COMMONWEALTH v. ERIC LAWTON JR (2025)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial, a District Court judge found the defendants, Eric Lawton, Jr., and Troy L. Mitchell, guilty of assault and battery causing serious bodily injury. On appeal, the defendants, represented by separate counsel, both claim that their motions for required findings of not guilty should have been allowed because the Commonwealth failed to prove (1) that the defendants caused the victim to suffer a “serious bodily injury,” and (2) the defendants’ identity as the perpetrators of the crime.

In addition, Lawton argues (1) that his conviction should be vacated because the judge denied him the right to make a closing argument, thus denying his right to assistance of counsel, and (2) that the variance between the Commonwealth's bill of particulars filed in advance of the trial and the evidence at trial prejudiced him. We agree that it was error to deny the defendants the right to make a closing argument. Accordingly, we vacate the judgments and remand for a new trial. As discussed below, we are not persuaded by any of the defendants’ other claims on appeal.

Background. In March 2021, the defendants were charged, in separate criminal complaints, with assault and battery causing serious bodily injury in violation of G. L. c. 265, § 13A (b) (i). The defendants’ cases were joined for trial. On the day the bench trial commenced, on December 2, 2022, both defendants stipulated to the following:

“That [each defendant] ․ did commit an Assault and Battery on [the victim] on December 20, 2020.”

The victim, and sole witness during the trial, testified about his injuries as follows: On December 20, 2020, while the victim was driving home from work around 2 A.M., he saw four individuals walking on the side of South Main Street. The victim told the individuals to “get on the sidewalk.” In response, Lawton and Mitchell punched the victim's car. The defendants then pulled the victim out of his car and began to physically assault him.² The victim called 911, and the responding police officers apprehended the defendants soon after arriving at the scene.³

At the conclusion of the victim's testimony, the Commonwealth rested. The defendants then moved for a required finding of not guilty. The judge asked counsel if they had briefed whether the Commonwealth had met its burden of establishing that the defendants’ assault and battery resulted in serious bodily injury to the victim. When defense counsel responded that they had not briefed the issue, the judge denied the defendants’ motion without allowing for oral argument.

Immediately after the judge denied the motion for a required finding of not guilty, the defendants rested. The judge then addressed the defendants’ motions for a required finding as it applied to the close of evidence, and again asked the parties whether they “had a brief prepared as to whether or not this is a serious bodily injury.” When the parties stated that they had not prepared briefs, the judge advised the parties that she wanted them to brief the serious bodily injury issue; she continued the trial to provide them sufficient time to comply with her order.

Subsequently, the defendants submitted a joint memorandum in support of their motion for a required finding of not guilty, arguing the evidence was insufficient to establish serious bodily injury. The Commonwealth submitted a memorandum in opposition. On January 6, 2023, the judge submitted findings and an order denying the defendants’ motion for a required finding.

The trial resumed on January 27, 2023. The judge began by inquiring of the parties, “I take it that you've had a chance to review my decision on the two required finding motions?” The defendants’ attorneys confirmed they had reviewed the decision. The judge next asked, “So after your review of my required finding decision, are you prepared for argument on sentencing?” (emphasis added). Counsel for Lawton responded by inquiring, “We wanted to know whether this essentially was your motion for required finding or the ultimate issue of the trial?” The judge explained, “So that's my decision on the required finding, and after ․ both defendants have rested in their presentation of the case and I would find both defendants guilty of the crime of assault and battery with serious bodily injury“ (emphasis added). The parties then presented their respective sentencing arguments. The judge sentenced each defendant to two years in the house of correction.

