Commonwealth v. Nee

• Decision Date: 19 March 2013
• Docket Number: No. 11–P–1952.,11–P–1952.
• Citation: 985 N.E.2d 118,83 Mass.App.Ct. 441
• Parties: COMMONWEALTH v. Matthew NEE.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 441

985 N.E.2d 118

COMMONWEALTH

v.Matthew NEE.

No. 11–P–1952.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 5, 2013.

Decided March 19, 2013.

Madeline Weaver Blanchette for the defendant.

Allison Callahan, Assistant District Attorney, for the Commonwealth.

Present: GRASSO, BROWN, & GREEN, JJ.

GRASSO, J.

A jury found the defendant guilty of affray, a common-law crime of ancient vintage not previously examined in our appellate jurisprudence.¹On appeal from his conviction,²the defendant argues (1) the proof was insufficient, (2) the jury instruction was erroneous, (3)the prosecutor's closing argument was improper, (4) defense counsel rendered constitutionally ineffective assistance, and (5) the crime of affray is unconstitutional as applied to him.We affirm.

Background.Viewed in the light most favorable to the Commonwealth, seeCommonwealth v. Latimore,378 Mass. 671, 676–677, 393 N.E.2d 370(1979), the jury could have found the following.On the evening of November 12, 2010, John Monaco, a Harvard University police officer, attended a football game in Boston between St. John's Preparatory School and Boston College High School.After the game, Monaco, who used to coach at St. John's, went to the Boston Beer Garden in the South Boston neighborhood of Boston for dinner and drinks with a few friends, including Pat Marks, Michael Pitt, and Vincent Miserendino.They arrived around 10:00 p.m. and left around 11:45 p.m.

After leaving the restaurant, Monaco waited on the sidewalk for Miserendino, the designated driver, to return with the car.As Miserendino approached, Monaco began walking down the sidewalk in his direction.At the same time, a young man in a white sweatshirt and white hat entered the sidewalk.Monaco and the young man bumped into each other as they passed, and Monaco offered an apology.In response, the young man threw a punch that hit Monaco in the left side of his head.

Monaco reacted by grabbing the young man's sweatshirt.As he did, another young man, taller and darker in complexion, approached Monaco and said, “What are you doing?He's only a little kid.”Monaco responded, “He just took a swing at me.”In a matter of seconds, Monaco found himself surrounded by ten or so individuals.Marks, who was now on the scene, tried to assist Monaco by moving into the swelling group.Sensing the situation was getting out of hand, Monaco stepped next to some parked cars and said, “What are you guys doing?I'm a police officer....I'm going to call 9–1–1.”With that announcement, the group, now numbering about ten to fifteen, started running in the direction of the M Street Park, a public park (the park).

Although Monaco had sustained no physical injury, he called 9–1–1 on his cellular telephone to report the assault.Meanwhile, Marks and Pitt chased after the group.Monaco followed, talking to a State police dispatcher as he proceeded.After walking about a block, Monaco came to the park.There, he observed Marks and Pitt surrounded by a group of young people.Marks, Pitt, and the youths were yelling back and forth.³The group, which ranged in age from fifteen to eighteen, was larger in number than before and included both the young man who had assaulted Monaco earlier and the taller young man who had intervened.

Monaco entered the park intending to detain his recent assailant until the police arrived.As he did, he was set upon and hit from all sides.Monaco “blacked out” for an instant, and next became aware that blood was pouring from his nose, which was broken.As he looked up, he saw the blue lights of a police cruiser entering the park.

Although Monaco could not identify any of his assailants, Pitt, who was himself engaged in fending off members of the group, observed three or four of them kicking Monaco as he lay on the ground.In particular, Pitt saw one of them, later identified as the defendant, rise up over Monaco with a fist to strike him in the head.Pitt ran over, tackled the defendant, and wrestled him to the ground.As Pitt struggled with the defendant and held on to his waist, the blue lights of an arriving police cruiser caused the young people to scatter.Only the defendant, restrained by Pitt, remained.

Boston police Officer Edward Curley was one of the first officers to arrive.He separated Pitt and the defendant and began his investigation into the melee.Curley observed the injury to Monaco's nose, but no injuries to the defendant.After speaking with Monaco and Pitt, Curley arrested the defendant.

