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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Parker, 25 Mass.App.Ct.
727 (1988)
Appeals Court of Massachusetts,
No. 87‑1150.
Argued
Decided
Further Appellate Review Denied
Richard D. LeBlanc, Committee for Public Counsel Services,
for defendant.
Robert J. Carnes, Asst. Dist. Atty., for Com.
Before DREBEN, CUTTER and KASS, JJ.
CUTTER, Justice.
The
following findings could have been made by the jury on the evidence at the
trial of indictments (FN1) on which [25
Mass.App.Ct. 728]
Parker was found guilty. He was found
not guilty on other charges. (FN2) We affirm the judgments.
Parker and
his wife (Donna) had been living with their two children in a house on
At some
time after
Donna
requested Parker to leave and screamed.
She tried to use the telephone.
Parker prevented her from doing so.
He told her he wanted to talk with her.
She refused to do so. She
(without knowing just what happened) then found herself half on and half off a
couch in the living room with Parker on top of her blaming her for their
marital discord. He would hit her
"every time ... [she] opened ... [her] mouth" in the face, on the
side of her head, and in the shoulder.
During this time, Donna and Parker "were ... struggling with each
other." Among other things, he
told her that, if he was not able to get the family situation straightened out,
"he was going to kill himself" by pouring "gasoline on himself
and make the kids watch him die."
Parker put
a cigarette in his mouth and lit it.
Donna said, "Please don't burn me." Parker replied, "It's something I have
to do. I must do it." She "knocked the cigarette out of his
hand.... [She] didn't know ... [she]
even got burned by it, but he did hit ... [her] with it." He kept hitting her, and [25 Mass.App.Ct. 729] told her she "would be dead before the night was
over." She, naturally, was scared
by this behavior.
At one
point, Parker "took some little thing out of his pocket." She did not know "exactly what it was
because it was dark" with light only from one television. Whatever it was, "he opened it
up." (FN3)
Donna
testified that her six year old daughter Shana
entered the room while she was struggling with Parker on the couch. Donna asked her to run for help. Shana started for
the back door. Parker rose to stop her
and Donna seized the chance to escape by the front door to a neighbor's
house. There she noticed for the first
time that her hand was bleeding. The
neighbor called the police and Donna went to the neighbor's kitchen to put cold
water on her hand which was bleeding and badly cut. When the police arrived she was taken by
ambulance to a hospital where she was subjected to surgery about 2 A.M., and
was required to remain for four days.
(FN4)
Parker
left the premises shortly after Donna did.
Police searched the area and found Parker away from the house near a
pool of blood. A burnt cigarette was
found in the living room area. A sharp
razor blade and holder were found between the house on the premises and where
Parker was discovered. A [25 Mass.App.Ct.
730] handwritten note from Parker
entitled a "last will and testament," written on the morning or early
afternoon of August 27, 1986, was received by the police from a nurse who
attended Parker at the hospital. This reasonably
could be regarded as a "suicide note." In any
event, Parker did cut his wrist after leaving the house and after Donna had
gone to the neighbor's house. (FN5) The evidence suggests that he nearly
succeeded in his suicide attempt. He was
taken to a different hospital.
Parker, by
his counsel, makes as his principal contention that the judge improperly
instructed the jury on assault and battery by means of a dangerous weapon and
Parker's argument that any injury to Donna by such a weapon was an
accident. The prosecutor requested an
instruction which led the judge to charge (with some variations) in the form
set out in the margin. (FN6)
[25 Mass.App.Ct.