Discussion. 1. Sufficiency of evidence. When reviewing “a judge's denial of a defendant's motion for a required finding of not guilty, we inquire whether the evidence, considered in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Coonan, 428 Mass. 823, 828 (1999). “In satisfying that test, the Commonwealth may rely on reasonable inferences drawn from circumstantial evidence.” Commonwealth v. Degro, 432 Mass. 319, 325 (2000).

a. Serious bodily injury. The defendants contend that the trial judge should have allowed their motions for a required finding of not guilty because the evidence was insufficient to prove, beyond a reasonable doubt, that they caused the victim “serious bodily injury.” We are not persuaded. General laws c. 265, § 13A (c), sets out three alternate means for the Commonwealth to prove “serious bodily injury”: bodily injury resulting in (1) “a substantial risk of death,” (2) “a permanent disfigurement,” or (3) loss or impairment of a bodily function, limb or organ.” See Commonwealth v. Scott, 464 Mass. 355, 357 (2013). Viewing the testimony in the light most favorable to the Commonwealth, a rational trier of fact could have concluded that the victim's injuries resulted in both (1) a substantial risk of death and (2) the impairment of a bodily function.

Regarding a “substantial risk of death,” the victim testified that multiple people “ripped” him from his car and then punched and kicked him at least fourteen times in the face and head over a period of many minutes. When the police arrived, the victim was bleeding profusely, and he was transported by emergency medical technicians (EMT) to the nearest hospital (Athol Memorial Hospital). After a computerized tomography (CT) scan revealed the victim had suffered a brain hematoma, the victim was rushed to UMass Memorial Hospital. At UMass Memorial, the victim was placed in a brace and underwent three CT scans every hour (for an unspecified duration of time) to monitor the hematoma, or “brain bleeding” as described by the victim. The victim remained at UMass Memorial for forty-eight hours. Considering this evidence in the light most favorable to the Commonwealth, we conclude that the victim's testimony was sufficient to prove the defendants committed an assault and battery that resulted in a substantial risk of the victim's death. See Commonwealth v. Gerhardt, 477 Mass. 775, 788 (2017) (factfinders “permitted to utilize their common sense in assessing trial evidence”).

At trial, the Commonwealth also pursued the theory that the victim suffered an impairment of a bodily function. Although G. L. c. 265, § 13A, does not define “impairment of a bodily function,” the Supreme Judicial Court has interpreted the phrase to mean when “a part or system of the body [ ] is significantly impeded in its ability to fulfill its role.” Commonwealth v. Heywood, 484 Mass. 43, 51 (2020), quoting Scott, 464 Mass. at 359. Further, impairment of a bodily function, limb, or organ need not be permanent to be considered a serious bodily injury. See Commonwealth v. Marinho, 464 Mass. 115, 118 (2013).

After being released from the hospital, the victim suffered cognitive delays, including difficulties in understanding and speaking to others, that persisted for at least two years.⁴ The victim's medical treatment after being released from the hospital included annual CT scans and bi-annual speech therapy. Further, the defendants’ assault and battery on the victim diminished his ability to interact with his children, and adversely affected his capacity to work at the same level as before he suffered his injuries.

Accordingly, we are satisfied that the judge's denial of the defendants’ motion for directed verdict was supported by sufficient evidence that the victim's injuries resulted in the impairment of a bodily function. See, e.g., Heywood, 484 Mass. at 51 (defendant caused impairment of bodily function when he fractured victim's orbital bone, which led chronic numbness); Marinho, 464 Mass. at 117-118 (victim suffered impairment of bodily function due to long-lasting vision impacts and facial reconstruction surgery); Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162, 162-163 (2005) (victim's bodily functions impaired by jaw injury, which required feeding tube for multiple weeks).

b. Identity. The defendants argue that the Commonwealth failed to offer sufficient proof that the defendants were the individuals who committed the crime. The defendants did not raise this issue in their motions for required finding of not guilty, instead arguing only that the Commonwealth did not prove “serious bodily injury.” In fact, each defendant affirmed in their memorandum supporting their motion for a required finding that they had stipulated to the elements, including identity, of the crime of assault and battery. In addition, at the conclusion of the trial, the defendants confirmed to the trial judge that they had stipulated to the offense of assault and battery. Because the defendants failed to challenge the identification before the trial judge, we review this claim for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), citing Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

