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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v.
Donoghue, 23 Mass.App.Ct. 103
(1986)
Appeals Court of Massachusetts, Hampden.
Argued
Decided
Further Appellate Review Denied
[23 Mass.App.Ct.
104]
Maureen B. Brodoff, Committee for Public
Counsel Services,
Dianne M. Dillon, Asst. Dist. Atty., for the
Com.
Before
[23 Mass.App.Ct. 103] GREANEY, C.J., and PERRETTA and SMITH, JJ.
[23 Mass.App.Ct. 104]
GREANEY, Chief Justice.
Before
us are the defendant's convictions by a jury in the Superior Court of armed
assault in a dwelling (G.L. c. 265, § 18A) and mayhem (G.L. c. 265, § 14). His contentions concern: (1) the denial of his motion to suppress
evidence seized in a warrantless nighttime entry of
his dwelling; (2) the adequacy of the
mayhem indictment to charge a crime; and
(3) the correctness of the judge's instructions on the elements of armed
assault in a dwelling.
1. Motion to suppress. The judge's findings of fact on the motion
to suppress disclose the following. On
Marsh
opened the door of the Essex House and led the officers to an apartment on the
second floor. When Officer Sulewski entered the apartment, he saw the victim sitting
on the floor, with his back against one of the walls. The victim's throat had been cut from ear to
ear, his face had been slashed, and his abdomen had been cut open. He was still conscious but bleeding profusely
and attempting to hold his intestines inside his abdomen with his hands. Officer Sulewski
immediately called for back‑up police assistance and an ambulance and
then tried to assist the victim. He
asked the victim [23 Mass.App.Ct. 105]
who had assaulted him. The victim responded
with the name "Eddie" but was not able to provide a surname.
After
the ambulance personnel arrived and took charge of the victim, Officer Sulewski asked Marsh what had happened. Marsh also told him that the victim's
assailant had been a man named "Eddie." He too was unable to provide a last name but
he was able to give a description of the man, and he told the police that he
and the victim had been at "Eddie's" apartment that afternoon. He described "Eddie" as being about
six feet, two inches tall, weighing about 200 pounds and having a muscular
build. He said that "Eddie"
had been wearing a tan camel's hair topcoat and a light‑colored fedora
type hat with a gold ornament on its band.
He described the weapon used in the assault as a hunting knife with a
green handle. He told the police that
"Eddie's" apartment was in a building located at 182 Oak Street in
Holyoke.
The
building at 182 Oak Street is located about eight city blocks from the Essex
House. Officer Sulewski
and his partner took Marsh with them in their cruiser and drove to that
location. Officer Sulewski
opened a hallway door in the building with a knife, and the three men walked up
the stairway to the top floor. When they
arrived at the landing below the top floor, Marsh pointed to the door on the
left and told the officers that that was "Eddie's" apartment. Officer Sulewski
rapped loudly on the door and yelled out that he was a police officer. He received no response. As he continued to rap on the door, the door
to the adjoining apartment was opened by its occupant, John O'Donnell. O'Donnell told Officer Sulewski
that he had returned to his apartment at about 11:30 P.M. and that he had heard
someone enter the adjacent apartment some time after that.
O'Donnell
allowed Officer Sulewski to use his telephone to call
the building's landlord. After a delay,
the landlord arrived with a passkey.
Officer Sulewski tried to open the door of the
apartment but found that it was secured with a chain lock. He then went through O'Donnell's apartment to
a rear porch on to which the back doors of both apartments opened. There was also a window through which Sulewski saw an unlit kitchen [23 Mass.App.Ct. 106] and a light shining into a hallway from one of the interior
rooms. He used the landlord's passkey to
enter the kitchen and headed in the direction of the light.
When
Officer Sulewski reached the lighted room (which
proved to be a bedroom), he saw the defendant lying on a bed. He also noticed a tan camel's hair topcoat
lying on the floor near the bed. He then
opened the front door to allow other officers to enter and turned back toward
the bedroom. As he did so, the defendant
ran out of the bedroom, assumed a martial arts stance,
and slammed into Officer Sulewski. Other officers subdued the defendant, and he
was placed under arrest.
