Commonwealth v. Porro

• Decision Date: 14 December 2010
• Docket Number: SJC–10636.
• Citation: 939 N.E.2d 1157,458 Mass. 526
• Parties: COMMONWEALTHv.Thomas PORRO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 526

939 N.E.2d 1157

COMMONWEALTH

v.Thomas PORRO.

SJC–10636.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 7, 2010.Decided Dec. 14, 2010.

Charles W. Rankin, Boston, for the defendant.Paul B. Linn, Assistant District Attorney, for the Commonwealth.Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.¹GANTS, J.

On the evening of March 29, 2006, the defendant, a special agent with the office of export enforcement of the United States Department of Commerce, was driving on Congress Street in Boston on his way home from work. Viewed in the light most favorable to the prosecution, the evidence at trial showed that, after the defendant took a right turn onto Dorchester Avenue, the victim rode up to the defendant's passenger side window on his motorcycle to complain that the defendant had nearly hit his friend, who was also driving a motorcycle. The defendant swore at the victim and claimed that the victim's friend had cut him off.

The verbal altercation between the defendant and the victim continued over several blocks. The two men turned left onto Summer Street and drove on, at times side-by-side, with the victim's motorcycle in the left lane and the defendant's vehicle in the right lane. At one point the defendant's vehicle swerved so close to the victim's motorcycle that the victim warned the defendant not to come any closer. The defendant responded by pointing a gun at the victim, and the victim taunted, “What are you going to do, shoot me?” Soon after, the defendant swerved his vehicle again, this time striking the victim's motorcycle and sending the victim flying through the air, causing him serious bodily injury.

The jury were instructed on each of the three indictments, charging the defendant with assault and battery by means of a dangerous weapon (an automobile) and causing serious bodily injury, in violation of G.L. c. 265, § 15A ²; assault by means of a dangerous weapon (a handgun), in violation of G.L. c. 265, § 15B ( b ); and leaving the scene of an accident causing personal injury, in violation of G.L. c. 90, § 24 (2) ( a 1/2 ) (1). After two days of deliberation, the jury informed the judge that they were “hopelessly deadlocked” on the first indictment, but had reached verdicts on the others. The jury returned their verdicts, finding the defendant not guilty on the second indictment and guilty on the third, and the judge then provided them with standard instructions to help them resolve their deadlock. See Commonwealth v. Rodriquez, 364 Mass. 87, 101–102, 300 N.E.2d 192 (1973) (Appendix A).

After further deliberations, the jury asked the judge if they could consider the charge of assault by means of a dangerous weapon (an automobile). Over the defendant's objection, the judge instructed the jury that they could consider that offense because it was a lesser included charge within the indictment. The jury then found the defendant guilty of assault by means of a dangerous weapon.³

The Appeals Court affirmed the judgment of conviction of leaving the scene of an accident causing personal injury, but reversed the judgment of conviction of assault by means of a dangerous weapon and set aside the verdict. Commonwealth v. Porro, 74 Mass.App.Ct. 676, 684–685, 909 N.E.2d 1184 (2009). The court held that, because there was evidence at trial of more than one swerve of the defendant's vehicle and the judge had refused to instruct the jury that the indictment charged only the final swerve that resulted in the victim's injury, there remained “a substantial risk that the defendant was convicted of a crime for which he was not indicted by a grand jury.” Id. at 682, 909 N.E.2d 1184, quoting Commonwealth v. Barbosa, 421 Mass. 547, 554, 658 N.E.2d 966 (1995). The court also held that the Commonwealth could not retry the defendant on the charge of aggravated assault and battery by means of a dangerous weapon, because the jury's conviction on the lesser included charge was an implied acquittal of the greater charge; the court allowed the defendant to be retried on the lesser included charge of assault by means of a dangerous weapon under an attempted battery theory. Id.

We granted the defendant's application for further appellate review, but limited our review to the issue whether the defendant can be retried for assault by means of a dangerous weapon. We conclude that the defendant may be retried for assault by means of a dangerous weapon as to the final swerve, but only under a threatened battery theory, not under an attempted battery theory. ⁴

Discussion. To determine how our jurisprudence regarding lesser included offenses applies to the crimes of assault and assault and battery, we need first to examine the various alternative theories by which these crimes may be proved.