The defendants self-identified, for purpose of their trial, as the individuals who committed an assault and battery on the victim through their respective written stipulations filed before the trial judge on the day of the bench trial.⁵ The defendants also stipulated “[t]hat the only issue at trial is whether the Assault and Battery caused serious bodily injury pursuant to G. L. c. 265, § 13A (b) (i) to [the victim].” In light of the circumstances, we are persuaded that their stipulations were sufficiently “placed before the trial judge,” such that the Commonwealth's failure to move to admit the stipulations as evidence during the trial did not amount to a substantial risk of a miscarriage of justice.⁶ See Commonwealth v. Ortiz, 466 Mass. 475, 484 (2013). See also Sierra Mktg., Inc. v. New England Wholesale Co., 14 Mass. App. Ct. 976, 978 (1982) (stipulation entered in record properly before trial judge and binding on parties notwithstanding that it was not admitted in evidence as exhibit during jury-waived trial); Mass. G. Evid. § 611(g)(1) (“party is bound by its stipulation in the absence of consideration unless relief is granted by the court”). Cf. Commonwealth v. Triplett, 398 Mass. 561, 570 (1986) (“If controvertible facts are agreed to by stipulation, those facts no longer are at issue and must be accepted by the fact finder”).

Similarly, although the stipulations should have been signed by the defendants and prosecutor in order to comply with Mass. R. Crim. P. 23, 471 Mass. 1501 (2015), the failure to do so does not amount to a substantial risk of a miscarriage of justice given entry of the stipulation on the record, and the defendants’ clear intention to enter into the stipulation, thus avoiding having to defend the charge of assault and battery by means of a dangerous weapon.

2. Right to counsel. Lawton asserts that the judge, by finding him guilty before he was afforded an opportunity to make a closing argument, denied him the right to assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article 12 of the Massachusetts Declaration of Rights. We agree.

Our courts have long held that to deny a defendant the opportunity to make a closing argument is antithetical to State and Federal guarantees of the right to counsel. In Herring v. New York, 422 U.S. 853, 865 (1975), the Supreme Court deemed unconstitutional a New York law that conferred on every judge in a nonjury criminal trial the power to deny counsel an opportunity to make a closing argument. In assessing a criminal defendant's right to the assistance of counsel “constitutionalized in the Sixth and Fourteenth Amendments,” the Herring Court held:

“There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge. The issue has been considered less often in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense.”

Id. at 858-859. The Supreme Court in Herring “suggested, and is generally read as having held, that a defendant who is denied the right to present closing argument will be entitled to reversal without making a showing of prejudice” (citations omitted). Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 12–13 (1986).

Moreover, as emphasized in Herring, the right to a closing argument is not limited to trials before a jury, but applies equally to defendants who elect to be tried before a judge.⁷ See Commonwealth v. Martelli, 38 Mass. App. Ct. 669, 671 (1995), quoting Herring, 422 U.S. at 859 (“the denial of the opportunity for a closing argument in a nonjury criminal trial is ‘a denial of the basic right of the accused to make his defense’ ”); Miranda, 22 Mass. App. Ct. at 12 (“the right [to make a closing summation] is not of less significance when the case is tried to a judge rather than to a jury”).

Here, we conclude that the judge denied the defendants the right to make a closing argument by announcing the guilty findings before affording the parties the opportunity to make closing arguments. Although the judge in this case did not explicitly forbid closing arguments, the effect of the judge's actions was the same. The circumstances of our case present similarly to the circumstances in Miranda, 22 Mass. App. Ct. at 11, where the trial judge, at the close of evidence, stated:

“I don't think it is necessary to have arguments in this. I am actually giving no credibility whatsoever to the testimony of the three defendants. I don't believe a word they said. With that in mind, it would be superfluous to argue the case. I am finding them all guilty as charged.”

