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17-P-1027                                            Appeals Court

                 COMMONWEALTH   vs.   JOHN O'NEAL.


                          No. 17-P-1027.

             Essex.     March 7, 2018. - May 2, 2018.

             Present:   Milkey, Blake, & Desmond, JJ.


Practice, Criminal, Loss of evidence by prosecution,
     Preservation of evidence, Disclosure of evidence, New
     trial, Assistance of counsel, Required finding. Evidence,
     Videotape, Relevancy and materiality. Assault by Means of
     a Dangerous Weapon.



     Complaint received and sworn to in the Lynn Division of the
District Court Department on August 27, 2012.

     The case was tried before James D. Barretto, J., and a
motion for a new trial was heard by him


     Kathleen D. Mulligan for the defendant.
     Catherine L. Semel, Assistant District Attorney, for the
Commonwealth.


    MILKEY, J.   A District Court jury convicted the defendant

of assault and battery by means of a dangerous weapon (ABDW), a

shod foot.   The conviction was based on testimony that while the

defendant was being transported at the police station in a
                                                                      2


device known as a "restraint chair," he kicked a Lynn police

officer in the stomach.   Before us now are the defendant's

direct appeal and his appeal of the denial of his motion for new

trial (which have been consolidated).     The defendant argues that

a new trial is warranted on three grounds:    1) the

Commonwealth's failure to preserve and disclose a video

surveillance recording of the incident, 2) ineffectiveness of

trial counsel in failing to request a copy of the Lynn police

department's policy on the use of restraint chairs, and 3)

insufficient evidence to convict the defendant of ABDW based on

reckless conduct, one of the two theories on which the case went

to the jury.   For the reasons that follow, we conclude that the

defendant is entitled to a new trial.    We therefore vacate the

judgment and set aside the verdict.

     Background.   1.   The incident.   At approximately 9:30 P.M.

on August 24, 2012, Lynn police officers responded to reports of

a disturbance outside a bar in Lynn.     There, the police found

the defendant in the aftermath of what appeared to be a bicycle

accident.   He was yelling at others at the scene, unsteady on

his feet, smelled of alcohol, and had slurred speech.1


     1 The defendant testified that he was riding by the bar when
patrons from the bar suddenly exited it causing him to crash
into the door of the building. He admitted to having had a few
drinks that night at a different bar, but stated that he was not
intoxicated and that what police took to be signs of
intoxication had other causes. For example, he testified that
                                                                      3


Concluding that the defendant was intoxicated, the officers

placed him into protective custody, handcuffed his hands behind

his back, and transported him to the police station in the back

of their cruiser.     Once at the station garage, the defendant was

unwilling or unable to exit the cruiser.2    The officers therefore

pulled him out of the vehicle, and placed him on the ground

after he could not, or would not, stand.

     At that point, the officers radioed their supervisors

inside the station for assistance, and they were brought a

restraint chair to transport the defendant to the booking area.

A restraint chair is designed to immobilize unruly detainees.

It has a seat that is tilted so that when the chair itself

otherwise is upright, the person sitting there is lying back at

an angle with his knees elevated above his hips.     The chair has

straps to be used to hold in place a detainee's wrists, ankles,

lap and shoulders.     In this instance, however, the officers did

not use the available straps to secure the defendant in the

restraint chair.     Instead, after placing him in the chair with

his hands handcuffed behind his back, they left him that way for




his speech was slurred because he had lost a major part of his
tongue as the result of a skiing accident many years before.
     2 The defendant testified that he was unable to exit the

cruiser because of the configuration of the seat and the fact
that his hands were handcuffed behind him. The police officers
interpreted his actions as deliberate.
                                                                    4


the trip into the station.   According to the defendant, who

testified at trial, this meant that his entire weight fell on

his handcuffed wrists, causing him "excruciating pain."3    He

further testified that this in turn caused him to writhe around

in the chair as he sought to relieve the pressure off his

wrists.   Without the defendant strapped in, the police held him

down in the chair using their hands, causing further pressure on

his handcuffed wrists.

     The failure of the police to secure the defendant in the

restraint chair appears to be at odds with a written policy that

emerged only in postconviction discovery.   That policy set forth

various procedures and requires "that all [police] personnel

adhere strictly to [its] procedures."   The policy also requires

that after initially placing a detainee in the restraint chair,

"[t]he attached recommended manufacturer procedures for properly

restraining a detainee in the [chair] should then be followed."

