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Appeals court hears argument that judge erred by not giving lesser-included assault instruction in fatal shooting case
Summary
In Kamala v. Rivera, defense and prosecution disputed whether evidence supported a lesser-included assault-and-battery instruction after a jury convicted on murder; justices pressed both sides on witness credibility, joint venture law and prejudice from the omitted instruction.
Justice Greg Massing and a three-justice panel heard argument in Kamala v. Rivera (23p1023) on whether the trial judge should have instructed the jury on assault and battery as a lesser-included offense to murder. Attorney Robert Shekhanov, representing Jose Rivera, told the court he “wants to address only the failure to give the lesser included offense instruction for assault and battery.” He said trial counsel preserved the objection at the end of the charge and that the record contains statements by the trial judge suggesting he would consider the instruction but ultimately did not give it.
Shekhanov argued the evidence supported Rivera’s theory that he intended only to “beat up” the victim and that some witnesses who testified about a gun had motives to lie or produced the claim late in debriefings. He told the panel the evidence for a gun was “from the cousin who had a motive to lie” and from a cooperating witness who testified about an unproduced text message.
Assistant Attorney Katherine Jansen, for the Commonwealth, countered that Rivera was charged and tried as a joint venturer in a murder and that the jury could fairly infer the requisite malice from the record. Jansen argued that even if the defendant intended only a beating, the act of a co‑venturer using a gun when the victim ran and fell supports a murder conviction under joint‑venture principles. She pointed the panel to the video and medical examiner testimony showing two gunshot wounds, including to the back of the head, and said the victim’s back was toward the group when shots were fired.
The panel questioned how jurors would weigh the cooperating witnesses’ testimony and pressed both sides about whether the record showed prejudice from the missing lesser instruction. The Commonwealth noted a jury question during deliberations indicating the panel was unanimous on second‑degree murder but not first degree, which the prosecutor said suggested the jurors found malice but were split on premeditation.
The justices took the arguments under advisement at the end of the session.
