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14-P-395                                                Appeals Court

                    COMMONWEALTH    vs.   AKUR BIOR.


                              No. 14-P-395.

           Middlesex.       June 8, 2015. - August 28, 2015.

            Present:     Kafker, C.J., Rubin, & Milkey, JJ.


Assault and Battery by Means of a Dangerous Weapon. Evidence,
     Credibility of witness. Dangerous Weapon. Words,
     "Dangerous weapon."


     Complaint received and sworn to in the Malden Division of
the District Court Department on September 30, 2011.

    The case was tried before Dominic J. Paratore, J.


     James R. Knudsen for the defendant.
     Nicole Marie Nixon, Assistant District Attorney, for the
Commonwealth.


    MILKEY, J.     Following a jury trial in the District Court,

the defendant was convicted of assault and battery by means of a

dangerous weapon.       G. L. c. 265, § 15A(b).   Although we conclude

that the trial evidence was sufficient to support that

conviction, we agree with the defendant that the introduction of
                                                                      2


evidence regarding pretrial probable cause hearings constituted

reversible error.   We therefore vacate the judgment.

    Background.     1.   The incident.   The defendant was a member

of a local Sudanese community that met in a church in Malden.

On the evening of August 21, 2011, a fight broke out in the

church kitchen between the defendant and Mary Deng.      The two

women, whose husbands were cousins, had long had a fractious

relationship.

    When the defendant entered the church kitchen, Deng was

already there making tea and doughnuts.      The witnesses

(including Deng and the defendant) had widely divergent versions

of what then transpired, e.g., regarding which of the women was

the initial aggressor.    However, many of the key facts are not

in dispute.   It is uncontested that the two women started

calling each other names and throwing things (including pieces

of dough) at each other.    As the defendant herself admits, at

one point she picked up a thermos from the table and threw it at

Deng.   According to Deng's testimony, the thermos, which Deng

had filled with hot water, hit her in the forehead and the hot

water spilled onto her, causing serious burns.     It is not clear

if the water escaped from the thermos when the interior glass

portion of it broke, or because the top came off when it was

thrown.   On the latter issue, Deng stated, in response to a
                                                                    3


question whether the top was on the thermos, "The top -- like

the top fell on the table because I didn't close it."

    The extent to which the defendant's throwing the thermos

was provoked by Deng's actions was sharply disputed at trial,

and the defendant argued self-defense.    The defendant testified

that by the time she threw the thermos, Deng had used a teapot

to splash hot water onto her and had picked up a knife.    Deng

admitted that she grabbed the teapot to splash water on the

defendant but claimed that this occurred after the thermos was

thrown and that bystanders prevented her from doing so.    She

denied ever brandishing a knife.

    2.   The immediate aftermath.   After Deng's husband, Martin

Ayoal, telephoned 911, a police officer arrived at the scene and

interviewed the two women individually.    According to his

testimony, both women were wet and agreed that they were

involved in "a mutual altercation"; neither wanted to pursue a

prosecution.   The officer did not arrest either woman or conduct

any further investigation because, in his words, "It appeared to

me just a mutual fight between two ladies, and they both stated

they didn't want to pursue this in court."

    3.   Trial testimony regarding probable cause hearings.

Deng eventually on her own applied for a criminal complaint in

the District Court.   The clerk-magistrate held a probable cause

hearing at which -- according to Deng's trial testimony -- the
                                                                     4


defendant "admitted she burned me with the hot water."    The jury

learned that after the clerk-magistrate hearing, Deng was

allowed to proceed with her case, and a complaint issued

charging the defendant with assault and battery by means of a

dangerous weapon, to wit, hot water.   The jury also learned that

the defendant had filed her own application for a criminal

complaint, but that this prosecution was not allowed to proceed.1

In light of all the testimony about what occurred in the clerk-

magistrate process (some of which the judge himself elicited),

the judge sua sponte instructed the jury about that process as

follows:

          "If an incident occurs and there are no arrests, or
     even if there are arrests or there are police involved and
     don't make an arrest, private citizens such as yourself and
     such as the witness or anybody else has a right to seek
     criminal complaints at the District Court level.

