COMMONWEALTH v. ERIC LAWTON, JR. (And a Companion Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-474
23-P-702

COMMONWEALTH

vs.

ERIC LAWTON, JR. (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial, a District Court judge found the

defendants, Eric Lawton, Jr., and Troy L. Mitchell, guilty of

assault and battery causing serious bodily injury. On appeal,

the defendants, represented by separate counsel, both claim that

their motions for required findings of not guilty should have

been allowed because the Commonwealth failed to prove (1) that

the defendants caused the victim to suffer a "serious bodily

injury," and (2) the defendants' identity as the perpetrators of

the crime.

1 Commonwealth vs. Troy L. Mitchell.
In addition, Lawton argues that his conviction should be

vacated because the judge denied him the right to make a closing

argument, thus denying his right to assistance of counsel. We

agree that it was error to deny the defendants the right to make

a closing argument. Accordingly, we vacate the judgments and

remand for a new trial.2

Background. In March 2021, the defendants were charged, in

separate criminal complaints, with assault and battery causing

serious bodily injury in violation of G. L. c. 265,

§ 13A (b) (i). The defendants' cases were joined for trial.

Before a bench trial commenced on December 2, 2022, both

defendants stipulated to the following:

"That [each defendant] . . . did commit an Assault and
Battery on [the victim] on December 20, 2020 . . .

[and]

"That the only issue at trial is whether the Assault and
Battery caused serious bodily injury pursuant to G. L.
c. 265, § 13A (b) (i) to [the victim]."

The stipulation was not introduced during the trial.

The victim, and sole witness during the trial, testified

about his injuries. He testified as follows: Around 2 A.M. on

December 20, 2020, while the victim was driving home from work,

2 Because we conclude that the judge's denial of the
defendants' right to make a closing argument requires us to
vacate the judgments, we do not reach the remaining claims
raised on appeal.

2
he saw four individuals walking on the side of South Main

Street. The victim told the individuals to "get on the

sidewalk." In response, Lawton and Mitchell punched the

victim's car. The defendants then pulled the victim out of his

car and "used [the victim's] face as a punching bag." The

victim called 911, and the responding police officers

apprehended the defendants soon after arriving at the scene.3

The victim recalled bleeding from the side of his head and

his nose and feeling "like [his] head was going to explode." He

was transported by ambulance to the Athol Memorial Hospital, and

then taken to the University of Massachusetts Memorial Hospital

for further evaluation. The victim remained under observation

for forty-eight hours. Upon his release from the hospital he

was diagnosed with a concussion and a brain hematoma.

At the conclusion of the victim's testimony, the

Commonwealth rested. The defendants then, in concert, moved for

a required finding of not guilty. The judge asked counsel if

they had briefed whether the Commonwealth had met its burden of

establishing that the defendants' assault and battery resulted

in serious bodily injury to the victim. When defense counsel

3 The victim identified Lawton and Mitchell during a showup
identification at the scene. The judge denied the defendants'
pretrial motion to suppress the identification.

3
responded that they had not briefed the issue, the judge denied

the defendants' motion without allowing for oral argument.

Immediately after the judge denied the motion for a

required finding of not guilty, the defendants rested. The

judge then addressed the defendants' motions for a required

finding as it applied to the close of evidence, and again asked

the parties whether they "had a brief prepared as to whether or

not this is a serious bodily injury." When the parties stated

that they had not prepared briefs, the judge advised the parties

that she wanted them to brief the serious bodily injury issue;

she continued the trial to provide them sufficient time to

comply with her order.

Subsequently, the defendants submitted a joint memorandum

in support of their motion for a required finding of not guilty,

arguing the evidence was insufficient to establish serious

bodily injury. The Commonwealth submitted a memorandum in

opposition. On January 6, 2023, the judge submitted findings

and an order denying the defendants' motion for a required

finding.

