Commonwealth v. Bior (Lawyers Weekly No. 11-122-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-395 Appeals Court COMMONWEALTH vs. AKUR BIOR. No. 14-P-395. Middlesex. June 8, 2015. – August 28, 2015. Present: Kafker, C.J., Rubin, & Milkey, JJ. Assault and Battery by Means of a Dangerous Weapon. Evidence, Credibility of witness. Dangerous Weapon. Words, “Dangerous weapon.” Complaint received and sworn to in the Malden Division of the District Court Department on September 30, 2011. The case was tried before Dominic J. Paratore, J. James R. Knudsen for the defendant. Nicole Marie Nixon, Assistant District Attorney, for the Commonwealth. MILKEY, J. Following a jury trial in the District Court, the defendant was convicted of assault and battery by means of a dangerous weapon. G. L. c. 265, § 15A(b). Although we conclude that the trial evidence was sufficient to support that conviction, we agree with the defendant that the introduction of evidence regarding pretrial probable cause hearings constituted reversible error. We therefore vacate the judgment. Background. 1. The incident. The defendant was a member of a local Sudanese community that met in a church in Malden. On the evening of August 21, 2011, a fight broke out in the church kitchen between the defendant and Mary Deng. The two women, whose husbands were cousins, had long had a fractious relationship. When the defendant entered the church kitchen, Deng was already there making tea and doughnuts. The witnesses (including Deng and the defendant) had widely divergent versions of what then transpired, e.g., regarding which of the women was the initial aggressor. However, many of the key facts are not in dispute. It is uncontested that the two women started calling each other names and throwing things (including pieces of dough) at each other. As the defendant herself admits, at one point she picked up a thermos from the table and threw it at Deng. According to Deng’s testimony, the thermos, which Deng had filled with hot water, hit her in the forehead and the hot water spilled onto her, causing serious burns. It is not clear if the water escaped from the thermos when the interior glass portion of it broke, or because the top came off when it was thrown. On the latter issue, Deng stated, in response to a question whether the top was on the thermos, “The top — like the top fell on the table because […]