DocketNumber: 17-P-1601
Citation Numbers: 123 N.E.3d 802, 94 Mass. App. Ct. 1122
Filed Date: 2/14/2019
Status: Precedential
Modified Date: 7/24/2022
A jury convicted the defendant, Beth L. Diantonio, of assault and battery, G. L. c. 265, § 13A (a ). In this consolidated appeal, the defendant challenges (1) the sufficiency of the Commonwealth evidence to support a conviction, (2) the judge's denial of her motion for a new trial, which was premised on the judge's failure to inform counsel before closing arguments that he would be instructing on consciousness of guilt, and (3) trial counsel's performance. We conclude that, although the evidence was sufficient, the order denying the motion for a new trial must be reversed because the judge's failure to notify trial counsel of his intention to instruct on consciousness of guilt prior to summations resulted in prejudicial error. See Commonwealth v. Degro,
Discussion. 1. Sufficiency. The defendant contends that the Commonwealth's case deteriorated when (1) the prosecution witnesses offered differing accounts of how many times the defendant struck the victim, (2) the photographic evidence did not amply depict the location of the victim's injuries, (3) an officer on the scene testified that he observed no injuries on the victim when he interviewed her after the altercation, and (4) the defendant and her boyfriend testified that it was the victim who punched the defendant, and not the converse. We are not persuaded.
At trial, the Commonwealth proceeded on the theory that the defendant committed a harmful battery. As such, the Commonwealth was required to prove that the defendant (1) touched the victim, (2) intentionally, (3) without any right or excuse, and (4) "with such violence that bodily harm is likely to result." Commonwealth v. Geordi G.,
Deterioration occurs when the Commonwealth's evidence "is later shown to be incredible or conclusively incorrect." Commonwealth v. O'Laughlin,
2. Consciousness of guilt instruction. The defendant also asserts that the judge abused his discretion in denying her motion for a new trial because the consciousness of guilt instruction lacked an evidentiary basis and, further, because he gave it without providing the defendant notice of his intention to so instruct prior to closing arguments.
We review the denial of the motion for a new trial to determine whether it was "an abuse of discretion that produces a manifestly unjust result." Commonwealth v. Pingaro,
A judge is within his discretion to instruct on consciousness of guilt when "there is an 'inference of guilt that may be drawn from evidence of flight, concealment, or similar acts.' " Commonwealth v. Morris,
That said, "[a] trial judge must inform counsel of his proposed instructions before final argument." Degro,
Here, the defendant's summation did not focus on the defendant's flight from the scene. In contrast, the prosecutor labeled the defendant's flight "probably the most important evidence" in the trial. The contrast was particularly critical here because the trial came down to a credibility contest between the witnesses on each side. The unannounced instruction made it possible for the jury to accept, without challenge by the defendant, the prosecutor's claim that the defendant believed herself to be guilty of the battery in stark contradiction of her defense. Cf. Commonwealth v. Woodbine,
Order denying motion for new trial reversed.
Judgment reversed.
Verdict set aside.
Although the defendant did not argue in her written motion for a new trial that the instruction lacked an evidentiary basis, this was a live issue at the hearing on the motion and the judge mentioned it in his written ruling. Therefore, we do not consider this issue waived.
Because the same challenges to trial counsel's performance are "unlikely to arise at retrial," we do not address the defendant's ineffective assistance of counsel claim. Commonwealth v. Esteves,