Commonwealth v. Mistretta
995 N.E.2d 814
Mass. App. Ct.2013Background
- Defendant, the victim's live-in girlfriend, was tried and convicted after a Superior Court jury of assault and battery by means of a dangerous weapon and assault and battery as a lesser included offense of assault and battery causing serious bodily injury, based on violent episodes in June and September 2010.
- Jury received instructions on both intentional assault and battery and reckless assault and battery; there were separate charges and separate verdict slips for each incident.
- Defendant did not request a specific unanimity instruction at trial and raises the issue on appeal; review is therefore for a substantial risk of a miscarriage of justice only.
- Defendant conceded there was sufficient evidence to convict on intentional assault and battery and argued the judge should have instructed the jury, sua sponte, to specify which form (intentional or reckless) supported the verdict.
- The judge did not give a special unanimity instruction or special verdict slip identifying the factual theory for guilt; defendant claimed this omission created an unspecified verdict risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial judge was required sua sponte to give a specific unanimity instruction or special verdict slips as to which form of assault and battery (intentional vs. reckless) supported the jury's verdict | Commonwealth: No specific unanimity required because the forms are closely related | Defendant: Court should have instructed jury to specify the form or provide special verdict slips; omission risks nonunanimous verdict | Held: No error. Specific unanimity not required; forms are closely related and not separate, distinct means. No substantial risk of miscarriage of justice |
Key Cases Cited
- Commonwealth v. Welch, 16 Mass. App. Ct. 271 (1983) (distinguishes intentional and reckless forms of assault and battery and explains reckless form substitutes proof of wilful, wanton, reckless conduct causing injury)
- Commonwealth v. Burno, 396 Mass. 622 (1986) (refers to alternate forms of assault and battery as separate aspects)
- Commonwealth v. Porro, 458 Mass. 526 (2010) (discusses related subcategories/theories of assault crimes)
- Commonwealth v. Arias, 78 Mass. App. Ct. 429 (2010) (standard for reviewing unpreserved unanimity claims — miscarriage of justice test)
- Commonwealth v. Santos, 440 Mass. 281 (2003) (specific unanimity required only where alternative theories are separate, distinct, and essentially unrelated)
- Commonwealth v. Correia, 50 Mass. App. Ct. 455 (2000) (even when evidence more readily fits intentional theory, reckless verdict can be supported by evidence of willful and wanton conduct)
- Commonwealth v. Conefrey, 420 Mass. 508 (1995) (separate charges and verdict slips reduce risk of jury failing to agree on underlying conduct)
- Commonwealth v. Federico, 70 Mass. App. Ct. 711 (2007) (addresses unanimity and verdict form issues in related contexts)