Heard: December 11, 2017.
found and returned in the Superior Court Department on
September 25, 2013.
pretrial motion to suppress evidence was heard by David A.
Lowy, J., and the cases were tried before Timothy Q. Feeley,
B. Hirsch for the defendant.
Moriarty, Assistant District Attorney, for the Commonwealth.
Present: Rubin, Lemire, & Shin, JJ.
afternoon of August 30, 2013, two men attacked another man on
a public street, inflicting life-altering injuries. Both men
punched the victim, one slammed him to the pavement, and one
or both kicked him while he lay on the ground. After an
eyewitness identified the defendant as one of the assailants,
the defendant was indicted on charges of assault and battery,
assault and battery by means of a dangerous weapon (to wit,
pavement) causing serious bodily injury (ABDW-SBI), and
assault and battery by means of a dangerous weapon (to wit,
shod foot). A jury convicted the defendant of all three
appeal the defendant argues that (1) the motion judge should
have suppressed the eyewitness's identification, (2) the
evidence was insufficient to support a conviction of ABDW-SBI
under a theory of joint venture, (3) the trial judge erred in
instructing the jury on the intent required for ABDW-SBI
under a theory of joint venture, and (4) the trial judge
failed to instruct the jury that they could draw no adverse
inference from the defendant's failure to testify,
despite his request for such an instruction. As to the third
of these arguments, we agree that the joint venture
instructions were erroneous because they did not convey to
the jury that the defendant must have shared his
coventurer's intent to use a dangerous weapon to be
guilty of ABDW-SBI. Nonetheless, we conclude that there is no
substantial risk of a miscarriage of justice because the
jury, by convicting the defendant of assault and battery with
a shod foot,  necessarily rejected his theory that he
withdrew from the assault before the climactic moment when
the pavement was used as a dangerous weapon. Instead, the
jury necessarily found that the defendant consciously acted
together with his coventurer throughout the course of the
assault, including at that climactic moment. Accordingly, and
as we reject the defendant's remaining arguments, we
Downs was walking on Winter Street near Lafayette Square in
Haverhill when, seemingly without provocation, two men
attacked him. Four eyewitnesses to the assault testified at
trial as follows.
Baez, a childhood acquaintance of Downs, was driving on
Winter Street when she saw Downs and rolled down her window
to say hello. Before she could do so, two "dark
complexion[ed]" men walking behind Downs yelled
something that caught his attention. They approached and
immediately started punching Downs in his upper body. The
shorter man held Downs's hands, while the taller man with
tattoos "continued to punch, and at one point lift[ed]
Downs off the floor and dropped him on the ground." One
of the two men -- Baez did not remember which --then kicked
Downs, while the other stood nearby, before both took off
running down the street. Baez telephoned 911 and followed the
two men as they ran up Winter Street. A third man was at the
scene but did not participate in the assault.
Siek was driving on Winter Street when he saw two
"dark-skinned" men punching a white man in the
torso, while a third man stood off to the side. As the victim
went into the street to avoid the punches, one of the two men
followed him, "picked him right up and just slammed him
down . . . [l]ike a body slam." The attack
"happened so fast [Siek] couldn't do anything."
After Siek sounded his horn, the three men ran up the street.
Farinelli was driving through Lafayette Square when he saw
"[t]hree African American[s]" standing around a
white man. One of the men "picked [the victim] up from
around the waist" and "slammed [him] on his
head." The three men then "ran off."
Flanagan was driving through Lafayette Square when he saw two
men with "dark skin" attacking a white man. One
"fairly tall" man "picked [the victim] up and
body slammed him." Both men then kicked the victim in
the head before running down the street together. A third man
was there but was not involved in the assault.
was transported to the hospital, where he collapsed in the
waiting room and was airlifted to another hospital to undergo
emergency brain surgery. Four months after the assault, he
was finally released from a rehabilitation facility. By the
time of trial in June of 2015, Downs was still confined to a
wheelchair, dependent on a feeding tube, and had a pump in
his stomach "to control the tone in his body."
According to his girl friend, Downs "needs assistance
with everything" -- "[h]e can't go to the
bathroom on his own, he can't shower on his own. "
police Officer Bryan Bailey was dispatched to Winter Street
following "a report that a male was laid out after being
beat up." As he was heading that direction, he was
redirected to a different location about one-quarter of a
mile away. There, he saw two men matching the descriptions
provided by dispatch. One man, later identified as the
defendant, was wearing jeans and had a black tank top draped
over his shoulder. The other man was wearing a white shirt
Bailey stopped the defendant and asked to speak with him. The
defendant "went off," "flailing his arms and
yelling and screaming." The officer then asked dispatch
to "have the witness that was following [the two]
individuals come to [his] location." Although the
officer did not see anyone arrive, he was told by dispatch
"that the witness had driven by and said the party [he]
had stopped was the correct person."
Bailey drove the defendant back to the scene of the assault.
As he was taken out of the cruiser, the defendant started
yelling at Downs, to the effect of "I hit you? You said
I fucking hit you?" When Downs could not make an
identification, the officer returned the defendant to the
cruiser and drove him to the police station. During booking
the defendant's height was recorded as six feet, two
inches, and his weight as 160 pounds.
Jamie Landry headed to a different location in search of the
second suspect wearing the white shirt and jeans. There, he
saw a man known to him as Xavier Simms. Although Simms
admitted he had been with the defendant, the officer allowed
him to leave because he did not match the description of
fifteen minutes later, Officer Landry saw Simms again, a few
blocks from his previous location. Simms was with the
defendant's brother and a man known to the officer as
Roberto Hilerio. Several hours later, the three men entered
the police station asking about the defendant. Sergeant
Meaghan Buckley interacted with them and saw no tattoos on
either Hilerio or Simms. At some time thereafter, Hilerio was
arrested in connection with the assault; during booking his
height was recorded as five feet, ten inches, and his weight
as 180 pounds.
Dennis Moriarty was transporting the defendant from the
police station on the night of the assault. While seated in
the cruiser, the defendant asked "multiple different
times, different ways," "how much time he could get
for the crimes," "if he was going to get
life," and "if he told the truth, could he get less
time." He also said, "Seriously, I didn't kill
no one, right? . . .I'm just going to say everything I
did. I can't go away for life."
that night, the police interviewed Baez. She described one
suspect as "tall and skinny kind of like muscled with
tattoos on his arms," wearing a black tank top and
jeans, and the other as "probably about five something
height" wearing a white shirt and jeans. She stated that
"[t]he much taller, tattooed, dark-skinned guy lifted
[Downs] in the air and smashed him against the ground."
She also stated that the "much taller" man
"was the one [who] did the kicking."
October of 2013, Sergeant Buckley interviewed Flanagan, who
recalled that "the bigger of the two" men
"grabbed . . . the white guy and picked him up and
slammed him on his head." According to Flanagan, the man
with the white shirt was "le[ss] aggressive" and
"smaller." He also stated that he saw an officer
with "the bigger," "well-built" man, and
that that man was the one who had picked the victim up and
dropped him on the ground.
trial the prosecutor asked the defendant to remove his shirt
and show his arms, hands, and shoulder to the jury. When he
did so, he revealed three tattoos ...