Supreme Judicial Court, June 4, 2012

Recklessly endangering a child in violation of G.L. c. 265, § 13L is a lesser included offense of wantonly and recklessly permitting an assault and battery on a child that caused the child substantial bodily injury in violation of G.L. c. 265, § 13J(b), fourth paragraph.

The defendant’s infant son suffered fractures to multiple bones during the night of December 23-24, 2003.  Only the defendant and one other person were present with the infant that night. At trial defense counsel requested, and the Commonwealth agreed, that the jury should be instructed that they can consider whether the defendant recklessly endangered her child, G.L. c. 265, § 13L, as a lesser included offense of wantonly and recklessly permitting an assault and battery on a child that caused substantial injury, G.L. c. 265, § 13J(b), fourth paragraph.  The jury convicted the defendant of the lesser included offense.

Defendant filed a motion to vacate the conviction claiming that the offense was not a lesser included offense and that her defense attorney should not have requested the instruction.  A divided panel of the Appeals Court affirmed the conviction.  The Supreme Judicial Court granted the defendant’s appeal for further appellate review.

“A crime is a lesser-included offense of another crime if each of its elements is also an element of the other crime."  Commonwealth v. Ogden O., 448 Mass. 798, 808 (2007), quoting Commonwealth v. Perry, 391 Mass. 808, 813 (1984).  “When statutory crimes can be violated in multiple ways, comparison of their elements must focus on the specific variations that the defendant is alleged to have committed. For example, if a greater offense contains two independent theories of liability, it is sufficient that a lesser offense be subsumed within the particular theory that was alleged.” See Commonwealth v. Ogden O., supra.

The Court considered the four elements of the above-referenced offenses based on theories alleged.  It held that each of the elements in G.L. c. 265, § 13J(b), fourth par., encompasses a corresponding element of G.L. c. 265, § 13L and therefore, reckless endangerment is a lesser included offense.

The Court next considered whether there was a factual basis in the evidence to permit the lesser included instruction. Lesser included instructions are only appropriate where "the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense." Commonwealth v. Souza, 428 Mass. 478, 494 (1998), quoting Commonwealth v. Donovan, 422 Mass. 349, 352 (1996).  “The test we apply in these circumstances is whether, on ‘’any hypothesis of the evidence, the jury could have found the defendant[] guilty of [the lesser included offense]' and not guilty of the greater offense.’” Commonwealth v. Porro, 458 Mass. 526, 537 (2010).    

The Court found this case did not include evidence of any of the elements unique to 13J(b), the greater offense, and accordingly the facts did not permit a jury to find the defendant not guilty of the greater offense and guilty of the lesser offense.  It was an error for the defendant’s counsel to request the instruction and for the judge to provide it.  Looking first at counsel’s error, the Court did not find it amounted to ineffective assistance of counsel because the attorney’s request was clearly a tactical decision to try and get the defendant a lesser sentence.  In examining the judge’s error, there was no substantial miscarriage of justice based on the strength of the Commonwealth’s case, as well as, the nature and significance of the error.