          "You come to court, you swear out a statement to the
     clerk magistrate, and they set up a hearing. And you go to
     a hearing, and the clerk determines whether or not process
     should issue; not whether or not someone is guilty or
     innocent but whether or not the complaint should issue.

          "Remember I told you that a complaint is   nothing but a
     piece of paper that brings people to court to   answer
     charges. So, a clerk magistrate or assistant    clerk makes a
     decision whether the case should go forward.    It means

     1
       The Commonwealth accurately points out that Deng's
specific testimony was that the defendant's charges "were
dropped," suggesting that perhaps the defendant simply chose not
to pursue them rather than that she was prevented from doing so.
Viewing Deng's words in context, including in light of what
subsequently occurred at the trial, we have little doubt that
the jury readily could have inferred that the defendant's
request that charges be pursued was denied.
                                                                        5


     nothing more than that. It's a mechanism by which people
     can come before the court and present their case . . . ."

     Immediately after the instruction was given, the prosecutor

asked Deng whether the defendant had "appealed that decision

about the charges being dropped against you?"    Before Deng

responded, defense counsel asked to be seen at side bar.     The

side bar colloquy was not recorded, although it is apparent that

the defendant objected to the question asked, because the judge

sustained that objection when the parties went back on the

record.   According to a postappeal motion to reconstruct the

record filed by the defendant, defense counsel at side bar also

moved to strike the prior testimony on this point and requested

a curative instruction, and the judge denied both requests.2       In

any event, the judge's sustaining the defendant's objection to

the question of whether the defendant appealed the decision not

to issue a criminal complaint against Deng brought an end to

this line of questioning for the time being.     However, later in

the trial, the prosecutor elicited from the defendant that the

charges she had attempted to bring against Deng related to her

claim that Deng had brandished a knife at her.    When the

prosecutor then asked, "And those charges did not issue;

correct?" the judge sustained the defendant's objection.


     2
       As discussed infra, the trial judge allowed the postappeal
motion, but its status remains in limbo after the Commonwealth
filed a motion to reconsider on which no action was taken.
                                                                     6


     4.   Testimony regarding bystanders.   Deng testified that

there were approximately twenty to twenty-five eyewitnesses to

the altercation.   In her own testimony, the defendant claimed

that the only people in the kitchen at the time were she

herself, two of her young children,3 and Deng.    Only two other

people who allegedly witnessed the incident testified.     Nyaring

Monykec, who was called by the Commonwealth, testified that she

had been working with Deng alone in the kitchen, left, and that

when she returned, the fight had already begun.    She stated that

she saw only the defendant throwing things, that she did not see

the defendant's children in the kitchen, and that she did not

see Deng holding a knife.   With regard to the number of people

in the room, she estimated there to be fifty to sixty, although

on redirect, she suggested that there may have been fewer.     The

other bystander who testified was Youm Mayola, who was called by

the defense.   She testified that both parties were throwing

things at each other (and specifically that she had seen Deng

throw a glass at the defendant) and that the defendant's

children were by the defendant's side the entire time.     Mayola

was not specifically asked about the number of people in the




     3
       The defendant claimed that the children clung to her
throughout the fight, thereby preventing her from readily
leaving. She also claimed that her actions were motivated in
part by fear for her children's safety.
                                                                    7


room, but she noted that she had to look over others in order to

see the fight.

      5.   Prosecutor's closing argument.   During her summation,

the   prosecutor made several references to the conflicting

testimony regarding the number of bystanders present.     She

pointed out that the defendant's contention that only the

combatants and the defendant's children were present was

undercut by the other witnesses including Mayola (who was called

by the defense), and she ascribed a particular motive to the

defendant's testimony on this point:

      "Defense counsel wants you to believe that Akur Bior and
      Mary Deng were alone in this room, except for [the
      defendant's] children, that they were the only people in
      this room. The defendant wants you to believe that so
      badly because then no one will be able to confirm or deny
      her story about the knife. . . . Doesn't that match up
      perfectly with her story about this knife that no one heard
      about that day, that police didn't hear about."

