in violation of G.L. c. 265, 15A), arising out of an incident at the home of Barbara Barry early in the morning of April 24, 2005.¹Raedy was sentenced to two and one-half years in the house of correction, with six months suspended pending completion of a four-year probation, drug counselling, and batterer's counselling.Raedy argues on appeal that (a) the trial judge erred in denying his motion for a required finding of not guilty because the evidence was insufficient to establish that he was the perpetrator of the assault; and (b) the conviction should be overturned because it was obtained through the Commonwealth's use of (unobjected-to) hearsay identification testimony, resulting in a substantial risk of a miscarriage of justice.We affirm.

Background.We summarize the evidence in the light most favorable to the Commonwealth.Commonwealth v. O'Laughlin,446 Mass. 188, 190, 843 N.E.2d 617(2006).On the evening of April 23, 2005, between five and ten people gathered at Barry's Hingham residence to socialize.Around midnight, Barry retired to one of the rear bedrooms of the house with her boyfriend, Matthew Bradbury, and the victim, Michael Griffin.At approximately 1:00 A.M., they heard "some commotion" from the front part of the house.Griffin heard shouting and banging that sounded like someone attempting to enter the residence.Barry testified that she recognized Raedy's voice yelling, "Who's the man of the house, who's the bouncer."²His voice sounded heated and upset.Barry had known Raedy for about one and one-half years, during part of which time he had been her boyfriend.Raedy had not been invited to the gathering and had not been present earlier in the evening.³

Griffin went part way down the hallway to investigate the cause of the commotion, then retreated to the back bedroom and closed the door.The people in the bedroom heard furniture being thrown and the sound of glass breaking in the hallway.Griffin then either opened the door again, or it was pushed open from the outside, and someone in the hallway reached inside the room and smashed a glass liquor bottle over Griffin's head.⁴Griffin testified that he could not see who struck him.Barry testified that she saw the assailant's white forearm wielding the bottle that struck Griffin, but that she could not see the assailant's face.⁵

Hingham police Officer Philip Emmott was dispatched to Barry's house within minutes after the attack.By the time he arrived on the scene, at approximately 1:12 A.M., Raedy and his companion were no longer at the house.Emmott testified that, moments after his arrival, Barry reported to him that Raedy (whom she identified by name) had "broke[n] a bottle over [Griffin's] face."Emmott testified that Barry also told him where Raedy lived, which led to unsuccessful police efforts to locate him at his residence.⁶

Discussion.Motion for a required finding of not guilty.Raedy argues that the trial judge erred in denying his motion for a required finding of not guilty on the charge of assault by means of a dangerous weapon.He advances not merely the general claim that there was insufficient evidence identifying him as the assailant, but also the specific contention that there was no evidence "that any person had witnessed the perpetrator commit the assault and battery."Raedy's thesis reflects a fundamental misconception of our law, which does not unalterably require percipient eyewitness testimony to the crime charged in order to submit the case to the jury for its verdict.SeeCommonwealth v. Lao,443 Mass. 770, 779-780, 824 N.E.2d 821(2005)("[T]he evidence of a defendant's guilt may be ... entirely circumstantial....Any weaknesses in ... identification [evidence] were for the jury to weigh, and did not constitute grounds for a required finding of not guilty").

The Commonwealth's evidence against Raedy warranted such submission here under applicable standards."In reviewing the denial of a motion for [a required finding of not guilty], we determine whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged."Commonwealth v. Campbell,378 Mass. 680, 686, 393 N.E.2d 820(1979), cert. denied sub nom.Doherty v. Massachusetts,502 U.S. 1094, 112 S.Ct. 1169, 117 L.Ed.2d 415(1992).Although "[t]he question of guilt must not be left to conjecture or surmise," circumstantial evidence, without the buttress of direct evidence, is, as noted above, "competent to establish guilt beyond a reasonable doubt," even in cases charging premeditated murder unwitnessed by anyone.Commonwealth v. Lodge,431 Mass. 461, 465, 727 N.E.2d 1194(2000), quoting fromCommonwealth v. Anderson,396 Mass. 306, 312, 486 N.E.2d 19(1985).Further, inferences "drawn from circumstantial evidence `need only be reasonable and possible; [they] need not be necessary or inescapable.'"Commonwealth v. Lodge,431 Mass. at 465, 727 N.E.2d 1194, quoting fromCommonwealth v. Bush,427 Mass. 26, 30, 691 N.E.2d 218(1998).

