Commonwealth v. O'Neal

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17-P-1027 Appeals Court
COMMONWEALTH vs. JOHN O'NEAL.
No. 17-P-1027.
Essex. March 7, 2018. - May 2, 2018.
Present: Milkey, Blake, & Desmond, JJ.
Practice, Criminal, Loss of evidence by prosecution,
Preservation of evidence, Disclosure of evidence, New
trial, Assistance of counsel, Required finding. Evidence,
Videotape, Relevancy and materiality. Assault by Means of
a Dangerous Weapon.
Complaint received and sworn to in the Lynn Division of the
District Court Department on August 27, 2012.
The case was tried before James D. Barretto, J., and a
motion for a new trial was heard by him
Kathleen D. Mulligan for the defendant.
Catherine L. Semel, Assistant District Attorney, for the
Commonwealth.
MILKEY, J. A District Court jury convicted the defendant
of assault and battery by means of a dangerous weapon (ABDW), a
shod foot. The conviction was based on testimony that while the
defendant was being transported at the police station in a
2
device known as a "restraint chair," he kicked a Lynn police
officer in the stomach. Before us now are the defendant's
direct appeal and his appeal of the denial of his motion for new
trial (which have been consolidated). The defendant argues that
a new trial is warranted on three grounds: 1) the
Commonwealth's failure to preserve and disclose a video
surveillance recording of the incident, 2) ineffectiveness of
trial counsel in failing to request a copy of the Lynn police
department's policy on the use of restraint chairs, and 3)
insufficient evidence to convict the defendant of ABDW based on
reckless conduct, one of the two theories on which the case went
to the jury. For the reasons that follow, we conclude that the
defendant is entitled to a new trial. We therefore vacate the
judgment and set aside the verdict.
Background. 1. The incident. At approximately 9:30 P.M.
on August 24, 2012, Lynn police officers responded to reports of
a disturbance outside a bar in Lynn. There, the police found
the defendant in the aftermath of what appeared to be a bicycle
accident. He was yelling at others at the scene, unsteady on
his feet, smelled of alcohol, and had slurred speech.1
1 The defendant testified that he was riding by the bar when
patrons from the bar suddenly exited it causing him to crash
into the door of the building. He admitted to having had a few
drinks that night at a different bar, but stated that he was not
intoxicated and that what police took to be signs of
intoxication had other causes. For example, he testified that
3
Concluding that the defendant was intoxicated, the officers
placed him into protective custody, handcuffed his hands behind
his back, and transported him to the police station in the back
of their cruiser. Once at the station garage, the defendant was
unwilling or unable to exit the cruiser.2 The officers therefore
pulled him out of the vehicle, and placed him on the ground
after he could not, or would not, stand.
At that point, the officers radioed their supervisors
inside the station for assistance, and they were brought a
restraint chair to transport the defendant to the booking area.
A restraint chair is designed to immobilize unruly detainees.
It has a seat that is tilted so that when the chair itself
otherwise is upright, the person sitting there is lying back at
an angle with his knees elevated above his hips. The chair has
straps to be used to hold in place a detainee's wrists, ankles,
lap and shoulders. In this instance, however, the officers did
not use the available straps to secure the defendant in the
restraint chair. Instead, after placing him in the chair with
his hands handcuffed behind his back, they left him that way for
his speech was slurred because he had lost a major part of his
tongue as the result of a skiing accident many years before.
2 The defendant testified that he was unable to exit the
cruiser because of the configuration of the seat and the fact
that his hands were handcuffed behind him. The police officers
interpreted his actions as deliberate.
4
the trip into the station. According to the defendant, who
testified at trial, this meant that his entire weight fell on
his handcuffed wrists, causing him "excruciating pain."3 He
further testified that this in turn caused him to writhe around
in the chair as he sought to relieve the pressure off his
wrists. Without the defendant strapped in, the police held him
down in the chair using their hands, causing further pressure on
his handcuffed wrists.
The failure of the police to secure the defendant in the
restraint chair appears to be at odds with a written policy that
emerged only in postconviction discovery. That policy set forth
various procedures and requires "that all [police] personnel
adhere strictly to [its] procedures." The policy also requires
that after initially placing a detainee in the restraint chair,
"[t]he attached recommended manufacturer procedures for properly
restraining a detainee in the [chair] should then be followed."
