49 Mass. App. Ct. 31 | Mass. App. Ct. | 2000
Truong Vo Tam and Tu Le appeal from the denial of their individual motions to dismiss the indictments charging them with assault and battery by means of a dangerous weapon, to wit, a baseball bat, in violation of G. L. c. 265, § 15A. A jury later found both defendants guilty of the crimes charged. Both defendants argue that the grand jury did not hear sufficient evidence to identify them as the perpetrators.
Facts. We view the evidence heard by the grand jury in the light most favorable to the Commonwealth. Commonwealth v. Caracciola, 409 Mass. 648, 649 n.1 (1991). The evidence was presented in the form of testimony by the victim, his compan
The four men in the Davis group all testified that the same car carrying the Asian individuals then pulled into the parking lot and parked across the only opening to the lot, thereby fencing in the Davis group. The trunk of the car was then popped open from the interior, and four males and a female left the car, grabbing pipes, baseball bats, and tire irons from the trunk. Mac Davis described the five individuals only as “Asian, and their intent was nothing nice.” He was unable to describe any of the individuals by height, weight, or size. Davis testified that one of the men approached him and that, even though the parking lot was dark, he could make out that individual’s facial features. However, the Commonwealth did not elicit any further testimony from Davis describing or identifying that particular individual.
Davis testified that he attempted to tackle the individual approaching him first but the individual hit him on the head with a pipe, wounding him and causing him to bleed heavily. Davis
Meanwhile, Michael Day was approached by an individual carrying a bat, whom he described as five feet, six inches, to five feet, seven inches, and who was “Chinese or Vietnamese.” This individual swung the bat at Day, but Day wrestled the bat away from his attacker and hit him over the head with the weapon. Day testified that the individual who attacked him then fled the scene.
At the same time, Roland Beamish was fighting with another one of the Asian men. Beamish fought with him until he saw that Davis was bleeding and went to his assistance. He also observed Day and Kelly being attacked by the other Asian males. Beamish noted that the Asian female was also carrying a weapon and that she struck a female bystander and then fled the scene as well.
Michael Kelly testified to the same sequence of events. He stated that he was hit in the leg with a pipe by an attacker, but that he was able to wrestle the pipe away and chase off his attacker. He was unable to remember whether he saw his attacker again that night.
At some point, the Davis group was able to get into their two cars, and they attempted to flee the parking lot. However, the assailants returned to their car and again blocked the Davis group’s cars.
The first Boston police officer on the scene, Officer Roy Gows, testified before the grand jury that he saw the altercation in progress and observed one of four Asian males striking an individual and a car with a baseball bat. The other Asian males were armed with bats and sticks. He testified that he placed
Davis was then taken by ambulance to the hospital, where he received medical treatment.
Officer Gows testified that several hours after the incident, at about 5 a.m., an Asian female entered the police station where Tuan Pham had been taken in order to bail him out. Officer Gows went outside the station and observed that the vehicle the female had arrived in was the same vehicle with the same license plate that he had observed at the scene of the altercation. He looked inside the car and saw that the occupants, the two defendants and Charlie Dang, all of whom are Asian males, were “pretty badly beaten” and that the occupants had “a lot of facial injuries, injuries on their hands.” He also observed a broken pool stick in the car. Officer Gows testified that he asked the car’s occupants about the altercation, and that all of them denied being at the scene. He placed all of the occupants under arrest.
Indictments were handed down against the defendants on March 25, 1997. Each was charged with three counts of assault and battery.
The Commonwealth argued that there was adequate probable cause to support the indictments, based on the following facts. The same car that was at the scene appeared at the police station, and a broken pool stick was found in that car. In addition, the same configuration of Asian males and females that was involved in the assault was present at the station: one female
On January 6, 1998, the motion judge denied the defendants’ motions to dismiss the indictments, holding that the evidence before the grand jury was sufficient to support the indictments. She noted that the number of the attackers matched those who came to the police station in the same car not long after the altercation, and one occupant of the car had visible injuries. The motion judge held that the inference drawn by Officer Gows, that the defendants were also involved in the attack, was a reasonable one. Further, she held that there was sufficient evidence to support a joint venture theory as all of the Asian individuals were involved in some aspect of the assault.