731] The portion of this instruction
to which defense counsel makes primary objection is the language following the
bracketed letter [F] which, in the Commonwealth's
original request for instruction, apparently was based on the language in
Commonwealth v. Bianco, 388 Mass. 358, 362‑363,
446 N.E.2d 1041 (1983), Id., 390
Mass. 254, 454 N.E.2d 901 (1983), reading, "There is considerable authority
for the principle that if, by a wrongful act, a man 'creates in another man's
mind an immediate sense of danger which causes such person to try to escape,
and in so doing he injures himself, the person who creates such a state of
mind' is criminally responsible for those injuries. Regina v. Halliday,
61 L.T.R. (n.s.) 701, 702 (1889).
See generally United States v. Guillette,
547 F.2d 743, 749 (2d Cir.1976), cert. denied, 434 U.S. 839 [98 S.Ct. 132, 54 L.Ed.2d 102] (1977)" (other citations
omitted). (FN7) That portion of the charge was the subject of
defense objections. In any event, the
judge proceeded to explain to the jury the various indictments, including the
two indictments for assault and battery by means of a dangerous weapon (i.e.,
by either a lighted cigarette or a razor blade). (FN8)
[25 Mass.App.Ct.
732] The judge told the jury to deal
with each of these indictments separately.
He then described a "dangerous weapon" as "any item so
constructed or used so as to be likely to produce death or great bodily
injury." (FN9)
The jury
during their deliberations asked a question not directly related to the two
indictments for assault and battery with a dangerous weapon. Defense counsel then said in a bench
conference, "[S]ince the jury seems to be
confused about intent, I would ... note ... that under the assault and battery
with a dangerous weapon offenses, it is not listed under one of the elements
that there be an intentional touching with the dangerous weapon." The judge asked defense counsel, "What
do you want me to say?" Counsel
replied, "All I'm looking for is [that] everybody is sure that in order to
find an assault and battery by means of a dangerous weapon they [must] find that
there is an intentional touching, i.e., not an accidental touching with a razor
blade." Counsel denied that he
wanted "anything else." After
the bench conference, the judge gave a further instruction. (FN10)
[25 Mass.App.Ct.
733] In testing the judge's
instructions which led to the convictions of Parker, there is one basic issue
common to each offense of which he was convicted. The judge certainly made it clear to the jury
that, if Parker intentionally cut Donna with the razor blade or burned her with
the lighted cigarette, he could be found guilty of assault and battery with a
dangerous weapon. As was said in
Commonwealth v. Burno, 396 Mass. 622, 625,
487 N.E.2d 1366 (1986), "An assault and battery is 'the intentional and
unjustified use of force upon the person of another, however slight' ... or the
intentional commission of a wanton or reckless act causing physical or bodily
injury to another...." The injuries
to Donna here were clearly proved and were substantial enough to cause her to
be confined in a hospital for four days or more. These injuries certainly were significant
enough to interfere "with the health or comfort of the victim." See Burno at 627, 487 N.E.2d 1366. (FN11)
The trial
judge (see, e.g., note 3[A], [B], and [E]
supra ) adequately charged the jury that they must acquit Parker if they
found the cutting of Donna by the razor blade or the burning of her by the
lighted cigarette to be accidental.
Either of these or both of these reasonably could be found by the jury
to have been the particular weapons that caused significant injuries to her
hand and face. See Commonwealth v. Appleby,
380 Mass. 296, 306‑308, 402 N.E.2d 1051 (1980). See also Commonwealth v. Farrell, 322 Mass. 606,
614‑615, 78 N.E.2d 697 (1948); Commonwealth v. Welch, 16 Mass.App.Ct. 271, 276‑277, 450 N.E.2d 1100
(1983). Nevertheless, [25 Mass.App.Ct.
734] the instructions (in fact given
about the contention that the wounding of Donna was an "accident")
would have been too favorable to Parker, if the judge had not given also the
instruction (see note 6[F], supra )
in view of Parker's unlawful activities on August 22, 1986, leading to that
wounding.
Parker,
despite his back injuries, had violated a still effective restraining order, to
which he admitted that he gave no thought.
He had broken into the house where Donna and their children were
living. He had surprised and scared his
wife, who was seeking a divorce from him.
He intentionally had placed Donna under him on the couch and had lighted
a cigarette and displayed the razor blade to her. These reasonably could be found by the jury
to have caused Donna (1) to believe her situation was desperate, (2) to resist
Parker, and (3) to attempt escape from him.
