Commonwealth v. Marinho

• Decision Date: 14 January 2013
• Docket Number: SJC–11058.
• Citation: 464 Mass. 115,981 N.E.2d 648
• Parties: COMMONWEALTH v. Alessandro M. MARINHO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 115
981 N.E.2d 648

COMMONWEALTH
v.
Alessandro M. MARINHO.

SJC–11058.

Supreme Judicial Court of Massachusetts,
Barnstable.

Submitted Sept. 4, 2012.
Decided Jan. 14, 2013.

[981 N.E.2d 651]

Amy M. Belger for the defendant.

Elizabeth Sweeney, Assistant District Attorney, for the Commonwealth.

Jennifer Klein, Wendy Wayne, & Jeanette Kain, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

[464 Mass. 116]On February 17, 2010, a jury in the District Court convicted the defendant, Alessandro M. Marinho, and a codefendant, Justin Parietti, each of one count of assault and battery causing serious bodily injury pursuant to G.L. c. 265, § 13A ( b ). The defendant was acquitted of assault and battery with a dangerous weapon pursuant to G.L. c. 265, § 15A ( b ).¹ He was sentenced to two and one-half years in a house of correction, nine months to serve with the balance suspended.

The defendant filed a motion for a new trial pursuant to Mass. R.Crim. P. 30(b),

[981 N.E.2d 652]

as appearing in 435 Mass. 1501 (2001), alleging ineffective assistance of counsel for his lawyer's failure (1) to advise him of the immigration consequences of an assault and battery conviction, (2) to explore a plea resolution, and (3) to advocate for a sentence that might have mitigated such immigration consequences. The motion was denied following a nonevidentiary hearing. The defendant filed timely appeals from both the conviction and the denial of his motion for a new trial. We transferred the case here on our own motion.

The defendant alleges error in (1) the denial of his motion for a required finding of not guilty; (2) the denial of his motion to dismiss based on the loss of exculpatory evidence; (3) the judge's failure to instruct the jury on multiple defendants; and (4) the denial of his motion for a new trial. ² We affirm the conviction and the order denying the defendant's motion for a new trial.

1. Background. The jury could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). We reserve other details for discussion of specific issues.

[464 Mass. 117]On December 22, 2008, Sam Scherer and his girl friend, Jessica Cardinal, were at Cardinal's apartment in Wellfleet. Cardinal shared the apartment with Parietti, who lived in an upstairs room. In Parietti's room was a television that another man, Zack Store, owned and had left in the apartment.

That evening, Store went to the apartment and had a discussion with Scherer in which Store agreed to sell the television to Scherer. Store and Scherer retrieved the television from Parietti's room and installed it in the living room. Store left the apartment.

Shortly thereafter, Parietti arrived at the apartment with two friends, the defendant and Hunter Carwile. After Parietti saw that the television was no longer in his room, he and Scherer stepped outside and a physical fight ensued. Testimony about the particulars of the fight differed. Suffice it to say that the two men fell to the ground with Scherer positioned on top of Parietti.³ Parietti began making choking sounds. The defendant entered the fray when Scherer was still on top of Parietti, and he began to fight Scherer. After the fight, Scherer was brought to Cape Cod Hospital but then was transported to Beth Israel Deaconess Medical Center. He had a fractured nose, cheekbones, and orbital (eye socket) bones. As a consequence of the fight, Scherer had reconstructive surgery on his face. His vision was affected by the altercation; he had double vision for three to four months after the assault, and his vision at the time of trial had not been restored to normal. The defendant is not a United States citizen and was in the United States illegally. At the time of this appeal, the defendant had been deported.

2. Motion for a required finding of not guilty. The defendant contends that the judge erred in denying his motion for a required finding of not guilty. Specifically, he argues that the evidence was insufficient to establish that (1) Scherer's injuries were “serious” within the meaning of G.L. c. 265, § 13A ( b ) ( i ), and (2) the defendant caused Scherer's injuries. The issue whether the evidence was sufficient to establish that Scherer's injuries were “serious”

[981 N.E.2d 653]

was preserved for appellate review by a timely objection at trial, and by the defendant's motion for a required [464 Mass. 118]finding of not guilty. We thus review the denial of this aspect of the defendant's motion under the standard set forth in Commonwealth v. Latimore, supra at 677–678, 393 N.E.2d 370. The issue of the sufficiency of the evidence of causation was not preserved. We review this unpreserved error under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Melton, 436 Mass. 291, 294 n. 2, 763 N.E.2d 1092 (2002).

