Commonwealth v. Kelly , 470 Mass. 682 ( 2015 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11616
COMMONWEALTH vs. AMANDA KELLY
(and eleven companion cases1).
Plymouth. October 7, 2014. - February 20, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Assault or Battery for the Purpose of Intimidation. Civil
Rights. Practice, Criminal, Instructions to jury,
Duplicative convictions, Lesser included offense.
Indictments found and returned in the Superior Court
Department on August 14, 2008.
The cases were tried before Paul E. Troy, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Kirsten A. Zwicker Young (Glen A. Tagliamonte with her) for
Amanda Kelly.
Meghan E. Tafe Vadakekalam for Christopher M. Bratlie.
Thomas C. Foley for Kevin P. Shdeed.
Kristin Freeman, Assistant District Attorney, for the
Commonwealth.
Steven M. Freeman, Melissa Garlick, Lauren A. Jones, & Seth
M. Marnin, of New York, & Michael N. Sheetz & Adam S.
1
Five against Amanda Kelly, four against Christopher M.
Bratlie, and two against Kevin P. Shdeed.
2
Gershenson, for Anti-Defamation League & others, amici curiae,
submitted a brief.
SPINA, J. This case arises from events that transpired
shortly after midnight on June 12, 2008, during a house party in
Marshfield where multiple guests, who are Caucasian, committed
acts of physical violence against Tizaya Robinson, who is
African-American. Following a jury trial in the Superior Court,
the defendant, Amanda Kelly, was convicted of, among other
offenses, a violation of civil rights with bodily injury, G. L.
c. 265, § 37, and assault and battery for the purpose of
intimidation resulting in bodily injury, G. L. c. 265, § 39 (b).2
Her codefendants, Christopher M. Bratlie and Kevin P. Shdeed,
each were convicted of a violation of civil rights without
bodily injury, and assault and battery for the purpose of
intimidation without bodily injury. Bratlie also was convicted
of assault and battery as a lesser included offense of assault
and battery by means of a dangerous weapon (shod foot), and
assault and battery. All three defendants appealed their
convictions to the Appeals Court, and we transferred their cases
to this court on our own motion. Principal among the several
2
Amanda Kelly also was convicted of assault and battery by
means of a dangerous weapon (stick), G. L. c. 265, § 15A (b);
assault and battery by means of dangerous weapon (shod foot);
assault and battery by means of a dangerous weapon (knife) as a
lesser included offense of aggravated assault and battery by
means of a dangerous weapon, G. L. c. 265, § 15A (c); and
assault and battery, G. L. c. 265, § 13A (a).
3
claims of error is the defendants' contention that the judge
failed to instruct the jury properly that in order to convict
the defendants of assault and battery for the purpose of
intimidation, the jury must find that race was a "substantial
factor" motivating the commission of the unlawful conduct. We
conclude that because the Legislature did not quantify the
language of G. L. c. 265, § 39, in such terms, the judge was not
required to so instruct the jury. Accordingly, for this reason,
as well as others that we shall discuss, Kelly's convictions are
affirmed, Shdeed's convictions are affirmed, and Bratlie's
convictions are affirmed in part and vacated in part.3
1. Background. We summarize the facts in the light most
favorable to the Commonwealth, see Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979), reserving certain details for our
discussion of the issues raised.
Shortly before midnight on the night of June 11, 2008,
Robinson and two friends, Christina Sacco and Korrie Molloy,
went to a party at a home on Careswell Street in Marshfield.
Not long after their arrival, Jay Rains, who is Caucasian,
approached Robinson and asked him if he had a problem with one
of Rains's friends. Robinson replied that he did not know the
3
We acknowledge the amicus brief submitted by the Anti-
Defamation League, Gay & Lesbian Advocates & Defenders, the
Lawyers' Committee for Civil Rights and Economic Justice,
MassEquality, the Massachusetts Black Lawyers Association, the
Massachusetts LGBTQ Bar Association, and the South Asian Bar
Association of Greater Boston.
4
person about whom Rains was speaking. Joshua Wigfall, who is
African-American, interceded, told Rains to leave Robinson
alone, and placed himself between the two men. Rains repeatedly
called Robinson a "nigger." Robinson became angry and replied,
"[D]on't talk to me like that. You don't even know me."
Wigfall then attempted to remove Rains from the property because
Rains was drunk and rowdy, and the two got into an argument that
led to a physical altercation at the end of the driveway of the
house. Other partygoers gathered around to watch the fight, and
Wigfall punched Rains until he fell to the ground. Having
prevailed, Wigfall soon left the premises.
Rains continued yelling, saying the word "nigger," and
asking Robinson why he was still at the party. Robinson told
Rains to stop using that word, but his request fell on deaf
ears. Rains and Robinson started arguing. The three defendants
joined the argument along with other partygoers and, in an
effort to distance himself from the advancing crowd, Robinson
backed down the driveway in the direction of Careswell Street.
Eventually, there were at least five people, and as many as
fifteen people, yelling at and arguing with Robinson, swearing
at him, and calling him a "nigger." All of the individuals in
this crowd were Caucasian. Robinson removed his sweatshirt so
that no one could pull it over his head in the event of a fight.
He continued to back out of the driveway and into Careswell
5
Street, moving in the direction of the Garlic Restaurant, which
was diagonally across the street from the house where the party
was being held. As the crowd surged toward Robinson, he removed
a can of dog repellent from his pocket and sprayed them.
The crowd became angry and started chasing after Robinson.
Kelly and several other partygoers punched Robinson. He fell to
the ground, got back up, sprayed more dog repellent at them, and
quickened his pace down Careswell Street. The crowd then became
enraged, screaming and running after Robinson, calling him a
"stupid nigger," and yelling "kill that fuckin' nigger."
Robinson eventually reached the parking lot of the Garlic
Restaurant, where Shdeed was walking back and forth with a stick
in his hands, yelling "nigger." Rains punched Robinson, and he
fell to the ground. Robinson arose, climbed over a wooden fence
that was around the parking lot, and ended up back on Careswell
Street. Ten to fifteen people closed in on Robinson and, when
he ran out of dog repellent, jumped him.
Robinson saw a man approaching him with a knife. He was
hit in the face and head with something hard (probably an
elbow), and he was knocked to the ground. As the crowd
converged on him, Robinson curled up in a fetal position to
protect himself. Kelly, Bratlie, Shdeed, and numerous other
individuals simultaneously kicked and punched Robinson while he
was on the ground. Kelly repeatedly kicked him in the face and
6
jumped up and down on his head. Shdeed struck Robinson with a
large stick five or six times using tremendous force while
saying, "I'm going to kill you, you fucking nigger. I'm going
to kill you. How do you like that, you fucking nigger."
Robinson also had a bottle broken over his head. This attack
lasted for several minutes and, apart from Sacco, none of the
onlookers came to Robinson's aid. Kelly Orlando, who was
housesitting nearby and witnessed this attack on Robinson, made
a 911 telephone call to the Marshfield police department. When
someone in the crowd announced that the police were coming,
everyone ran away. Officers arrived on the scene; Amanda Kelly
and Shdeed, among others, were placed under arrest. Bratlie was
arrested the following day at his home.
