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17-P-58 Appeals Court

17-P-59

17-P-70

COMMONWEALTH vs. ALEXANDER JOHNSON

(and two companion cases1).

Nos. 17-P-58, 17-P-59, & 17-P-70.

Norfolk. November 1, 2017. - December 12, 2017.

Present: Milkey, Blake, & Singh, JJ.

Assault and Battery by Means of a Dangerous Weapon. Evidence, 

Joint venturer. Practice, Criminal, Dismissal, Indictment.

Indictments found and returned in the Superior Court 

Department on March 24, 2016.

Motions to dismiss were heard by Beverly J. Canone, J. 

Varsha Kukafka, Assistant District Attorney, for the 

Commonwealth.

Kathleen E. McKay for Alexander Johnson.

Neil V. Madden for Jordan Williams.

John M. Brinkman, for Michael Leary, was present but did 

not argue.

MILKEY, J. A grand jury indicted Alexander Johnson, Jordan 

Williams, and Michael Leary for assault and battery by means of 

 

1 One against Jordan Williams and one against Michael Leary.
2

a dangerous weapon causing serious bodily injury (ABDW-SBI). 

See G. L. c. 265, § 15A(c)(i). The indictments were based on a 

bar fight, during which Christopher Socha (the victim) was 

struck on the top of his head with a glass. The Commonwealth's 

theory was that Johnson was the one who struck the victim with 

the glass, and that Williams and Leary were criminally liable 

for aiding and abetting Johnson.

2 

Johnson moved to dismiss so much of the ABDW-SBI indictment 

as alleged serious bodily injury, on the grounds that the 

evidence presented to the grand jury failed to establish 

probable cause that such injury occurred. See generally 

Commonwealth v. McCarthy, 385 Mass. 160, 162-163 (1982). 

Williams and Leary moved to dismiss the ABDW-SBI indictments 

against them in toto, arguing that the evidence before the grand 

jury failed to establish probable cause that they aided and 

abetted Johnson's striking the victim with the glass. Before 

us now is the Commonwealth's appeal from the Superior Court 

order allowing all three McCarthy motions with respect to the 

 

2 In characterizing the liability of Williams and Leary, the 

Commonwealth refers to them as joint venturers. The Supreme 

Judicial Court has instructed that joint venture liability and 

aiding and abetting liability mean the same thing, while stating 

a preference for the terminology of the latter. See 

Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009); 

Commonwealth v. Tavares, 471 Mass. 430, 440 n.17 (2015).
3

ABDW-SBI indictments.

3 For the reasons that follow, we reinstate 

the ABDW-SBI indictments against each defendant.

Background.

4 The bar fight. The three defendants worked 

for a liquor wholesaler in Kingston. On October 3, 2015, a 

Saturday, the company held its annual party at a Plymouth 

restaurant. The party featured an "open bar," and the 

defendants had a considerable amount to drink.5 Together with 

other partygoers, they then went to another local restaurant, 

the Waterfront Bar & Grille, to continue the festivities. The 

bar area of this restaurant was especially crowded that night, 

and transit through it therefore was difficult. 

 

3 All three defendants were also indicted for mayhem, G. L. 

c. 265, § 14, and the judge dismissed those indictments pursuant 

to the defendants' McCarthy motions. The Commonwealth does not

appeal from that portion of the judge's order. Williams and 

Leary also were indicted for assault and battery based on their 

own actions in attacking the victim (separate from the glass 

incident). The judge denied the McCarthy motions with respect 

to the assault and battery indictments; those indictments are 

pending and are not the subject of this appeal.

4 The grand jury heard testimony from eight witnesses, and 

had before it three sets of medical records and a number of 

photographs of the victim's injuries and of the crime scene. In 

addition, the Commonwealth presented five video recordings of

interviews with the defendants and two other eyewitnesses. The 

factual recitation that follows is drawn from the evidence 

before the grand jury, read in the light most favorable to the 

Commonwealth. See Commonwealth v. Lopez, 80 Mass. App. Ct. 390, 

391 (2011).

5 In fact, there was evidence that the defendants began 

drinking before their work party.
4

At one point, the victim tried to make his way to the dance 

floor to join his wife. To do this, he had to engage in "the 

old slip and slide" through the crowd, while excusing himself to 

those whom he passed along the way. When the victim reached the 

area where the defendants had congregated (directly next to the 

bar itself), Williams refused to move even after the victim 

placed his hand on Williams's back. When the victim then 

proceeded "just try[ing] to get through," Williams stuck his leg 

out to trip him. This prompted the victim to stumble while 

exclaiming, "Really, dude?" Williams said, "Hey, watch 

yourself, old man,"6 to which the victim responded with an 

expletive. Leary joined the fray, pushing his shoulder into the 

victim from behind.

