DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL'S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.
PUBLISHED IN TABLE FORMAT IN THE MASSACHUSETTS APPEALS COURT REPORTS.
PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The principal issue raised on appeal by the defendant, George S. Shoreman, is whether there is a rational basis for the jury's decision that he was not guilty of assault and battery by means of a dangerous weapon under G. L. c. 265, § 15A, but guilty of the lesser included charge of assault and battery under G. L. c. 265, § 13A, on the basis of an incident involving his girlfriend, Amy Coletti (Coletti or victim) in which the only witness to testify that the victim was struck with the defendant's motorcycle helmet testified that the blows were forceful and caused the victim to back up. We affirm.
The jury heard two divergent but firsthand accounts of the altercation between the defendant and the victim on the street outside a home in Newburyport. Joseph Hannon, who worked at a nearby residential substance abuse treatment facility, observed the incident from about forty feet away. Both the victim and Hannon agree that the defendant was holding a red motorcycle helmet. Hannon testified that he saw the defendant hit the victim with the red helmet twice and that "it looked as though" the blows were forceful and caused the victim to back up. The victim, on the other hand, testified that the defendant never hit her with the helmet. The victim did testify that she tried to grab the helmet from the defendant, but he responded by swinging the helmet around to keep it way from her. She also stated at trial that the defendant may, at one point, have hit the porch with the helmet in frustration.
. 1. Jury instruction on assault and battery
. A judge's decision to give a lesser included offense instruction is not error "'if on any hypothesis of the evidence, the jury could have found the defendant[ ] guilty of [the lesser included offense]' and not guilty of the greater offense." Commonwealth v. Porro
, 458 Mass. 526
, 537, 939 N.E.2d 1157 (2010), quoting from Commonwealth v. Thayer
, 418 Mass. 130
, 132, 634 N.E.2d 576 (1994). Assault and battery is a lesser included offense of assault and battery by means of a dangerous weapon, with the only differing element being the use of a dangerous weapon. Commonwealth v. Conley
, 34 Mass. App. Ct. 50
, 57-58, 606 N.E.2d 940
(1993). Since a motorcycle helmet is clearly not a dangerous weapon per se, to qualify as a dangerous weapon it must have been dangerous as used. See Commonwealth v. Lednum
, 75 Mass. App. Ct. 722
, 724, 916 N.E.2d 416 (2009). To be dangerous as used, an object must be used by the defendant in a manner "capable of producing serious bodily harm." Commonwealth v. Marrero
, 19 Mass. App. Ct. 921
, 922, 471 N.E.2d 1356 (1984). Whether an object was dangerous as used is an issue for the fact finder. Lednum, supra
The defendant contends that a reasonable jury would have no choice but to conclude that the manner in which he used the helmet was capable of producing serious bodily harm since Hannon's testimony was the only testimony indicating he committed an assault and battery and Hannon indicated he hit the victim with the helmet using considerable force. However, the jury are free to credit only portions of a witness's testimony. See Thayer, 418 Mass. at 133. The jury were free to believe Hannon's testimony that the defendant struck the victim with the helmet, but to disbelieve Hannon's testimony regarding the force with which the defendant struck the victim.
2. Prosecution's closing argument
. The defendant alleges two errors in the prosecution's closing argument. Since there were no objections to these portions of the closing argument, we review solely to determine if these portions, even if improper, created a substantial risk of a miscarriage of justice. See Commonwealth v. Shanley
, 455 Mass. 752
, 773, 919 N.E.2d 1254 (2010).
A. Hannon's credibility
. Vouching occurs where an attorney "expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury." Commonwealth v. Ortega
, 441 Mass. 170
, 181, 804 N.E.2d 345 (2004) (citation omitted). However, the prosecutor's statement that "that's what kind of person [Hannon] is" was merely an argument that, based on Hannon's precise memory of the time of the event and his regimented work schedule, he was likely to credibly remember the details of the event. Neither that statement by the prosecutor, nor the others mentioned in the defendant's brief, constitute impermissible vouching.
B. Victim's credibility
. The defendant also contends that the trial judge improperly allowed the prosecution to impeach the victim with her failure to tell Officer Chaisson immediately after the altercation the version of events which she stated at trial, namely that she had attempted to take the helmet from the defendant. This form of impeachment requires a preliminary finding by the trial judge, see Mass. G. Evid. § 104(a) (2011), that the witness (1) was sufficiently aware of the pending charges to realize that she possessed exculpatory information, (2) had reason to make the information available, and (3) had the means to report that information to the proper authorities. Commonwealth v. Hart
, 455 Mass. 230
, 238-239, 914 N.E.2d 904
(2009). Here Officer Chaisson testified that he asked the victim if she had been hit on any part of her body with an object. This question was sufficient to put the victim on notice of the charges against the defendant and provide her with a reason and the means to make the exculpatory information available.
3. References to Coletti as the victim
. The jury is presumed to possess some sophistication. See, e.g., Commonwealth v. Pimental
, 454 Mass. 475
, 483, 910 N.E.2d 366 (2009). We are satisfied that the jury understood that the contested issue was whether Coletti was the victim of an assault and battery and the few references to her as the victim did not convey to the jury anything beyond what is conveyed by the use of "alleged victim." See Commonwealth v. Krepon
, 32 Mass. App. Ct. 945
, 947, 590 N.E.2d 1165 (1992). There was no error or prejudice.
By the Court (Trainor, Milkey & Agnes, JJ.),
Entered: January 17, 2012.