Later in the closing, the prosecutor offered the following with

regard to the paucity of testimony from other eyewitnesses:

           "And I'd also suggest that within this Sudanese
      community I think we all go[t] the sense, especially from
      Nyaring [Monykec], she stated specifically that, 'In our
      culture you don't get involved in things if they don't
      involve you.' So I would suggest that's one explanation
      for why there aren't 20 to 25 people here to say exactly
      what happened that day.

           "She says, 'In our culture you don't get involved if
      it doesn't involve you.' She saw this verbal argument.
      She wasn't sure what it was, all she knew was it didn't
      involve her.
                                                                        8


            "Also, we also got the sense about the Sudanese
       community that people were telling Mary Deng and Martin,
       'Don't call the police' or 'Don't call the ambulance
       because then the police [will] come.'

            "So there's also this sense of solving problems within
       the community. This was a meeting actually set up to kind
       of help women keep the peace within their community.

            "So there is this sense, I would suggest, in the
       Sudanese community that they deal with their problems in
       house and that they don't get the police involved.

            "So I'd suggest to you that that's another reason why
       we don't have 20 to 25 people here from that community
       telling you exactly what happened in the kitchen that day."

       Discussion.      1.   Testimony regarding clerk-magistrate

process.       The defendant argues that the judge erred in admitting

(and in part eliciting) testimony that the criminal case the

defendant wanted brought against Deng was not allowed to go

forward, while the case that Deng wanted brought against her

was.       We agree.   For the reasons explained below, we also agree

that the error created a substantial risk of a miscarriage of

justice, thus warranting reversal even if the issue was not

adequately preserved.4


       4
       As noted, the defendant maintains that soon after the
evidence was admitted, she moved to strike it at an unrecorded
sidebar. After the appeal was filed, and without asking for a
stay of that appeal, the defendant filed a motion to reconstruct
the record consistent with her recollection. The trial judge
endorsed that motion as allowed, but the Commonwealth promptly
moved for reconsideration on the ground that the motion was
allowed without the Commonwealth having an opportunity to be
heard. Both parties report that no action has been taken on the
motion for reconsideration. At least on the record properly
before us, the defendant did not adequately preserve her claim
                                                                     9


    As the defendant accurately highlights, her claim of self-

defense rose or fell principally on whether the jury credited

her allegations about what Deng had done (or threatened to do)

before the defendant threw the thermos.    The admission of the

evidence regarding the clerk-magistrate's rulings went to the

heart of that defense.   As the Commonwealth acknowledges, this

"evidence related to the principal issue at trial."

    "The judicial imprimatur on the [clerk-magistrate's

probable cause rulings] lends [them] significant weight."

Commonwealth v. Foreman, 52 Mass. App. Ct. 510, 515 (2001).

"Furthermore, to a jury without more guidance, it would likely

appear that a [judicial official] had already reviewed the facts

and decided the credibility dispute that the jury were being

asked to consider."   Ibid.   We recognize that the judge here did

offer some guidance to the jury, by cautioning them against

reading too much into the clerk-magistrate's decision to allow

Deng's criminal complaint to proceed.     However, the instruction

did not address what, if anything, the jury could take from the


of error. Although she did lodge some successful objections
during this line of questioning, at key points she did not
object and the answers came in evidence. It is true, as the
defendant observes, that the most objectionable question on this
point came from the judge, not the prosecutor, but this does not
excuse the defendant's failure to object. Because we conclude
that the error caused a substantial risk of a miscarriage of
justice in any event, we need not resolve the dispute over the
reconstruction of the record and whether any actions the
defendant took at sidebar materially improved her claim that she
preserved the issue.
                                                                  10


clerk-magistrate's decision declining to issue the defendant's

requested complaint against Deng.   In fact, by indicating that

such a low bar applied to allowing criminal complaints to issue,

the judge suggested that the clerk-magistrate must have found

the defendant's allegations meritless.   Thus, far from curing

the problem that the admission of the evidence caused, the

instructions actually made the problem worse.

