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-846
COMMONWEALTH
vs.
ROB R., a juvenile.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile appeals from his conviction, after a jury
trial, of assault and battery with a dangerous weapon (to wit:
shod foot).2 G. L. c. 265, § 15A (b). He makes two arguments on
appeal. First, he contends that the trial judge erred by
failing to instruct the jury, sua sponte, on the lesser included
offense of assault and battery, and that this error resulted in
a substantial risk of a miscarriage of justice. Second, he
argues that the trial judge abused her discretion by denying his
motion to exclude "incomplete" surveillance video recordings.
1 We refer to the juvenile using a pseudonym. 2 The juvenile was acquitted on two indictments that charged him with (1) armed assault with intent to murder and (2) assault and battery with a dangerous weapon (to wit: a knife) causing serious bodily injury. Because we discern no error or abuse of discretion in the
judge's rulings, we affirm.
Discussion. a. Lesser included offense instruction.
"Ordinarily, even in the absence of a specific request, . . . a
judge should instruct on lesser included offenses when there is
a rational basis in the evidence to do so." Commonwealth v.
Yunggebauer, 23 Mass. App. Ct. 46, 52 (1986). However, where a
defendant pursues an "all-or-nothing defense strategy," the
trial judge has "no duty to undercut such a strategy by
volunteering an instruction on a middle ground," i.e., by
providing a lesser included offense instruction sua sponte.
Commonwealth v. Mills, 54 Mass. App. Ct. 552, 554 (2002). Here,
the juvenile did not request a lesser included offense
instruction to the assault and battery with a dangerous weapon
charge.3 Instead, defense counsel argued in closing that the
juvenile should be acquitted because he "wasn't in a position to
form the intent required to commit the crimes." Where, as here,
an instruction on a lesser included offense would be
inconsistent with the defendant's trial strategy, the judge is
not required to give it and it is generally prudent not to do
so. See Mills, 54 Mass. App. Ct. at 554 (concluding that "no
error flowed form the judge's failure to instruct, sua sponte,
3 Indeed, defense counsel declined such an instruction.
2 that simple assault and battery was a lesser included offense of
assault and battery by means of a dangerous weapon" where
"[d]efense counsel's omission of a request for an instruction on
the subject appear[ed] consistent with an all-or-nothing defense
strategy"). See also Commonwealth v. Roberts, 407 Mass. 731,
737 (1990) (defendant's argument on appeal, that jury might have
been reluctant to acquit without option of lesser included
offense was "inconsistent" with his "all-or-nothing" trial
strategy; "the instructions . . . requested after the fact,
might have undermined his tactical decision to seek an
acquittal").
Furthermore, even if the juvenile had requested a lesser
included offense instruction, we find no rational basis in the
evidence that would have required the trial judge to provide
one. See Yunggebauer, 23 Mass. App. Ct. at 52. "[E]ven when
evidence is introduced that would justify conviction for a
lesser included offense, the defendant is not entitled to an
instruction thereupon unless the [p]roof on the 'elements
differentiating the two crimes is sufficiently in dispute so
that the jury may consistently find the defendant innocent of
the greater and guilty of the lesser included offense.'"
Commonwealth v. Souza, 428 Mass. 478, 494 (1998), quoting
Commonwealth v. Egerton, 396 Mass. 499, 504 (1986). See
Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 692 (1998).
3 In this case, the only element differentiating the greater
offense of assault and battery with a dangerous weapon from the
lesser included offense of assault and battery is whether the
sneakers were used as a dangerous weapon, i.e., in a way that
was "capable of producing serious bodily harm" (citation
omitted). Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001).
It is well-settled that "[f]ootwear, such as a shoe, when used
to kick, can be a dangerous weapon" (citation omitted). Id. at
311.
Here, there is overwhelming evidence that the juvenile's
sneakers were used as a dangerous weapon. The juvenile can be
seen on the video recording kicking the victim repeatedly and
forcefully. There is no dispute as to whether the juvenile was
wearing his sneakers during the assault, and the sneakers
themselves were introduced into evidence. Also, consistent with
this video recording, the victim testified that he "got kicked
everywhere. I know I got kicked in the head at least twice."
Finally, photographs of the victim's injuries, including a
bruise on his head, were introduced into evidence. See
Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984),
quoting Commonwealth v. Tarrant, 367 Mass. 411, 416 n.4 (1975)
("Of course where the neutral object is in fact used to inflict
serious injury it would clearly be a dangerous weapon").