Under those procedures, the police are to attach the detainee's
handcuffs to the supplied "handcuff tether," and then release
the defendant's arms one at a time to attach them to the arm of
the chair using a wrist wrap.
3 The defendant, who was sixty-one years old at the time of
the incident, testified without contradiction that he suffered
from arthritis and a number of other serious ailments.
5
At least at one point during the trip from the garage to
the booking area, the defendant's foot -- which the officers had
not secured using the chair's straps and which, according to a
police witness, was hanging off the side of the chair -- impeded
the movement of the chair. The officers portrayed this as a
deliberate effort by the defendant to thwart his being taken
into the station house; the defendant portrayed it as the
involuntary result of his trying to relieve the pressure on his
handcuffed wrists. In either event, it is uncontested that the
police officers tilted the restraint chair back in order to keep
the chair moving, with one of the officers acknowledging that
the chair was "tilted back further than it already is designed
to do." The tilting of the chair in this manner also appears to
violate the police policy on the use of restraint chairs, which
mandates that "[t]he [restraint chair] and detainee shall remain
in a seated upright position at all times while a detainee is
restrained in the [chair], and should at no time be positioned
backward so that the detainee is positioned on their back."
The defendant described the tilting of the chair as a
sudden jerking that caused him to flail in it. He admitted that
his foot came into contact with one of the officers, but he
characterized it as an accidental "knee-jerk reaction" to the
sudden tilting of the chair. The officers described it as a
distinct and deliberate kick to the officer's stomach. The
6
officer who was struck described the kick as having been done
with "quite a bit of force," and he testified that it "hurt."
The trial judge instructed the jury on the elements of ABDW
(and of assault and battery as a lesser included offense) based
on both intentional and reckless conduct. In addition, at the
defendant's request, the judge instructed the jury on accident.
Neither party objected.
2. Surveillance recordings and pretrial discovery.4
Unbeknownst to the defendant prior to trial, the police station
was outfitted with closed circuit surveillance cameras in all of
the areas through which the defendant was transported in the
restraint chair. Moreover, video recordings of what transpired
there automatically would have been made. However, the system
was set up so that, on a ten-week cycle, recordings are
automatically recorded over. As a result, video recordings not
retrieved within that ten-week period effectively are destroyed.
There is a paper trail that memorializes some of the
pretrial communications between the prosecutor and defense
counsel, and between the prosecutor and Lynn police, regarding
whether there might be a video recording of the incident. On
4 As noted below, the fact that the recording system existed
in the relevant areas came out at trial. The further details
about that system and the specifics of the discovery process
were developed in the posttrial proceedings. With one notable
exception discussed in detail infra, these facts are
uncontested.
7
February 10, 2014, almost a year-and-a-half after the incident,
the defendant filed an assented-to motion for discovery that,
inter alia, specifically sought any "surveillance video
recordings showing the defendant being moved from any parking
lot [or] garage to the booking area of Lynn [p]olice
[d]epartment on August 24, 2012[,] at approximately 9:30 [P.M.]"
That same day, the prosecutor asked the police department
for "[v]ideotape or [p]hotograph(s) related to [the] case." On
May 27, 2014, the prosecutor again made a request of the
department, this time requesting "[s]urveillance video" and
specifically inquiring whether there was "[a]ny [b]ooking video
of [the] incident[.]" The police responded to the second
request: "[N]ot available." That same day, the prosecutor
filed a certificate of compliance certifying that the
Commonwealth had satisfied its mandatory discovery obligations
pursuant to Mass.R.Crim.P. 14, as amended, 444 Mass. 1501
(2005). In that document, the prosecutor specifically certified
that she had provided "[a]ny facts of an exculpatory nature" and
"[a]ll other material and relevant evidence, [including] . . .
photographs [and] tangible objects."
Beyond what that paper trail revealed, there ended up being
a factual dispute as to what the prosecutor may have told
defense counsel orally about whether video recordings ever had
8
been made. The scope and resolution of that dispute are
discussed further below.
3. Video recording issues at trial. The trial was brief,
with only three witnesses: two police officers and the
defendant. During cross-examination, defense counsel questioned
the first police witness about the manner in which the officers
had requested assistance once the defendant was out of the car
and on the ground. In this vein, counsel asked whether those to
whom the witness had radioed for assistance "[could] see [the
witness] from where they[] [were] at[.]" The witness answered,
"There are cameras, so they -- you know, when we ask them to
come in, they could put it up on a monitor, but they're in the
[commanding officer's] office." This prompted defense counsel
to ask: "So there [are] camera[]s right there recording?"