The defendants were tried together in a jury trial on January 26 and 27, 1998. They again contested their presence at the scene of the brawl. On January 28, the jury convicted the defendants of assault and battery on Mac Davis by means of a baseball bat.
Discussion. “Generally a court will not inquire into the competency or sufficiency of the evidence before the grand jury.” Commonwealth v. Coonan, 428 Mass. 823, 825 (1999), citing Commonwealth v. McCarthy, 385 Mass. 160, 161-162 (1982). However, when “a grand jury receives no evidence of criminality on the part of the accused, the indictment must be dismissed.” Commonwealth v. Coonan, supra, quoting from
Further, “[pjrobable cause requires considerably less evidence than that which is required to support a finding of guilty.” Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 509 (1998). However, probable cause is defined as “more than mere suspicion but something less than evidence sufficient to warrant a conviction.” Commonwealth v. Badgett, 38 Mass. App. Ct. at 625, quoting from Commonwealth v. Roman, 414 Mass. 642, 643 (1993).
“Our review of the grand jury proceedings is limited to a determination of whether ‘the grand jury [heard] sufficient evidence to establish the identity of the accused and probable cause to arrest him.’ ” Commonwealth v. Clarke, supra at 509, quoting from Commonwealth v. McCarthy, 385 Mass. at 163-164. See Commonwealth v. Noble, 429 Mass. 44, 48 (1999). With this principle in mind, we review the evidence that the grand jury heard against the defendants.
The critical issue here is the sufficiency of the evidence identifying the defendants as being among the assailants. Evidence that they were present at the scene of the assault
The evidence the grand jury heard identifying the defendants as among the assailants was this. They arrived at the police station three hours after the incident in the same car that was seen by Officer Gows at the scene, and Gows observed a broken pool stick inside the vehicle. The defendants were Asian males who, together with the other Asian males present at the station and in the car, made up the same number of males in the group that attacked the Davis group. The defendants were observed by Officer Gows to have “visible injuries.” One of the Davis group testified as to the height of their attackers, which description fit the defendants.
This evidence is insufficient to establish that the defendants were the same individuals involved in the altercation. None of the grand jury witnesses were able to describe their assailants other than that they were “Asian” and about five feet, five inches, to five feet, seven inches, tall. The Commonwealth elicited no further identifying characteristics from the witnesses. Officer Gows only identified the defendants as being present at the police station, not at the scene of the assault. Neither defendant admitted to being present at the scene of the assault, unlike Charlie Dang.
Further, the contrast between the defendants’ booking sheets and photographs, on the one hand, and Dang’s, on the other, is considerable. There is a startling difference between the booking photographs of the car’s occupants: the defendants display not a hint of injury, while Dang’s photograph shows numerous and severe facial injuries. These are consistent with the booking sheets: Dang’s fist of “visible injuries” on his booking sheet is extensive, detailing facial lacerations, a swollen eye, cuts to his finger and left leg, and bruised arms, while the defendants’ booking sheets state that there are “no visible injuries” to either. The Commonwealth only elicited a blanket description from Officer Gows as to the visible injuries he observed on the occupants of the car. There was no testimony as to the specific injuries he observed on each individual he arrested. The alleged presence of visible injuries was one of the reasons underlying Officer Gows’s probable cause to arrest, but the exhibits demonstrate the absence of such injuries to the defendants.
Without this inconsistent evidence as to the defendants’ vis
Our review of the case law in the Commonwealth concerning motions to dismiss indictments underscores the insufficiency of the evidence against the defendants. Compare Commonwealth v. Coonan, 428 Mass. at 825-826 (evidence before grand jury that indicted defendant for murder included testimony that defendant was last person to see victim alive; defendant told victim she was welcome to stay at his apartment that night; defendant told witness recently that he wanted to kill someone; defendant was in apartment when victim was murdered; victim was found on defendant’s bed; defendant admitted duct tape used to bind victim was his; defendant delayed calling police for three hours). See Commonwealth v. Azar, 32 Mass. App. Ct. 290, 293 (1992) (evidence before grand jury that defendant was alone with child victim at time victim sustained injuries causing her death and that defendant admitted he killed her); Commonwealth v. Manning, 44 Mass. App. Ct. 695, 702 (1998) (evidence before grand jury that defendant was identified by the victim of shooting, that victim had previously been acquainted with defendant, and that bullet lodged in victim was of same type used in gun in defendant’s possession).