Robinson, who was covered in blood and appeared lifeless,
was taken to South Shore Hospital by Sacco. He had been stabbed
in the left leg, left forearm, and right elbow; he sustained
nerve damage in his hand and foot; and he had multiple "lumps"
on his head. Robinson subsequently was transferred to Brigham
and Women's Hospital, where he spent a few more days recovering
from his injuries. As of the time of trial in November, 2011,
Robinson continued to suffer from the lingering effects of his
injuries, including nerve damage in his hand and foot.
2. Jury instructions on racial motivation under G. L.
c. 265, § 39. General Laws c. 265, § 39, is known as a "hate
7
crime" statute. Commonwealth v. Barnette, 45 Mass. App. Ct.
486, 489 (1998). At the time of the defendant's trial, § 39 (a)
stated, in pertinent part: "Whoever commits an assault or a
battery upon a person . . . with the intent to intimidate such
person because of such person's race, color, religion, national
origin, sexual orientation, or disability shall be punished
. . ." (emphasis added).4 Further, § 39 (b) of the statute
provides, in relevant part: "Whoever commits a battery in
violation of this section and which results in bodily injury
shall be punished . . . ."
When the trial judge instructed the jury on a violation of
G. L. c. 265, § 39, he stated that the Commonwealth had to prove
three elements beyond a reasonable doubt: "First, that the
defendants committed an assault and battery; second, that the
defendants did this act with the specific intent to intimidate
[Robinson] because of [his] race, color, religion, national
origin, sexual orientation or disability; [and] third, that the
assault and battery resulted in bodily injury." The judge
explained that "intent" refers to "a person's objective or
purpose," and that "specific intent" is "the act of
concentrating or focusing the mind for some perceptible period.
It is a conscious act with the determination of the mind to do
4
Effective July 1, 2012, G. L. c. 265, § 39 (a), was
amended to also include gender identity. See St. 2011, c. 199,
§ 8.
8
an act." The judge then reiterated that the jury must determine
"whether the Commonwealth has proved beyond a reasonable doubt,
as it must, that the defendants acted with the specific intent
to intimidate Tizaya Robinson because of his race or color"
(emphasis added).
During deliberations, the judge received the following
question from the jury: "Assault and battery for purposes of
intimidation solely because of race or in part because of race?"
In response to the question, the judge first reread the three
elements of the offense that the Commonwealth was required to
prove beyond a reasonable doubt. The judge then instructed the
jury as follows: "I said the Commonwealth must prove beyond
reasonable doubt that the defendants did this act with the
specific intent to intimidate [Robinson] because of [his] race,
color, religion, national origin, sexual orientation or
disability but this reason does not have to be the sole reason
for the assault and battery" (emphasis added). All of the
defendants objected to this supplemental instruction.5
5
Having been "let go" by the judge after the jury started
deliberations, the lawyers for Bratlie and Shdeed were not
present in the court room when the judge gave the supplemental
instruction. However, counsel for Kelly stated for the record
that she had spoken with both attorneys about the jury's
question, that they had discussed the applicable case law, and
that they all were of the opinion that the judge simply should
reread the instruction and advise the jury to follow the law.
When counsel for Kelly objected to the supplemental instruction
that was given, the judge noted the objection with respect to
all three defendants.
9
On appeal, the defendants contend that the judge erred when
he instructed the jury that race does not have to be the sole
reason for the alleged crime. The defendants acknowledge that
the judge's original instructions on this charge were correct.
However, in their view, the judge's failure to reinstruct the
jury on the definition of specific intent,6 coupled with his
supplemental instruction on racial motivation, may have
permitted the jury to infer that they were required to convict
the defendants of violating G. L. c. 265, § 39, if race played
even a small or insignificant role in the assault and battery.
More broadly, the defendants contend that jury instructions
pertaining to assault and battery with the intent to intimidate
should specify that the jury must find that race was a
"substantial factor" motivating the commission of the offense.
We disagree.
Where, as here, a defendant raises a timely objection to a
judge's instruction to the jury, we review the claim for
prejudicial error. See Commonwealth v. Vuthy Seng, 456 Mass.
490, 502 (2010). Appellate courts "conduct a two-part test:
'whether the instructions were legally erroneous, and (if so)
6
After thoroughly discussing the jury's question with
counsel for Kelly and the Commonwealth, and informing them of
the manner in which he would respond to the jury, the judge
asked whether the parties would like for him to reread the whole
instruction. Counsel for Kelly stated that the judge should
"just address the elements," and not "seek to define them
again."
10
whether that error was prejudicial.'" Kelly v. Foxboro Realty
Assocs., LLC, 454 Mass. 306, 310 (2009), quoting Masingill v.
EMC Corp., 449 Mass. 532, 540 n.20 (2007). See Commonwealth v.
Cruz, 445 Mass. 589, 591 (2005). An error is not prejudicial if
it "did not influence the jury, or had but very slight effect
. . . . But if one cannot say, with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error, [then] it is impossible to conclude that
substantial rights were not affected." Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v.
Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). See Cruz, supra.
Trial judges have "considerable discretion in framing jury
instructions, both in determining the precise phraseology used
and the appropriate degree of elaboration." Commonwealth v.
Newell, 55 Mass. App. Ct. 119, 131 (2002). Likewise, they have
discretion to determine "[t]he proper response to a jury
question," thereby "furthering the [jury's] difficult task of
coming to a unanimous verdict." Commonwealth v. Waite, 422
Mass. 792, 807 n.11 (1996).
Generally speaking, a hate crime is "a crime in which the
defendant's conduct was motivated by hatred, bias, or prejudice,
based on the actual or perceived race, color, religion, national
origin, ethnicity, gender, or sexual orientation of another
11
individual or group of individuals." Commonwealth v. Anderson,
38 Mass. App. Ct. 707, 709 n.5 (1995), quoting H.R. 4797, 102d
Cong., 2d Sess. (1992). See G. L. c. 22C, § 32 (defining
"[h]ate crime" for purposes of G. L. c. 265, §§ 37 and 39).
"[H]ate crime laws such as G. L. c. 265, § 39, operate to
'enhance the penalty of criminal conduct when it is motivated by
racial hatred or bigotry.'" Barnette, 45 Mass. App. Ct. at 489,
quoting Anderson, supra. "It is not the conduct but the
underlying motivation that distinguishes the crime." Barnette,
supra. In the context of the present appeal, we analyze G. L.
c. 265, § 39, to determine whether the racial animus necessary
for conviction under the statute must be quantified, and, in
turn, whether the judge's supplemental jury instruction was
erroneous.
"The words of a statute are the main source from which we
ascertain legislative purpose . . . ." Foss v. Commonwealth,
437 Mass. 584, 586 (2002). More specifically, courts "construe
a statute in accord with 'the intent of the Legislature
ascertained from all its words construed by the ordinary and
approved usage of the language, considered in connection with
the cause of its enactment, the mischief or imperfection to be
remedied and the main object to be accomplished, to the end that
the purpose of its framers may be effectuated.'" Champigny v.