1. Assault versus assault and battery. The punishments for the crimes of assault and assault and battery, by means of a dangerous weapon (or without), are established by statute, but the elements necessary to convict a person of these crimes are determined by the common law. See Commonwealth v. Gorassi, 432 Mass. 244, 247, 733 N.E.2d 106 (2000); Commonwealth v. Burke, 390 Mass. 480, 482, 457 N.E.2d 622 (1983); G.L. c. 265, § 13A (assault or assault and battery); G.L. c. 265, § 15A (assault and battery by means of a dangerous weapon, and aggravated forms of that crime); G.L. c. 265, § 15B (assault by means of a dangerous weapon). See also Commonwealth v. Stokes, 440 Mass. 741, 747, 802 N.E.2d 88 (2004), quoting Commonwealth v. Burke, 392 Mass. 688, 690, 467 N.E.2d 846 (1984) (“Where the Legislature does not define a term, we presume that its intent is to incorporate the common-law definition of that term, ‘unless the intent to alter it is clearly expressed’ ”).

Under the common law, there are two theories of assault and battery: intentional battery and reckless battery. Commonwealth v. Burno, 396 Mass. 622, 625, 487 N.E.2d 1366 (1986). An intentional assault and battery is “the intentional and unjustified use of force upon the person of another, however slight.” Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633 (1931). See Commonwealth v. Moore, 36 Mass.App.Ct. 455, 459, 632 N.E.2d 1234 (1994) (assault and battery involves touching that is intentional, not simply result of intentional act). Where the touching is physically harmful, “consent is immaterial,” but “a nonharmful touching is a battery only if there is no consent.” Commonwealth v. Burke, 390 Mass. at 481, 457 N.E.2d 622. A reckless assault and battery is committed when an individual engages in reckless conduct that results in a touching producing physical injury to another person; an unconsented touching is not sufficient. Commonwealth v. Burno, supra. Commonwealth v. Correia, 50 Mass.App.Ct. 455, 456, 458, 737 N.E.2d 1264 (2000). Commonwealth v. Welch, 16 Mass.App.Ct. 271, 275–276, 450 N.E.2d 1100 (1983). Under both theories of battery, the “touching may be ... indirect, as by setting in motion some force or instrumentality” that causes the victim to be touched, such as where a defendant fires a gunshot that strikes the victim or intentionally or recklessly drives his vehicle into a vehicle occupied by the victim. Commonwealth v. Dixon, 34 Mass.App.Ct. 653, 654, 614 N.E.2d 1027 (1993). See Commonwealth v. Burno, supra at 628, 487 N.E.2d 1366 (“a battery could occur although no force was applied to a person directly”); Commonwealth v. Stratton, 114 Mass. 303, 305–306 (1873).

At trial in this case, the prosecution alleged that the defendant intentionally struck the victim's motorcycle with his vehicle, and the jury were instructed on the intentional form of assault and battery. Although there was evidence at trial sufficient to support a conviction on a reckless battery theory, the prosecution did not ask that the jury be instructed on this theory, and no instruction was given.

There are also two theories of assault under the common law: attempted battery and threatened battery. See Commonwealth v. Richards, 363 Mass. 299, 303, 293 N.E.2d 854 (1973). A conviction of assault under a theory of attempted battery requires the prosecution to prove that the defendant “intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.” Commonwealth v. Melton, 436 Mass. 291, 295, 763 N.E.2d 1092 (2002). ⁵ The prosecution need not prove that the victim was aware of the attempted battery (e.g., the victim could be unconscious or have his back turned when the attempted battery occurred). See Commonwealth v. Gorassi, supra at 248, 733 N.E.2d 106.

A conviction of assault under a theory of threatened battery requires the prosecution to prove that the defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat. See Commonwealth v. Chambers, 57 Mass.App.Ct. 47, 49, 51, 781 N.E.2d 37 (2003); Commonwealth v. Musgrave, 38 Mass.App.Ct. 519, 523–524, 649 N.E.2d 784 (1995), S. C., 421 Mass. 610, 659 N.E.2d 284 (1996) (adopting opinion of Appeals Court). The victim need not actually be in fear but must apprehend the risk of an imminent battery. Commonwealth v. Chambers, supra at 49–51, 781 N.E.2d 37.

An assault under a theory of attempted battery, therefore, has elements different from an assault under a theory of threatened battery. A defendant must intend a battery to be guilty under the attempted battery theory, but a defendant need not intend to strike the victim to be guilty under the threatened battery theory; it is sufficient that a defendant engages in menacing conduct that would place a reasonable person in fear of being struck, that the defendant intends by this conduct to place the victim in fear of an imminent battery, and that the victim recognizes the conduct to be threatening an imminent battery.

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