Under those procedures, the police are to attach the detainee's

handcuffs to the supplied "handcuff tether," and then release

the defendant's arms one at a time to attach them to the arm of

the chair using a wrist wrap.




     3 The defendant, who was sixty-one years old at the time of
the incident, testified without contradiction that he suffered
from arthritis and a number of other serious ailments.
                                                                      5


    At least at one point during the trip from the garage to

the booking area, the defendant's foot -- which the officers had

not secured using the chair's straps and which, according to a

police witness, was hanging off the side of the chair -- impeded

the movement of the chair.     The officers portrayed this as a

deliberate effort by the defendant to thwart his being taken

into the station house; the defendant portrayed it as the

involuntary result of his trying to relieve the pressure on his

handcuffed wrists.   In either event, it is uncontested that the

police officers tilted the restraint chair back in order to keep

the chair moving, with one of the officers acknowledging that

the chair was "tilted back further than it already is designed

to do."   The tilting of the chair in this manner also appears to

violate the police policy on the use of restraint chairs, which

mandates that "[t]he [restraint chair] and detainee shall remain

in a seated upright position at all times while a detainee is

restrained in the [chair], and should at no time be positioned

backward so that the detainee is positioned on their back."

    The defendant described the tilting of the chair as a

sudden jerking that caused him to flail in it.     He admitted that

his foot came into contact with one of the officers, but he

characterized it as an accidental "knee-jerk reaction" to the

sudden tilting of the chair.    The officers described it as a

distinct and deliberate kick to the officer's stomach.     The
                                                                   6


officer who was struck described the kick as having been done

with "quite a bit of force," and he testified that it "hurt."

     The trial judge instructed the jury on the elements of ABDW

(and of assault and battery as a lesser included offense) based

on both intentional and reckless conduct.   In addition, at the

defendant's request, the judge instructed the jury on accident.

Neither party objected.

     2.   Surveillance recordings and pretrial discovery.4

Unbeknownst to the defendant prior to trial, the police station

was outfitted with closed circuit surveillance cameras in all of

the areas through which the defendant was transported in the

restraint chair.   Moreover, video recordings of what transpired

there automatically would have been made.   However, the system

was set up so that, on a ten-week cycle, recordings are

automatically recorded over.   As a result, video recordings not

retrieved within that ten-week period effectively are destroyed.

     There is a paper trail that memorializes some of the

pretrial communications between the prosecutor and defense

counsel, and between the prosecutor and Lynn police, regarding

whether there might be a video recording of the incident.    On


     4 As noted below, the fact that the recording system existed
in the relevant areas came out at trial. The further details
about that system and the specifics of the discovery process
were developed in the posttrial proceedings. With one notable
exception discussed in detail infra, these facts are
uncontested.
                                                                      7


February 10, 2014, almost a year-and-a-half after the incident,

the defendant filed an assented-to motion for discovery that,

inter alia, specifically sought any "surveillance video

recordings showing the defendant being moved from any parking

lot [or] garage to the booking area of Lynn [p]olice

[d]epartment on August 24, 2012[,] at approximately 9:30 [P.M.]"

    That same day, the prosecutor asked the police department

for "[v]ideotape or [p]hotograph(s) related to [the] case."      On

May 27, 2014, the prosecutor again made a request of the

department, this time requesting "[s]urveillance video" and

specifically inquiring whether there was "[a]ny [b]ooking video

of [the] incident[.]"    The police responded to the second

request:    "[N]ot available."   That same day, the prosecutor

filed a certificate of compliance certifying that the

Commonwealth had satisfied its mandatory discovery obligations

pursuant to Mass.R.Crim.P. 14, as amended, 444 Mass. 1501

(2005).    In that document, the prosecutor specifically certified

that she had provided "[a]ny facts of an exculpatory nature" and

"[a]ll other material and relevant evidence, [including] . . .

photographs [and] tangible objects."

    Beyond what that paper trail revealed, there ended up being

a factual dispute as to what the prosecutor may have told

defense counsel orally about whether video recordings ever had
                                                                     8


been made.   The scope and resolution of that dispute are

discussed further below.

    3.    Video recording issues at trial.   The trial was brief,

with only three witnesses:   two police officers and the

defendant.   During cross-examination, defense counsel questioned

the first police witness about the manner in which the officers

had requested assistance once the defendant was out of the car

and on the ground.   In this vein, counsel asked whether those to

whom the witness had radioed for assistance "[could] see [the

witness] from where they[] [were] at[.]"     The witness answered,

"There are cameras, so they -- you know, when we ask them to

come in, they could put it up on a monitor, but they're in the

[commanding officer's] office."    This prompted defense counsel

to ask:   "So there [are] camera[]s right there recording?"