Commonwealth, 422 Mass. 249, 251 (1996), quoting Telesetsky v.
12
Wight, 395 Mass. 868, 872-873 (1985). Courts must follow the
plain language of a statute when it is unambiguous and when its
application "would not lead to an 'absurd result,' or contravene
the Legislature's clear intent." Commissioner of Revenue v.
Cargill, Inc., 429 Mass. 79, 82 (1999), quoting White v. Boston,
428 Mass. 250, 253 (1998).
General Laws c. 265, § 39, criminalizes a particular kind
of unlawful conduct -- the assault or battery of an individual
arising from the perpetrator's specific intent to intimidate
such person because of that person's membership in a protected
group. See Barnette, 45 Mass. App. Ct. at 489-491. Where, as
here, an assault or battery is purportedly based on race, the
requirement of specific intent ensures that a defendant's
conduct, in fact, is motivated by racial hostility, and
precludes conviction in those circumstances where race is merely
an incidental component of the crime. See Screws v. United
States, 325 U.S. 91, 104 (1945) (one who acts with specific
intent "is aware that what he does is precisely that which the
statute forbids"). The Legislature established the scope of a
defendant's racial motivation when it stated that the
defendant's unlawful conduct must be "because of" a victim's
race. G. L. c. 265, § 39 (a). If the Legislature had wanted to
quantify more explicitly the degree of racial hostility
necessary for conviction under the statute, it would have
13
expressly stated that race must be the "sole" factor or a
"substantial" factor in the defendant's conduct. See generally
Commonwealth v. Anderson, 461 Mass. 616, 631, cert. denied, 133
S. Ct. 433 (2012); Dartt v. Browning-Ferris Indus., Inc.
(Mass.), 427 Mass. 1, 9 (1998). The Legislature did not cabin
the language of G. L. c. 265, § 39 (a), in this manner.
Contrast, e.g., G. L. c. 269, § 14A ("Whoever telephones another
person . . . , repeatedly, for the sole purpose of harassing,
annoying or molesting the person or the person's family, . . .
shall be punished . . ." [emphasis added]). In our view, the
Legislature recognized the possibility of additional factors
playing a role in the perpetration of an assault or a battery
that occurs "because of" the victim's race. For example, in
this case, one such factor could have been Robinson's use of dog
repellent on individuals who were converging on him in a
threatening manner in the driveway of the home on Careswell
Street. By requiring proof that a defendant's actions were
specifically motivated by racial animus, the Legislature has
ensured that the "hate crime" classification is not applied to
individuals whose actions do not fall within the purview of
G. L. c. 265, § 39 -- that is to say, individuals who committed
an assault or a battery in circumstances where the race of the
victim did not play a role in the perpetration of the crime.
14
The burden is on the Commonwealth to prove that a defendant
acted with the specific intent to intimidate a person because of
race. See Commonwealth v. Ogden O., 448 Mass. 798, 805 (2007).
At trial, a defendant has the opportunity to present his or her
defense and to demonstrate to the jury that, whatever the facts,
he or she did not possess the requisite specific intent under
G. L. c. 265, § 39. It then is incumbent on the jury to decide
the reasons for the defendant's alleged unlawful act. See
Commonwealth v. Federico, 425 Mass. 844, 848 (1997) (jury given
deference as "the final judge of credibility"). Notwithstanding
the possibility of other motivating factors, where a jury can
find, beyond a reasonable doubt, that a defendant engaged in
unlawful conduct "because of" a victim's race, that is
sufficient for a conviction under G. L. c. 265, § 39.7 See
7
The so-called hate crimes reporting act, G. L. c. 22C,
§§ 32-35, provides for the collection, analysis, and public
dissemination of hate crime data. See 501 Code Mass. Regs.
§ 4.01 (1993). Pursuant to regulations promulgated by the
colonel of the State police in accordance with G. L. c. 22C,
§ 33, enumerated bias indicators "can assist law enforcement
officers in determining whether a particular crime should be
classified as a hate crime." 501 Code Mass. Regs. § 4.04(1)
(1993). "Bias indicators need not establish that the
predominant purpose of a perpetrator's actions was motivated by
hatred or bias. It is sufficient for classification of an
incident as a hate crime that a perpetrator was acting out of
hatred or bias, together with other motives; or that a bias
motive was a contributing factor, in whole or in part, in the
commission of a criminal act." Id. at § 4.04(2). These
provisions plainly suggest that hate crimes occur where bias on
the basis of race, religion, gender, sexual orientation, or
handicap is a contributing factor, rather than the sole factor,
in a perpetrator's actions.
15
United States v. Piekarsky, 687 F.3d 134, 142-145 (3d Cir.),
cert. denied, 133 S. Ct. 549 (2012), and cases cited (where
Federal statute criminalizes conduct that interferes with,
intimidates, or injures individual "because of" race, 42 U.S.C.
§ 3631 [2012], government need not prove that race was sole or
primary motivation behind assault because presence of other
motives, including personal animus, anger, or revenge, does not
make defendant's conduct any less a violation of statute). Cf.
Commonwealth v. Rosario, 83 Mass. App. Ct. 640, 643 (2013)
(evidence of long-standing hostility between defendant and
victim does not preclude inference of intent to intimidate;
defendant may have acted out of general hostility and, at same
time, intended to intimidate victim as witness); United States
v. Technodyne LLC, 753 F.3d 368, 385 (2d Cir. 2014) ("It is well
established that a defendant accused of [a specific intent]
crime may properly be convicted if his intent to commit the
crime was any of his objectives"). To conclude that racial
animus must be a "substantial factor" motivating the commission
of an assault or a battery would undermine the Legislature's
purpose in punishing more severely all instances of assault or
battery where a defendant's actions were motivated by racial
hatred or bigotry. See Barnette, 45 Mass. App. Ct. at 489.
Such a conclusion would encourage defendants to allege myriad
16
other motivating factors for their unlawful conduct so that it
would not be deemed a hate crime.
Our interpretation of G. L. c. 265, § 39 (a), is consistent
with cases construing G. L. c. 265, § 37, which proscribes,
among other actions, the use of force or threat of force to
interfere with any other person in the exercise of any right or
privilege secured by Federal or State law.8 We recognize, as
Bratlie correctly points out, that G. L. c. 265, § 37, is a more
expansive statute than G. L. c. 265, § 39.9 Nonetheless, both
are part of a broader statutory scheme to criminalize violations
of an individual's civil rights. In Commonwealth v. Zawatsky,
41 Mass. App. Ct. 392, 398 (1996), a case in which the
defendants were prosecuted for so-called "gay bashing" under
G. L. c. 265, § 37, the court pointed out that violence of the
kind prohibited by G. L. c. 265, § 39, "deprives the victim of a
8
General Laws c. 265, § 37, provides, in relevant part:
"No person, whether or not acting under color of law, shall by
force or threat of force, willfully injure, intimidate or
interfere with, or attempt to injure, intimidate or interfere
with, or oppress or threaten any other person in the free
exercise or enjoyment of any right or privilege secured to him
by the constitution or laws of the commonwealth or by the
constitution or laws of the United States."