     Viewed against the background of the judge's instructions,

the testimony about the clerk-magistrate process signaled to the

jury that, after hearing from both parties, a judicial official

already had determined that Deng's allegations were at least

potentially credible, while the defendant's apparently were not.5

Since this went to the heart of the defendant's defense, we

conclude that the defendant has demonstrated a substantial risk

of a miscarriage of justice.   See Commonwealth v. Foreman, supra

(admission of abuse prevention order in assault and battery case

stemming from same set of facts created substantial risk of

miscarriage of justice).6   In its appellate brief, the


     5
       We recognize that the prosecutor did not emphasize the
clerk-magistrate's rulings in her closing. However, with the
Commonwealth's having persistently pursued this line of
questioning during witness examination, we cannot conclude with
confidence that the point was lost on the jury.
     6
       See also Commonwealth v. Reddy, 85 Mass. App. Ct. 104,
108-111 (2014) (reversing denial of motion for new trial on
assault and battery conviction based on allowance in evidence of
language in previously-issued restraining order that stated
                                                                  11


Commonwealth does not argue that the prejudice effected by the

admission of the evidence was minor.   Rather, it contends that

the admission of the evidence was justified on the grounds that

the clerk-magistrate's decision "certainly bears on the

defendant's version of events," and that it had "high probative

value" that outweighed any undue prejudice.   In this manner, the

Commonwealth acknowledged the significant potential impact that

the evidence could have had on the defendant's case.

    2.   Sufficiency.   Although we have determined that the

defendant's conviction must be vacated, for purposes of

resolving whether the matter may be retried, we still must

address the defendant's argument that the evidence was legally

insufficient to support her conviction.   Pursuant to G. L.

c. 265, § 15A(b), the Commonwealth was required to prove that

the defendant engaged in an "intentional and unjustified use of

force upon the person of another, however slight."     Commonwealth

v. Appleby, 380 Mass. 296, 306 (1980), quoting from Commonwealth

v. McCan, 277 Mass. 199, 203 (1931).   In addition, the battery

must be "accomplished by use of an inherently dangerous



"there is a substantial likelihood of immediate danger of
abuse"). Cf. Beeler v. Downey, 387 Mass. 609, 610-611 (1982)
(ruling inadmissible fact that medical malpractice tribunal had
made pretrial determination that plaintiff had shown "a
legitimate question of liability appropriate for judicial
inquiry" because of its "unquestionably great" potential for
unfair prejudice").
                                                                    12


weapon,[7] or by use of some other object as a weapon, with the

intent to use that object in a dangerous or potentially

dangerous fashion."   Id. at 308.   Reading the evidence "in the

light most favorable to the Commonwealth, and, 'drawing all

inferences in [the Commonwealth's] favor,'" Commonwealth v.

Tavares, 471 Mass. 430, 434 (2015), quoting from Commonwealth v.

Earle, 458 Mass. 341, 346 (2010), we conclude that there was

sufficient evidence to support the defendant's conviction.

     There is no question that the evidence was sufficient for

the jury to conclude that the defendant intentionally threw the

thermos at Deng and in fact hit her with it and its contents.

We also conclude that reasonable jurors could have found that

the thermos was used "in a dangerous or potentially dangerous

fashion" and therefore could qualify as a "dangerous weapon"

(even though it is not inherently dangerous).    Commonwealth v.

Appleby, supra at 308.   However, the specific dangerous weapon

that the defendant was charged with using was the hot water

inside the thermos, not the thermos itself.    Based on this, the

defendant argues that in two related respects, the evidence was

insufficient to prove that she possessed the requisite intent.

First, she argues that there was insufficient proof that she

knew the thermos contained hot water, and second, she argues


     7
       The parties agree that a thermos and hot water are not
inherently dangerous.
                                                                   13


that even if she acted with such knowledge, there was

insufficient proof that she intended to cause the hot water to

come into contact with Deng.    We address these arguments in

order.

    According to Deng's testimony, which must be credited in

our sufficiency analysis, the thermos was full of hot water when

the defendant picked it up.    In our view, reasonable jurors

could have found that once the defendant picked up the thermos,

she would have known from its weight that it was at least

partially full.   See Commonwealth v. Cook, 419 Mass. 192, 203

(1994) (jury may "rely on common experience and common sense in

reaching their verdicts").     Moreover, even if the defendant were

not able to appreciate the temperature of the thermos's contents

merely from handling it, it must be remembered that the

defendant confronted Deng while she was in the church kitchen

making tea and doughnuts.    From these attendant circumstances,

jurors reasonably could have inferred that the defendant

believed that the liquid in the thermos was hot.