After the witness confirmed this, defense counsel turned to

other topics for questioning.     Before completing her cross-

examination, counsel returned to the camera issue only

evanescently, soliciting testimony that confirmed that there

were cameras all along the way from the garage to the booking

area.   There was no testimony elicited about whether any

recordings were ever viewed or whether they still existed.

    Before the Commonwealth began its redirect examination,

both counsel requested to be heard at sidebar.    Although the

transcript reveals that this discussion went on for at least
                                                                      9


several minutes, only fragments of what was said were

decipherable when the transcript was produced.     From those

fragments, we can discern that the defendant asserted that the

prosecutor had told her that no video recordings ever had been

made and that it was only now that she was learning otherwise.

At one point, the judge's comments appear to suggest that he

believed the defendant had waived claims of any discovery

violations by not raising the issue prior to trial.     What is

missing from the transcript's memorialization of the sidebar

interchanges remains profound.    Most significantly, the specific

relief that the defendant was requesting at that time is not at

all apparent.5

     In any event, after the sidebar discussion concluded, the

judge invited the Commonwealth to continue with redirect

examination.     After the testimony of that witness concluded, the

Commonwealth called its remaining witness, the police officer

who had been struck.    On direct examination, the Commonwealth

asked no questions about the recordings, and the defendant

pursued no cross-examination of that witness whatsoever.




     5 Pursuant to Mass.R.A.P. 8(c), as amended, 378 Mass. 932
(1979), the defendant eventually sought to settle the record as
to what was said during this critical sidebar interchange.
However, those efforts failed because none of the participants
had any specific recollection.
                                                                      10


    At the close of the Commonwealth's case, and at her

client's specific urging, defense counsel again raised the

Commonwealth's failure to disclose the prior existence of the

video recordings.   This time, we know the specific relief that

the defendant was requesting:   a mistrial.    The judge denied the

request based on the reasoning he expressed earlier at sidebar

(which turned out to be indecipherable on appeal).     Addressing

the defendant directly, the judge also stated, "your attorney

very intelligently preserved all of your rights on the issue."

    4.   Ruling on motion for new trial.      The defendant filed a

motion for a new trial that was based primarily on the

Commonwealth's failure to preserve and disclose the video

recording of the incident.   In the affidavit that she submitted

in support of that motion, defense counsel averred that, in a

conversation that transpired on a particular occasion prior to

trial, the prosecutor specifically told her that "the booking

area [was] not recorded."    The prosecutor countered in her own

affidavit that she never would have said this because she long

had known that the booking area at the Lynn police station was

video recorded, with the recordings available for only a limited

period of time.   She further averred that while she had no

specific recollection of the conversation that she had with

defense counsel, in accordance with her longstanding practice,
                                                                   11


she would have passed along exactly what the police officer had

told her; namely, that a recording was "not available."

    Despite the direct conflict between the affidavits as to

what the prosecutor had communicated to defense counsel orally

and the judge's willingness to hold an evidentiary hearing, the

parties jointly foreswore that opportunity.    Instead, they

presented the judge with a stipulation of facts, their dueling

affidavits, and a copy of the restraint chair policy.     In

addition, the Commonwealth appropriately made significant

concessions during argument on the motion.    For example, the

Commonwealth acknowledged that the Lynn police had informed her

that based on the placement of the video cameras, the cameras

"would have captured the incident" for which the defendant was

convicted.   In addition, citing to Commonwealth v. Heath, 89

Mass. App. Ct. 328 (2016) (Kafker, C.J.), the Commonwealth

acknowledged that it was negligent in failing to preserve and

produce the video recording.

    Despite its concessions, the Commonwealth argued that a new

trial nevertheless was not warranted.   Although the Commonwealth

downplayed the materiality of the missing video recording, it

focused mainly on its argument that the defendant had not shown

adequate prejudice.   In this regard, the Commonwealth contended

that because defense counsel learned about the prior existence

of the video recordings during trial, she had an opportunity to
                                                                     12


cross-examine the police witnesses about this, to argue the

point in closing argument, and to request an appropriate jury

instruction regarding the destruction of the video recording.

In this manner, the Commonwealth maintained that it should not

be held responsible for counsel's failure to pursue such

remedies.