9
By its terms, G. L. c. 265, § 37, authorizes criminal
penalties for the wilful violation of another person's rights or
privileges secured by the Constitution or laws of the United
States or of the Commonwealth. Section 37 does not address the
underlying motivation of the perpetrator in committing the
offense. In contrast, G. L. c. 265, § 39, requires that the
perpetrator of an assault or a battery have acted because of a
victim's race, color, religion, national origin, sexual
orientation, gender identity, or disability.
17
right or privilege secured to the victim under the laws of the
Commonwealth and, therefore, violates G. L. c. 265, § 37."
Moreover, as relevant to our analysis of § 39, the court in
Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 124 (1987), a
case in which the defendants were convicted of violating the
civil rights of three Asian persons, stated that "[t]he
deprivation of civil rights contemplated by G. L. c. 265, § 37,
does not have to be the predominant purpose of the defendant's
acts" (emphasis added).10
It is well established that "where two or more statutes
relate to the same subject matter, they should be construed
together so as to constitute a harmonious whole consistent with
the legislative purpose." Board of Educ. v. Assessor of
Worcester, 368 Mass. 511, 513-514 (1975). See Charland v. Muzi
Motors, Inc., 417 Mass. 580, 583 (1994) ("a statute is to be
interpreted in harmony with prior enactments to give rise to a
consistent body of law"). As is the case with G. L. c. 265,
§ 37, where the deprivation of civil rights does not have to be
the predominant purpose of a defendant's acts, see note 10,
10
In his brief, Shdeed has asserted that the jury should
have been instructed that Robinson's race must have been a
"substantial factor" in Shdeed's alleged unlawful conduct not
only for a conviction under G. L. c. 265, § 39, but also for a
conviction under G. L. c. 265, § 37. This argument is without
merit. See Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 124
(1987), where the court stated that in order to secure a
conviction under G. L. c. 265, § 37, the deprivation of civil
rights does not have to be the "predominant" purpose of a
defendant's actions.
18
supra, we do not construe the language in G. L. c. 265, § 39
(a), to mean that racial hostility must be the "sole" reason or
a "substantial" reason for a defendant's unlawful conduct. We
decline the defendants' request to quantify the statutory
language in such terms. All that is required is proof beyond a
reasonable doubt that a defendant acted with the specific intent
to intimidate a person "because of" race, notwithstanding the
presence of any other motive. G. L. c. 265, § 39 (a).
Accordingly, we conclude that the judge's supplemental
instruction was not erroneous.
3. Required findings of not guilty with respect to
violations of G. L. c. 265, §§ 37 and 39. General Laws c. 265,
§ 37, provides, in relevant part: "No person, whether or not
acting under color of law, shall by force or threat of force,
willfully injure, intimidate or interfere with, or attempt to
injure, intimidate or interfere with, or oppress or threaten any
other person in the free exercise or enjoyment of any right or
privilege secured to him by the constitution or laws of the
commonwealth or by the constitution or laws of the United
States." At trial, the Commonwealth proceeded on the theory
that it was Robinson's right to personal security that was
violated by the defendants' actions, and the judge so instructed
the jury.
19
On appeal, Kelly contends that the evidence was
insufficient to permit the jury to find beyond a reasonable
doubt the essential elements of a civil rights violation under
G. L. c. 265, § 37. Kelly has not challenged the existence of a
right to personal security that is protected by the Constitution
or laws of the United States or of the Commonwealth, but she
argues that Robinson was not exercising or enjoying such a right
when he instigated a physical altercation. In Kelly's view,
Robinson was not an innocent bystander singled out because of
his race and attacked without provocation. Rather, he was the
aggressor, initiating hostilities with partygoers by calling
them "whores" and "crackers," and by spraying them with dog
repellent. As such, Kelly asserts, there was no violation of
Robinson's right to personal security and, therefore, the judge
should have allowed her motion for a required finding of not
guilty as to the indictment charging a civil rights violation
under G. L. c. 265, § 37. We disagree.
When reviewing the denial of a motion for a required
finding of not guilty, we consider "whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt" (emphasis in original).
Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443
U.S. 307, 318-319 (1979). The inferences drawn by the jury from
20
the evidence "need only be reasonable and possible and need not
be necessary or inescapable." Commonwealth v. Longo, 402 Mass.
482, 487 (1988), quoting Commonwealth v. Casale, 381 Mass. 167,
173 (1980). A conviction may not rest on the piling of
inference upon inference or on conjecture and speculation. See
Commonwealth v. Swafford, 441 Mass. 329, 339-343 (2004), and
cases cited. However, the evidence of a defendant's guilt may
be primarily or entirely circumstantial. See Corson v.
Commonwealth, 428 Mass. 193, 197 (1998); Commonwealth v.
Donovan, 395 Mass. 20, 25 (1985). "If, from the evidence,
conflicting inferences are possible, it is for the jury to
determine where the truth lies, for the weight and credibility
of the evidence is wholly within their province." Commonwealth
v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007).
"If a rational jury 'necessarily would have had to employ
conjecture' in choosing among the possible inferences from the
evidence presented, the evidence is insufficient to sustain the
Commonwealth's burden of proving guilt beyond a reasonable
doubt." Commonwealth v. Rodriguez, 456 Mass. 578, 582 (2010),
quoting Commonwealth v. Croft, 345 Mass. 143, 145 (1962).
Viewing the evidence in the light most favorable to the
Commonwealth, the jury could have found that Kelly was part of
the attack on Robinson that started in the driveway of the home
on Careswell Street and ended on the street in front of the
21
Garlic Restaurant. There was testimony from numerous witnesses
that Kelly pushed Robinson out of the driveway, and that she
subsequently kicked and punched him while he was lying in a
fetal position on the ground. Notwithstanding Kelly's claim
that Robinson had called several of the partygoers "whores" and
"crackers," there was countervailing testimony that he had not
threatened anyone, used racially charged language, or made
derogatory comments toward women.
It was the province of the jury to assess the credibility
of the witnesses and thereby decide whom to believe. See Lao,
supra, 443 Mass. at 779. There is no dispute that Robinson used
dog repellent on several partygoers in the midst of the
altercation. However, the jury could have found that Robinson
used the repellent in an attempt to either deter or escape from
a group of individuals that was converging on him in a
threatening manner. Kelly's contention that Robinson was the
aggressor belies the Commonwealth's evidence to the contrary,
and we must view the evidence not in the light most favorable to
Kelly, but in the light most favorable to the Commonwealth.
Based on all of the evidence, the jury reasonably could infer
that Kelly wilfully interfered with Robinson's right to personal
security. It follows, therefore, that the jury could find
beyond a reasonable doubt that Kelly violated Robinson's civil
rights under G. L. c. 265, § 37. Accordingly, the judge did not
22
err in denying Kelly's motion for a required finding of not
guilty as to that charge.