The trial resumed on January 27, 2023. The judge began by

inquiring with the parties, "I take it that you've had a chance

to review my decision on the two required finding motions?" The

defendants' attorneys confirmed they had reviewed the decision.

The judge next asked, "So after your review of my required

4
finding decision, are you prepared for argument on sentencing?"

(emphasis added). Counsel for Lawton responded by inquiring,

"We wanted to know whether this essentially was your motion for

required finding or the ultimate issue of the trial?" The judge

explained, "So that's my decision on the required finding, and

after . . . both defendants have rested in their presentation of

the case and I would find both defendants guilty of the crime of

assault and battery with serious bodily injury" (emphasis

added). The parties then presented their respective sentencing

arguments. The judge sentenced each defendant to two years in

the house of correction.

Discussion. Lawton asserts that the judge, by finding him

guilty before he was afforded an opportunity to make a closing

argument, denied him the right to assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments to the United

States Constitution and article 12 of the Massachusetts

Declaration of Rights. We agree.

Our courts have long held that to deny a defendant the

opportunity to make a closing argument is antithetical to State

and Federal guarantees of the right to counsel. In Herring v.

New York, 422 U.S. 853, 865 (1975), the Supreme Court deemed

unconstitutional a New York law that conferred on every judge in

a nonjury criminal trial the power to deny counsel an

opportunity to make a closing argument. In assessing a criminal

5
defendant's right to the assistance of counsel

"constitutionalized in the Sixth and Fourteenth Amendments," the

Herring Court held:

"There can be no doubt that closing argument for the
defense is a basic element of the adversary factfinding
process in a criminal trial. Accordingly, it has
universally been held that counsel for the defense has a
right to make a closing summation to the jury, no matter
how strong the case for the prosecution may appear to the
presiding judge. The issue has been considered less often
in the context of a so-called bench trial. But the
overwhelming weight of authority, in both federal and state
courts, holds that a total denial of the opportunity for
final argument in a nonjury criminal trial is a denial of
the basic right of the accused to make his defense."

Id. at 858-859. The Supreme Court in Herring "suggested, and is

generally read as having held, that a defendant who is denied

the right to present closing argument will be entitled to

reversal without making a showing of prejudice" (citations

omitted). Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 12–13

(1986).

Moreover, as emphasized in Herring, the right to a closing

argument is not limited to trials before a jury, but applies

equally to defendants who elect to be tried before a judge.4 See

4 In Herring, 422 U.S. at 863, the Supreme Court was not
persuaded by a claim that closing arguments are less important,
even superfluous, to a judge presiding over a bench trial as
compared with a jury. The Supreme Court explained:

"Judicial training and expertise, however it may enhance
judgment, does not render memory or reasoning infallible.
Moreover, in one important respect, closing argument may be
even more important in a bench trial than in a trial by

6
Commonwealth v. Martelli, 38 Mass. App. Ct. 669, 671 (1995),

quoting Herring, 422 U.S. at 859 ("the denial of the opportunity

for a closing argument in a nonjury criminal trial is 'a denial

of the basic right of the accused to make his defense'");

Miranda, 22 Mass. App. Ct. at 12 ("the right [to make a closing

summation] is not of less significance when the case is tried to

a judge rather than to a jury").

Here, we conclude that the judge denied the defendants the

right to make a closing argument by announcing the guilty

findings before affording the parties the opportunity to make

closing arguments. Although the judge in this case did not

explicitly forbid closing arguments, the effect of the judge's

actions was the same. The circumstances of our case present

similarly to the circumstances in Miranda, 22 Mass. App. Ct. at

11, where the trial judge, at the close of evidence, stated:

"I don't think it is necessary to have arguments in this.
I am actually giving no credibility whatsoever to the
testimony of the three defendants. I don't believe a word
they said. With that in mind, it would be superfluous to
argue the case. I am finding them all guilty as charged."

jury. As Mr. Justice Powell has observed, the 'collective
judgment' of the jury 'tends to compensate for individual
short-comings and furnishes some assurance of a reliable
decision.' Powell, Jury Trial of Crimes, 23 Wash. & Lee
L.Rev. 1, 4 (1966). In contrast, the judge who tries a case
presumably will reach his verdict with deliberation and
contemplation, but must reach it without the stimulation of
opposing viewpoints inherent in the collegial decision-
making process of a jury."