7 He also engaged in an escalating war of 

words, "taunting [the victim] to fight." At that point, as the 

victim was moving away, a man -- later identified as Johnson --

slammed a heavy, pint beer glass onto the victim's head. The 

blow, which was done with such force that the glass shattered, 

caused the injuries detailed below. The victim responded by 

head-butting Leary.8 Williams then grabbed the victim, and the 

 

6 The victim was fifty-two years old; the defendants were in 

their mid-twenties. 

7 There was some evidence that it was Williams, not Leary, 

who "shouldered" the victim.

8 There was some evidence that the victim's head-butting of 

Leary occurred before Johnson struck the victim with the glass.
5

two men tangled for a short period of time before the victim 

eventually pushed Williams away, ran down the stairs, and was 

later taken to the hospital for treatment. 

The victim's injuries. The blow to the victim's head 

caused extensive lacerations, totaling twenty-one centimeters in 

length. These lacerations, in turn, caused the victim to bleed 

profusely, with his blood spilled on Williams and Leary and 

throughout the bar area. The lacerations required approximately 

forty stitches to close. Graphic photographs of the stitched 

wounds were provided to the grand jury and, during his 

testimony, the victim pointed to the resulting scar. He also 

described a dent to his head that did not exist before the 

incident and that still hurt to the touch several months later. 

As documented both by medical records before the grand jury 

and by live testimony, the victim suffered a concussion from the 

blow to his head, as well as a wide variety of postconcussion 

consequences. These included, among others, vision problems, 

dizziness, headaches and other pain, and motor impairment (e.g., 

in walking and in reaching for objects). The victim testified 

that he suffered a fractured skull from the incident, and "was 

bleeding out."9 As a result of his injuries, the victim missed 

 

9 The grand jury heard statements to the same effect made by 

a police detective during a video interview of one of the 

eyewitnesses.
6

one and a half months of work. Additional evidence regarding 

the victim's injuries is reserved for later discussion.

Discussion. Serious bodily injury. The statute defines

"serious bodily injury" as "bodily injury which results in a 

permanent disfigurement, loss or impairment of a bodily 

function, limb or organ, or a substantial risk of death." G. L. 

c. 265, § 15A(d), inserted by St. 2002, c. 35, § 2. "Permanent" 

modifies only "disfigurement," not "loss or impairment." 

Commonwealth v. Scott, 464 Mass. 355, 357 n.2 (2013). At the 

same time, not all levels of injury qualify as "loss or 

impairment of a bodily function, limb or organ"; rather, the 

injury has to meet a certain threshold of significance. For 

example, impairment of a bodily function "arises [only] when a 

part or system of the body . . . is significantly impeded in its 

ability to fulfil its role." Id. at 359.

In assessing whether the evidence here was sufficient to 

support the indictment, we must, of course, keep in mind the 

applicable standard of review. The question posed by a McCarthy

motion is whether the grand jury were presented with "sufficient 

evidence to establish the identity of the accused and probable 

cause to arrest him." Commonwealth v. Bell, 83 Mass. App. Ct. 

61, 63 (2013), citing Commonwealth v. McCarthy, 385 Mass. at 

163, and Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984). 

This standard "is considerably less exacting than the 
7

requirement that a judge must apply at trial." Bell, supra at 

63. "All that is required is 'reasonably trustworthy 

information . . . sufficient to warrant a prudent [person] in 

believing that the defendant had committed . . . an offense.'" 

Ibid., quoting from O'Dell, supra. "Probable cause to sustain 

an indictment is a decidedly low standard." Commonwealth v. 

Hanright, 466 Mass. 303, 311 (2013). 

Applying this standard, we conclude that the grand jury 

readily could have found probable cause that the victim suffered

serious bodily injury. Indeed, probable cause was established 

for all of the "three distinct routes for establishing serious 

bodily injury." Scott, supra at 357. First, the grand jury 

could have found probable cause that the attack caused the 

victim to have a permanent disfiguring scar on his head. 