To prove the crime of assault and battery by means of a dangerous weapon under G.L. c. 265, § 15A(b), the Commonwealth had to establish that (1)the defendant intentionally touched the victim, however slightly; (2) the touching was unjustified; and (3) the touching was done by means of (i.e., with) a dangerous weapon.SeeCommonwealth v. Appleby,380 Mass. 296, 306-307, 402 N.E.2d 1051(1980).The only element at issue in this case was, and is, the identity of the offender.As noted earlier Raedy's central argument—that the Commonwealth's case failed because it presented no eyewitness who testified that he(or she) saw Raedy's face as he committed the assault—is meritless, because no such direct, contemporaneous evidence was required.See, e.g., Commonwealth v. Sullivan,436 Mass. 799, 806-807, 768 N.E.2d 529(2002)(witness's telephonic identification to police of former husband's voice on answering machine threatening her as his next shooting victim admissible);Commonwealth v. Lao,443 Mass. at 773, 778-779, 824 N.E.2d 821(identification of the defendant walking away from the victim's apartment building close to the time when the crime occurred, with the door to the building left open, allowed inference that defendant had just been in the victim's building);Commonwealth v. Ferrer,47 Mass. App.Ct. 645, 646-647, 715 N.E.2d 461(1999)(sufficient evidence although no one actually saw gun in defendant's hand or flash of gunshot from his immediate vicinity);Commonwealth v. Melton,50 Mass.App.Ct. 637, 645-646, 741 N.E.2d 69(2001), S.C.436 Mass. 291, 763 N.E.2d 1092(2002)(sufficient evidence even though no one directly identified defendant as shooter)."The identity of a third person always is a matter of inference and opinion....It presents a judgment [for the jury] which may vary indefinitely in the degree of its certainty...."Commonwealth v. Cappellano,392 Mass. 676, 679, 467 N.E.2d 843(1984), quoting fromCommonwealth v. Kennedy,170 Mass. 18, 24, 48 N.E. 770(1897)(Holmes, J.).

The precise question before us"is whether, after viewing the [Commonwealth's] evidence in the light most favorable to the prosecution, any rational trier of fact"(emphasis in original) could have found beyond a reasonable doubt that it was Raedy's arm that swung the injurious bottle.Commonwealth v. Latimore,378 Mass. 671, 677, 393 N.E.2d 370(1979), S.C.423 Mass. 129, 667 N.E.2d 818(1996), quoting fromJackson v. Virginia,443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).On the evidence presented by the Commonwealth, supported by reasonable inferences that the jury were entitled to draw, the jury could find beyond a reasonable doubt that Raedy was the perpetrator as charged.In sum, the jury could reasonably have concluded that someone barged into Barry's home at approximately 1:00 A.M. on April 24, 2005, and that it was that person, rather than any of the people who had been present throughout the evening, who was responsible for the violent intrusion into the back bedroom and assault on Griffin.The only people seen in the vicinity of the back bedroom at or near the time of the assault who were not present earlier were Raedy and his friend, Charles, who could not have been the assailant because he was black, while the attacker had a white forearm.From the nature of the heated yelling by the intruder—recognized as Raedy by Barry—and Raedy's past relationship with Barry, the jury could rationally infer that he was motivated by jealousy to attack whichever man he found sequestered with Barry.⁷

Raedy's presence in the immediate area of that crime at or near its commission was a significant additional factor supporting his guilt.See, e.g., Commonwealth v. Bush,427 Mass. at 30, 691 N.E.2d 218(defendant's voice heard from the area of the murder just before shots fired);Commonwealth v. Lodge,431 Mass. at 465-466, 727 N.E.2d 1194(defendant admittedly present at time of murder);Commonwealth v. Conkey,443 Mass. 60, 72-74, 819 N.E.2d 176(2004)(evidence established defendant entered victim's home near time of murder).Also telling were the facts that Raedy had left Barry's residence by the time police arrived within minutes after the assault and that he could not be found at his own residence—circumstances that the jury...