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Commonwealth v. Kelly

Supreme Judicial Court of Massachusetts, Plymouth

February 20, 2015

Amanda Kelly (and eleven companion cases [1] )

Argued October 7, 2014

Page 683

Indictments found and returned in the Superior Court Department on August 14, 2008.

The cases were tried before Paul E. Troy, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Kirsten A. Zwicker Young ( Glen A. Tagliamonte with her) for Amanda Kelly.

Meghan E. Tafe Vadakekalam for Christopher M. Bratlie.

Thomas C. Foley for Kevin P. Shdeed.

Kristin Freeman, Assistant District Attorney, for the Commonwealth.

Steven M. Freeman, Melissa Garlick, Lauren A. Jones, & Seth M. Marnin, of New York, & Michael N. Sheetz & Adam S. Gershenson, for Anti-Defamation League & others, amici curiae, submitted a brief.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Lenk, J. (concurring in part and dissenting in part, with whom Botsford and Duffly, JJ., join).


Spina, J.

[25 N.E.3d 293] This case arises from events that transpired shortly after midnight on June 12, 2008, during a house party in Marshfield where multiple guests, who are Caucasian, committed acts of physical violence against Tizaya Robinson, who is African-American. Following a jury trial in the Superior Court, the defendant, Amanda Kelly, was convicted of, among other offenses, a violation of civil rights with bodily injury, G. L. c. 265, § 37, and assault and battery for the purpose of intimidation resulting in bodily injury, G. L. c. 265, § 39 ( b ).[2] Her codefendants, Christopher M. Bratlie and Kevin P. Shdeed, each were convicted of a violation of civil rights without bodily injury, and assault and battery for the purpose of intimidation without bodily injury. Bratlie also was convicted of assault and battery as a lesser included offense of assault and battery by means of a dangerous weapon (shod foot), and assault and battery. All three defendants appealed their convictions to the Appeals Court, and we trans-

Page 684

ferred their cases to this court on our own motion. Principal among the several claims of error is the defendants' contention that the judge failed to instruct the jury properly that in order to convict the defendants of assault and battery for the purpose of intimidation, the jury must find that race was a " substantial factor" motivating the commission of the unlawful conduct. We conclude that because the Legislature did not quantify the language of G. L. c. 265, § 39, in such terms, the judge was not required to so instruct the jury. Accordingly, for this reason, as well as others that we shall discuss, Kelly's convictions are affirmed, Shdeed's convictions are affirmed, and Bratlie's convictions are affirmed in part and vacated in part.[3]

[25 N.E.3d 294] 1. Background.

We summarize the facts in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), reserving certain details for our discussion of the issues raised.

Shortly before midnight on the night of June 11, 2008, Robinson and two friends, Christina Sacco and Korrie Molloy, went to a party at a home on Careswell Street in Marshfield. Not long after their arrival, Jay Rains, who is Caucasian, approached Robinson and asked him if he had a problem with one of Rains's friends. Robinson replied that he did not know the person about whom Rains was speaking. Joshua Wigfall, who is African-American, interceded, told Rains to leave Robinson alone, and placed himself between the two men. Rains repeatedly called Robinson a " nigger." Robinson became angry and replied, " [D]on't talk to me like that. You don't even know me." Wigfall then attempted to remove Rains from the property because Rains was drunk and rowdy, and the two got into an argument that led to a physical altercation at the end of the driveway of the house. Other partygoers gathered around to watch the fight, and Wigfall punched Rains until he fell to the ground. Having prevailed, Wigfall soon left the premises.

Rains continued yelling, saying the word " nigger," and asking Robinson why he was still at the party. Robinson told Rains to stop using that word, but his request fell on deaf ears. Rains and Robinson started arguing. The three defendants joined the argu-

Page 685

ment along with other partygoers and, in an effort to distance himself from the advancing crowd, Robinson backed down the driveway in the direction of Careswell Street. Eventually, there were at least five people, and as many as fifteen people, yelling at and arguing with Robinson, swearing at him, and calling him a " nigger." All of the individuals in this crowd were Caucasian. Robinson removed his sweatshirt so that no one could pull it over his head in the event of a fight. He continued to back out of the driveway and into Careswell Street, moving in the direction of the Garlic Restaurant, which was diagonally across the street from the house where the party was being held. As the crowd surged toward Robinson, he removed a can of dog repellent from his pocket and sprayed them.

The crowd became angry and started chasing after Robinson. Kelly and several other partygoers punched Robinson. He fell to the ground, got back up, sprayed more dog repellent at them, and quickened his pace down Careswell Street. The crowd then became enraged, screaming and running after Robinson, calling him a " stupid nigger," and yelling " kill that fuckin' nigger." Robinson eventually reached the parking lot of the Garlic Restaurant, where Shdeed was walking back and forth with a stick in his hands, yelling " nigger." Rains punched Robinson, and he fell to the ground. Robinson arose, climbed over a wooden fence that was around the parking lot, and ended up back on Careswell Street. Ten to fifteen people closed in on Robinson and, when he ran out of dog repellent, jumped him.

