Whether a defendant may be retried on the lesser included offense of assault with a deadly weapon, where the jury should not have been instructed on that offense in the first trial.

The defendant and a motorcyclist, Frank Merlonghi, shouted threats and obscenities at each other while driving down a two-lane road. At one point the defendant removed his service firearm (he was a customs enforcement official) and allegedly pointed it at Merlonghi. The fight ended a short time later when the defendant swerved sharply, colliding with Merlonghi’s motorcycle. Merlonghi was seriously injured.

The defendant was charged with assault and battery with a dangerous weapon (“battery”) for striking Merlonghi with his car, and assault with a dangerous weapon (“assault”) for threatening Merlonghi with his firearm. The defendant’s theory of the case was that he did not realize that Merlonghi was still driving near the rear of his car when he swerved. The jury convicted him of the lesser included offense of assault on the first charge, and acquitted on the second.

The Appeals Court granted a new trial. 74 Mass. App. Ct. 676. The SJC granted the defendant further appellate review, limited to the question of whether retrial is permissible.

The jury were not initially instructed on assault as a lesser included offense of battery; they were, however, instructed on assault with respect to the firearm. After deadlocking as to the question of battery with the car, they asked the judge whether they could convict on assault as a lesser included offense. The judge instructed that they could, using the same law he had given them as to the alleged firearm assault.

The defendant argued before the Appeals Court that this instruction was improper because: (1) his counsel did not have the opportunity to discuss the lesser included offense at closing argument, depriving him of his right to counsel; (2) assault may be accomplished either by attempted battery or by intentionally placing the victim in fear of battery, and the second is not a lesser included offense of battery; and (3) there was testimony that his car had earlier swerved toward Merlonghi and then swerved away, so it was possible that the jury convicted him for that unindicted act, rather than the actual battery. Finally, the defendant argued that there was no evidence from which the jury could find attempted but not actual battery; the jury should not have received the instruction in the first place, so retrial was barred.

The Appeals Court agreed, as to (3), that the jury could have convicted on unindicted conduct, and the conviction was improper. However, the Appeals Court found that the jury might properly have convicted the defendant of attempted battery for the collision itself, and so ordered a new trial.

The fundamental question is whether a jury could properly convict of assault, as opposed to assault and battery, on an indictment charging that the defendant’s car actually collided with and caused injury to the victim. The defendant argues effectively that an instruction should not be given on a lesser included offense where there is no basis for acquitting of the greater offense yet convicting of the lesser one. The logic would run like this: if the additional elements of battery over attempted battery were undisputedly established, and the jury implicitly acquitted the defendant of battery, then the jury must necessarily have found insufficient evidence for one of the elements of attempted battery, and retrial would constitute double jeopardy.

Neither the Appeals Court nor the Commonwealth seriously addressed that argument, and on the available record it seems persuasive.