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Commonwealth v. McCray

Appeals Court of Massachusetts, Essex

August 31, 2018

COMMONWEALTH
v.
RODNEY McCRAY.

          Heard: December 11, 2017.

         Indictments found and returned in the Superior Court Department on September 25, 2013.

         A pretrial motion to suppress evidence was heard by David A. Lowy, J., and the cases were tried before Timothy Q. Feeley, J.

          David B. Hirsch for the defendant.

          Marina Moriarty, Assistant District Attorney, for the Commonwealth.

          Present: Rubin, Lemire, & Shin, JJ.

          SHIN, J.

         On the 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 charges.[1]

         On 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, [2] 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 affirm.

         Background.[3]

         1. The assault.

         Jesse 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.

         Maria 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.

         Christopher 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.

         Kenneth 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."

         James 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.

         Downs 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. "

         2. The investigation.

         Haverhill 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 and jeans.

         Officer 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."[4]

         Officer 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.

         Officer 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 either suspect.

         Ten to 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.

         Officer 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."

         Also 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."

         In 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.

         At 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 ...


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