Opinion
19-P-880
05-27-2020
COMMONWEALTH v. ROBERT GELIGA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Robert Geliga, was convicted of assault and battery by means of a dangerous weapon causing serious bodily injury, in violation of G. L. c. 265, § 15A (c) (i). He now appeals, arguing that the judge's response to a question from the jury impermissibly amended the indictment, creating a prejudicial variance. We disagree and affirm.
Background. On February 17, 2016, during a fight at a New Bedford bar, the victim, Eliseo Ramirez, was stabbed at least seven times. As a result, he suffered a collapsed lung and damage to his colon. On March 10, 2016, a grand jury returned an indictment charging that the defendant "did assault and beat one Eliseo Ramirez by means of a dangerous weapon, to wit: knife, and by such assault and battery did cause serious bodily injury to said Eliseo Ramirez."
At trial, the Commonwealth presented a surveillance video recording (video) showing a man in a dark leather jacket repeatedly plunging a knife into Ramirez's body. Several witnesses identified the defendant as the man with the dark jacket and the knife, who was fighting with the victim. In closing argument, the prosecutor argued that the surveillance video, along with testimony from eyewitnesses present during the incident who identified the defendant, provided the jury with ample evidence to convict the defendant.
The judge then instructed the jury on the elements of assault and battery by means of a dangerous weapon:
"In order to prove the defendant guilty of this offense, the Commonwealth must prove beyond a reasonable doubt that the defendant intended to touch Eliseo Ramirez with a dangerous weapon in a sense that the defendant consciously and deliberately intended the touching to occur and that the touching was not merely accidental or negligent. The Commonwealth is not required to prove that the defendant specifically intended to cause injury to Eliseo Ramirez. Any slight touching is sufficient as long as it was done with a dangerous weapon."The judge further instructed the jury on the requirement that the defendant committed the battery by means of a dangerous weapon:
"If the alleged weapon is not inherently dangerous, you must determine if it was a dangerous weapon. An item that is normally used for innocent purposes can become a dangerous weapon if it is intentionally used as a weapon in
a dangerous or potentially dangerous fashion. Therefore, you must believe, beyond a reasonable doubt, that where the weapon was not inherently dangerous the defendant used it as a weapon with the intent to use it in a dangerous or potentially dangerous fashion. The law considers any item to be a dangerous weapon if it's intentionally used in a way that reasonably appears to be capable of causing serious injury or death to another person. For example, a lighted cigarette can be a dangerous weapon if it's used to burn someone, as is a pencil, if it is aimed at someone's eyes. In deciding whether an item was intentionally used as a dangerous weapon, you may consider the circumstances surrounding the alleged crime, the nature, size and shape of the item and the manner in which it was handled or controlled."The defendant did not object to the judge's instructions.
During deliberations, the jury asked the judge: "Do we need to find him guilty of specifically using a knife or can it be any dangerous weapon?" Defense counsel argued that, because the indictment charged that the dangerous weapon was a knife, the proper answer to the question was that, in order to find the defendant guilty, the jurors were required to find specifically that the defendant used a knife. Over the defendant's objection, the judge concluded that the Commonwealth was required only to prove that a dangerous weapon was used in the commission of the assault and battery that caused serious bodily injury, and not that a particular weapon was used; she so instructed the jury. Shortly afterwards, the jury returned a verdict, finding the defendant "guilty of assault and battery by means of a dangerous weapon causing serious bodily injury."
Discussion. The issue here is controlled by considerable precedent holding that "a defendant is not to be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense." Commonwealth v. Grasso, 375 Mass. 138, 139 (1978). "This requirement . . . ensures that the defendant has proper notice of the charges against him." Commonwealth v. Hobbs, 385 Mass. 863, 869-870 (1982).
The indictment in this case correctly stated the essential elements of "assault and battery" by means of a "dangerous weapon" and "causing serious bodily injury." The reference to a "knife" was surplusage; it did not set out an element of the crime that the Commonwealth was required to prove. See Commonwealth v. Salone, 26 Mass. App. Ct. 926, 930 (1988) ("The language in the indictment specifying the particular weapon used is superfluous"). See also Commonwealth v. Wolinski, 431 Mass. 228, 236 (2000), citing Salone, supra; Commonwealth v. Prado, 94 Mass. App. Ct. 253, 263 (2018). Contrast Commonwealth v. Garrett, 473 Mass. 257, 268 (2015) (Gants, C.J., concurring) (explaining distinction between indictment alleging armed robbery with dangerous weapon and indictment alleging armed robbery with handgun).
The defendant now claims that his defense focused on the use of a knife alone and that it "completely changed the defendant's case" when the jury were permitted to consider whether the weapon might have been something else. We are not persuaded. The defendant was convicted of the offense charged in the indictment as properly explained in the judge's instructions and submitted to the jury. The jury instructions correctly stated that the Commonwealth was required to prove that the defendant committed the assault and battery "with a dangerous weapon," including an inherently dangerous weapon or noninherently dangerous weapon used in an intentionally dangerous manner. See Hobbs, 385 Mass. at 870 (affirming conviction where defendant claimed "judge's instructions created a variance between the indictment and the proof to be considered").
In addition, the Commonwealth's evidence -- including a surveillance video of the stabbing -- amply demonstrated, and the jury agreed, that the defendant committed the assault and battery by means of a dangerous weapon as that term has been defined in our case law. See G. L. c. 277, § 35 (defendant not entitled to acquittal by reason of Commonwealth's "failure to prove unnecessary allegations in the description of the crime"). We see no error.
Judgment affirmed.
By the Court (Hanlon, Blake & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 27, 2020.