Discussion.The crime of affray traces its pedigree to British common law.“An Affray is a publick offense to the terror of the King[']s subjects, and ... so called, because it affrighteth and maketh men afraid....”3 Coke, Institutes *158.See also 4 Blackstone, Commentaries *145 (fighting in public place “to the terror of his majesty's subjects” is offense against public peace).No less now than historically, affray is an offense against the public, an aggravated disturbance of the public peace that arises when two or more people fight in public and cause terror to those present.SeeState v. Weekly,29 Ind. 206, 207(1867).Whether at common law, or by codification, in most jurisdictions the essential ingredients of affray are: (1) fighting by or between two or more persons, (2) in some public place, (3) so as to cause alarm to the public.SeeGamble v. State,113 Ga. 701, 702–703, 39 S.E. 301(1901).

General Laws c. 277, § 39, provides in pertinent part, “The following words, when used in an indictment, shall be sufficient to convey the meaning herein attached to them:...Affray.—Fighting together of two or more persons in a public place to the terror of the persons lawfully there.”As a result of Part II, c. 6, art. 6, of the Massachusetts Constitution, which carried into effect the common law of England, including common-law crimes, until altered or repealed by the Legislature or declared invalid by the court, see, e.g., Commonwealth v. Chapman,54 Mass. 68, 13 Metcalf 68 (1847), affray remains a common-law crime, but with a definitional overlay adding the requirement that the persons to whom terror is caused be “lawfully there.”⁴SeeCommonwealth v. Jarrett,359 Mass. 491, 494–495, 269 N.E.2d 657(1971)(statute that defines common-law crime does not make crime statutory).Despite its ancient provenance, neither the Supreme Judicial Court nor this court has examined the crime of affray in a reported decision either before or after the Legislature's addition of a statutory definition.SeeSt. 1899, c. 409, § 12;R.L.1902, c. 218, § 38.Against this backdrop, we consider the specific challenges raised by this defendant.

1.Sufficiency of evidence.At trial, the defendant maintained the evidence was insufficient to establish the identity of the individual who struck the blows that injured Monaco.More particularly, the defendant argued that it was the young man in the white sweatshirt, not he, who attacked Monaco.⁵On appeal, the defendant's insufficiency claim follows a slightly different tack.He argues that the Commonwealth's proof was insufficient to establish that the defendant was “fighting,” and caused terror to someone “lawfully there,” necessary components of affray.Whether we viewthe defendant's appellate claim as preserved error, or review it for a substantial risk of a miscarriage of justice, we discern no insufficiency of evidence.SeeCommonwealth v. McGovern,397 Mass. 863, 867–868, 494 N.E.2d 1298(1986)(findings based on legally insufficient evidence create substantial risk of miscarriage of justice).

Pitt's testimony alone suffices to establish that the defendant engaged in an affray—fighting together with other persons in the park to the terror of persons lawfully there.Pitt observed the defendant in the group of three or four youths kicking Monaco as he lay on the ground and rising above Monaco's body to strike him with a fist.Pitt was sufficiently alarmed to tackle the defendant, wrestle him to the ground, and hold him until the police arrived notwithstanding punches and kicks directed at him by others in the group.

Whether the defendant was “fighting” does not merit serious discussion.“ ‘Fighting’ is descriptive of conduct which by its very nature involves the use of physical force or violence or any threat to use such force or violence if that threat is objectively possible of immediate execution.”Commonwealth v. Sinai,47 Mass.App.Ct. 544, 548, 714 N.E.2d 830(1999).Likewise, the evidence sufficed to establish that the defendant was one of two or more persons fighting “together” in a public place, to the terror of persons lawfully there.The defendant, the youth in the white sweatshirt, the tall youth with dark skin, and ten or more others formed together to attack Monaco, Pitt, and Marks, who were lawfully present in a public park.That the defendant and his group caused terror to Monaco, Pitt, and Marks by surroundingand attacking them is reasonably inferable from the evidence, including Mark's attempt to come to Monaco's aid.SeeCommonwealth v. Lao,443 Mass. 770, 779, 824 N.E.2d 821(2005).See alsoCarwile v. State,35 Ala. 392, 394(1860)(injury to public peace arises not so much from terror actually produced as likelihood of fighting in public place to produce it).

We discern nothing in the legislative definition of “affray” that requires the “fighting together of two or more persons” be by agreement or design of all the participants, including those who may be set upon.⁶SeeCommonwealth v. Deberry,441 Mass. 211, 215, 804 N.E.2d 911(2004), quoting fromHanlon v. Rollins,286 Mass. 444, 447, 190 N.E. 606(1934)(“We interpret a statute‘according to the intent of the Legislature ascertained from all its words construed in the ordinary and approved usage of the language ... to the end that the purpose of its framers may be effectuated’ ”).Rather, it is also sufficient that the “fighting together” be...