4 Given the juvenile's decision to pursue an all-or-nothing
strategy at trial, the overwhelming evidence of his use of the
sneakers as a dangerous weapon, and the lack of any evidence of
another battery committed without use of the sneakers,4 we
conclude that the judge did not err by not instructing the jury,
sua sponte, on the lesser included offense of assault and
battery.
b. Video surveillance recording. The juvenile also argues
that the trial judge abused her discretion by denying his motion
to exclude "incomplete" surveillance video recordings. Because
we conclude that the missing portions of the video do not render
the entire recording untrustworthy, we affirm.
"Admissibility of evidence 'is largely committed to the
discretion of the trial judge.'" Commonwealth v. Leneski, 66
Mass. App. Ct. 291, 294 (2006), quoting Henderson v. D'Annolfo,
15 Mass. App. Ct. 413, 429 (1983). Ordinarily, "videotapes
should be admissible as evidence if they are relevant, they
provide a fair representation of that which they purport to
4 For example, there is no evidence that the juvenile connected any blows with his fists or elbows.
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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-846
COMMONWEALTH
vs.
ROB R., a juvenile.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile appeals from his conviction, after a jury
trial, of assault and battery with a dangerous weapon (to wit:
shod foot).2 G. L. c. 265, § 15A (b). He makes two arguments on
appeal. First, he contends that the trial judge erred by
failing to instruct the jury, sua sponte, on the lesser included
offense of assault and battery, and that this error resulted in
a substantial risk of a miscarriage of justice. Second, he
argues that the trial judge abused her discretion by denying his
motion to exclude "incomplete" surveillance video recordings.
1 We refer to the juvenile using a pseudonym. 2 The juvenile was acquitted on two indictments that charged him with (1) armed assault with intent to murder and (2) assault and battery with a dangerous weapon (to wit: a knife) causing serious bodily injury. Because we discern no error or abuse of discretion in the
judge's rulings, we affirm.
Discussion. a. Lesser included offense instruction.
"Ordinarily, even in the absence of a specific request, . . . a
judge should instruct on lesser included offenses when there is
a rational basis in the evidence to do so." Commonwealth v.
Yunggebauer, 23 Mass. App. Ct. 46, 52 (1986). However, where a
defendant pursues an "all-or-nothing defense strategy," the
trial judge has "no duty to undercut such a strategy by
volunteering an instruction on a middle ground," i.e., by
providing a lesser included offense instruction sua sponte.
Commonwealth v. Mills, 54 Mass. App. Ct. 552, 554 (2002). Here,
the juvenile did not request a lesser included offense
instruction to the assault and battery with a dangerous weapon
charge.3 Instead, defense counsel argued in closing that the
juvenile should be acquitted because he "wasn't in a position to
form the intent required to commit the crimes." Where, as here,
an instruction on a lesser included offense would be
inconsistent with the defendant's trial strategy, the judge is
not required to give it and it is generally prudent not to do
so. See Mills, 54 Mass. App. Ct. at 554 (concluding that "no
error flowed form the judge's failure to instruct, sua sponte,
3 Indeed, defense counsel declined such an instruction.
2 that simple assault and battery was a lesser included offense of
assault and battery by means of a dangerous weapon" where
"[d]efense counsel's omission of a request for an instruction on
the subject appear[ed] consistent with an all-or-nothing defense
strategy"). See also Commonwealth v. Roberts, 407 Mass. 731,
737 (1990) (defendant's argument on appeal, that jury might have
been reluctant to acquit without option of lesser included
offense was "inconsistent" with his "all-or-nothing" trial
strategy; "the instructions . . . requested after the fact,
might have undermined his tactical decision to seek an
acquittal").
Furthermore, even if the juvenile had requested a lesser
included offense instruction, we find no rational basis in the
evidence that would have required the trial judge to provide
one. See Yunggebauer, 23 Mass. App. Ct. at 52. "[E]ven when
evidence is introduced that would justify conviction for a
lesser included offense, the defendant is not entitled to an
instruction thereupon unless the [p]roof on the 'elements
differentiating the two crimes is sufficiently in dispute so
that the jury may consistently find the defendant innocent of
the greater and guilty of the lesser included offense.'"
Commonwealth v. Souza, 428 Mass. 478, 494 (1998), quoting
Commonwealth v. Egerton, 396 Mass. 499, 504 (1986). See
Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 692 (1998).
3 In this case, the only element differentiating the greater
offense of assault and battery with a dangerous weapon from the
lesser included offense of assault and battery is whether the
sneakers were used as a dangerous weapon, i.e., in a way that
was "capable of producing serious bodily harm" (citation
omitted). Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001).
