MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of assault and battery by means of a dangerous weapon.
1
On appeal, the defendant argues that (i) the trial judge erred in excluding cross-examination on the Burlington Police Departments COVID-19 policy, (ii) the trial judge improperly considered the charge of which the defendant was acquitted in sentencing him, and (iii) the arraignment judge set bail in an amount higher than the defendant could afford without providing explanation. We discern in the defendants claims no cause to disturb the judgment and affirm, addressing each claim in turn.
1. COVID-19 policy. The defendant claims that the trial judge should have allowed defense counsel to cross-examine Burlington Police Officers Eric Magee and Thomas Zarro regarding their departments COVID-19 policy at the time of the defendants arrest, because it was relevant to his state of mind.
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The defendant contends that his theory of defense at trial was that the defendant did not intend to stab Officer Zarro with a knife, but rather was trying to avoid arrest because he was afraid of contracting COVID-19 if arrested and held in jail. “If a defendant believes that the judge improperly restrained his cross-examination of a witness, the defendant must demonstrate that the judge abused his discretion and that he was prejudiced by such restraint” (citation omitted). Commonwealth v. Sealy, 467 Mass. 617, 624 (2014).
In the present case, we discern no abuse of discretion in the judges limitation of cross-examination. The Burlington Police Departments COVID-19 policy was irrelevant to the defendants state of mind in the absence of evidence he knew what it was. When state of mind evidence is offered, “a predicate to its admissibility is the defendants prior knowledge of it.” Commonwealth v. Adjutant, 443 Mass. 649, 654 (2005). The defendant made no offer of proof as to his prior knowledge of the policy, and the record includes no evidence that he did.
In addition, the defendant has not demonstrated that he was prejudiced by the judges ruling. The defendant also was able to present his defense through cross-examination of the officers and in his closing argument.
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In addition, the evidence against the defendant was overwhelming. The video footage introduced at trial showed the defendant draw a knife and strike Officer Zarro in the chest with it.
2. Sentencing. The defendant asserts that the judge based his sentence substantially on the armed assault with intent to murder charge of which the defendant was acquitted. We disagree with the defendants characterization of the basis for his sentence.
“It is not within our power to review a lawful sentence.” Commonwealth v. McCravy, 430 Mass. 758, 767 (2000). Rather, we review a sentence only to determine whether it is unconstitutional or otherwise illegal. See Commonwealth v. White, 48 Mass. App. Ct. 658, 664-665 (2000). A sentencing judge “may consider a variety of factors, including the defendants behavior, character, background, and, perhaps most important, the nature of the offense and the circumstances surrounding the commission of the crime” (quotations and citation omitted). Commonwealth v. Holness, 93 Mass. App. Ct. 368, 375 (2018).
The judges comments during sentencing show that he “considered the nature of the offense[ ] and the circumstances surrounding the defendants crime[ ] in fashioning an appropriate sentence, not that [he] intended to punish the defendant for the [charge] of which he was acquitted.” Holness, 93 Mass. App. Ct. at 375. As he began the sentence pronouncement, the judge merely summarized the Commonwealths case and the defense case for the charge of armed assault with intent to murder.
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The judge then turned to the charge of assault and battery by means of a dangerous weapon and focused on the seriousness of this particular assault and battery, including the potential for serious injury.
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We discern no error in the imposition of the defendants sentence.
3. Bail. The defendant contends that the arraignment judge set bail in an amount higher than the defendant could afford without making findings explaining this decision. As the defendant has been tried, convicted, and sentenced since the time bail was set, his claim is moot. See LaChance v. Commonwealth, 437 Mass. 1013, 1014 (2002).
Judgment affirmed.
By the Court
FOOTNOTES
1
. The defendant was acquitted of armed assault with intent to murder.
2
. During cross-examination of Officers Magee and Zarro, defense counsel asked what COVID-19 restrictions the Burlington police had in effect at the time of the defendants arrest for people who were locked up and whether everybody at the station was required to wear masks. The prosecutor objected both times, and the judge sustained the objections.
3
. Defense counsel cross-examined the officers about wearing masks when they responded to the hotel, the absence of a COVID-19 vaccine at the time of the incident, and the number of people who would be held in each cell at the station.
4
. The judge concluded this section by stating, “So it was a tough sell for the Commonwealth and ultimately the jury was not persuaded. And I think -- frankly, I think their reasoning was good.”
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. The judge stated, “One cant overlook that it was an assault against a police officer acting in the course of his lawful duties. And one can also not overlook the fact that it was a stab that could have killed the police officer had he not been wearing a Kevlar vest.”