Commonwealth v. Charles
Commonwealth v. Charles
Opinion of the Court
The defendants were convicted as joint venturers on indictments alleging armed assault with intent to murder.
1. Facts
After Mays and Tavares had been talking for about an hour at the station, they were approached from different directions by
The three men then walked over to a fourth man standing by a pillar and had a conversation with him. Mays, now carrying the infant, and Tavares started to move away. The defendants (but not McClain) returned. The defendant Charles came up to Mays’s side and punched him in the jaw. The defendant Terry then came up and hit Mays in the face. Tavares grabbed the baby and ran. Mays fell to the floor. Terry, who had shoes on, kicked Mays in the back. Charles, who also had shoes on, kicked Mays three times in the legs.
The tables then turned. Mays got up, pulled a knife, and started to chase the defendants. The defendants ran directly to the fourth man, not too far away, who pulled out a handgun.
2. Jury instruction on joint venture,
It is not reasonable to conclude that the jury would understand that knowledge of possession of the gun was required for joint venture liability on the armed assault with intent to murder charge just because they were told such knowledge was required on the firearms charge. In fact, the opposite inference is just as likely: the failure to mention this requirement could lead the jury to believe that such knowledge was not required on the armed assault with intent to murder charge and that they were authorized to convict the defendants on that charge without deliberating on whether the defendants knew about the weapon before the shooting.
The charge on joint venture possession of a firearm did not elaborate as to precisely when the defendants needed to know
3. Sufficiency of the evidence of use of shod foot as dangerous weapon. The judge properly denied the defendants’ motions for required findings of not guilty on the indictments for assault and battery by means of a dangerous weapon, a shod foot. There was evidence that both defendants were wearing shoes. The kicking described in the evidence was not so minimal as to foreclose an inference that the shod feet of the defendants were being used as dangerous weapons. Contrast Commonwealth v. Mercado, 24 Mass. App. Ct. 391, 397 (1987) (insufficient evidence where use of shod foot was no more than a nudge). There was, in addition, evidence that the attack was the fulfilment of a promise to do serious harm to the victim. There was adequate evidence to permit the jury to infer beyond a reasonable doubt that the victim was kicked with shod feet in a manner which was capable of causing serious bodily injury. See Commonwealth v. Fernandez, 43 Mass. App. Ct. 313, 315 (1997).
4. Other issues.
a. Failure to make discovery. The Commonwealth failed to make a supplemental disclosure to the defendants that the victim had elaborated on his statement to the police and would specifically state that he saw the defendants speaking to the shooter before they returned to the victim and initiated their physically aggressive encounter. It was plainly the duty of the Commonwealth to provide that important evidence as soon as the
b. Gang affiliation and expressions of fear by witnesses. The gang affiliation of some of the participants in this melee was germane to the issues. There was no error in admitting that evidence. See Commonwealth v. Maldonado, 429 Mass. 502, 504 (1999). Also, the testimony of some witnesses that they did not wish to reveal where they lived or worked did not unduly prejudice the defendants. There was no abuse of discretion in receiving it in evidence. See Commonwealth v. Auguste, 418 Mass. 643, 647-648 (1994). The judge instructed the jury not to draw any adverse inferences from such testimony.
5. Conclusion. For the foregoing reasons, we vacate the judgments on the indictments for armed assault with intent to murder and assault and battery by means of a dangerous weapon (handgun). The judgments of conviction for assault and battery by means of a dangerous weapon (shod foot) and unlawful possession of a handgun are affirmed.
So ordered.
The defendants were also convicted on indictments charging each with: two counts of assault and battery by means of a dangerous weapon ([1] a shod foot and [2] a handgun); assault and battery; unlawful possession of a handgun; and unlawfhl possession of ammunition. The assault and battery and unlawful possession of ammunition convictions were placed on file with the defendants’ consent and are not before us. Their convictions on the other indictments are reviewed separately herein.
We refer to the evidence taken in the light most favorable to the Commonwealth.
There was an issue at trial as to how visible the handgun was.
The defendants raise as a separate issue the sufficiency of the evidence of joint venture as applied to the charges of armed assault with intent to murder, assault and battery by means of a dangerous weapon (handgun), possession of a firearm and possession of ammunition. From the recital of the evidence favorable to the Commonwealth, it is clear that the evidence was sufficient on these points.
Terry’s written request for the correct instruction was not allowed. The judge, notwithstanding the request of Terry after the charge, declined to amend his charge to include the correct instruction.
As to Terry, the standard of review is harmless error under Commonwealth v. Federico, 425 Mass. 844, 852-853 (1997). As to Charles, who did not raise a separate objection, see Commonwealth v. Colon, 52 Mass. App. Ct. 725, 730-731 (2001) (judge’s failure to instruct jury on essential element of crime of armed robbery based on joint venture theory, in absence of objection, resulted in substantial risk of miscarriage of justice). In any event, it would be bizarre to apply different standards of review here to the two coventurers. The judge was on notice that a defendant objected to his charge. The facts were not different as to the culpability of the two defendants, and there was no tactical reason for one to request the charge and the other not. In these circumstances, it would be a miscarriage of justice to reverse one conviction but affirm the other merely because his counsel did not pipe up and say “me too.”
On the firearms charge, the judge instructed: “In order to prove the defendant guilty of this offense, the Commonwealth must prove three things beyond a reasonable doubt. One, that the defendant possessed a firearm, either individually or with a joint venturer, and that he had that firearm under his control; second, that the defendant possessed or had under his control — that the item met the legal definition of a firearm; and three, that the defendant knew that he possessed a firearm. . . . [T]he Commonwealth must prove beyond a reasonable doubt that the defendant knew that he possessed this item either himself or through a joint venturer and also knew that the item was a firearm . . . .”
As mentioned, supra, the evidence was sufficient to withstand motions for required findings of not guilty on all indictments. Since there will be a new trial, we do not consider other arguments made in connection with the denial of the defendants’ motions for new trial.
Reference
- Full Case Name
- Commonwealth v. Dana Charles (and seven companion cases)
- Cited By
- 5 cases
- Status
- Published