In
addition to the tan camel's hair coat, the police also discovered a light‑colored
fedora type hat with a gold‑colored ornament in plain view in the
bedroom. They also found a fixed‑blade
knife with a green handle in plain view in an open drawer near the bed. They seized the coat, the hat, and the knife.
The
police took the defendant out of the apartment into the front stairway of the
building. At that point, Marsh
identified him as the victim's assailant.
Marsh also identified the knife as the weapon used in the assault.
Based
on these findings of fact, the judge reached the following conclusions:
"At least at the point where
O'Donnell informed the police officers that he had heard someone enter the
apartment adjacent to his at some time after he had returned home at 11:30
P.M., the police had probable cause to believe that the apartment was occupied
and that the occupant had just committed a very violent and possibly fatal
attack on the victim. That occupant also
had failed to respond to the officer's knocks and calls. It was after one o'clock in the morning. The occupant could have been in the process
of destroying evidence of his crime.
Considering the violent and bizarre nature of the crime, he could also
have been dying as a result of a wound,
[23 Mass.App.Ct. 107] self‑inflicted or otherwise. The circumstances were exigent.
"There was, to be sure, a magistrate
on call in the city of Holyoke from whom a warrant could have been obtained. However, the time required to prepare and
execute a proper affidavit, to rouse the magistrate, and to perform the other
necessary paper work would have been far too long to prevent any mischief that
might have been in progress within the apartment. The need of the officers to see what was
going on in there was too urgent for that.
Their decision to make a warrantless entry
was, under the circumstances, entirely reasonable.
"Once inside the apartment they had
a right to seize any evidence of the crime which they came upon in plain
view. That included the topcoat, the hat
and the green‑handled knife. It
follows that none of that evidence need be suppressed as evidence at the
defendant's trial."
The defendant's attack is directed to the
finding of exigent circumstances, and to the ruling, flowing from that finding,
that the entry of the defendant's apartment was reasonable in the
circumstances. (FN1) The question
whether exigent circumstances excuse a warrantless
entry into a dwelling is not a new one in this Commonwealth. See, e.g.,
Commonwealth v. Forde, 367 Mass. 798, 329 N.E.2d
717 (1975); Commonwealth v. Moran, 370 Mass. 10, 345
N.E.2d 380 (1976); Commonwealth v. LeBlanc, 373 Mass. 478,
483‑486, 367 N.E.2d 846 (1977); Selectmen of Framingham v. Municipal Court of
Boston, 373 Mass. 783, 785‑786, 369 N.E.2d 1145 (1977);
Commonwealth v. Boswell, 374 Mass. 263, 269‑271, 372 N.E.2d
237 (1978); Commonwealth v. Franklin, 376 Mass. 885,
898‑902, 385 N.E.2d 227 (1978); Commonwealth v. Young, 382 Mass. 448, 456‑458,
416 N.E.2d 944 (1981); Commonwealth v. Huffman, 385 Mass. 122,
430 N.E.2d 1190 (1982); Commonwealth v. Bradshaw, 385 Mass. 244,
255‑257, 431 N.E.2d 880 (1982); Commonwealth v. Pietrass,
392 Mass. 892, 897‑900, 467 N.E.2d 1368 (1984); Commonwealth v. Kingsbury,
7 Mass.App.Ct. 51, 54, 385 N.E.2d 1020 S.C., 378 Mass. 751, 393 N.E.2d 391
(1979);
Commonwealth v. DiSanto, 8 Mass.App.Ct. 694, 696‑703, 397 N.E.2d 672 (1979),
cert. denied, 449 U.S. 855 (1980); Commonwealth[23 Mass.App.Ct. 108] v. Cricones,
12 Mass.App.Ct. 953, 954, 426 N.E.2d 728 (1981);
Commonwealth v. Amaral, 16 Mass.App.Ct. 230, 231‑235, 450 N.E.2d 656
(1983). The Commonwealth bears
the burden of establishing that the entry was justified. Each case turns on an analysis of its own
facts, but certain considerations have generally emerged as guidelines for
resolution of the question. (FN2)
[1] The application of these
considerations to this case is straightforward.
The crime was unusually brutal.