    In assessing the Commonwealth's degree of culpability, the

judge credited the prosecutor's affidavit that she would have

told defense counsel that a video recording was "not available,"

not defense counsel's version that the prosecutor had stated

that no such recording ever existed.     Based on his knowledge of

the prosecutor, who frequently appeared before him, the judge

found no bad faith in her conduct.     However, consistent with

Heath, the judge ruled that the Commonwealth's failure to

preserve and produce the video recording was negligent.     The

judge also concluded that "the defendant here has demonstrated

the materiality of the evidence."

    Nevertheless, the judge accepted the Commonwealth's

arguments on prejudice.   While noting that the facts here were

similar to Heath, supra at 339 (in which a new trial was

ordered), the judge distinguished that case on the grounds that,

there, the defendant had requested and was denied an instruction

on what inferences the jury could draw from the destruction of

the video recording.   See id. at 330.    Here, by contrast, the
                                                                   13


defendant had made no such request,6 nor otherwise had sought to

make use of the recording's destruction (i.e., through cross-

examination or argument).7   The judge reasoned that "if a new

trial were allowed, the defendant would be entitled only to

those same remedies he could have had but did not seek at

trial."   With the defendant having passed over such remedies at

trial, the judge concluded that the defendant suffered no

prejudice.   The defendant's only potentially available posttrial

recourse, the judge suggested, would have been a claim that his

trial counsel was ineffective for failing to press the issue of

the destroyed recording (an argument that the defendant has

declined to pursue).

     As noted, the existence and content of the Lynn police

department's policy on the use of restraint chairs emerged only

in postconviction discovery.   In pressing for a new trial, the

defendant also had argued that his trial counsel was ineffective

for failing to request that policy prior to trial.8   The judge

rejected that claim.   He reasoned that, even without that


     6 The judge stated that he would have been open to such a
request had it been made.

     7 In addition, the judge noted that, in Heath, the
prosecutor had argued to the jury that they should not speculate
on why there was no video, something that did not occur here.
     8 The defendant did not argue that the Commonwealth had a

duty to disclose that policy sua sponte, and we therefore have
no occasion to consider that question.
                                                                     14


policy, defense counsel was able to make an issue out of the

manner in which the police had used the chair, and that the

policy itself would have added little force to that argument.9

     Discussion.   1.   Failure to preserve and disclose video

recording.   As the parties recognize, the underlying facts in

the case before us are quite similar to those at issue in Heath.

Both cases involve an assault and battery on a police officer

that occurred at a police station in an area where it would have

been recorded, but the recording was not preserved.      In Heath,

we held that because the recording could have provided support

for the defendant's claim that he never struck the officer, the

defendant had satisfied his "initial burden to establish by

means of 'concrete evidence' that the destroyed evidence was

exculpatory."   89 Mass. App. Ct. at 334, quoting from

Commonwealth v. Neal, 392 Mass. 1, 12 (1984).    We then

considered "the judge's application of the balancing test that




     9 With reference to the familiar two-pronged test for
ineffectiveness -- Commonwealth v. Saferian, 366 Mass. 89, 96
(1974) -- the judge stated that he was relying only on the first
prong (whether counsel's conduct fell measurably below that of
ordinary fallible counsel) and was not reaching the second prong
(whether counsel's conduct "deprived the defendant of an
otherwise available, substantial ground of defence"). However,
this appears to have been a misstatement, because the judge's
analysis focused largely on prejudice and did not express any
definitive views on the first prong. The judge did observe that
trial counsel was the defendant's third assigned attorney and
that neither of his two prior attorneys had requested the police
department's policy either.
                                                                    15


'weigh[s] the culpability of the Commonwealth, the materiality

of the evidence, and the potential prejudice to the defendant.'"

Id. at 335, quoting from Commonwealth v. Williams, 455 Mass.

706, 716 (2010).   We concluded that, contrary to the trial

judge's assessment, the Commonwealth was negligent because "the

police department had a video recording of [the] alleged crime

committed in its booking area, with which the defendant was

charged [and] the Commonwealth should have required no further

notification by the defendant to recognize the need to preserve

that video evidence."   Id. at 336.    We also concluded that the

video plainly was material (an issue the judge did not reach).

Id. at 338.   Finally, we concluded that the judge erred in

ruling that the defendant suffered no substantial prejudice from

the judge's refusal to instruct the jury regarding the missing

evidence and from the prosecutor's being allowed to argue that

the jury should not speculate as to what the recording would

have shown.   Id. at 337-340.    Accordingly, with all three

considerations supporting the defendant's position, we ordered

that he be granted a new trial.    Id. at 339-340.

