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Commonwealth v. Johnson

Appeals Court of Massachusetts, Norfolk

December 12, 2017

COMMONWEALTH
v.
ALEXANDER JOHNSON (and two companion cases[1]).

          Heard: November 1, 2017.

         Indictments found and returned in the Superior Court Department on March 24, 2016.

         Motions to dismiss were heard by Beverly J. Canone, J.

          Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

          Kathleen E. McKay for Alexander Johnson.

          Neil V. Madden for Jordan Williams.

          John M. Brinkman, for Michael Leary, was present but did not argue.

          Present: Milkey, Blake, & Singh, JJ.

          MILKEY, J.

         A grand jury indicted Alexander Johnson, Jordan Williams, and Michael Leary for assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW-SBI). See G. L. c. 265, § 15A(c) (i). The indictments were based on a bar fight, during which Christopher Socha (the victim) was struck on the top of his head with a glass. The Commonwealth's theory was that Johnson was the one who struck the victim with the glass, and that Williams and Leary were criminally liable for aiding and abetting Johnson.[2]

         Johnson moved to dismiss so much of the ABDW-SBI indictment as alleged serious bodily injury, on the grounds that the evidence presented to the grand jury failed to establish probable cause that such injury occurred. See generally Commonwealth v. McCarthy, 385 Mass. 160, 162-163 (1982). Williams and Leary moved to dismiss the ABDW-SBI indictments against them in toto, arguing that the evidence before the grand jury failed to establish probable cause that they aided and abetted Johnson's striking the victim with the glass. Before us now is the Commonwealth's appeal from the Superior Court order allowing all three McCarthy motions with respect to the ABDW-SBI indictments.[3] For the reasons that follow, we reinstate the ABDW-SBI indictments against each defendant.

         Background.[4] The bar fight.

         The three defendants worked for a liquor wholesaler in Kingston. On October 3, 2015, a Saturday, the company held its annual party at a Plymouth restaurant. The party featured an "open bar, " and the defendants had a considerable amount to drink.[5] Together with other partygoers, they then went to another local restaurant, the Waterfront Bar & Grille, to continue the festivities. The bar area of this restaurant was especially crowded that night, and transit through it therefore was difficult.

         At one point, the victim tried to make his way to the dance floor to join his wife. To do this, he had to engage in "the old slip and slide" through the crowd, while excusing himself to those whom he passed along the way. When the victim reached the area where the defendants had congregated (directly next to the bar itself), Williams refused to move even after the victim placed his hand on Williams's back. When the victim then proceeded "just try[ing] to get through, " Williams stuck his leg out to trip him. This prompted the victim to stumble while exclaiming, "Really, dude?" Williams said, "Hey, watch yourself, old man, "[6] to which the victim responded with an expletive. Leary joined the fray, pushing his shoulder into the victim from behind.[7] He also engaged in an escalating war of words, "taunting [the victim] to fight." At that point, as the victim was moving away, a man -- later identified as Johnson --slammed a heavy, pint beer glass onto the victim's head. The blow, which was done with such force that the glass shattered, caused the injuries detailed below. The victim responded by head-butting Leary.[8] Williams then grabbed the victim, and the two men tangled for a short period of time before the victim eventually pushed Williams away, ran down the stairs, and was later taken to the hospital for treatment.

         The victim's injuries.

         The blow to the victim's head caused extensive lacerations, totaling twenty-one centimeters in length. These lacerations, in turn, caused the victim to bleed profusely, with his blood spilled on Williams and Leary and throughout the bar area. The lacerations required approximately forty stitches to close. Graphic photographs of the stitched wounds were provided to the grand jury and, during his testimony, the victim pointed to the resulting scar. He ...


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