Robinson saw a man approaching him with a knife. He was hit in the face and head with something hard (probably an elbow), and was knocked to the ground. As the crowd converged on him, Robinson curled up in a fetal position to protect himself. Kelly, Bratlie, Shdeed, and numerous [25 N.E.3d 295] other individuals simultaneously kicked and punched Robinson while he was on the ground. Kelly repeatedly kicked him in the face and jumped up and down on his head. Shdeed struck Robinson with a large stick five or six times using tremendous force while saying, " I'm going to kill you, you fucking nigger. I'm going to kill you. How do you like that, you fucking nigger." Robinson also had a bottle broken over his head. This attack lasted for several minutes and, apart from Sacco, none of the onlookers came to Robinson's aid. Kelly Orlando, who was housesitting nearby and witnessed this attack on Robinson, made a 911 telephone call to the Marshfield police department. When someone in the crowd announced that the police were coming,

Page 686

everyone ran away. Officers arrived on the scene; Amanda Kelly and Shdeed, among others, were placed under arrest. Bratlie was arrested the following day at his home.

Robinson, who was covered in blood and appeared lifeless, was taken to South Shore Hospital by Sacco. He had been stabbed in the left leg, left forearm, and right elbow; he sustained nerve damage in his hand and foot; and he had multiple " lumps" on his head. Robinson subsequently was transferred to Brigham and Women's Hospital, where he spent a few more days recovering from his injuries. As of the time of trial in November, 2011, Robinson continued to suffer from the lingering effects of his injuries, including nerve damage in his hand and foot.

2. Jury instructions on racial motivation under G. L. c. 265, § 39.

General Laws c. 265, § 39, is known as a " hate crime" statute. Commonwealth v. Barnette, 45 Mass.App.Ct. 486, 489, 699 N.E.2d 1230 (1998). At the time of the defendant's trial, § 39 ( a ) stated, in pertinent part: " Whoever commits an assault or a battery upon a person ... with the intent to intimidate such person because of such person's race, color, religion, national origin, sexual orientation, or disability shall be punished ... " (emphasis added).[4] Further, § 39 ( b ) of the statute provides, in relevant part: " Whoever commits a battery in violation of this section and which results in bodily injury shall be punished ... ."

When the trial judge instructed the jury on a violation of G. L. c. 265, § 39, he stated that the Commonwealth had to prove three elements beyond a reasonable doubt: " First, that the defendants committed an assault and battery; second, that the defendants did this act with the specific intent to intimidate [Robinson] because of [his] race, color, religion, national origin, sexual orientation or disability; [and] third, that the assault and battery resulted in bodily injury." The judge explained that " intent" refers to " a person's objective or purpose," and that " specific intent" is " the act of concentrating or focusing the mind for some perceptible period. It is a conscious act with the determination of the mind to do an act." The judge then reiterated that the jury must determine " whether the Commonwealth has proved beyond a reasonable doubt, as it must, that the defendants acted with the specific intent to intimidate Tizaya Robinson because of his race or color" (emphasis added).

Page 687

During deliberations, the judge received the following question from the jury: " Assault and battery for purposes of intimidation solely because of race or in part because of race?" In response to the question, the judge first reread the three [25 N.E.3d 296] elements of the offense that the Commonwealth was required to prove beyond a reasonable doubt. The judge then instructed the jury as follows: " I said the Commonwealth must prove beyond reasonable doubt that the defendants did this act with the specific intent to intimidate [Robinson] because of [his] race, color, religion, national origin, sexual orientation or disability but this reason does not have to be the sole reason for the assault and battery" (emphasis added). All of the defendants objected to this supplemental instruction.[5]

On appeal, the defendants contend that the judge erred when he instructed the jury that race does not have to be the sole reason for the alleged crime. The defendants acknowledge that the judge's original instructions on this charge were correct. However, in their view, the judge's failure to reinstruct the jury on the definition of specific intent,[6] coupled with his supplemental instruction on racial motivation, may have permitted the jury to infer that they were required to convict the defendants of violating G. L. c. 265, § 39, if race played even a small or insignificant role in the assault and battery. More broadly, the defendants contend that jury instructions pertaining to assault and battery with the intent to intimidate should specify that the jury must find that race was a " substantial factor" motivating the commission of the offense. We disagree.

Where, as here, a defendant raises a timely objection to a judge's instruction to the jury, we review the claim for prejudicial error. See Commonwealth v. Vuthy Seng, 456 Mass. 490, 502, 924 N.E.2d 285 (2010).

Page 688

Appellate courts " conduct a two-part test: 'whether the instructions were legally erroneous, and (if so) whether that error was prejudicial.'" Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 310, 909 N.E.2d 523 (2009), quoting Masingill v. EMC Corp., 449 Mass. 532, 540 n.20, 870 N.E.2d 81 (2007). See Commonwealth v. Cruz, 445 Mass. 589, 591, 839 N.E.2d 324 (2005). An error is not prejudicial if it " did not influence the jury, or had but very slight effect ... . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, [then] it is impossible to conclude that substantial rights were not affected." Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), quoting Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983). See Cruz, supra. Trial judges have " considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration." Commonwealth v. Newell, 55 Mass.App.Ct. 119, 131, 769 N.E.2d 767 (2002). Likewise, they ...

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