In a related vein, Bratlie contends on appeal that the
judge erred in denying his motions for required findings of not
guilty as to the indictments charging assault and battery for
the purpose of intimidation under G. L. c. 265, § 39, and a
civil rights violation under G. L. c. 265, § 37. He claims
that, absent reliance on conjecture, there was insufficient
evidence to establish his intent, that is to say, to show that
his actions were motivated by, or were because of, race.11
Significantly missing, Bratlie continues, was evidence that he
uttered any statements that specifically demonstrated a racial
animus toward Robinson.12 Moreover, Bratlie asserts that there
was no racial context for his actions given that Robinson had,
among other things, called partygoers "whores" and "crackers,"
and had sprayed them with dog repellent. In Bratlie's view, the
evidence demonstrated that it was equally likely that his
misconduct was due to Robinson's disruptive behavior at the
party as it was due to Robinson's race, and, consequently, the
11
In contrast to G. L. c. 265, § 39, the language of G. L.
c. 265, § 37, does not require an intent to wilfully injure,
intimidate, or interfere with another person's rights or
privileges because of such person's race. See note 8, supra.
12
The Commonwealth proceeded on a joint venture theory with
respect to all of the alleged crimes except for a civil rights
violation under G. L. c. 265, § 37, and assault and battery for
the purpose of intimidation under G. L. c. 265, § 39.
23
jury would have had to resort to conjecture to determine whether
Bratlie's actions were, beyond a reasonable doubt, racially
motivated. That being the case, Bratlie argues, the evidence
was insufficient to sustain the Commonwealth's burden of proof,
and his motions for required findings of not guilty should have
been allowed. We disagree.
There was no dispute that Bratlie was part of the attack on
Robinson that started in the driveway of the home on Careswell
Street and ended on the street in front of the Garlic
Restaurant. Christina Sacco testified that Bratlie kicked and
punched Robinson while he was lying in the street. She also
testified that Bratlie called Robinson a "nigger" during the
early part of the altercation while the partygoers were still in
the driveway. Further, she stated that she had no trouble
distinguishing Christopher Bratlie from his brother, Devin
Bratlie, who also was at the party but whom Sacco did not see
engaging in the altercation. One of the partygoers, Korrie
Molloy, testified that "one of the Bratlie boys" was among a
group of partygoers that was punching Robinson after he had been
pushed into Careswell Street.13 Molloy further stated that all
13
At certain points in her testimony, Molloy professed an
inability to recall the details surrounding Bratlie's
involvement in the attack on Robinson. Consequently, the
testimony that Molloy had given before the grand jury regarding
what she had observed was read in evidence. On appeal, no party
has claimed that the Daye requirements for admission of grand
jury testimony were not sufficiently met. See Commonwealth v.
24
of the individuals in this group were calling Robinson a
"nigger," although she did not specifically name Christopher
Bratlie as one of the members of this group. During her
testimony the next day, Molloy stated that she did not know if
the Bratlie brother she had observed had been making racial
slurs because she "couldn't hear him specifically." She did not
"know what his voice sound[ed] like." However, Molloy testified
that she heard him make those statements earlier "in the other
fight."
When Molloy's testimony was considered in conjunction with
that of Sacco, the jury reasonably could infer, without
resorting to conjecture, that Christopher Bratlie wilfully
interfered with Robinson's right to personal security, and that
Bratlie committed an assault or a battery on Robinson with the
intent of intimidating him because of his race. It was entirely
within the province of the jury to deem the equivocal testimony
of Molloy regarding which of the Bratlie brothers was involved
in the altercation not credible. See Federico, 425 Mass. at
848. Moreover, even if Bratlie's unlawful conduct also was
attributable to Robinson's purported disruptive behavior at the
party, as he claims, that fact did not invalidate his
convictions. See Stephens, 25 Mass. App. Ct. at 124.
Accordingly, the judge did not err in denying Bratlie's motions
Daye, 393 Mass. 55, 66 (1984), overruled on other grounds by
Commonwealth v. Cong Duc Le, 444 Mass. 431 (2005).
25
for required findings of not guilty as to the indictments
charging assault and battery for the purpose of intimidation and
a civil rights violation.
4. Jury instructions on civil rights violation under G. L.
c. 265, § 37. The trial judge instructed the jury on the
elements comprising a violation of G. L. c. 265, § 37, generally
in accordance with Instruction 6.620 of the Criminal Model Jury
Instructions for Use in the District Court (2009) (Instruction
6.620). However, when describing the first element that the
Commonwealth was required to prove beyond a reasonable doubt,
namely the "exercise or enjoyment of any right or privilege
secured to [Robinson] by the constitution or laws of the
commonwealth or by the constitution or laws of the United
States," G. L. c. 265, § 37, the judge added the following
language to the model jury instruction: "As a matter of law,
racially motivated violence violates the right to personal
security enjoyed by all persons no matter their race." The
judge reiterated this instruction shortly thereafter when he
stated: "Again, I inform you that as a matter of law all
persons have the right to be secure in their person. Racially
motivated violence violates the right to personal security
enjoyed by all persons no matter their race." Finally, the
judge repeated this instruction a third time when he stated that
"the right to personal security . . . is violated by violence
26
against a person who is selected as a victim and harmed because
of his or her race. This right is violated by racially
motivated violence by private persons; that is, persons who are
not acting in an official government capacity."
Kelly contends for the first time on appeal that these jury
instructions were improper because they relieved the
Commonwealth of its burden of proving that Kelly violated
Robinson's right to personal security. In her view, the judge's
instructions placed artificial importance on race and suggested
that if it played any role in the motivation behind the
altercation, then Robinson's right to personal security had been
violated. Kelly points out that the language of G. L. c. 265,
§ 37, includes no reference to a victim's race or other
characteristics. Therefore, she continues, the race of an
alleged victim should have no greater evidentiary value than any
other evidence with respect to a civil rights violation. Kelly
asserts that because the jury instructions on this charge
focused on race, the judge improperly conflated a violation of
G. L. c. 265, § 37, with a violation of G. L. c. 265, § 39,
which does require a racial intent. By so doing, Kelly argues,
the judge confused the jury by suggesting that if a defendant is
found guilty of violating § 39, then the first element of § 37
has been satisfied, thereby relieving the Commonwealth of its
27
burden of proof as to that element. We disagree with Kelly's
interpretation of the judge's instructions.
We evaluate jury instructions as a whole and interpret them
as would a reasonable juror. Commonwealth v. Trapp, 423 Mass.
356, 361, cert. denied, 519 U.S. 1045 (1996). We do not require
that judges use particular words, but only that they convey the
relevant legal concepts properly. Id. at 359. Because Kelly
did not object at trial to the jury instructions pertaining to a
civil rights violation under G. L. c. 265, § 37, we review her
claim to determine whether there was an error and, if so,
whether the error created a substantial risk of a miscarriage of
justice. See Commonwealth v. Belcher, 446 Mass. 693, 696
(2006). This standard "requires us to determine 'if we have a
serious doubt whether the result of the trial might have been
different had the error not been made.'" Commonwealth v. Azar,
435 Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430
Mass. 169, 174 (1999).