Its perpetrator was armed and could reasonably be assumed to be very
dangerous. There was clear probable
cause and a strong demonstration that the defendant was in the apartment and
armed. There could have been reasonable
concern that the defendant might have someone else in the apartment or that
evidence such as a weapon or bloody clothes, which could prove critical if the
victim died, could be hidden or destroyed.
Although the police could have continued
to stake out the apartment while a warrant was obtained from the magistrate
"on call," their failure to do so does not require a conclusion that
their conduct was unreasonable. The
availability of a magistrate, and the alternative of the length of any
stakeout, are two considerations to be weighed in the over‑all picture. Their presence in a case is not preclusive of
a finding of exigency. See Commonwealth v. Bradshaw, 385 Mass. at
256, 431 N.E.2d 880; Commonwealth v. DiSanto,
8 Mass.App.Ct. at 700‑703, 397 N.E.2d 672. In view of the hour (1:00 A.M.), the police
could reasonably have believed, for the reasons stated by the judge, that it
would [23 Mass.App.Ct.
109] take a considerable length of
time to obtain a warrant and that the delay would risk additional danger to
anyone else in the apartment building and the loss of evidence. The police adopted methods calculated to
reduce the amount of time needed to get into the apartment and to avoid an
immediate armed and forcible entry. The
defendant argues that the action of the police in making a telephone call to
the landlord, and waiting for the landlord instead of seeking a warrant,
negates the existence of exigency. While
we agree that the wait for the landlord is of some significance, we do not
agree that it should carry the weight given it by the defendant. "[W]hether the
response of the police was reasonable and therefore lawful, are matters to be
evaluated in relation to the scene as it could appear to the officers at the
time, not as it may seem to a scholar after the event with the benefit of
leisured retrospective analysis." Commonwealth v. Young, 382 Mass. at 456,
416 N.E.2d 944. We conclude that the
police acted reasonably and in exigent circumstances. (FN3)
2.
Sufficiency of the mayhem indictment.
The defendant argues that the mayhem indictment is fatally defective
because it does not allege that the defendant's assault disfigured or inflicted
serious or permanent physical injury on the victim. (FN4) As the defendant did not raise this issue in
the trial court on either a motion to dismiss or a motion for a required
finding of not guilty, brought under Mass.R.Crim.P.
13(c) and 25, 378 Mass. 872, 896 (1979), respectively, our consideration is
confined to whether the indictment fails to charge an offense, G.L. c. 277, § 47A, or whether there is a substantial risk
that a [23 Mass.App.Ct.
110] miscarriage of justice
otherwise has occurred. Commonwealth v. De La Cruz, 15 Mass.App.Ct. 52, 57, 443 N.E.2d 427 (1982). See also
Commonwealth v. Gonzalez, 22 Mass.App.Ct. 274,
284, 493 N.E.2d 516 (1986).
[2] [3] The test of the sufficiency of
the indictment is whether it fully and plainly, substantially and formally,
describes the crime for which the defendant is held to answer. Article 12 of the Massachusetts Declaration
of Rights. See Commonwealth v. Welansky, 316 Mass. 383,
395‑396, 55 N.E.2d 902 (1944); Commonwealth v. Gill, 5 Mass.App.Ct. 337, 339, 363 N.E.2d 267 (1977). See also
Commonwealth v. Burns, 8 Mass.App.Ct. 194, 195,
392 N.E. 865 (1979). An indictment must
contain "a plain, concise description of the act which constitutes the
crime or an appropriate legal term descriptive thereof." Mass.R.Crim.P.
4(a), 378 Mass. 849 (1979). An
indictment will not be dismissed if the offense is charged with sufficient
clarity to show a violation of law and to enable the accused to know the nature
and cause of the accusation against him, to prepare an adequate defense, and to
plead an acquittal or conviction in bar of future prosecution for the same
offense. See G.L.
c. 277, § 34; Commonwealth v. McClaine,
367 Mass. 559, 560, 326 N.E.2d 894 (1975); Commonwealth v. Soule,
6 Mass.App.Ct. 973, 973‑974, 384 N.E.2d 235
(1979). See generally Smith, Criminal
Practice and Procedure § 724 (1983).
Although to do so is generally the better practice, the elements of the
offense need not always be set forth in the indictment in the exact words of
the statute. See Commonwealth v. Munoz, 11 Mass.App.Ct.