After the witness confirmed this, defense counsel turned to
other topics for questioning. Before completing her cross-
examination, counsel returned to the camera issue only
evanescently, soliciting testimony that confirmed that there
were cameras all along the way from the garage to the booking
area. There was no testimony elicited about whether any
recordings were ever viewed or whether they still existed.
Before the Commonwealth began its redirect examination,
both counsel requested to be heard at sidebar. Although the
transcript reveals that this discussion went on for at least
9
several minutes, only fragments of what was said were
decipherable when the transcript was produced. From those
fragments, we can discern that the defendant asserted that the
prosecutor had told her that no video recordings ever had been
made and that it was only now that she was learning otherwise.
At one point, the judge's comments appear to suggest that he
believed the defendant had waived claims of any discovery
violations by not raising the issue prior to trial. What is
missing from the transcript's memorialization of the sidebar
interchanges remains profound. Most significantly, the specific
relief that the defendant was requesting at that time is not at
all apparent.5
In any event, after the sidebar discussion concluded, the
judge invited the Commonwealth to continue with redirect
examination. After the testimony of that witness concluded, the
Commonwealth called its remaining witness, the police officer
who had been struck. On direct examination, the Commonwealth
asked no questions about the recordings, and the defendant
pursued no cross-examination of that witness whatsoever.
5 Pursuant to Mass.R.A.P. 8(c), as amended, 378 Mass. 932
(1979), the defendant eventually sought to settle the record as
to what was said during this critical sidebar interchange.
However, those efforts failed because none of the participants
had any specific recollection.
10
At the close of the Commonwealth's case, and at her
client's specific urging, defense counsel again raised the
Commonwealth's failure to disclose the prior existence of the
video recordings. This time, we know the specific relief that
the defendant was requesting: a mistrial. The judge denied the
request based on the reasoning he expressed earlier at sidebar
(which turned out to be indecipherable on appeal). Addressing
the defendant directly, the judge also stated, "your attorney
very intelligently preserved all of your rights on the issue."
4. Ruling on motion for new trial. The defendant filed a
motion for a new trial that was based primarily on the
Commonwealth's failure to preserve and disclose the video
recording of the incident. In the affidavit that she submitted
in support of that motion, defense counsel averred that, in a
conversation that transpired on a particular occasion prior to
trial, the prosecutor specifically told her that "the booking
area [was] not recorded." The prosecutor countered in her own
affidavit that she never would have said this because she long
had known that the booking area at the Lynn police station was
video recorded, with the recordings available for only a limited
period of time. She further averred that while she had no
specific recollection of the conversation that she had with
defense counsel, in accordance with her longstanding practice,
11
she would have passed along exactly what the police officer had
told her; namely, that a recording was "not available."
Despite the direct conflict between the affidavits as to
what the prosecutor had communicated to defense counsel orally
and the judge's willingness to hold an evidentiary hearing, the
parties jointly foreswore that opportunity. Instead, they
presented the judge with a stipulation of facts, their dueling
affidavits, and a copy of the restraint chair policy. In
addition, the Commonwealth appropriately made significant
concessions during argument on the motion. For example, the
Commonwealth acknowledged that the Lynn police had informed her
that based on the placement of the video cameras, the cameras
"would have captured the incident" for which the defendant was
convicted. In addition, citing to Commonwealth v. Heath, 89
Mass. App. Ct. 328 (2016) (Kafker, C.J.), the Commonwealth
acknowledged that it was negligent in failing to preserve and
produce the video recording.
Despite its concessions, the Commonwealth argued that a new
trial nevertheless was not warranted. Although the Commonwealth
downplayed the materiality of the missing video recording, it
focused mainly on its argument that the defendant had not shown
adequate prejudice. In this regard, the Commonwealth contended
that because defense counsel learned about the prior existence
of the video recordings during trial, she had an opportunity to
12
cross-examine the police witnesses about this, to argue the
point in closing argument, and to request an appropriate jury
instruction regarding the destruction of the video recording.
In this manner, the Commonwealth maintained that it should not
be held responsible for counsel's failure to pursue such
remedies.