It is well-settled that "[f]ootwear, such as a shoe, when used
to kick, can be a dangerous weapon" (citation omitted). Id. at
311.
Here, there is overwhelming evidence that the juvenile's
sneakers were used as a dangerous weapon. The juvenile can be
seen on the video recording kicking the victim repeatedly and
forcefully. There is no dispute as to whether the juvenile was
wearing his sneakers during the assault, and the sneakers
themselves were introduced into evidence. Also, consistent with
this video recording, the victim testified that he "got kicked
everywhere. I know I got kicked in the head at least twice."
Finally, photographs of the victim's injuries, including a
bruise on his head, were introduced into evidence. See
Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984),
quoting Commonwealth v. Tarrant, 367 Mass. 411, 416 n.4 (1975)
("Of course where the neutral object is in fact used to inflict
serious injury it would clearly be a dangerous weapon").
4 Given the juvenile's decision to pursue an all-or-nothing
strategy at trial, the overwhelming evidence of his use of the
sneakers as a dangerous weapon, and the lack of any evidence of
another battery committed without use of the sneakers,4 we
conclude that the judge did not err by not instructing the jury,
sua sponte, on the lesser included offense of assault and
battery.
b. Video surveillance recording. The juvenile also argues
that the trial judge abused her discretion by denying his motion
to exclude "incomplete" surveillance video recordings. Because
we conclude that the missing portions of the video do not render
the entire recording untrustworthy, we affirm.
"Admissibility of evidence 'is largely committed to the
discretion of the trial judge.'" Commonwealth v. Leneski, 66
Mass. App. Ct. 291, 294 (2006), quoting Henderson v. D'Annolfo,
15 Mass. App. Ct. 413, 429 (1983). Ordinarily, "videotapes
should be admissible as evidence if they are relevant, they
provide a fair representation of that which they purport to
4 For example, there is no evidence that the juvenile connected any blows with his fists or elbows. Importantly, however, as noted above, the existence of such evidence would not change our analysis because "[e]ven when evidence is introduced that would justify conviction for a lesser included offense, the defendant is not entitled to an instruction thereupon unless . . . the jury may consistently find the defendant innocent of the greater [offense] and guilty of the lesser included offense'" (emphasis added). Souza, 428 Mass. at 494, quoting Egerton, 396 Mass. at 504.
5 depict, and they are not otherwise barred by an exclusionary
rule." Commonwealth v. Mahoney, 400 Mass. 524, 527 (1987).
"The task of the trial court, in determining whether to admit
tape recordings into evidence which contain [missing] or
inaudible portions, is to assess whether the . . . portions are
so substantial, in view of the purpose for which the tapes are
offered, as to render the recording as a whole untrustworthy"
(citations and quotations omitted). Commonwealth v. Allen, 22
Mass. App. Ct. 413, 422 (1986). Otherwise, "[a]ny concerns that
the defendant ha[s] regarding the surveillance procedures, . . .
the method of storing and reproducing the video material," or
"the incompleteness of the [video]" are "'properly the subject
of cross-examination and affect[] the weight, not the
admissibility, of the' [evidence]." Leneski, 66 Mass. App. Ct.
at 295-296, quoting Mahoney, 400 Mass. At 530.
Here, the juvenile argues that the video recordings
proffered by the Commonwealth were not a fair depiction of the
incident because they were missing portions that would have been
favorable to the juvenile. Specifically, he contends that the
missing video would have shown the victim initiate an attack
against the juvenile outside of the complex just prior to the
6 kicking incident.5 However, even if this were true, there is
nothing to indicate that the videos were inaccurate as to the
acts which gave rise to this charge, i.e., when the juvenile
repeatedly kicked the victim inside the facility. We conclude
that the judge did not abuse her discretion in denying the
juvenile's motion to exclude the video recordings.6
Conclusion. The juvenile's conviction of one count of
assault and battery with a dangerous weapon, in violation of
G. L. c. 265, § 15A (b), is affirmed.
Judgment affirmed.
By the Court (Green, C.J., Hand & Hodgens, JJ.7),
Clerk
Entered: November 22, 2023.
5 There is, in fact, one video that shows an obstructed view of this initial encounter. The video appears to be consistent with the victim's testimony at trial. 6 Further, even if that were not the case, we discern no
prejudice to the defendant resulting from the admission of those recordings. The juvenile suggested at oral argument that the missing video recording would have shed light on his "state of mind," which would have given the jury a better understanding of the "bigger picture." We do not consider this to be a legally sufficient explanation for how the missing video could have been exculpatory. 7 The panelists are listed in order of seniority.