If they so
found, they could also conclude that what Donna did as a reaction to Parker's
behavior (if it brought her hand in contact with the razor or led to her face
being burned by the cigarette) was caused by Parker as fully as if he
intentionally had pressed the cigarette on to her face or had struck her hand
with the razor. On the evidence and
applying the principle discussed in the Bianco case, 388 Mass. at 362‑365, 446 N.E.2d
1041, the jury could determine beyond a reasonable doubt that Parker had
committed an intentional assault and battery with a dangerous weapon. Such a determination that her injuries were
the result of her attempts to push away the razor blade or the burning
cigarette would be decisive that her injuries were not an
"accident." The disputed
instruction was proper.
We think
that this determination deals with all the indictments before us (see note 1, supra ) on which Parker was convicted.
Judgments affirmed.
(FN1.) The jury returned verdicts of guilty of
(a) assault on Donna Parker in a dwelling house with a dangerous weapon, (b)
two charges of assault and battery on her with a dangerous weapon (one a
lighted cigarette and the other a razor blade), and (c) assault and
battery. He was sentenced to concurrent
terms of five to seven years at M.C.I., Cedar
Junction, on the convictions of assault and battery with a dangerous weapon and
to an "on and after" term of ten to twelve years at M.C.I., Cedar Junction, suspended, probation, three years,
on the conviction of assault in a dwelling house with a dangerous weapon. The assault and battery conviction was placed
on file.
(FN2.)
These were charges of assault with intent to murder and burglary and assault on
an occupant. A charge of violating a
restraining order was dismissed on Parker's motion for a required finding at
the close of the Commonwealth's evidence because of a mistake in the
indictment.
(FN3.)
The item was a razor blade with a handle.
Parker, when he testified, admitted that he had entered the house
through a window while drunk, and that, while arguing with Donna on the couch
(and sitting there on top of her), he had reached in his pocket for a razor and
slid the double edged blade out of its handle to show her how he intended to
kill himself by cutting his wrist. He
claimed that she (left handed) grabbed the razor, to his "best
memory" with her right hand, just as he slipped to the floor, with the
razor still in his hand. He denied
swinging at her or trying to cut her with the razor or trying to burn her with
a cigarette. He admitted that ashes fell
off the cigarette during the struggle, that the cigarette eventually fell on
the floor, but he did not know how that happened.
(FN4.)
An orthopedic surgeon who saw Donna at the hospital testified that she had a
"definite, firm, circular ... mark on the face, that wouldn't look like
something could just ... touch the face and leave that type of mark without
some pressure being applied," that the injury to her hand was consistent
with the type of cut made by a surgical scalpel or other very sharp object such
as the razor blade in evidence, and that, in the circumstances of a struggle
and the attendant excitement, Donna might not have had an immediate sensation
of pain from the cut.
(FN5.)
The theory of Parker's defense was that the injuries to Donna were purely
accidental. He, a former army
parachutist, had been injured in a 1977 automobile accident and testified that
he was considered by Social Security authorities to be one hundred percent
disabled so that he and his children were receiving substantial benefits each
year. Nevertheless, in August, 1986,
evidence of his activity shows that he remained physically mobile. He had become increasingly despondent about
what was to him apparently unexpected discord with his wife. She had left with their children without
warning and without telling him where she was going. He had been served with a court order to
vacate his house and to stay away from it.
He had lived with friends or his mother, for some days, sleeping on
couches or on small beds which caused aggravation of a preexisting lower back
condition from which he suffered at least periodic pain. He was not sleeping well. After a period of increasing depression
(including a brief stay at Northampton State Hospital), he had decided to talk
with Donna directly (and not through lawyers) to persuade her to return to him,
and to commit suicide if she refused.
Although he took a razor blade with him when he went to the house it
was, so he contended, his purpose to use it only on himself. See note 3, supra.
(FN6.) The judge's instructions (with
indicated elisions and with capital letters in brackets inserted for convenient
reference): "[A] ... Throughout the
case as you assess and ... discuss, keep in mind that ... [Parker] has said
that the events that took place were the result of an accident. [B] Evidence has been offered ... for you to
consider in determining whether ... [he] committed a criminal act or whatever
occurred was a pure and simple accident.
