Commonwealth v. Nee (Lawyers Weekly No. 11-045-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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       11‑P‑1952                                       Appeals Court   COMMONWEALTH  vs.  MATTHEW NEE.     No. 11‑P‑1952. Suffolk.     February 5, 2013.  ‑  March 19, 2013. Present:  Grasso, Brown, & Green, JJ.   Affray.  Practice, Criminal, Instructions to jury, Argument by prosecutor, Assistance of counsel.  Constitutional Law, Assistance of counsel, Vagueness of statute.  Due Process of Law, Vagueness of statute.       Complaint received and sworn to in the South Boston Division of the Boston Municipal Court Department on November 15, 2010.   After transfer to the Central Division of the Boston Municipal Court Department, the case was tried before Eleanor C. Sinnott, J.     Madeline Weaver Blanchette for the defendant. Allison Callahan, Assistant District Attorney, for the Commonwealth.     GRASSO, J.  A jury found the defendant guilty of affray, a common-law crime of ancient vintage not previously examined in our appellate jurisprudence.[1]  On appeal from his conviction,[2] the defendant argues (1) the proof was insufficient, (2) the jury instruction was erroneous, (3) the prosecutor’s closing argument was improper, (4) defense counsel rendered constitutionally ineffective assistance, and (5) the crime of affray is unconstitutional as applied to him.  We affirm. Background.  Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found the following.  On the evening of November 12, 2010, John Monaco, a Harvard University police officer, attended a football game in Boston between St. John’s Preparatory School and Boston College High School.  After the game, Monaco, who used to coach at St. John’s, went to the Boston Beer Garden in the South Boston neighborhood of Boston for dinner and drinks with a few friends, including Pat Marks, Michael Pitt, and Vincent Miserendino.  They arrived around 10:00 P.M. and left around 11:45 P.M. After leaving the restaurant, Monaco waited on the sidewalk for Miserendino, the designated driver, to return with the car.  As Miserendino approached, Monaco began walking down the sidewalk in his direction.  At the same time, a young man in a white sweatshirt and white hat entered the sidewalk.  Monaco and the young man bumped into each other as they passed, and Monaco offered an apology.  In response, the young man threw a punch that hit Monaco in the left side of his head. Monaco reacted by grabbing the young man’s sweatshirt.  As he did, another young […]

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