    As noted, the judge in the case presently before us

distinguished Heath on the ground that the defendant there had

pressed the issue at trial.     However, a close examination of the

differences between the this case and Heath reveals that, if
                                                                    16


anything, the defendant here has a stronger case for a new

trial.

     Having been informed prior to trial that such a key piece

of evidence had not been preserved, see id. at 330 n.4, defense

counsel in Heath unsurprisingly was prepared to try to take

advantage of the Commonwealth's negligence in failing to do so.

Here, by contrast, defense counsel was unaware that the

recording once had existed until the midst of a very brief

trial.    Moreover, unlike in Heath, the jury here never learned

that the police had allowed the recording to be destroyed.

     To be sure, counsel arguably bears some responsibility for

her late appreciation that the tape once had existed.    That is,

a more perspicacious attorney might have sensed the ambiguity

inherent in the prosecutor's terse response that a recording was

"not available," and therefore done more prior to trial to

inquire whether the incident had been recorded and, if so, why

any such recording was not available.   However, while we accept

the judge's finding that the prosecutor did not act in bad

faith, it remains uncontroverted that -- despite the

prosecutor's having been aware that a video recording of the

booking area once would have existed -- she never overtly called

this to the defendant's attention prior to trial.10    Where the


     10At one point, the judge referenced the prosecutor as
having stated that she had told defense counsel that a video
                                                                  17


prosecutor failed to disclose that a recording had been made,

the Commonwealth is not in a position to blame defense counsel

for misconstruing the equivocal and incomplete discovery

response that the Commonwealth provided.

     With respect to defense counsel's conduct at trial, the

Commonwealth no doubt is correct that some highly competent

trial attorneys might have been able, on the spot, to appreciate

that the testimony about the cameras meant that a recording of

the incident once had existed and -- based on the discovery

response that a recording was "not available" -- could have

surmised that the recording in the interim had not been

preserved.   Then, armed with this knowledge, perhaps such

counsel instantly might have been able to make effective use of

this fact through cross-examination and argument, and by

requesting a jury instruction on destroyed evidence.11    However,

focusing on what a particularly able trial counsel might have

accomplished fails to account for the predicament that the

Commonwealth's incomplete disclosure caused here.   As Justice




recording was "no longer available" (a phrasing that -- while
similar to "not available" -- would have communicated that such
a recording once had existed). Defense counsel accurately
pointed out that the prosecutor never made that claim.
     11 During the hearing on the motion for new trial, the judge

commented -- with reference to his own experience as a trial
counsel -- that "if I were trial counsel, I would at least be on
notice that [the incident] was probably captured on videotape
enough to request a special instruction."
                                                                  18


Kaplan once observed in a case involving a broadly similar

midtrial disclosure, "[t]he prosecutor's late, piecemeal, and

incomplete disclosures forced on defense counsel the necessity

of making difficult tactical decisions quickly in the heat of

trial."   Commonwealth v. Ellison, 376 Mass. 1, 25 (1978).    Even

though "[i]n retrospect, it may be thought that [defense]

counsel did not use to maximum advantage those parts of the

story he did finally secure out of the prosecutor's

possession[,] . . . [a] defendant should not be held to a strict

standard in order to patch over the prosecution's conduct."      Id.

at 26-27.   While it is true that "[a] defendant assuredly has

the burden of showing prejudicial consequences when seeking

relief from disclosure delays by the Commonwealth[,] . . . [w]e

should not expect even the criminal defense adept to accommodate

instantly to surprise [evidence] at the moment of trial and to

rely entirely on improvised cross-examination in order to

counter such possibly [critical] evidence."   Commonwealth v.

Fossa, 40 Mass. App. Ct. 563, 568 (1996).

    With these observations in place, we turn to the balancing

test recognized in Commonwealth v. Williams, 455 Mass. at 716.

While the Commonwealth exhibited no bad faith, nevertheless it

was negligent both in failing to preserve the recording and in

failing fully to disclose that the recording had once existed.