[C] In such consideration you must be ever mindful that the Commonwealth
must prove beyond a reasonable doubt that what occurred that they allege to be
a criminal act was not an accident. [D]
If you conclude that the Commonwealth has failed to sustain that burden of
proof beyond a reasonable doubt, then you must find ... [Parker] not guilty of
the charge. [E] Accident is defined as
an unintended happening that results in injury or loss. It's some sudden and unexpected event that
takes place without expectation. [F] Now
... you can also consider that if by a wrongful act a person‑‑and
the Commonwealth suggests that that is the case here‑‑creates in
another person's mind an immediate sense of danger which causes such person to
try to escape or defend ... herself, and in so doing ... she injures ...
herself, the person who creates such a state of mind is criminally responsible
for those injuries. [G] Now ... if you
find ... that the Commonwealth has sustained its burden of proof beyond a
reasonable doubt that it wasn't accident, you must determine what the extent of
the criminal responsibility ... is."
(FN7.) In the Bianco case, 388 Mass. at 363‑364,
446 N.E.2d 1041, it was held (over a dissent at 370‑375, 446 N.E.2d 1041)
that the evidence there presented "was insufficient to establish beyond a
reasonable doubt that the assault and battery on" one of the victims had
caused them to enter a vehicle (in an attempt to escape bodily injury) in which
they were later drowned. One ground of
the dissent was based on the view (at 374, 446 N.E.2d 1041) that on the
evidence, "the jury could reasonably infer that the victims [in that case]
sought to escape further harm."
(FN8.) The judge instructed, "To prove
assault and battery, the Commonwealth must prove beyond a reasonable doubt ...
that there was an intentional, unprivileged, and unjustified touching of the
person of another, and also that the touching was either physically harmful or
potentially harmful ... done without the consent of the person touched. Physically harmful touching is a battery, and
consent is immaterial. However, a nonharmful touching is a battery only if there is no
consent.... Any touching with such
violence that bodily harm is likely to result is a battery, and consent is
immaterial."
(FN9.) The judge proceeded, "For example
... a lighted cigarette is not a dangerous weapon when used for the purposes
for which it is intended.... But you may
consider the manner in which the cigarette that is lit may be used. You should also consider whether, based on
the objective conditions at the time of the assault, the exhibition of the item
could reasonably engender the victim's fear and whether the perpetrator of the
assault did intend to provoke that fear....
[Parker] says that there was no intent of any sort to assault and batter
Donna Parker ... with the razor blade, and that anything that happened to her
was a result of accident. The
Commonwealth has a burden of proof beyond a reasonable doubt that it wasn't an
accident. The same is true as to a
lighted cigarette."
(FN10.)
The further instruction was, "On both the assault and battery, dangerous
weapon, let me touch on those now.
Counsel is concerned that I not ignore the fact that they require an
intent, not an accidental act. It's just
the intent is not a specific intent to commit assault and battery or assault
and battery [by means of a] dangerous weapon.
And the issue then I just want you to ... understand that requires an
intentional act; it's not an accidental
act.... It's different from the specific
intent required in those matters."
(FN11.) If, in the "first incident"
discussed in the Burno
case, either police officer had sustained a burnt spot underneath his eye and
as serious a cut and loss of blood as Donna did here, it may well be that the
Supreme Judicial Court and this court, see 18 Mass.App.Ct.
796, 799‑803, 487 N.E.2d 1366 (1984), would have concluded that the
conviction, even on the second incident discussed in the Burno case, was justified as a wanton
and reckless act causing serious injury to another.
The
judge in the present case did not instruct the jury that they could find Parker
guilty because his conduct involved wanton and reckless use of a dangerous
weapon which resulted in serious (and not "trifling") bodily injury
to Donna. See the Burno case, 396 Mass. at 625, 627, 487
N.E.2d 1366. On the evidence before the
jury on the physical injuries to Donna, such an instruction would have been
justified. The instruction actually
given, however, based on the theory and language of the Bianco case, 388 Mass. at 362‑363,
446 N.E.2d 1041, may have had much the same practical effect.