Second, the grand jury could have found probable cause that the 

victim suffered impairment of a bodily function, such as the 

vision problems that the victim was experiencing. See 

Commonwealth v. Marinho, 464 Mass. 115, 118-119 (2013)

(recognizing that significant vision impairment can constitute 

serious bodily injury). Third, in light of the evidence that 

the victim bled so profusely from his injuries, the grand jury 

could have found probable cause that the injury caused a 

substantial risk of death. The judge erred in dismissing the 

serious bodily injury portion of Johnson's ABDW-SBI indictment. 
8

In ruling in Johnson's favor, the judge focused in great 

part on the fact that some of the victim's specific claims of 

injury were not supported by medical records, or perhaps even 

were contradicted by them. For example, she highlighted that 

the medical records appear to indicate that while there 

initially was cause for concern that the victim had suffered a 

skull fracture, follow-up imaging of the victim's head appears 

to indicate that no such fracture occurred.10,11 Resolution of a 

McCarthy motion does not require such parsing of the evidence.12 

As long has been established, the Commonwealth need not produce 

to the grand jury "the same type of specific evidence of each 

element of the offense as would be needed to support a 

conviction." Commonwealth v. Gallant, 453 Mass. 535, 541 (2009)

(quotation omitted).

13 

 

10 A grand juror in fact questioned the victim about this 

apparent discrepancy, and he responded that he could not say 

"for sure" whether his skull was fractured.

11 Similarly, while the victim claimed he was at risk of 

"bleeding out" from a "severed" artery, the medical records do 

not mention this particular injury nor state that the victim 

almost died.

12 Compare Marinho, supra at 119 (even at trial, testimonial

evidence of victim's impairment of his vision held sufficient to 

support guilt beyond a reasonable doubt even though "it 

conflicts with some of the medical records").

13 In addition, for present purposes, it ultimately is of no 

consequence whether the victim suffered a fractured skull or 

not, because there plainly was sufficient evidence to establish 
9

Of course, to convict Johnson of the crime charged, the 

Commonwealth, inter alia, will need to prove beyond a reasonable 

doubt that the victim's injuries rose to the level of 

significance required of serious bodily injury. But that is a 

question appropriately resolved by the petit jury based on a 

full trial record and proper instructions. The grand jury -- by 

contrast -- serves as "an investigatory and accusatory body 

only," Brunson v. Commonwealth, 369 Mass. 106, 120 (1975), and 

it "is not the appropriate forum for reconciling subtle 

gradations of offenses, such as we have here." Commonwealth v. 

Goldstein, 54 Mass. App. Ct. 863, 868 (2002) (quotation 

omitted). Such issues were not for the judge to resolve based 

on her own evaluation of the grand jury evidence on a McCarthy

motion. See Bell, supra at 64 ("A judge considering a motion to 

dismiss should not confuse the question of probable cause . . . 

with questions more properly resolved by the fact finder at 

trial"). 

Williams's criminal liability. We turn next to whether the 

grand jury could have found probable cause that Williams aided

and abetted Johnson's actions. At trial, the Commonwealth will 

need to prove "beyond a reasonable doubt that the defendant 

knowingly participated in the commission of the crime charged, 

 

probable cause that he had suffered serious bodily injury in 

other ways.
10

with the intent required to commit the crime." Commonwealth v. 

Zanetti, 454 Mass. 449, 467 (2009). The question before us is 

whether the grand jury could have found probable cause of such 

liability.

This is not a case where the evidence indicates that, prior 

to Johnson's hitting the victim with the glass, Williams was a 

mere bystander. Contrast Commonwealth v. Lopez, 80 Mass. App. 

Ct. 390, 396-397 (2011) (affirming dismissal of indictment 

charging felony-murder as a joint venturer, where there was no 

evidence before the grand jury that the defendant was anything 

"more than a bystander until the moment the robbery [of the 

decedent] began").14 In fact, the grand jury heard evidence that 

Williams was the one who began the attack on the victim by 

tripping him. From Williams's own actions against the victim, 

the grand jury could have found probable cause that Williams 

shared Johnson's intent to commit an assault and battery on the 

victim.15 Even if there was no evidence that Williams intended 

to cause the injuries that the victim suffered from the glass --

 

14 Notably, the offense in Lopez required proof that the 

defendant shared his alleged coventurer's mental state of 

"carry[ing] out the robbery with conscious disregard of the risk 

to [the victim's] life." Id. at 396. As discussed infra, ABDWSBI is a general intent crime.

