Heard: November 1, 2017.
found and returned in the Superior Court Department on March
to dismiss were heard by Beverly J. Canone, J.
Kukafka, Assistant District Attorney, for the Commonwealth.
Kathleen E. McKay for Alexander Johnson.
V. Madden for Jordan Williams.
M. Brinkman, for Michael Leary, was present but did not
Present: Milkey, Blake, & Singh, JJ.
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.
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. For the reasons that
follow, we reinstate the ABDW-SBI indictments against each
Background. The bar
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. 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.
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, " to which the victim responded with
an expletive. Leary joined the fray, pushing his shoulder
into the victim from behind. 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. 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.
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 ...