In assessing the Commonwealth's degree of culpability, the
judge credited the prosecutor's affidavit that she would have
told defense counsel that a video recording was "not available,"
not defense counsel's version that the prosecutor had stated
that no such recording ever existed. Based on his knowledge of
the prosecutor, who frequently appeared before him, the judge
found no bad faith in her conduct. However, consistent with
Heath, the judge ruled that the Commonwealth's failure to
preserve and produce the video recording was negligent. The
judge also concluded that "the defendant here has demonstrated
the materiality of the evidence."
Nevertheless, the judge accepted the Commonwealth's
arguments on prejudice. While noting that the facts here were
similar to Heath, supra at 339 (in which a new trial was
ordered), the judge distinguished that case on the grounds that,
there, the defendant had requested and was denied an instruction
on what inferences the jury could draw from the destruction of
the video recording. See id. at 330. Here, by contrast, the
13
defendant had made no such request,6 nor otherwise had sought to
make use of the recording's destruction (i.e., through cross-
examination or argument).7 The judge reasoned that "if a new
trial were allowed, the defendant would be entitled only to
those same remedies he could have had but did not seek at
trial." With the defendant having passed over such remedies at
trial, the judge concluded that the defendant suffered no
prejudice. The defendant's only potentially available posttrial
recourse, the judge suggested, would have been a claim that his
trial counsel was ineffective for failing to press the issue of
the destroyed recording (an argument that the defendant has
declined to pursue).
As noted, the existence and content of the Lynn police
department's policy on the use of restraint chairs emerged only
in postconviction discovery. In pressing for a new trial, the
defendant also had argued that his trial counsel was ineffective
for failing to request that policy prior to trial.8 The judge
rejected that claim. He reasoned that, even without that
6 The judge stated that he would have been open to such a
request had it been made.
7 In addition, the judge noted that, in Heath, the
prosecutor had argued to the jury that they should not speculate
on why there was no video, something that did not occur here.
8 The defendant did not argue that the Commonwealth had a
duty to disclose that policy sua sponte, and we therefore have
no occasion to consider that question.
14
policy, defense counsel was able to make an issue out of the
manner in which the police had used the chair, and that the
policy itself would have added little force to that argument.9
Discussion. 1. Failure to preserve and disclose video
recording. As the parties recognize, the underlying facts in
the case before us are quite similar to those at issue in Heath.
Both cases involve an assault and battery on a police officer
that occurred at a police station in an area where it would have
been recorded, but the recording was not preserved. In Heath,
we held that because the recording could have provided support
for the defendant's claim that he never struck the officer, the
defendant had satisfied his "initial burden to establish by
means of 'concrete evidence' that the destroyed evidence was
exculpatory." 89 Mass. App. Ct. at 334, quoting from
Commonwealth v. Neal, 392 Mass. 1, 12 (1984). We then
considered "the judge's application of the balancing test that
9 With reference to the familiar two-pronged test for
ineffectiveness -- Commonwealth v. Saferian, 366 Mass. 89, 96
(1974) -- the judge stated that he was relying only on the first
prong (whether counsel's conduct fell measurably below that of
ordinary fallible counsel) and was not reaching the second prong
(whether counsel's conduct "deprived the defendant of an
otherwise available, substantial ground of defence"). However,
this appears to have been a misstatement, because the judge's
analysis focused largely on prejudice and did not express any
definitive views on the first prong. The judge did observe that
trial counsel was the defendant's third assigned attorney and
that neither of his two prior attorneys had requested the police
department's policy either.
15
'weigh[s] the culpability of the Commonwealth, the materiality
of the evidence, and the potential prejudice to the defendant.'"
Id. at 335, quoting from Commonwealth v. Williams, 455 Mass.
706, 716 (2010). We concluded that, contrary to the trial
judge's assessment, the Commonwealth was negligent because "the
police department had a video recording of [the] alleged crime
committed in its booking area, with which the defendant was
charged [and] the Commonwealth should have required no further
notification by the defendant to recognize the need to preserve
that video evidence." Id. at 336. We also concluded that the
video plainly was material (an issue the judge did not reach).
Id. at 338. Finally, we concluded that the judge erred in
ruling that the defendant suffered no substantial prejudice from
the judge's refusal to instruct the jury regarding the missing
evidence and from the prosecutor's being allowed to argue that
the jury should not speculate as to what the recording would
have shown. Id. at 337-340. Accordingly, with all three
considerations supporting the defendant's position, we ordered
that he be granted a new trial. Id. at 339-340.