Even in cases where the evidence was less than voluminous,
We observe that the police had numerous opportunities to establish the defendants’ presence at the scene of the assault. According to members of the Davis group, the car carrying the
The sum total of evidence presented to the grand jury was insufficient to identify the defendants as the perpetrators. The judgments of the Superior Court are reversed, the verdicts are set aside, and the indictments are dismissed. See Commonwealth v. McCarthy, 385 Mass. at 164.
So ordered.
The grand jury witnesses described the color and make of the car somewhat differently. Day described it as an older, four-door Subaru, Beamish described it as a blue Ford Probe, and Kelly described it as a Ford Probe hatchback. The arresting officer, Officer Gows, described it as a black car.
The testimony as to how many Asian individuals were still on the scene at that time was inconsistent. Davis testified that three assailants were in the car before one individual began striking Day’s car, and that two left the scene. Day testified that all five assailants got back in the car.
Davis received eight stitches in his head and testified at trial that he suffers from dizziness.
The record does not indicate whether the Asian female was ever arrested or charged.
Dang later admitted to being present at the scene of the altercation.
The transcript from the motion hearing describes the injuries listed on Dang’s booking sheet.
The defendants were each charged with assault and battery by means of (1) a tire iron; (2) a pool stick; and (3) a baseball bat.
“ A joint venture exists when the defendant ‘was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary.’ ” Commonwealth v. Cohen, 412 Mass. 375, 381 (1992), quoting from Commonwealth v. Costa, 407 Mass. 216, 224 (1990).
The trial judge allowed the defendants’ motions for required findings of not guilty on the counts of assault and battery by means of a pool stick and assault and battery by means of a tire iron.
Appeals from a motion to dismiss an indictment may not be brought until after trial. See Mass.R.Crim.P. 13(c)(1), 378 Mass. 872 (1979); Epps v. Commonwealth, 419 Mass. 97, 99 (1994).
In addition, a court may review the evidence before the grand jury to determine whether the integrity of the proceedings was impaired. Commonwealth v. O’Dell, 392 Mass. 445, 446-447 (1984). The defendants do not argue that the integrity of the grand jury proceedings was impaired.
See also Commonwealth v. Roman, 414 Mass. 642 (1993). In that case, the defendant was indicted for trafficking in cocaine. The trial judge dismissed the indictment on the ground that there was no evidence, other than the defendant’s possession of an out-of-State driver’s license, that the defendant brought the cocaine into the Commonwealth for distribution. The trial judge was not wrong in dismissing the indictment on that ground, but the Supreme Judicial Court held that the trial judge erred in failing to consider the other aspects of the trafficking statute. The Commonwealth relied on the portion of the statute that included within the definition of trafficking the possession of fourteen grams or more of a controlled substance with the intent to distribute it. Id. at 643-644, citing G. L. c. 94C, § 32E(b). There was no dispute that the defendant possessed the contraband. Id. at 645. Rather, the issue was whether the amount of cocaine he possessed (25.6 grams) was consistent with personal use or whether it supported a finding of probable cause that the defendant
Presence alone, however, will not necessarily support an indictment. In Commonwealth v. McCarthy, supra at 161, the defendant attended a party at which another individual allegedly attempted to rape the victim. The only evidence the grand jury heard as to the defendant’s involvement in the crime was the fact that, after the victim escaped from his attacker, the victim’s sister entered the house where the party was being held and recognized the defendant among those present. Ibid. In dismissing the indictment of the defendant as an accomplice, the court stated that “mere presence at the commission of the wrongful act and even failure to take affirmative steps to prevent it do not render a person liable as a participant.” Id. at 163-164, quoting from Commonwealth v. Benders, 361 Mass. 704, 708 (1972). “Only ‘one who aids, commands, counsels or encourages the commission of a crime while sharing with the principal the mental state required for the crime is guilty as a principal.’ ” Commonwealth v. McCarthy, supra at 164, quoting from Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979).