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Commonwealth v. Mistretta (Lawyers Weekly No. 11-112-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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       12‑P‑152                                        Appeals Court   COMMONWEALTH  vs.  BRET MISTRETTA.     No. 12‑P‑152.      September 16, 2013.   Assault and Battery by Means of a Dangerous Weapon.  Assault and Battery.  Intentional Conduct. Wanton or Reckless Conduct.  Practice, Criminal, Instructions to jury.       After a Superior Court jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon, and assault and battery as a lesser included offense of assault and battery causing serious bodily injury.  These charges stemmed from two episodes (in June and September of 2010) in which arguments between the defendant and the victim (his live-in girlfriend) escalated into violence.[1]     The jury were instructed on both intentional assault and battery and reckless assault and battery.  In this appeal, the defendant contends that the trial judge was required, sua sponte, to give a specific unanimity instruction as to the form of assault and battery on which the jury found guilt, and to provide special verdict slips on which to identify the ground for their decision.[2]  He acknowledges that his claim was not preserved and that our review is confined to whether any error created a substantial risk of a miscarriage of justice.  See Commonwealth v. Arias, 78 Mass. App. Ct. 429, 431 (2010).  Because specific unanimity was not required in the circumstances, there was no error, and therefore no substantial risk of a miscarriage of justice.   “The classic definition of assault and battery is ‘the intentional and unjustified use of force upon the person of another, however slight.’  The law recognizes, however, an alternative form of assault and battery in which proof of a wilful, wanton and reckless act which results in personal injury to another substitutes for (or in some cases is said, with some imprecision, to allow the ‘inference’ of) intentional conduct.”  Commonwealth v. Welch, 16 Mass. App. Ct. 271, 274 (1983) (citations omitted).  These alternative forms of assault and battery have, on occasion, been referred to as “two separate aspects” of the crime, Commonwealth v. Burno, 396 Mass. 622, 625 (1986), or as two “theories” of the crime, Commonwealth v. Porro, 458 Mass. 526, 529 (2010).   Regardless of the label used, however, the two forms of assault and battery are closely related.  In the case of reckless assault and battery, actual intent to commit the crime is […]

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Posted by Massachusetts Legal Resources - September 17, 2013 at 8:59 pm

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