Commonwealth v. Kelly, 470 Mass. 682

Midnight June 11–12, 2008, Marshfield house party where several Caucasian guests assaulted Tizaya Robinson, an African-American, causing serious injuries.
Defendants Amanda Kelly, Christopher Bratlie, and Kevin Shdeed were charged with civil rights violations and related assault and battery offenses; Bratlie and Shdeed also faced charges of assault and battery for the purpose of intimidation, with Bratlie also facing a dangerous weapon enhancement.
Robinson was attacked after racial slurs were directed at him; dog repellent was used by Robinson to deter the crowd, and he suffered multiple injuries including stab wounds, nerve damage, and head trauma.
Jury heard evidence of a large, hostile crowd, with one witness noting Bratlie and others called Robinson a racial epithet; the incident spanned the driveway and public street near the party location.
Trial court instructed on §39 (a) as requiring specific intent to intimidate because of race; jury asked whether race needed to be the sole factor; judge gave a supplemental instruction that race need not be the sole reason; convictions entered, some affirmed, some vacated on appeal.
On appeal, this court affirmed Kelly’s and Shdeed’s convictions, vacated Bratlie’s second assault and battery conviction as duplicative, and affirmed Bratlie’s other convictions after evaluating whether separate and distinct acts supported each conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Must race be a substantial factor for §39 convictions?	Defendants argue language should have required substantial factor.	State contends Legislature did not require sole or substantial factor.	No; no quantification required; conviction sustained.
Sufficiency of evidence for §37 civil rights violation	Robinson’s right to personal security was violated by Kelly’s actions during the attack.	Defense contends Robinson instigated violence; rights violation not proven.	Reasonable jury could find violation of §37 beyond reasonable doubt.
Duplicative convictions for Bratlie (two assaults)	Convictions may rest on separate acts; judge failed to instruct on separate acts.	Convictions could be based on distinct acts; duplicative risk.	One of Bratlie’s convictions vacated due to duplicative risk; others affirmed.
Effect of jury instructions tying §37 and §39	Instructions properly distinguished §37 and §39 elements.	Instructions risked conflating §37 with §39 since race-centric language appeared.	Instructions, taken as a whole, did not misstate the law; no error.
Need for separate acts instruction for cognate offenses	Cognate offenses require separate and distinct acts.	Not always required if jury can distinguish acts; in this case, adequate distinctions existed.	Bratlie’s remaining conviction for assault and battery not duplicative given facts; overall cognate analysis upheld.

Commonwealth v. Barnette, 45 Mass. App. Ct. 486 (Mass. App. Ct. 1998) (reaffirming need to analyze racial motive in §39(a))
Commonwealth v. Stephens, 25 Mass. App. Ct. 117 (Mass. App. Ct. 1987) (discusses §37 not requiring predominant purpose for civil rights violations)
Commonwealth v. Gouse, 461 Mass. 787 (Mass. 2012) (duplex offense doctrine; separate acts required for cognate offenses)