Here, the judge plainly explained that the Commonwealth was
required to prove beyond a reasonable doubt that Robinson was
exercising a protected right or privilege. It goes without
saying that State and Federal laws protect myriad individual
rights. The additional language that the judge incorporated
into Instruction 6.620 explained, in specific terms, that, given
the Commonwealth's theory of the case, the right being enjoyed
28
by Robinson was one of personal security, and that racially
motivated violence against Robinson would constitute an
infringement on that right. The elements of G. L. c. 265, § 37,
cannot be divorced from the facts surrounding the altercation on
Careswell Street, and the additional language employed by the
judge simply reflected the context in which Kelly's actions
should be evaluated by the jury. Moreover, the judge did not
err in stating the general proposition that racially motivated
violence directed at an individual would interfere with that
individual's right to personal security. See Stephens, 25 Mass.
App. Ct. at 123-124.
In our view, the judge's instructions did not conflate a
violation of G. L. c. 265, § 37, with a violation of G. L.
c. 265, § 39. During his general instructions, the judge
informed the jury that they "must consider the Commonwealth's
case against each defendant separately and [they] must consider
each indictment as to each defendant separately." In his
specific instructions, the judge first explained the distinct
elements of a violation of G. L. c. 265, § 37, and then he
proceeded to describe the elements of a violation of G. L.
c. 265, § 39. Finally, the judge reiterated at the end of his
instructions that the jury "must consider each indictment
separately." The fact that the judge explained a violation of
personal security under G. L. c. 265, § 37, in the context of
29
racial violence did not relieve the Commonwealth of its burden
of proving all of the elements of that offense. Moreover, to
the extent that the jury were unclear whether their findings as
to Kelly's violation of § 39 could be used in considering
whether she had violated § 37, the judge gave a supplemental
clarifying instruction. During deliberations, the judge
received the following question from the jury: "Should previous
decisions made on indictments influence or be considered when
deciding about other indictments or should each indictment be
considered separately regardless of previous decisions?" The
judge responded by informing the jury twice that "each
indictment must be decided individually." We conclude that the
instructions taken as a whole would not have confused a
reasonable juror regarding the law pertaining to a violation of
G. L. c. 265, § 37. There was no error in the judge's
instructions.
5. Duplicative convictions. Bratlie first contends that
his conviction of assault and battery as a lesser included
offense of assault and battery by means of a dangerous weapon
(shod foot) and his conviction of simple assault and battery are
duplicative because the judge did not instruct the jury that
these offenses must be based on separate and distinct acts.
Bratlie concedes that there was evidence presented at trial that
could have supported separate assault and battery convictions.
30
He acknowledges that the jury could have found that he pushed
Robinson out of the driveway, that he tackled Robinson to seize
the dog repellent, that he punched Robinson after tackling him,
and that he kicked Robinson while Robinson was lying in
Careswell Street. However, in Bratlie's view, the judge's
failure to instruct on separate and distinct acts, or, at the
very least, to make clear to the jury which alleged acts
corresponded to which charges, was fatal to his convictions of
both offenses. Accordingly, Bratlie argues that one of these
assault and battery convictions must be dismissed as
duplicative. We agree.
Where, as here, Bratlie did not raise the issue of
duplicative convictions below, we review his claim to determine
whether there was an error and, if so, whether the error created
a substantial risk of a miscarriage of justice. See
Commonwealth v. Gouse, 461 Mass. 787, 799 (2012); Commonwealth
v. King, 445 Mass. 217, 225 (2005), cert. denied, 546 U.S. 1216
(2006). "Assault and battery is a lesser included offense of
assault and battery by means of a dangerous weapon." Gouse,
supra at 798, quoting Commonwealth v. Jackson, 80 Mass. App. Ct.
528, 529 (2011). See G. L. c. 265, §§ 13A, 15A (c).
Convictions of greater and lesser included offenses are allowed
when they "rest on separate and distinct acts." King, supra.
"Whether a defendant's actions constitute separate and distinct
31
acts or must be considered a single crime is a question of fact
for the jury to resolve." Commonwealth v. Vick, 454 Mass. 418,
435 n.16 (2009).
Convictions of two cognate offenses will be sustained
"where the judge instructs the jury explicitly that they must
find separate and distinct acts underlying the different
charges." Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 753-
754 (2008). See King, 445 Mass. at 226 (judge properly
instructed jury that forcible rape of child and indecent assault
and battery must rest on separate and distinct acts, each of
which judge carefully described); Commonwealth v. Maldonado, 429
Mass. 502, 509-510 (1999) (judge specifically instructed jury
that convictions of assault and battery by means of dangerous
weapon and murder must rest on separate and distinct acts). See
also Gouse, 461 Mass. at 799 (no substantial risk of miscarriage
of justice where, although judge did not use exact words
"separate and distinct act," he made clear that two indictments
were based on separate acts, each of which he described with
particularity). Where, however, the judge does not clearly
instruct the jury that they must find that the defendant
committed separate and distinct criminal acts to convict on the
different charges, the conviction of the lesser included offense
must be vacated as duplicative, even in the absence of an
objection, if there is any significant possibility that the jury
32
may have based convictions of greater and lesser included
offenses on the same act or series of acts. See Commonwealth v.
Thomas, 400 Mass. 676, 681 (1987) (vacating lesser included
offense and stating that appellate court "need not consider
whether the evidence would support a finding of two separate
incidents in this case, because the judge did not instruct the
jury that the convictions must be based on separate acts"). See
also Commonwealth v. Sanchez, 405 Mass. 369, 381-382 (1989)
(conviction of indecent assault and battery duplicative of
conviction of forcible rape of child where judge did not
instruct jury that convictions must be based on separate acts);
Commonwealth v. Howze, 58 Mass. App. Ct. 147, 150-152 (2003);
Commonwealth v. Juzba, 46 Mass. App. Ct. 319, 325 (1999).
We reiterate that we review here the judge's failure to
properly instruct the jury that convictions of greater and
lesser included offenses must be based on separate and distinct
acts to determine whether such error created a substantial risk
of a miscarriage of justice. "A substantial risk of a
miscarriage of justice exists when we have 'a serious doubt
whether the result of the trial might have been different had
the error not been made.'" Commonwealth v. Randolph, 438 Mass.
290, 297 (2002), quoting Azar, 435 Mass. at 687. "Errors of
this magnitude are extraordinary events and relief is seldom
granted." Randolph, supra, citing Commonwealth v. Amirault, 424
33
Mass. 618, 646-647 (1997). "In analyzing a claim under the
substantial risk standard, '[w]e review the evidence and the
case as a whole.'" Randolph, supra, quoting Azar, supra.