As noted, the judge in the case presently before us
distinguished Heath on the ground that the defendant there had
pressed the issue at trial. However, a close examination of the
differences between the this case and Heath reveals that, if
16
anything, the defendant here has a stronger case for a new
trial.
Having been informed prior to trial that such a key piece
of evidence had not been preserved, see id. at 330 n.4, defense
counsel in Heath unsurprisingly was prepared to try to take
advantage of the Commonwealth's negligence in failing to do so.
Here, by contrast, defense counsel was unaware that the
recording once had existed until the midst of a very brief
trial. Moreover, unlike in Heath, the jury here never learned
that the police had allowed the recording to be destroyed.
To be sure, counsel arguably bears some responsibility for
her late appreciation that the tape once had existed. That is,
a more perspicacious attorney might have sensed the ambiguity
inherent in the prosecutor's terse response that a recording was
"not available," and therefore done more prior to trial to
inquire whether the incident had been recorded and, if so, why
any such recording was not available. However, while we accept
the judge's finding that the prosecutor did not act in bad
faith, it remains uncontroverted that -- despite the
prosecutor's having been aware that a video recording of the
booking area once would have existed -- she never overtly called
this to the defendant's attention prior to trial.10 Where the
10At one point, the judge referenced the prosecutor as
having stated that she had told defense counsel that a video
17
prosecutor failed to disclose that a recording had been made,
the Commonwealth is not in a position to blame defense counsel
for misconstruing the equivocal and incomplete discovery
response that the Commonwealth provided.
With respect to defense counsel's conduct at trial, the
Commonwealth no doubt is correct that some highly competent
trial attorneys might have been able, on the spot, to appreciate
that the testimony about the cameras meant that a recording of
the incident once had existed and -- based on the discovery
response that a recording was "not available" -- could have
surmised that the recording in the interim had not been
preserved. Then, armed with this knowledge, perhaps such
counsel instantly might have been able to make effective use of
this fact through cross-examination and argument, and by
requesting a jury instruction on destroyed evidence.11 However,
focusing on what a particularly able trial counsel might have
accomplished fails to account for the predicament that the
Commonwealth's incomplete disclosure caused here. As Justice
recording was "no longer available" (a phrasing that -- while
similar to "not available" -- would have communicated that such
a recording once had existed). Defense counsel accurately
pointed out that the prosecutor never made that claim.
11 During the hearing on the motion for new trial, the judge
commented -- with reference to his own experience as a trial
counsel -- that "if I were trial counsel, I would at least be on
notice that [the incident] was probably captured on videotape
enough to request a special instruction."
18
Kaplan once observed in a case involving a broadly similar
midtrial disclosure, "[t]he prosecutor's late, piecemeal, and
incomplete disclosures forced on defense counsel the necessity
of making difficult tactical decisions quickly in the heat of
trial." Commonwealth v. Ellison, 376 Mass. 1, 25 (1978). Even
though "[i]n retrospect, it may be thought that [defense]
counsel did not use to maximum advantage those parts of the
story he did finally secure out of the prosecutor's
possession[,] . . . [a] defendant should not be held to a strict
standard in order to patch over the prosecution's conduct." Id.
at 26-27. While it is true that "[a] defendant assuredly has
the burden of showing prejudicial consequences when seeking
relief from disclosure delays by the Commonwealth[,] . . . [w]e
should not expect even the criminal defense adept to accommodate
instantly to surprise [evidence] at the moment of trial and to
rely entirely on improvised cross-examination in order to
counter such possibly [critical] evidence." Commonwealth v.
Fossa, 40 Mass. App. Ct. 563, 568 (1996).
With these observations in place, we turn to the balancing
test recognized in Commonwealth v. Williams, 455 Mass. at 716.
While the Commonwealth exhibited no bad faith, nevertheless it
was negligent both in failing to preserve the recording and in
failing fully to disclose that the recording had once existed.