    As to the defendant's second argument, the Commonwealth had

no obligation to prove that she specifically intended to scald

Deng with hot water, or even more generally that she intended to

use the hot water as a dangerous weapon.     Commonwealth v.

Garofalo, 46 Mass. App. Ct. 191, 193 (1999).    Assault and

battery by means of a dangerous weapon "does not require
                                                                       14


specific intent to injure; it requires only general intent to do

the act causing injury."       Commonwealth v. Appleby, 380 Mass. at

307.       "The essential question, when an object which is not

dangerous per se . . . is alleged to be a dangerous weapon . . .

[is] 'whether the object, as used by the defendant, is capable

of producing serious bodily harm.'"       Commonwealth v. Tevlin, 433

Mass. 305, 310 (2001), quoting from Commonwealth v. Mercado, 24

Mass. App. Ct. 391, 397 (1987).       "[O]nce a jury has found an

intentional touching with an object and that the object as used

was a dangerous weapon, its work is done."       Commonwealth v.

Garofalo, supra.

       Here, the jury could justifiably find that the defendant's

throwing the hot water in a metal and glass container with an

unsecured top had the potential to cause serious bodily injury.

Moreover, there was evidence, which the jury were entitled to

credit, that the defendant's use of the hot water did in fact

actually cause such harm.       "Of course where [a] neutral object

is in fact used to inflict serious injury it would clearly be a

dangerous weapon."       Commonwealth v. Tarrant, 367 Mass. 411, 416

n.4 (1975).      The defendant cannot be heard to complain that her

intentional act caused more harm than she claims to have

anticipated.8


       8
       Put another way, where the defendant intended to throw the
water-filled thermos at Deng, it matters not what precise
                                                                     15


     3.   Closing argument.   Because we have concluded that the

conviction cannot stand on other grounds, we have no need to

reach the defendant's remaining claims of error.     However, some

comment is warranted on one of those arguments, which may arise

in any retrial.9   As noted, the prosecutor argued in her

summation that members of this church community shared a

cultural norm that frowned upon involving outsiders in

addressing their problems, and that this norm helped explain

"why we don't have 20 to 25 people here from that community

telling you exactly what happened in the kitchen that day."     On

appeal, the defendant argues that the prosecutor thereby

suggested to the jury that she was aware of information to which

they were not privy, thereby engaging in improper "vouching."

Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).

     As a threshold matter, we agree with the Commonwealth that

its claim that such a norm existed in the community was well



pathway caused the water to come in contact with her. See
Commonwealth v. Parker, 25 Mass. App. Ct. 727, 734 (1988) (where
defendant assaulted the victim with a lit cigarette and razor
blade, there was sufficient evidence even though the victim's
injuries apparently were the result of her movements in attempt
to escape). See also Commonwealth v. Barrett, 12 Mass. App. Ct.
1001, 1002 (1981) (contents of object, when object is used in
particular manner, can be employed as dangerous weapon).
     9
       Although the other remaining claims of error also might
arise in a retrial, they are not well suited to appellate review
in the current posture of this case (in part because the side
bar colloquies were not recorded).
                                                                  16


grounded in the testimony adduced at trial.10   However, this

alone does not mean that the prosecutor's argument based on such

evidence was proper.   In a case involving a mutual altercation

and competing versions from each combatant, the fact that

potential eyewitnesses may have possessed a general reluctance

to step forward does not bear on which version of the events was

correct.   In any retrial, both counsel should avoid any

phrasings that could be taken to suggest that absent

eyewitnesses would have supported their respective cases but for

those witnesses' reluctance to get involved.

                                    Judgment vacated.

                                    Verdict set aside.




     10
       The defendant is incorrect in claiming that the
prosecutor's argument on this point was supported only by
Monykec's testimony. Rather, the reluctance of members of this
community to get outsiders involved was a theme that ran through
the testimony of several witnesses.
