Commonwealth v. Michael Robicheau.

• Court: Massachusetts Appeals Court
• Decided: June 11, 2024
• Docket: 22-P-1176
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1176

COMMONWEALTH

vs.

MICHAEL ROBICHEAU.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In a consolidated appeal, the defendant, Michael Robicheau,

appeals from his conviction of assault and battery (G. L.

c. 265, § 13A [a]) after a jury trial, and he appeals the denial

of his motion for additional sentence credit. The jury

acquitted him on charges of unarmed robbery and strangulation or

suffocation. As to his conviction, the defendant challenges the

sufficiency of evidence as well as the denial of a requested

jury instruction. We affirm his conviction and deem the

sentence credit claim moot.

Sufficiency of evidence. The defendant claims that the

evidence at trial was insufficient because it substantially

varied from the evidence presented to the grand jury. Specifically, he contends that the grand jury indicted him based

on testimony of a police detective that the defendant robbed the

victim and "pushed" her as she chased him into the woods;

however, at trial the victim testified that the defendant

"kicked" her during that robbery and had no physical contact as

she chased him into the woods. Reasoning that the assault and

battery on which he was convicted was not the same assault and

battery underlying the indictment, the defendant argues that the

judge should have granted his motion for a required finding of

not guilty. We disagree.

"In reviewing the denial of motions for directed verdicts

in criminal cases, we have frequently said that we must consider

and determine whether the evidence, in its light most favorable

to the Commonwealth, notwithstanding the contrary evidence

presented by the defendant, is sufficient . . . permit the jury

to infer the existence of the essential elements of the crime

charged" (quotation and citation omitted). Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979). The evidence here met

that standard. The victim testified that the defendant grabbed

a chain around her neck, pulled her to the ground, "kicked" her,

and dragged her by the arm. She then chased the defendant into

the woods and lost sight of him without any further physical

contact. The victim's testimony about being kicked made assault

and battery "an option for the jury if it believed that the

2 defendant kicked the victim," Commonwealth v. Mills, 54 Mass.

App. Ct. 552, 554 (2002), and was sufficient under Latimore,

supra.

The defendant's argument relies heavily on the proposition

that "[c]rimes must be 'proved as charged,' so as to 'protect[ ]

the grand jury's role in the criminal process and ensure[ ] that

the defendant has proper notice of the charges against him.'"

Commonwealth v. Garcia, 95 Mass. App. Ct. 1, 4 (2019), quoting

Commonwealth v. Hobbs, 385 Mass. 863, 869 (1982). The Garcia

case is readily distinguishable. In that case, the indictment

alleged the defendant had "sexual intercourse" with a child,

but, at trial, the evidence, jury instructions, and the verdict

slip all concerned "unnatural" sexual intercourse, an allegation

not identified in the indictment. Id. at 5-6. This court

reversed the conviction because the Commonwealth had

constructively amended the indictment and created "a substantial

risk that the defendant was convicted of a crime for which he

was not indicted by a grand jury.'" Garcia, supra at 6, quoting

Commonwealth v. Barbosa, 421 Mass. 547, 554 (1995).

Unlike the situation in Garcia, the jury in this case

returned a verdict that was consistent with the indictment and

the evidence. Using the statutory form, G. L. c. 277, § 79, the

indictment here charged that the defendant "did assault and

beat" the victim, in violation of G. L. c. 265, § 13A. Neither

3 the jury instructions nor the verdict slip limited jurors from

considering evidence of the kick as the charged assault and

battery. Also, the precise means by which the defendant

committed the crime was not alleged in the indictment, and need

not be, see G. L. c. 277, § 21, and it was not requested in a

bill of particulars. It is not surprising that evidence

presented to a grand jury differed from evidence presented at

trial, especially in a case where a police officer testified

before the grand jury as a summary witness while the victim

testified at the trial as a percipient witness. Such

differences in the presentation of evidence do not require a

finding of not guilty. See, e.g., Commonwealth v. Clayton, 63

Mass. App. Ct. 608, 612 (2005) ("We have never required that

there be an exact match between the evidence presented at trial

and that presented to the grand jury"). Accordingly, the judge

properly denied the motion for a required finding as well as a

motion to set aside the verdict. See Commonwealth v. Coleman,

434 Mass. 165, 170 (2001).

Denial of requested jury instruction. Without any citation

to authority, the defendant filed a requested jury instruction

that "the 'kick' cannot be the basis for the 'Assault and

Battery' indictment." The judge properly rejected the requested

instruction as there is no lawful basis for it. See

Commonwealth v. Brown, 481 Mass. 77, 86 (2018) (at a minimum a

4 requested instruction must be "substantially correct" to be

given [quotation and citation omitted]); Mills, 54 Mass. App.

Ct. at 554.

Sentence credit. Finally, the defendant contends that the

motion judge erred in denying his motion for sentence credit and

his motion to reconsider that decision. On March 30, 2022, the

trial judge sentenced the defendant to fifteen months in the

house of correction with credit for 196 days served. On June

14, 2022, the judge denied a motion for additional credit. The

Commonwealth concedes that the order denying the defendant's

motion for jail credit of 140 days should be reversed. Given

the passage of more than twenty-four months since sentencing,

the defendant is no longer in custody and is not subject to any

supervision on that sentence.

5 Because the defendant has been released from custody and

"no longer has a personal stake in the outcome of this

litigation," this claim is now moot. Delaney v. Commonwealth,

415 Mass. 490, 492 (1993). Smith v. Commonwealth, 450 Mass.

1015, 1016 (2007).

Judgment affirmed.

The appeal from the orders dated June 13, 2022, and August 1, 2022, is dismissed as moot.

By the Court (Henry, D'Angelo & Hodgens, JJ.1),

Assistant Clerk

Entered: June 11, 2024.

1 The panelists are listed in order of seniority.