15 As noted, the motion judge herself concluded that there 

was probable cause that Williams committed an assault and 

battery against the victim through his own actions. See note 3, 

supra.
11

a question we do not reach -- the Commonwealth need not prove 

such intent, because ABDW-SBI is a general intent crime. See 

Commonwealth v. Vick, 454 Mass. 418, 432 (2009) ("Assault and 

battery by means of a dangerous weapon causing serious bodily 

injury requires the Commonwealth to prove that the defendant 

intentionally touched the victim, however slightly; the touching 

was unjustified; the touching was done with an inherently 

dangerous weapon or an object used in a dangerous fashion; and 

the touching caused serious bodily injury").16

To be sure, to prove Williams guilty of ABDW-SBI at trial, 

the Commonwealth will need to prove beyond a reasonable doubt 

that Williams knew that Johnson was "armed" with the glass. See 

Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 489 (2013) (in 

cases that depend on a coventurer's use of a dangerous weapon, 

the defendant's "knowledge of [the] weapon is an element of the 

Commonwealth's proof" [citation omitted]). However, the grand 

jurors could have inferred probable cause of such knowledge from 

the circumstances presented, which included the well-established 

fact that the defendants were drinking together while standing 

at the bar. See generally Commonwealth v. Lee, 460 Mass. 64, 

69–70 (2011) (knowledge that a coventurer is armed may be 

inferred from circumstantial evidence).

 

16 By contrast, mayhem requires "specific intent to maim or 

disfigure." Commonwealth v. Forbes, 86 Mass. App. Ct. 197, 202 

(2014).
12

Contrary to the motion judge's premise,17 it was not 

necessary for the Commonwealth to prove that Williams knew that 

Johnson intended to strike the victim with the glass. See 

Commonwealth v. Sexton, 425 Mass. 146, 152 (1997) (sufficient 

evidence to support guilty verdict for assault and battery by 

means of a dangerous weapon as a joint venturer even without 

defendant's prior knowledge that the joint venturer intended to 

use the dangerous weapon [concrete pavement] "to effectuate the 

attack"). "[T]here is no need to prove an anticipatory compact 

between the parties to establish joint venture . . . if, at the 

climactic moment the parties consciously acted together in 

carrying out the criminal endeavor." Ibid. (quotation omitted). 

Significantly, there was evidence that after Johnson struck the 

victim with the glass, Williams did not retreat from the combat,

but instead went after the victim himself. Compare ibid.

18 See 

Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 232-233 (2016) 

 

17 The motion judge framed the issue as whether "there was 

probable cause that . . . Williams had knowledge that Johnson 

intended to assault [the victim] with a glass or bottle [and 

whether Williams] shared that intent and by agreement [was] 

willing and available to help if necessary." She then explained 

that she was dismissing the ABDW-SBI indictment against Williams 

because "[t]here is no evidence that . . . Williams knew that a 

glass or bottle would be used on or thrown at" the victim.

18 In Sexton, there was evidence that the defendant himself 

kicked the victim while his brother slammed the victim's head 

against the concrete pavement. Id. at 152.
13

(Cypher, J.).

19 Even under the judge's formulation, the grand 

jury could have found probable cause that Williams not only 

stood ready and willing to come to Johnson's aid, but actually 

did so. See Commonwealth v. Clarke, 418 Mass. 207, 215 (1994) 

(the fact that the defendant "stood ready and willing to aid the 

[other coventurers]" found significant to sustain a conviction 

for joint venture). 

Leary's criminal liability. Leary's situation is very 

close to that of Williams, with one potentially significant 

exception, which pertains to Leary's actions following Johnson's 

blow to the victim's head. Specifically, there does not appear 

to be any showing that Leary continued to attack the victim 

after that occurred. Rather, the evidence was that directly 

after Johnson used the glass, the victim head-butted Leary, and 

Leary then turned away from the combat. 

Nevertheless, given the relatively low bar applicable to 

establishing probable cause at the grand jury stage, we conclude 

that the judge erred in dismissing the ABDW-SBI indictment even 

with respect to Leary. Although the confrontation between the 

defendants and the victim unfolded rapidly and with little 

evidence of reflective thought, there was evidence that Leary 

played a key role in its escalation. In addition, there was 

 

19 In Lugo, we found it significant that the defendant

himself kicked the victim after his coventurer pulled out a 

knife and began stabbing him. Id. at 232-233.
14

evidence to support probable cause that Leary shared Johnson's 

intent to attack the victim (while knowing that Johnson was 

armed with a glass), and that Leary in fact actively 

participated in an assault and battery of the victim. Thus, the 

grand jurors could have concluded that Leary and Johnson were 

acting in concert and with shared intent. In our view, the

Commonwealth presented an adequate showing of Leary's potential 

liability for aiding or abetting an ABDW-SBI to survive a 

McCarthy motion.

Disposition. We vacate so much of the judge's December 1, 

2016, order as allowed the dismissal of the serious bodily 

injury portion of the ABDW-SBI indictment against Johnson and 

that indictment is reinstated in full. We also vacate so much 

of the December 1, 2016, order as allowed the dismissal of the 

ABDW-SBI indictments against Williams and Leary, and those 

indictments are reinstated. The December 1, 2016 order is 

otherwise affirmed.

So ordered.