Over the years, it has been stated that convictions must be
vacated as duplicative if there is any possibility that the jury
may have based convictions of greater and lesser included
offenses on the same act. See Berrios, 71 Mass. App. Ct. at
753-755 ("Convictions of two cognate offenses will be sustained
where there is no chance that the finder of fact based the two
offenses upon the same act . . . . [I]f there is any
possibility that the jury's verdicts were premised on a single
act, then reversal of the lesser offense is required"); Howze,
58 Mass. App. Ct. at 150 ("[I]f there is any possibility that
the jury's verdicts here were premised on a single act, reversal
as to the lesser offense . . . would be required"); Commonwealth
v. Black, 50 Mass. App. Ct. 477, 478-479 (2000) ("Unless the
judge cautions otherwise, there is a theoretical possibility
that the jury could base both the rape and indecent assault and
battery convictions on the same act. If there is no indication
in the record that such a possibility is insubstantial, the
conviction of the lesser included offense will be vacated to
avoid the possible miscarriage of justice"). The appropriate
inquiry is whether there is any significant possibility that the
jury may have based convictions of greater and lesser included
34
offenses on the same act. Although this inquiry is less
generous to a defendant, it is more consistent with the
substantial risk of a miscarriage of justice standard of
review.14
In the present case, the judge instructed the jury on the
elements of assault and battery by means of a dangerous weapon,
and he explained that the dangerous weapon attributable to
Bratlie was a shod foot. The judge further instructed that if
the Commonwealth had not met its burden of proof beyond a
reasonable doubt with respect to this offense, then the jury
should consider whether the Commonwealth had established that
the defendant was guilty of the lesser included offense of
assault and battery. The judge then instructed the jury on the
elements of assault and battery. He reiterated that the jury
could consider assault and battery as a lesser included offense
of assault and battery with a dangerous weapon, and he also
stated that Bratlie was "charged directly with assault and
battery" on Robinson. In neither his regular nor his
supplemental instructions did the judge inform the jury that a
conviction of assault and battery by means of a dangerous weapon
(shod foot) had to be based on acts that were separate and
distinct from those supporting a conviction of assault and
14
We do not address whether a defendant is entitled to a
less forgiving standard of review if the defendant has objected
to the judge's failure to give an instruction on the need to
find separate and distinct criminal acts.
35
battery. That the judge instructed the jury several times that
they must consider each indictment separately did not equate to
informing the jury that these two charged offenses must be
factually based on separate and distinct acts. Moreover,
neither the indictments nor the verdict slips received by the
jury identified the respective conduct for each charge. Not
only did the judge not use the words "separate and distinct
acts," see Thomas, 400 Mass. at 680-682, but, alternatively, he
also did not describe with particularity which alleged acts
supported which charges. Contrast Gouse, 461 Mass. at 799.
On the basis of the instructions given, it is impossible
for us to know on which facts each conviction rested. We
recognize, as the Commonwealth points out, that the prosecutor,
in his opening and closing statements, described how the
evidence demonstrated that the altercation occurred in two parts
-- the first as Robinson was being pushed out of the driveway
and up Careswell Street, and the second as Robinson was lying in
a fetal position on the ground while being kicked and punched by
partygoers. However, the prosecutor did not specifically point
out which alleged acts corresponded to which charges. We
conclude that even where, as here, there was evidence of
separate and distinct acts sufficient to convict with respect to
each assault and battery charge, the judge's failure to instruct
the jury that each charge must be based on a separate and
36
distinct act created a substantial risk of a miscarriage of
justice.
Bratlie further contends that assault and battery is a
lesser included offense of assault and battery for the purpose
of intimidation under G. L. c. 265, § 39. As such, he
continues, the judge's failure to instruct the jury that these
offenses must be based on separate and distinct acts rendered
his assault and battery convictions duplicative of his
conviction of assault and battery for the purpose of
intimidation without bodily injury. We agree with Bratlie that
assault and battery is a lesser included offense of assault and
battery for the purpose of intimidation. However, with respect
to Bratlie's one remaining conviction of assault and battery, we
conclude that, while it is a close call, the judge's failure to
instruct on separate and distinct acts did not create a
substantial risk of a miscarriage of justice where, based on our
review of the evidence, there was no significant possibility
that the jury based this conviction and his conviction of
assault and battery for the purpose of intimidation on the same
act.
"Under our long-standing rule derived from Morey v.
Commonwealth, 108 Mass. 433, 434 (1871), a lesser included
offense is one whose elements are a subset of the elements of
the charged offense." Commonwealth v. Porro, 458 Mass. 526, 531
37
(2010). See Vick, 454 Mass. at 431-434; Commonwealth v. Jones,
382 Mass. 387, 393 (1981). Thus, a "lesser included offense is
one which is necessarily accomplished on commission of the
greater crime." Commonwealth v. D'Amour, 428 Mass. 725, 748
(1999). "The test is whether, '[i]n order to convict [of the
greater offense], all the elements of [the lesser offense] must
be found, plus an additional aggravating factor.'" Commonwealth
v. Schuchardt, 408 Mass. 347, 351 (1990), quoting Commonwealth
v. Sherry, 386 Mass. 682, 695 (1982). See Commonwealth v.
Pimental, 454 Mass. 475, 482 (2009).
As pertinent here, the essential elements of the crime of
assault or battery for the purpose of intimidation are (1) the
commission of an assault or a battery, (2) with the intent to
intimidate, (3) because of a person's race, color, religion,
national origin, sexual orientation, or disability. G. L.
c. 265, § 39. See Barnette, 45 Mass. App. Ct. at 489. Assault
and battery is a common-law crime that has been codified in
G. L. c. 265, § 13A ("Whoever commits an assault or an assault
and battery upon another shall be punished . . ."). Assault is
defined as either a threat to use physical force on another, or
an attempt to use physical force on another. See Porro, 458
Mass. at 530-531; Commonwealth v. Gorassi, 432 Mass. 244, 247-
248 (2000); Commonwealth v. Shaffer, 367 Mass. 508, 515 (1975).
Criminal battery is defined as harmful or offensive touching.
38
See Porro, supra at 529-530 (explaining intentional battery and
reckless battery). See also Commonwealth v. Burke, 390 Mass.
480, 482-483 (1983). "Every battery includes an assault." Id.
at 482.
Based on our well-established, elements-based approach to
analyzing purported duplicative convictions, we conclude that
assault and battery is a lesser included offense of assault and
battery for the purpose of intimidation. The latter crime
includes all of the elements of the former crime, plus the
additional elements of specific intent to intimidate because of
an individual's race, color, religion, national origin, sexual
orientation, gender identity, or disability. These additional
elements are aggravating factors that "enhance the penalty of
criminal conduct when it is motivated by racial hatred or
bigotry." Anderson, 38 Mass. App. Ct. at 709 n.5.
In this case, however, the jury were not given the option
of convicting Bratlie of assault and battery as a lesser
included offense of assault and battery for the purpose of
intimidation. When discussing his proposed jury instructions
with counsel for the defendants and the Commonwealth, the judge
stated his belief that simple assault and battery was not a
lesser included offense of assault and battery for the purpose
of intimidation. Consequently, with respect to the verdict slip
on the charge of assault and battery for the purpose of
39
intimidation resulting in bodily injury, G. L. c. 265, § 39 (b),
the only enumerated lesser included offense was assault and
battery for the purpose of intimidation with no bodily injury.
It follows, therefore, that the jury must have based Bratlie's
conviction of assault and battery for the purpose of
intimidation with no bodily injury on an act that was separate
and distinct from the one that supported his conviction of
assault and battery, where the evidence was clear that Bratlie
kicked and punched Robinson when he was curled up in a fetal
position and Robinson suffered bodily injury. Bratlie's
convictions of these two crimes are not duplicative. The
judge's failure to instruct the jury on separate and distinct
acts did not create a substantial risk of a miscarriage of
justice in these particular circumstances. Contrast Sanchez,
405 Mass. at 381-382 (Commonwealth did not argue that lesser
included offense constituted wholly separate act from greater
offense); Thomas, 400 Mass. at 680-682 (analysis of duplicative
convictions not based on substantial risk of miscarriage of
justice standard of review).