30, 32, 413 N.E.2d 773 (1980), reversed on other grounds, 384 Mass. 503
(1981). In some cases, an indictment may
be read as inclusive of a fact which is instinctively conveyed by its specific
allegations. See United States v. Barbato, 471 F.2d 918,
921 (1st Cir.1973), and cases cited. (FN5)
[4]
[23 Mass.App.Ct. 111] General Laws c. 277, § 79, prescribes no statutory form for
charging an offense under the second branch of G.L.
c. 265, § 14. The indictment here: (a) specified the date of the crime; (b) asserted that the defendant "did
SLASH AND CUT THE FACE OF" the victim;
(c) indicated that the maiming was accomplished "by means of a
dangerous weapon, to wit, a KNIFE";
(d) stated that the defendant performed the act "with malicious
intent to maim and disfigure"; and
(e) made explicit reference to the defendant's conduct constituting a violation
of G.L. c. 265, § 14.
In its key respects, the indictment avoided generic terms and descended
to specifics. In concluding that the
indictment is sufficient, we note that the defendant sought no additional
information by way of particulars, filed no motion to dismiss, and did not
argue that the element of mayhem pertaining to disfigurement or serious injury
had been inadequately stated or proved (a difficult prospect in view of the
serious and permanent scarring of the victim's face), and did not
challenge the instructions to the jury on the offense. (FN6) Rather, the defendant structured his defense
principally around self‑defense and the claim that his advanced state of
intoxication negated the specific intent requirements necessary to convict him
of mayhem and armed assault in a dwelling.
[5] 3.
Jury instructions. The defendant
argues that the judge's instructions to the jury on the indictment charging him
with armed assault in a dwelling gave rise to a substantial risk of a
miscarriage of justice. We do not agree.
Conviction under G.L.
c. 265, § 18A, of armed assault in a dwelling requires proof of three
elements: (1) entry of a [23 Mass.App.Ct.
112] dwelling while armed; (2) an assault on someone in the
dwelling; and (3) a specific intent
accompanying the assault to commit a felony.
There was sufficient evidence presented by the Commonwealth to warrant
the jury in finding the existence of each of these elements. Based on that evidence, the judge charged the
jury in the manner set forth in the margin. (FN7) The defendant argues that "[t]his
instruction was erroneous because it told the jury that the underlying armed
assault need be committed only with the intent to commit an armed assault,
namely, the aggravated assault, mayhem, or its lesser included offense, assault
and battery with a dangerous weapon. It
failed to tell the jury that the intended armed assault had to be independent
of the underlying armed assault."
The defendant argues that, just as the crime of felony murder requires
that there be a felony independent of the homicide, § 18A requires a felony
independent of the armed assault.
[6] The instructions were proper because
the felony that was the objective of the assault, either assault and battery by
means of a dangerous weapon or mayhem, had an element or elements distinct from
a simple assault. The issue is, in a
sense, one of possible duplicitous convictions.
"A single act may be an offence against two statutes; and if each statute requires proof of an
additional fact which the other does not, an acquittal or conviction under
either statute does not exempt the defendant from prosecution and punishment
under the other." Morey v. Commonwealth, 108 Mass. 433, 434
(1871). See Kuklis v. Commonwealth, 361 Mass. 302,
306, 280 N.E.2d 155 (1972); Salemme v.
Commonwealth,[23 Mass.App.Ct. 113] 370 Mass. 421, 423, 348 N.E.2d 799
(1976). In the case of assault and
battery by means of a dangerous weapon, there is required, in addition to an
assault, independent proof that a battery has been inflicted by use of a
dangerous weapon. The mayhem, as
presented to the jury, required independent proof that a dangerous weapon had
been used and that the maiming inflicted by that weapon had resulted in serious
physical injury to, or disfigurement of, the victim. The jury thus knew that conviction of the
defendant on the armed assault charge would not be proper unless they should
find that the assault was designed to accomplish a further factually distinct
felony‑‑either the aggravated assault made criminal by G.L. c. 265, § 15A, or the aggravated assault proscribed by
G.L. c. 265, § 14.
