Commonwealth v. Jorge Arias
Massachusetts Court of Appeals
December 15, 2010
Docket No. 09-P-1792
Larceny, Assault by Means of a Dangerous Weapon, In-Court Identification, Special Verdict Slip
The jury found the defendant guilty for larceny over $250, assault by means of a dangerous weapon, reckless operation of a motor vehicle, and failure to stop for a police officer. The defendant appealed this decision, arguing that the absence of a special verdict slip for the charge of assault by means of a dangerous weapon created a miscarriage of justice; that there was insufficient evidence to support his conviction of assault by means of a dangerous weapon; and that the judge abused his discretion in denying his request for a "non-suggestive" in-court identification procedure.
Facts
Shortly before 8:00 P.M. Everett police officer Leonard, while working a paid detail at Home Depot, saw the defendant throw several boxes over a chain link fence in the garden section of the store and walk back into the store. Leonard, who was in uniform, drove his personal truck to the area where the boxes were thrown and saw a dark pickup truck with its headlights off pull up to where the defendant threw the boxes. The defendant got out of the dark truck and reached for one of the boxes when the officer pulled up and parked his personal truck in front of the other truck, so that both trucks were directly facing one another. The defendant dropped the box, ran back into his truck, and "threw" the truck into drive. The truck "lurched forward" and the officer, later testifying that he feared for his life at this time, pulled out his service weapon and ordered the defendant stop. The defendant yelled "I didn't do anything," put his truck in reverse and drove off, spinning his tires.
Leonard broadcasted the description of the truck and the defendant and proceeded to block one of the exits from the store parking lot. Although several police officers pursued the defendant around the parking lot, the defendant did not stop and eventually escaped, leading police on a high-speed chase. After the police called off the pursuit when the defendant reached the Tobin bridge due to safety, Boston police in East Boston stopped the defendant. Officer Leonard identified the defendant at the scene and another Everett police officer, who took part in the chase, identified the truck.
Leonard testified that he saw the defendant's face "clearly" during the interaction where the trucks were head to head because he had his truck's headlights on while the defendant did not have his headlights turned on. Furthermore, Leonard watched the defendant for approximately five minutes while he was in the garden section of Home Depot. Leonard also testified that he would "never forget [the defendant's] face;"he had an imprint of the defendant's face "burned in [his] memory" due to having to pull out his service weapon; and that he had "no doubt" as to the his identification of the defendant.
Issue 1: Should there have been a special verdict slip?
The defendant contends that because the judge instructed the jury on both theories of assault as part of his instruction on assault by means of a dangerous weapon, the jury should have been given a special verdict slip to indicate on what theory their verdict relied upon because there was not sufficient evidence to support both theories. This issue is reviewed only to determine whether this lack of a special verdict slip created a substantial risk of a miscarriage of justice because the defendant did not raise this claim at trial.
A special verdict slip is required to ensure unanimity in a criminal case when the Commonwealth proceeds on "alternative theories" of guilt, defined as "separate, distinct, and essentially unrelated ways in which the same crime can be committed." Defendant argues that the different forms of assault he is being charged with may be committed by two separate, distinct, and unrelated ways. The court rejects defendant's argument because it mistakes overlapping subcategories of a single element for separate theories. The methods of committing assault - attempted battery force or the threat of battery - are closely related and may or may not work in combination. These relationships are just alternative methods of establishing a required element, not separate theories of how the crime may be committed. Therefore, a special verdict slip was not needed.
Issue 2: Was there sufficient evidence for the conviction of assault by means of a dangerous weapon?
The standard of review is whether after viewing all the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Under the attempted battery theory, the Commonwealth must prove that the defendant intended to commit a battery, took some overt step towards accomplishing that intended battery, and came reasonably close to doing so. An attempted battery does not require proof that the victim was aware of the attempt or was put in fear by it. In a "threatened battery" type of assault, the Commonwealth must prove that the defendant engaged in "objectively menacing" conduct with the intent to put the victim in fear of immediate bodily harm.
The Commonwealth is able to use the same conduct to prove an assault under both forms and the court found either definition of assault could comfortably be met. Under the attempted battery theory, the defendant putting his truck into drive and "lurching" it Leonard is the overt act attempting bodily harm, the defendant came reasonably close to doing so because he only stopped once Leonard pulled out his service weapon and pointed it at him, and the act of putting the truck into drive and driving it at Leonard is more than sufficient to permit the inference that the defendant's conduct was intentional. Likewise under the threatened battery theory, the lurching of the truck towards Leonard is menacing conduct and and the fear of an imminent harm is fulfilled by Leonard, who testified he was in fear for his life, stood only a few feet from this lurching truck. Therefore, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Issue 3: Should there have been a non-suggestive in-court identification?
There was no abuse of the trial judge's discretion because the defendant did not motion for suppression of Leonard's identification, did not request a voir dire on the subject, nor did he object to Leonard's identification at trial. Furthermore, there was no suggestion prior to this appeal that Leonard's identification was unreliable. After reviewing the record, the court found that there is no hint of error because Leonard, an experience police officer, observed the defendant in the well-lit area of Home Depot, had an unobstructed and well-lit view of the defendant while in his truck, and the show-up occurred only five to ten minutes after the Home Depot incident. Therefore, there was no abuse of discretion for the denial of the request for an in-court identification.
Judgments affirmed.
Prepared by AAO