Id. at 863 n.15.

7
Here, the defendants' attorneys were prepared for the judge to

discuss the judge's ruling on the required finding when the

judge suddenly announced her findings. As in Miranda, 22 Mass.

App. Ct. at 14, there was no chance for counsel "to anticipate

that the judge was about to announce [her] finding."

Furthermore, once the judge announced her findings, a closing

argument would have appeared futile to counsel. See Martelli,

38 Mass. App. Ct at 672 ("judge's comments amounted to a

declaration that he believed the defendant to be guilty and,

therefore, a closing argument would not change his mind . . .

The judge's action constituted error"). Under the circumstances

of this case, it was error for the judge to announce the

findings without affording the defendants the opportunity to

make a closing argument.

We acknowledge that defense counsel did not object to the

judge's decision to foreclose the opportunity for closing

argument. "However, in Miranda, we pointed out that '[i]t is

generally accepted . . . that prejudice as a result of the

denial of closing arguments is assumed; and that such denial

never can be harmless error.'" Martelli, 38 Mass. App. Ct. at

672, quoting Miranda, 22 Mass. App. Ct. at 22-23. As the

Miranda court further explained, "[f]or us to conclude that this

denial did not create a substantial [risk] of a miscarriage of

8
justice would be, in effect, to reject the importance assigned

to the right [of the accused to make his defense] by the Herring

decision." Miranda, supra at 23. See Martelli, supra at 671-

672 (judge's refusal to consider defendant's closing argument

created substantial risk of miscarriage of justice).5

Accordingly, on this record, the defendants are entitled to a

new trial.

We exercise our discretion for reasons of fundamental

fairness6 and efficient administration of justice by affording

Mitchell the benefit of the claim raised only by Lawton because

Mitchell, who was situated identically to Lawton on the closing

argument issue, would undoubtedly move for a new trial in the

District Court upon receipt of this decision. See Commonwealth

5 We do not consider ordering entry of conviction on the
lesser included offense of assault and battery because there is
no evidence in the record that the judge conducted a colloquy
with the defendants as to the constitutional rights the
defendants waived by stipulating to all of the elements of
assault and battery. See, e.g., Commonwealth v. Castillo, 66
Mass. App. Ct. 34, 37 (2006) (observing that by stipulating to
evidence, defendant surrenders number of rights "including the
right to confrontation [and] the right to cross-examine
witnesses"); Commonwealth v. Brown, 55 Mass. App. Ct. 440, 448
(2002) (requirement that colloquy be conducted is particularly
important where "a defendant stipulates the truth of facts that
are conclusive of guilt" [citation omitted]). On remand, such a
colloquy should occur.

6 Compare Commonwealth v. Randolph, 438 Mass. 290, 294-295
(2002) (defendant shall be granted relief when error creates
substantial risk of miscarriage of justice, despite defendant
failing to preserve his claim for review).

9
v. Spearin, 446 Mass. 599, 607 (2006); Commonwealth v. Martin,

57 Mass. App. Ct. 272, 276–277 (2003), aff'd, 442 Mass. 1002

(2004). Accord Commonwealth v. Conroy, 333 Mass. 751, 757

(1956) ("We are of opinion that on this appeal we also have

power to order correction of this obvious error [not raised by

the defendant] and so avoid the need for other proceedings which

could lead to but one result").

Conclusion. The judgments are vacated and the findings are

set aside. The cases are remanded for further proceedings

consistent with this memorandum and order.

So ordered.

By the Court (Henry,
Hershfang & Smyth, JJ.7),

Clerk

Entered: April 24, 2025.

7 The panelists are listed in order of seniority.

10