6. Conclusion. With respect to Kelly, her convictions are
affirmed. With respect to Shdeed, his convictions are affirmed.
With respect to Bratlie, his convictions of a violation of civil
rights without bodily injury, assault and battery for the
purpose of intimidation without bodily injury, and one count of
40
assault and battery are affirmed. His conviction of, and
sentence for, a second count of assault and battery is vacated
as duplicative.
So ordered.
LENK, J. (concurring in part and dissenting in part, with
whom Botsford and Duffly, JJ., join). I agree with the court's
reasoning and conclusions on virtually all of the issues
presented in this case. My only disagreement concerns the claim
of the defendant, Christopher Bratlie, that three of his
convictions were duplicative.
I accept the court's rendering of the applicable
principles.1 I agree with the court that, under these
principles, Bratlie's two convictions of assault and battery are
potentially duplicative, essentially because "[o]n the basis of
the instructions given, it is impossible for us to know on which
facts each conviction rested." Ante at . I do not, however,
share the court's view that there is no significant possibility
that Bratlie's remaining conviction of assault and battery is
1
As the court explains, convictions of "cognate" offenses,
namely a greater offense and a lesser included offense, are
permissible only if they "rest on separate and distinct acts."
Ante at , quoting Commonwealth v. King, 445 Mass. 217, 226
(2005), cert. denied, 546 U.S. 1216 (2006). The judge at a
trial on cognate offenses must impart this rule to the jury,
either by "instruct[ing] the jury explicitly that they must find
separate and distinct acts underlying the different charges" or
by "ma[king] clear that [the] indictments [a]re based on
separate acts, each of which [is] described with particularity."
Ante at , quoting Commonwealth v. Berrios, 71 Mass. App. Ct.
750, 753-754 (2008), and citing Commonwealth v. Gouse, 461 Mass.
787, 799 (2012). Failure to provide such instructions requires
reversal of the lesser conviction if there is "any significant
possibility" that the jury may have based cognate convictions on
the same act. See ante at .
2
duplicative of his conviction of assault and battery for the
purpose of intimidation.
The court's line of reasoning on this point, as I
understand it,2 runs as follows: (a) one of the two convictions
was surely based on acts by Bratlie that caused the victim
bodily injury, "where the evidence was clear that Bratlie kicked
and punched [the victim] when he was curled up in a fetal
position and [the victim] suffered bodily injury," ante at ;
(b) only the assault and battery conviction could have been
based on an act by Bratlie that resulted in bodily injury, since
the conviction of assault and battery for the purpose of
intimidation was returned as a lesser included offense of
assault and battery for the purpose of intimidation with the
2
The court notes that "the jury were not given the option
of convicting Christopher Bratlie of assault and battery as a
lesser included offense of assault and battery for the purpose
of intimidation." Ante at . I do not understand this fact
to form the basis for the court's conclusion that Bratlie's
convictions of assault and battery and of assault and battery
for the purpose of intimidation were based on separate acts. If
we assume that the jury viewed assault and battery and assault
and battery for the purpose of intimidation as noncognate
offenses, each requiring proof of an element not required by the
other, then the jury could well have concluded that a single act
would support Bratlie's convictions of both offenses. See
Commonwealth v. Vick, 454 Mass. 418, 431 (2009). Otherwise put,
the fact that the jury were incorrectly led to think that
assault and battery and assault and battery for the purpose of
intimidation are noncognate offenses did not reduce the risk
that they based the convictions of these two offenses on a
single act. See Commonwealth v. Thomas, 400 Mass. 676, 680-682
(1987) (reversing lesser conviction where judge failed to
provide "separate acts" instruction and did not present offenses
to jury as cognate offenses).
3
additional element of resultant bodily injury; and
(c) correspondingly, the conviction of assault and battery for
the purpose of intimidation must have been based on earlier acts
by Bratlie, namely his participation in the group that chased
the victim out of the Careswell Street driveway, threatening him
and calling him a "nigger." In my view, this line of reasoning
is not compelling.
To begin with, we cannot safely assume that the jury found
that Bratlie was responsible for any injuries suffered by the
victim. To be sure, the evidence would have supported such a
finding; but we do not know what portions of this evidence the
jury believed and what inferences they drew from it. For
instance, the jury did not find that Kevin Shdeed, one of
Bratlie's codefendants, caused the victim bodily injury. There
was testimony that Shdeed, like Bratlie, kicked and punched the
victim while he was lying on the ground. See ante at .
Shdeed also reportedly hit the victim with a large stick. See
ante at . But, although Shdeed was charged with violations
of civil rights resulting in bodily injury, and with assault and
battery for the purpose of intimidation resulting in bodily
injury (among other offenses), the jury convicted him only of
the lesser included versions of these offenses that did not
contain the element of resultant bodily injury.
4
The jury similarly could have entertained a reasonable
doubt whether Bratlie's acts caused the injuries suffered by the
victim. If we do not assume that the jury found that Bratlie
caused the victim bodily injury, we cannot proceed to identify,
as the court seeks to do, which of Bratlie's acts supported
which of his convictions; any of those convictions could have
been based on any of the acts with which Bratlie was charged.
Moreover, the court's inference that Bratlie's conviction
of assault and battery for the purpose of intimidation was based
on his noninjury-causing acts, early on in the confrontation,
does not square with the court's own analysis elsewhere in the
opinion. One of Bratlie's other arguments is that the evidence
was insufficient to support his conviction of assault and
battery for the purpose of intimidation. See ante at . In
rejecting that argument, the court relies specifically on
evidence concerning Bratlie's involvement in the final, most
violent phase of the attack against the victim. This evidence
included the testimony of one witness, Christina Sacco, that
Bratlie kicked and punched the victim while he was lying in the
street; and that of another witness, Korrie Molloy, that all of
the individuals in the group attacking the victim at that time
were calling him a "nigger." See ante at .3 The court's own
3
As the court's analysis suggests, this was the evidence
that most strongly supported Bratlie's conviction of assault and
5
analysis thus suggests a significant possibility that Bratlie's
conviction of assault and battery for the purpose of
intimidation was based on the very same acts that, in the
current context, the court identifies as the likely basis of the
assault and battery conviction.
For these reasons, my view is that here, too, "it is
impossible for us to know on which facts each conviction
rested." Ante at . Given that the jury were not instructed
that convictions of cognate offenses must be based on separate
acts, there is a significant possibility that Bratlie's
conviction of assault and battery and his conviction of assault
and battery for the purpose of intimidation were based on the
same act. I would therefore reverse Bratlie's remaining
conviction of assault and battery as well.
battery for the purpose of intimidation. Accordingly, if -- as
the court assumes -- the jury believed that Bratlie caused the
victim bodily injury, it is puzzling that they did not convict
him of assault and battery for the purpose of intimidation with
the charged element of resultant bodily injury.