In addition, the materiality of the missing recording plainly
                                                                    19


was established, as the judge recognized.   Finally, in light of

our analysis of defense counsel's conduct at trial, the

defendant suffered both potential prejudice from being deprived

of the recording and actual prejudice from being deprived of

using the fact that the recording had been destroyed.    Here, as

in Heath, the defendant has shown that application of the

Williams factors support his claim for a new trial.     We

therefore conclude that the judge abused his discretion in

denying the defendant's motion for new trial.12

     2.   Ineffectiveness of counsel.   We need not resolve

whether the defendant independently might be entitled to a new

trial based on his argument that trial counsel was ineffective

for failing to learn of the mandatory policy on the use of

restraint chairs.   Therefore, we do not decide whether -- in

circumstances where a defendant's entire defense was based on

allegations that police misused a particular piece of equipment

-- the potential existence of a police policy on the use of such

equipment presents an obvious area of inquiry.    We do, however,

note our disagreement with the judge's assessment that




     12Having decided that the judge abused his discretion in
denying the motion for a new trial, we need not resolve whether
the judge erred in denying the requested mistrial. We also need
not resolve what to do about the fact that the critical sidebar
discussion of the destroyed video recording could not be
recreated.
                                                                    20


disclosure of the restraint chair policy could have added only

marginal value to that defense.     It is one thing for a jury to

hear a defendant's complaints about police conduct, and quite

another for them to learn that the complained-of conduct might

well have violated a mandatory, written policy governing such

conduct.13

     3.    Sufficiency of evidence of reckless assault and

battery.     The Commonwealth presented its ABDW case primarily

based on the theory that the defendant intended to kick the

officer with his sneaker.     Nevertheless, the jury were also

instructed on ABDW based on reckless conduct.     To sustain a

conviction on the latter theory, the Commonwealth was required

to prove beyond a reasonable doubt that a defendant

intentionally committed "a wanton or reckless act (something

more than gross negligence) causing physical or bodily injury to

another" by means of a dangerous weapon.     Commonwealth v. Burno,

396 Mass. 622, 625 (1986).

     As the defendant accurately points out, there was no

evidence that the kick broke any skin or caused any bruising or

other manifestations of physical harm.     Nor was there any

evidence that the kick necessitated any medical treatment.




     13Nothing in this opinion should be interpreted as
suggesting that a violation of the policy by itself would be a
defense to the charged conduct.
                                                                     21


Based on this, the defendant argues that there was no proof that

the victim suffered "physical or bodily injury," and, hence,

there was insufficient evidence to support an ABDW based on

reckless conduct.   In turn, the defendant argues that because

the evidence necessary to support a reckless ABDW was absent and

the case went to the jury on both theories, he is entitled to a

new trial.   See Commonwealth v. Green, 420 Mass. 771, 781 (1995)

("The possibility that the verdicts were based on theories for

which the Commonwealth failed to offer sufficient evidence for a

rational jury to find guilt beyond a reasonable doubt

necessitates our setting them aside").   But see Commonwealth v.

Mistretta, 84 Mass. App. Ct. 906, 907 (2013), quoting from

Commonwealth v. Santos, 440 Mass. 281, 288 (2003) (specific

unanimity instruction not required where defendant is charged

with intentional and reckless assault and battery, because these

are "closely related subcategories of the same crime" that "are

not 'separate, distinct, and essentially unrelated ways in which

the same crime can be committed'").14

     In the end, for at least two reasons, we need not reach the

defendant's "two theories" argument in this appeal.     First, the


     14The defendant points out that the First Circuit has taken
the unusual step of expressing its view that Mistretta was
wrongly decided. See United States v. Tavares, 843 F.3d 1, 17-
18 (1st Cir. 2016) ("The differences in the two forms [of ABDW,]
. . . intentional versus reckless, . . . are substantively
distinct and therefore constitute alternative elements . . .").
                                                                  22


defendant waived such an argument by not raising it before the

case went to the jury.   See Commonwealth v. Berry, 431 Mass.

326, 331 (2000) ("[W]hen the defendant submits a generally

expressed motion for a required finding of not guilty of [an

offense that can be based on multiple theories], the case may be

submitted to the jury as long as one theory is supported by the

evidence").   Second, the defendant raised his claim that the

evidence of a reckless ABDW was insufficient only to support the

vacating of his conviction, relief we have granted on other

grounds.15

                                    Judgment vacated.

                                    Verdict set aside.

                                    Order denying motion for new
                                      trial reversed.




     15In any event, even if we ultimately were to agree with
the defendant's insufficiency argument in toto, he potentially
would face double jeopardy only with respect to an ABDW
prosecution based on a reckless theory and only at the point the
Commonwealth pursued such a prosecution. See Commonwealth v.
Bell, 455 Mass. 408, 419 (2009), abrogated on other grounds by
Commonwealth v. LaBrie, 473 Mass. 754, 763-764 (2016).