In addition, the materiality of the missing recording plainly
19
was established, as the judge recognized. Finally, in light of
our analysis of defense counsel's conduct at trial, the
defendant suffered both potential prejudice from being deprived
of the recording and actual prejudice from being deprived of
using the fact that the recording had been destroyed. Here, as
in Heath, the defendant has shown that application of the
Williams factors support his claim for a new trial. We
therefore conclude that the judge abused his discretion in
denying the defendant's motion for new trial.12
2. Ineffectiveness of counsel. We need not resolve
whether the defendant independently might be entitled to a new
trial based on his argument that trial counsel was ineffective
for failing to learn of the mandatory policy on the use of
restraint chairs. Therefore, we do not decide whether -- in
circumstances where a defendant's entire defense was based on
allegations that police misused a particular piece of equipment
-- the potential existence of a police policy on the use of such
equipment presents an obvious area of inquiry. We do, however,
note our disagreement with the judge's assessment that
12Having decided that the judge abused his discretion in
denying the motion for a new trial, we need not resolve whether
the judge erred in denying the requested mistrial. We also need
not resolve what to do about the fact that the critical sidebar
discussion of the destroyed video recording could not be
recreated.
20
disclosure of the restraint chair policy could have added only
marginal value to that defense. It is one thing for a jury to
hear a defendant's complaints about police conduct, and quite
another for them to learn that the complained-of conduct might
well have violated a mandatory, written policy governing such
conduct.13
3. Sufficiency of evidence of reckless assault and
battery. The Commonwealth presented its ABDW case primarily
based on the theory that the defendant intended to kick the
officer with his sneaker. Nevertheless, the jury were also
instructed on ABDW based on reckless conduct. To sustain a
conviction on the latter theory, the Commonwealth was required
to prove beyond a reasonable doubt that a defendant
intentionally committed "a wanton or reckless act (something
more than gross negligence) causing physical or bodily injury to
another" by means of a dangerous weapon. Commonwealth v. Burno,
396 Mass. 622, 625 (1986).
As the defendant accurately points out, there was no
evidence that the kick broke any skin or caused any bruising or
other manifestations of physical harm. Nor was there any
evidence that the kick necessitated any medical treatment.
13Nothing in this opinion should be interpreted as
suggesting that a violation of the policy by itself would be a
defense to the charged conduct.
21
Based on this, the defendant argues that there was no proof that
the victim suffered "physical or bodily injury," and, hence,
there was insufficient evidence to support an ABDW based on
reckless conduct. In turn, the defendant argues that because
the evidence necessary to support a reckless ABDW was absent and
the case went to the jury on both theories, he is entitled to a
new trial. See Commonwealth v. Green, 420 Mass. 771, 781 (1995)
("The possibility that the verdicts were based on theories for
which the Commonwealth failed to offer sufficient evidence for a
rational jury to find guilt beyond a reasonable doubt
necessitates our setting them aside"). But see Commonwealth v.
Mistretta, 84 Mass. App. Ct. 906, 907 (2013), quoting from
Commonwealth v. Santos, 440 Mass. 281, 288 (2003) (specific
unanimity instruction not required where defendant is charged
with intentional and reckless assault and battery, because these
are "closely related subcategories of the same crime" that "are
not 'separate, distinct, and essentially unrelated ways in which
the same crime can be committed'").14
In the end, for at least two reasons, we need not reach the
defendant's "two theories" argument in this appeal. First, the
14The defendant points out that the First Circuit has taken
the unusual step of expressing its view that Mistretta was
wrongly decided. See United States v. Tavares, 843 F.3d 1, 17-
18 (1st Cir. 2016) ("The differences in the two forms [of ABDW,]
. . . intentional versus reckless, . . . are substantively
distinct and therefore constitute alternative elements . . .").
22
defendant waived such an argument by not raising it before the
case went to the jury. See Commonwealth v. Berry, 431 Mass.
326, 331 (2000) ("[W]hen the defendant submits a generally
expressed motion for a required finding of not guilty of [an
offense that can be based on multiple theories], the case may be
submitted to the jury as long as one theory is supported by the
evidence"). Second, the defendant raised his claim that the
evidence of a reckless ABDW was insufficient only to support the
vacating of his conviction, relief we have granted on other
grounds.15
Judgment vacated.
Verdict set aside.
Order denying motion for new
trial reversed.
15In any event, even if we ultimately were to agree with
the defendant's insufficiency argument in toto, he potentially
would face double jeopardy only with respect to an ABDW
prosecution based on a reckless theory and only at the point the
Commonwealth pursued such a prosecution. See Commonwealth v.
Bell, 455 Mass. 408, 419 (2009), abrogated on other grounds by
Commonwealth v. LaBrie, 473 Mass. 754, 763-764 (2016).