Commonwealth v. Boodoosingh (Lawyers Weekly No. 11-018-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑523                                        Appeals Court   COMMONWEALTH  vs.  BALIRAM BOODOOSINGH. No. 12‑P‑523.      February 28, 2014.   Assault by Means of a Dangerous Weapon.  Attempt. Practice, Criminal, Instructions to jury.       On appeal from a conviction of assault by means of a dangerous weapon, the defendant argues that (1) the evidence of assault under an attempted battery theory was insufficient, and (2) the judge’s instruction on that theory of assault gives rise to a substantial risk of a miscarriage of justice.  We affirm.     1.  Sufficiency of the evidence.  Nancy Lizardo, the victim’s mother, related that during the encounter between the defendant and her son, Luis, she jumped between the two young men and told them that if they were to fight at all, they should not fight with weapons.  Despite her entreaty, the defendant refused to drop the baseball bat in his hand and yelled, “I’m going to fuck him up.”  The defendant lifted his hand to try to hit Luis with the bat, but Nancy pushed the defendant away from Luis, who stood only a foot behind her.  Viewed in the light most favorable to the Commonwealth, this evidence suffices to establish assault under an attempted battery theory.[1]  See Commonwealth v. Porro, 458 Mass. 526, 530 (2010) (to prove attempt, Commonwealth must prove that defendant either committed the last act necessary to complete the crime, such as where a combatant swings and misses, or committed overt acts that brought him very near in time and ability to commission of the completed crime).  We reject the defendant’s contention that because the defendant did not “swing” the bat, his overt actions toward accomplishing the battery were insufficient.  See Commonwealth v. Purrier, 54 Mass. App. Ct. 397, 402-403 (2002) (evidence of attempted battery sufficient where defendant stepped closer to male victim and female stepped in between them).  The evidence that the defendant rushed toward Luis with a bat in his hands, rejected Nancy’s entreaties, raised the bat as if to strike Luis, and came within a few feet of doing so before he was pushed aside by Nancy suffices to establish that he came “reasonably close” in time and ability to accomplishing the intended battery.  See Commonwealth v. Walker, 460 Mass. 590, 615 (2011).   2.  The jury instruction.  As requested by the parties, the  judge instructed on assault in […]

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