Here, the defendants’ attorneys were prepared for the judge to discuss the judge's ruling on the required finding when the judge suddenly announced her findings. As in Miranda, 22 Mass. App. Ct. at 14, there was no chance for counsel “to anticipate that the judge was about to announce [her] finding.” Furthermore, once the judge announced her findings, a closing argument would have appeared futile to counsel. See Martelli, 38 Mass. App. Ct at 672 (“judge's comments amounted to a declaration that he believed the defendant to be guilty and, therefore, a closing argument would not change his mind ․ The judge's action constituted error”). Under the circumstances of this case, it was error for the judge to announce the findings without affording the defendants the opportunity to make a closing argument.

We acknowledge that defense counsel did not object to the judge's decision to foreclose the opportunity for closing argument. “However, in Miranda, we pointed out that ‘[i]t is generally accepted ․ that prejudice as a result of the denial of closing arguments is assumed; and that such denial never can be harmless error.’ ” Martelli, 38 Mass. App. Ct. at 672, quoting Miranda, 22 Mass. App. Ct. at 22-23. As the Miranda court further explained, “[f]or us to conclude that this denial did not create a substantial [risk] of a miscarriage of justice would be, in effect, to reject the importance assigned to the right [of the accused to make his defense] by the Herring decision.” Miranda, supra at 23. See Martelli, supra at 671-672 (judge's refusal to consider defendant's closing argument created substantial risk of miscarriage of justice). Accordingly, on this record, the defendants are entitled to a new trial.

We exercise our discretion for reasons of fundamental fairness ⁸ and efficient administration of justice by affording Mitchell the benefit of the claim raised only by Lawton because Mitchell, who was situated identically to Lawton on the closing argument issue, would undoubtedly move for a new trial in the District Court upon receipt of this decision. See Commonwealth v. Spearin, 446 Mass. 599, 607 (2006); Commonwealth v. Martin, 57 Mass. App. Ct. 272, 276–277 (2003), aff'd, 442 Mass. 1002 (2004). Accord Commonwealth v. Conroy, 333 Mass. 751, 757 (1956) (“We are of opinion that on this appeal we also have power to order correction of this obvious error [not raised by the defendant] and so avoid the need for other proceedings which could lead to but one result”).

3. Variance between evidence adduced at trial and the bill of particulars. Defendant Lawton ⁹ claims the Commonwealth's first bill of particulars, filed in advance of the trial, prejudiced him by not providing him adequate notice to prepare his defense as to whether the victim sustained a “serious bodily injury” due to the “loss or impairment of a bodily junction, limb or organ.” Relatedly, he claims the second bill of particulars was filed too late to provide adequate notice. We review to determine whether the variance between the Commonwealth's bill of particulars filed in advance of the trial and the evidence at trial prejudiced the defendant by not providing him “reasonable knowledge of the crimes charged, with adequate notice to prepare [his] defense.” Commonwealth v. Crawford, 429 Mass. 60, 70 (1999), quoting Commonwealth v. Amirault, 404 Mass. 221, 233-234 (1989). We conclude there was no such prejudice.

The Supreme Judicial Court provided an overview of our review on this issue in Commonwealth v. Pillai, 445 Mass. 175, 188 (2005):

“The function of a bill of particulars is to give a defendant reasonable knowledge of the nature and character of the crime charged. A request for a bill of particulars does not entitle a defendant to secure a resume of the [Commonwealth's] evidence ․ Accordingly, the standard for showing prejudice from a variance between the bill of particulars and trial testimony is high․ [R]elief is warranted only on a showing that the bill of particulars failed to provide the defendant with notice to prepare his defense” (quotations and citations omitted).

