Supreme Judicial Court of Massachusetts, Plymouth
Heard: March 7, 2019.
received and sworn to in the Brockton Division of the
District Court Department on December 5, 2014. The case was
tried before Antoinette E. McLean Leoney, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
R.D. Suchecki (Jennifer M. Petersen also present) for the
Christina L. Crowley, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
case arises from a violent encounter among four men, one of
whom had dated the other's sister. In the fight that
ensued, the men threw punches, brandished knives, and made
statements about one another's mothers. The defendant was
charged with one count of assault and battery and one count
of threatening to commit a crime. He subsequently was
convicted of the lesser included offense of simple assault
and threatening to commit a crime.
defendant argues, first, that the criminal docket of one of
his friends, Charles,  was admitted improperly as evidence
against the defendant. Second, the defendant contends that
the jury were not instructed correctly as to which of several
alleged incidents constituted the "threat to commit a
crime" with which he had been charged, thus permitting
the jury to return a verdict of "guilty" without
reaching a unanimous consensus as to which facts supported
conclude that both claims constitute reversible error.
Accordingly, the convictions must be vacated and the matter
remanded for a new trial.
in the light most favorable to the Commonwealth, the jury
could have found the following. See Commonwealth
v. Piatt, 440 Mass. 396, 397 (2003).
Saturday evening in November 2014, Russell drove to a
gasoline station to pump gasoline into his truck. He saw a
Jeep Cherokee that he believed had followed him into the
gasoline station. The Jeep was being driven by Charles, and
the defendant rode in the passenger's seat. Russell
previously had dated the defendant's sister, and there
was ongoing animosity between the two men.
backed his truck up to move closer to the Jeep and told
Charles and the defendant to leave him alone; they got out of
the Jeep and began "hitting" and
"punching" his truck. Russell locked the doors and
drove away. Charles and the defendant followed, this time
with the defendant driving. In an attempt to outrun the Jeep,
Russell began speeding, but the Jeep also increased its
speed, at times following as closely as six inches behind
stopped his truck in the driveway of his friend Daniel's
house. Daniel and his wife, Carrie, were sitting on the
porch. Charles and the defendant parked the Jeep directly
behind Russell. Russell locked the doors and remained in his
truck, while the defendant and Charles got out of the Jeep
and approached the truck, the defendant on the driver's
side and Charles on the passenger's side. The two men
began yelling at Russell and banging on the windows and
and Daniel testified that Charles warned Daniel to stay on
the porch, or Charles would stab him. Carrie, however,
recalled the defendant as the one who warned Daniel to
"go back in the house" or the defendant would stab
him. Charles had a knife; the defendant did not.
testified that, at one point, Charles told him that Charles
"was going to rape [his] mother and kill [his]
father," and that "he went to jail for rape and
he'll do it again." Carrie testified that it was the
defendant who told Russell that "he was going to go to
[Russell's] house and rape his mother in the ass."
The defendant recalled telling Russell something to the
effect of, "[G]et out of the truck and fight me."
point, Russell partially lowered the driver's side
window, in an effort to communicate better with the
defendant. The defendant placed his hand in the crack between
the window and the frame, pushed the window down, reached
into the truck, and grabbed Russell's hand, grasping a
thumb that recently had been surgically reattached. The
defendant grazed Russell's head in an attempt to punch
Daniel came down from the porch and tackled the defendant.
The two rolled around on the ground and threw punches. While
this was going on, Carrie called the police, and Russell
climbed out of the window of his truck. Charles eventually
pulled the defendant away from Daniel. Charles and the
defendant ran back to the Jeep and drove away. That Monday, the
defendant went to the police station to file a report
concerning his injuries and the damage to the vehicle.
defendant was charged with one count of assault and battery,
G. L. c. 265, § 13A (a.), with respect to Russell, and
one count of threatening to commit a crime, G. L. c. 275,
§ 2. He was not charged with assaulting Daniel, the man
with whom he had fought in the bushes.
trial, the defendant testified on his own behalf. On
cross-examination, he maintained that, during the altercation
in Daniel's driveway, he did not see Charles get out of
the Jeep until Charles "got out of the car to help me
up" from the ground. "That was the only time I seen
him out of the car." The defendant also testified that
he did not see Charles take out a knife. The prosecutor then
sought to introduce a copy of the certified criminal docket
in Charles's case, which reflected that Charles had
pleaded guilty to assault by means of a dangerous weapon for
an incident charged on the same day in November 2014 as the
incident with which the defendant was charged. The judge
allowed the evidence to be introduced, over the
jury returned a verdict of guilty on the lesser included
offense of simple assault and the offense of threatening to
commit a crime. The defendant was sentenced to eighteen
months of ...