Contrary to the defendant's assertion, we do not think that the
conceptualization of the events in these terms draws too fine a line or makes
more out of what should be considered as essentially a single assault.
Judgments
affirmed.
FN1.
The defendant does not quarrel with the judge's conclusion that the evidence
that was seized was, if the entry was lawful, properly seized under the plain
view doctrine.
FN2.
In Commonwealth v. DiSanto,
8 Mass.App.Ct. at 700, 397 N.E.2d 672, we
characterized the considerations as a "pragmatic check list of
factors" and identified them as follows:
"For present purposes the
factors on that list may be enumerated as follows: (1) the crime in question was one of violence
and the suspect had been reported to be armed and dangerous; (2) probable cause to believe that the
suspect has committed a felony and strong reason to believe the suspect is in
the particular dwelling; (3) the entry
has been made peaceably (preferably in the daytime); (4) a likelihood that the delay attendant
upon securing a warrant would facilitate the destruction of evidence or
property; (5) a likelihood that the
suspect would escape if not promptly apprehended; and (6) some showing of a reasonable basis
for believing that delay would subject the officers or others to physical
harm...."
FN3.
The defendant relies heavily on the decision in Commonwealth v. Huffman, 385 Mass. 122, 430 N.E.2d 1190 (1982), on
the question of the existence of exigent circumstances. For the reasons explained in Commonwealth v. Bradshaw, 385 Mass. at
257‑258 n. 4, 431 N.E.2d 880, we find the reasoning in Huffman inapplicable to the facts of
this case.
FN4. As pointed out in Commonwealth v. Hogan, 7 Mass.App.Ct. 236, 245‑246 & n. 11, 387 N.E.2d 158
(1979), there are two branches to G.L. c. 265, § 14,
the mayhem statute. Although the
defendant argues that the indictment is defective under both branches of the
statute, it is clear to us that the indictment is framed under the second
branch "which allow[s] a conviction of mayhem for a more general range of
injury." Id. at 246 n. 11, 387 N.E.2d 158. Consequently, we do not deal with the
defendant's arguments pertaining to the first portion of the statute.
FN5. A comparison of Commonwealth v. Palladino,
358 Mass. 28, 260 N.E.2d 653 (1970), with
Commonwealth v. Bacon, 374 Mass. 358, 372 N.E.2d 780 (1978), reveals the
reasonableness of this approach. Both
cases involve the element of possession in different crimes: Palladino, the possession of obscene materials;
Bacon, the possession of a handgun.
Both crimes require proof of knowledge for conviction. In both cases, the indictments failed to
allege knowledge. Due to the uniquely
ambiguous nature of obscene material, the court in Palladino held that the failure to
allege knowledge on the defendant's part was fatal to the indictment. See 358 Mass. at 31‑32, 260 N.E.2d
653. By contrast, the court in Bacon refused to find that the failure
to allege knowledge rendered the indictment defective. The court noted that, unlike obscene
literature, "the characteristics of a gun are obvious." 374 Mass. at 361, 372 N.E.2d 780. While indicating that knowledge had been
proven at trial, the court in Bacon
also noted that there was "no general rule that knowledge must be alleged
in all complaints and indictments as to crimes in which knowledge is a
necessary element to be proved." Ibid.
FN6. Indeed, the
defendant's counsel on appeal concedes that the judge gave correct instructions
on the elements of the crime of mayhem under the second portion of G.L. c. 265, § 14.
FN7. "Now, mayhem is a
felony. Assault and battery by means of
a dangerous weapon is also a felony. If
you are satisfied beyond any reasonable doubt of the following facts, first
that Mr. Donoghue did enter, go inside, in other
words, the dwelling house occupied by [the victim], an apartment would
constitute a dwelling house, if you are satisfied that he was armed with a
dangerous weapon when he did so, and again when I say satisfied I mean
satisfied beyond any reasonable doubt, if you are satisfied beyond any
reasonable doubt that one, inside the dwelling he committed an assault upon
[the victim], and you're further satisfied beyond any reasonable doubt that he
did so with the specific intent of committing an assault and battery with a
dangerous weapon, or intent with the intention of maiming or disfiguring, if
you are satisfied of all of those facts beyond any reasonable doubt, then you
should find him guilty as charged on that indictment."