In reviewing the sufficiency of the evidence, we must look at the evidence in a light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements beyond a reasonable doubt. Commonwealth v. Latimore, supra at 676–677, 393 N.E.2d 370. The Commonwealth need only present evidence that allows a jury to infer essential facts, Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989), and the fact “[t]hat contradictory evidence exists is not a sufficient basis for granting a motion for a required finding of not guilty.” Commonwealth v. Merry, 453 Mass. 653, 662, 904 N.E.2d 413 (2009). As the defendant had two reasons for contesting the denial of the motion for a required finding, we take each in turn.

a. Serious bodily injury. “[S]erious bodily injury” is defined as “bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.” G.L. c. 265, § 13A ( c ). Loss or impairment of a bodily function need not be permanent to meet the definition of “serious bodily injury.” See Commonwealth v. Baro, 73 Mass.App.Ct. 218, 219–220, 897 N.E.2d 99 (2008) (punches and kicks to head resulting in broken bones and temporary loss of sight for one and one-half months constitutes “serious bodily injury”); Commonwealth v. Jean–Pierre, 65 Mass.App.Ct. 162, 162, 164, 837 N.E.2d 707 (2005) (punches resulting in broken jaw and several weeks of tube-feeding constitutes “serious bodily injury”).

The defendant argues that there was insufficient evidence that Scherer suffered loss or impairment of a bodily function, limb, or organ. He relies on the hospital records and claims that they offer no evidence of impairment to Scherer's vision. The defendant paints an incomplete picture of the evidence of Scherer's significant vision loss following the violent confrontation with the defendant. Although some of the medical records do not reflect that Scherer's vision was impaired, other records state [464 Mass. 119]that Scherer presented with “blurred vision” and “vision changes.” Scherer also testified to his impaired vision following the fight with Parietti and the defendant. He testified that he had to return to the hospital multiple times after undergoing facial reconstruction surgery to ensure that his vision kept improving. He stated that he experienced double vision for three or four months following the altercation and that he still was having trouble seeing at the time of trial, which was over a year after the fight. This testimonial evidence of significant and lasting vision impairment, even if it conflicts with some of the medical records, indicates that Scherer's injuries were not—as the defendant suggests—mere “facial injuries resulting from a fistfight.” To the contrary, the evidence was such that a reasonable jury could have found “serious bodily injury” within the meaning of G.L. c. 265, § 13A ( b ) ( i ).

b. Whether the defendant caused Scherer's injuries. The defendant also asserts that the judge erred in denying his motion for a required finding of not guilty

[981 N.E.2d 654]

because there was insufficient evidence to establish that the defendant's and not Parietti's actions caused Scherer's injuries. He suggests that the combination of the defendant's acquittal of assault and battery with a dangerous weapon and the fact that the defendant entered the fight after Parietti is such that no reasonable jury could have found the essential causation element.

At the close of all the evidence, the Commonwealth requested and the judge denied a joint venture jury instruction. Therefore, the burden was on the Commonwealth to prove causation beyond a reasonable doubt as to the defendant. Because the defendant did not preserve the causation issue, we review the denial of the motion to determine whether any error resulted in a substantial miscarriage of justice. Commonwealth v. Melton, supra. We conclude that there was none.

The Commonwealth may establish causation in an assault and battery case by proving beyond a reasonable doubt that the defendant either directly caused or “directly and substantially set in motion a chain of events that produced” the serious injury in a natural and continuous sequence. See Instruction 6.160 of the Criminal Model Jury Instructions for Use in the District Court (2009). Cf. [464 Mass. 120]Commonwealth v. Smiley, 431 Mass. 477, 489 n. 9, 727 N.E.2d 1182 (2000). The judge correctly instructed the jury on these methods of proving causation. Although the evidence of who did what to whom was conflicted, it did not thereby become insufficient. The jury could have found that the defendant caused serious injury (fractured orbital bones and double vision) to Scherer by kicking Scherer in the head while Scherer was holding Parietti on the ground, thereby rendering Scherer unconscious. The fact that the defendant was acquitted on the assault and battery with a dangerous weapon charge ⁴...