Commonwealth v. Porro, 458 Mass. 526

Porro, a U.S. Department of Commerce special agent, swerved toward a motorcyclist on a Boston street after an earlier verbal dispute.
Porro pointed a gun during the confrontation; the motorcycle was struck, causing serious injuries to the rider.
Three indictments: (1) assault and battery by means of a dangerous weapon (auto) and causing serious bodily injury; (2) assault by means of a dangerous weapon (handgun); (3) leaving the scene of an accident causing personal injury.
Jury acquitted the second indictment, found the third violation, and was deadlocked on the first indictment; judge later gave standard deadlock-instruction and allowed consideration of a lesser included offense under the final swerve.
Appeals Court reversed the assault and battery by means of a dangerous weapon verdict and remanded for retrial only on the lesser included theories; this court granted review to determine retrial scope, focusing on whether assault by means of a dangerous weapon may be retried on a threatened-battery theory (not attempted-battery).
Court holds Porro may be retried for assault by means of a dangerous weapon only under a threatened-battery theory recasting the final-swerve incident, and reverses the attempted-battery theory verdict.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are attempted battery and threatened battery lesser included offenses of assault?	Porro contends not both theories are proper lesser included offenses.	Commonwealth argues both theories are encompassed by assault.	Attempted battery is a lesser included offense; threatened battery is also a lesser included offense.
Was it proper to instruct on both attempted and threatened battery as lesser included offenses?	Porro argues no reasonable basis for attempted-battery instruction.	Commonwealth argues instruction aligns with theory of assault.	Error to instruct on attempted battery; instruction on threatened battery was warranted.
Can Porro be retried for assault by means of a dangerous weapon under a threatened-battery theory?	Porro would face double jeopardy concerns.	Retrial appropriate for narrowed theory.	Yes; retrial permitted on threatened-battery theory only.
What is the proper remedy and scope of retrial?	Narrow retrial scope to final-swerve theory.	Full retrial on all theories permissible.	Conviction for assault by means of a dangerous weapon reversed; remanded for retrial limited to threatened-battery theory.
Did the trial court act within proper scope in charging lesser included offenses?	Evidence supported final-swerve threatened-battery theory.	Evidence did not support attempted-battery theory.	Error to submit attempted-battery theory; permitted for threatened-battery theory.

Commonwealth v. Gorassi, 432 Mass. 244 (2000) (defines elements-based approach and common-law origins of assault/assault and battery)
Commonwealth v. Burke, 390 Mass. 480 (1983) (sets framework for distinguishing assault vs. assault and battery)
Commonwealth v. Stokes, 440 Mass. 741 (2004) (supports almost incorporative approach to common-law term definitions)
Commonwealth v. Walker, 426 Mass. 301 (1997) (recognizes use of lesser included offenses to resolve evidentiary disputes via jury flexibility)
Commonwealth v. Perry, 391 Mass. 808 (1984) (discusses elements-based approach and lesser included offense doctrine)
Commonwealth v. Nardone, 406 Mass. 123 (1989) (reversible error standard for lesser included instruction where no basis exists)
Commonwealth v. Thayer, 418 Mass. 130 (1994) (sets framework for evaluating lesser included instructions when some hypotheses exist)
Commonwealth v. Santos, 440 Mass. 281 (2003) (explains close relation of attempted and threatened assault as lesser includes)
Commonwealth v. Vick, 454 Mass. 418 (2009) (confirms Morey rule and aspects of multiple offenses from same conduct)
Commonwealth v. Jones, 441 Mass. 73 (2004) (articulates Morey rule and statutory alignment on lesser included offenses)
Commonwealth v. Walker, 426 Mass. 301 (1997) ((duplicate entry for clarity))