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Appeals court hears dispute over lesser-included instruction in Lofink mayhem verdict
Summary
Appellate argument focused on whether the trial court should have instructed the jury on lesser included offenses (assault and battery by means of a dangerous weapon / serious bodily injury) when the defendant was convicted of mayhem; prosecution and defense disagree on whether an omitted instruction could have affected the verdict or sentencing.
Commonwealth v. Joshua Lofink — The Appeals Court examined whether trial counsel’s failure to request lesser-included-offense instructions deprived Joshua Lofink of a meaningful choice at trial and whether that error requires relief. Defense counsel argued the omission prevented the jury from convicting on a lesser charge that better fit the evidence; the Commonwealth said the record shows the jury could already choose among the counts presented and the outcome would not have differed.
The attorney for the appellant urged the panel that mayhem—an offense requiring a specific intent to maim—was distinct from assault and battery by means of a dangerous weapon resulting in serious bodily injury (ABM-SBI) and that the jury should have been given that option. Counsel relied on Massachusetts precedent that lesser-included instructions are often required to prevent an all-or-nothing choice that risks convicting a defendant of a higher offense when the evidence better fits a lower one.
Opposing counsel for the Commonwealth said the trial was presented with multiple counts and the jury was able to assess the evidence across those counts; it likewise conceded that, if the mayhem conviction stands, duplicative ABM-SBI convictions should be vacated and that the Commonwealth would not oppose dismissal of the duplicate counts. The Commonwealth also argued that defense counsel’s decision to pursue an “all or nothing” defense was a tactical choice and not necessarily ineffective assistance.
The appellant also asked that, if the court vacates the duplicative convictions, the case be remanded for resentencing. The panel pressed both sides on whether the record showed any prejudice caused by the omission and whether the defendant had preserved the issue at trial. After extended questioning the court took the case under advisement.