In its first bill of particulars, dated November 18, 2022, the Commonwealth stated that its theory of “serious bodily injury” was that the victim “suffered a traumatic subdural hematoma, which according to emergency room physicians placed [the victim] ‘at high risk of a serious or life-threatening situation.’ ” Later, on December 9, 2023, one week after the parties had rested but before the judge announced her verdict, the Commonwealth filed an amended bill of particulars, which added a second theory of “serious bodily injury,” namely that the victim suffered the loss or impairment of a bodily function or organ.

Here, the judge did not err in concluding that “the variance between the trial testimony and the [b]ill of [p]articulars did not meaningfully deny the defendants an opportunity to prepare their defense” because the defendants reviewed the victim's medical records prior to trial. See Commonwealth v. Tavares, 385 Mass. 140, 157, cert. denied, 457 U.S. 1137 (1982) (no prejudice by variance between theories of murder in first degree in bill of particulars [premeditation and felony murder] and additional theory at trial [extreme atrocity or cruelty] because defendant had effective notice through autopsy report and photos). The judge also pointed out that the defendants had effectively cross-examined the victim about his condition and treatment for his injuries.

Further, defendant Lawton was not prejudiced by the variance between the initial bill of particulars and the trial testimony because the victim's impairment of a bodily function “could reasonable be perceived” from the Commonwealth's first bill of particulars and the medical records provided prior to trial. See Commonwealth v. Whitehead, 379 Mass. 640, 649 n.6 (1980) (bill of particulars gave reasonable notice of dual theories of rape). See also Tavares, 385 Mass. at 157 (bill of particulars gave adequate notice of dual theories of premeditation and extreme atrocity or cruelty). The nature of both the defendants’ physical assault and the victim's injuries that let the Commonwealth specify its theory of “serious bodily injury” under G. L. c. 265, § 13A (b) (i), as a “substantial risk of death” reasonably noticed the defendants that the victim may have also sustained the “loss or impairment of a bodily function, limb or organ.”

Conclusion. The judgments are vacated, and the findings are set aside. The cases are remanded for further proceedings consistent with this memorandum and order.

So ordered.

FOOTNOTES

2.   The defendants’ assault and battery on the victim, as well as the victim's resulting injuries, are set forth in greater detail in our discussion below concerning the Commonwealth's evidence that the victim sustained a serious bodily injury.

3.   The victim identified Lawton and Mitchell during a showup identification at the scene. The judge denied the defendants’ pretrial motion to suppress the identification.

4.   The victim suffered these effects from the date of the offense, December 20, 2020, through at least the date of the trial, December 2, 2022.

5.   The Commonwealth moved to dismiss a charge of assault and battery by means of a dangerous weapon in exchange for the defendants’ stipulation to assault and battery.

6.   The rule governing stipulations, Mass. R. Crim. P. 23, 471 Mass. 1501 (2015), provides, in pertinent part:“(a) Essential Elements. Any stipulation to an essential element of a charged offense entered by the parties before or during trial shall be in writing and signed by the prosecutor, the defendant, and defense counsel. Any such stipulation shall be read to the jury before the close of the Commonwealth's case and may be introduced into evidence.”

7.   In Herring, 422 U.S. at 863, the Supreme Court was not persuaded by a claim that closing arguments are less important, even superfluous, to a judge presiding over a bench trial as compared with a jury. The Supreme Court explained:“Judicial training and expertise, however it may enhance judgment, does not render memory or reasoning infallible. Moreover, in one important respect, closing argument may be even more important in a bench trial than in a trial by jury. As Mr. Justice Powell has observed, the ‘collective judgment’ of the jury ‘tends to compensate for individual short-comings and furnishes some assurance of a reliable decision.’ Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1, 4 (1966). In contrast, the judge who tries a case presumably will reach his verdict with deliberation and contemplation, but must reach it without the stimulation of opposing viewpoints inherent in the collegial decision-making process of a jury.”Id. at 863 n.15.

8.   Compare Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002) (defendant shall be granted relief when error creates substantial risk of miscarriage of justice, despite defendant failing to preserve his claim for review).

9.   Defendant Mitchell does not pursue this issue on appeal.