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Commonwealth v. Richards, 363
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Francis C. Lynch, Jr.,
Barbara A. H. Smith, Asst. Dist. Atty., for the
Commonwealth.
Before TAURO, C.J., and REARDON, BRAUCHER,
HENNESSEY and KAPLAN, JJ.
KAPLAN, Justice.
Earl
Richards and Robert Richards, brothers, were each indicted for the crimes of
assault on Richard Farrell, a police sergeant, with intent to murder; assault
and battery upon Sergeant Farrell by means of a dangerous weapon; and armed
robbery from the person of John Tucker, an employee of a supermarket. The brothers were tried together before a
Under the
jury's verdicts, we may take it that the facts were as follows. On the morning of
As the
party started again toward Stow, the defendant told Abbott to take the manager
of the store to the office; Hartnett would back up Abbott, and the defendant
would back them both up. Robert Richards
was to stay in the car.
The store
to be robbed was the Purity Supreme Market in Stow. It was reached some ten or fifteen minutes
after the party left Maynard. The
defendant parked the car in a parking space adjacent to the store. Following the plan, Abbott and Hartnett
entered the store and sought out Tucker, the assistant manager. Abbott showed Tucker the gun in his trouser belt
and ordered Tucker to go to the office.
Hartnett remained in the store proper.
Tucker, with Abott close behind, walked to the
office, and signalled to a Mrs. Emma Huntley, the
bookkeeper, to open the door of the office, which she did. Tucker and Abbott entered. Abbott now had the gun in his hand and
pointed it at Tucker and Mrs. Huntley.
At Abbott's direction, Tucker and Mrs. Huntley took bills from the
office safe and loose bills and rolled coins from the cashier's cage
in the front of the office and stuffed them into a paper bag provided by
Abbott. In the course of these
movements, Mrs. Huntley contrived to pull a button that set off an alarm in the
Stow police station.
Sergeant
Farrell, on duty at the police station, reached the Purity store by car in
perhaps two minutes and on entering exchanged a word with Mrs. Huntley who was
in the cashier's cage. Meanwhile Tucker
had left the office followed by the defendant carrying the paper bag. Tucker saw Sergeant Farrell and evidently
shouted to him, and then ducked or crouched.
Farrell yelled to Abbott to stop; (FN1) Abbott dropped the bag, turned
toward a nearby wall, and raising his hands over his head, pressed them to the
wall.
[363 Mass. 302] By this
time Hartnett had approached Farrell from the rear and was within a few feet of
him. Farrell had barely seen Hartnett
when Hartnett shot at Farrell perhaps four times. Farrell fell to the floor seriously injured. He had been shot near the eye and in the
head.
Abbott and
Hartnett fled from the store toward the waiting car. There was evidence that the defendant had
been standing near the car. With the
defendant again driving, the Rambler with the four occupants made its way back
to the repair shop in Maynard. After
waiting a few hours there, the defendant and Robert Richards returned to Boston
in the Pontiac; Abbott and Hartnett returned in a Chevrolet with the
defendant's sister. The Rambler
apparently remained at the shop.
1. Upon this record, the defendant assigns as
error that in instructing on armed robbery the judge did not make it clear (so
the defendant argues) that the jury, in order to convict, would have to find
out only threats or displays of force by the actor, Abbott, but actual fear of
harm on the part of the victim.
[1] Under
our statutes, as at the common law, robbery may be encompassed in either of two
ways: by force applied to the person, with intent to steal, or by an assault
putting the person in fear, with the same intent. G.L. c. 265, s 17
(armed robbery), s 19 (robbery by unarmed person); c. 277, s 39 (construction
of words used in indictment).
Commonwealth v. Novicki, 324 Mass. 461, 465,
87 N.E.2d 1; Commonwealth v. McCarthy, Mass., a 276, N.E.2d 283. See Commonwealth v. Humphries, 7 Mass. 242,
244; Commonwealth v. Clifford, 8 Cush. 215, 216;
Commonwealth v. Nickologines, 322 Mass. 274, 276‑‑277,
76 N.E.2d 649; Commonwealth v. Mahoney, 331 Mass. 510, 513, 120 N.E.2d 645;
Commonwealth v. Jones, Mass.,b 283 N.E.2d 840. The Commonwealth did not claim that the defendant
committed a battery upon Tucker, but relied on the other alternative, and this
focused attention on the extent to which apprehension must be charged and
proved.
Discussion
of this subject between the court and counsel[363 Mass. 303] was rather confused, but it appears that the
charge given was adequate.
At a bench
conference after the judge had given his main instructions there was a spirited
debate about the need to instruct that Tucker must be shown to have experienced
fear when confronted with Abbott's pistol and commands. The judge said during the colloquy 'fear was
not a necessary element; . . . the perpetrator should be judged by what he
does.' For this proposition he relied on
Commonwealth v. Slaney, 345 Mass. 135, 185 N.E.2d
919.
[2] That
case considered the essentials of a simple criminal assault, not a robbery,
and, reverting to the oldest conception of assault, said that if could be made
out by proof of an attempted but unaccomplished battery without regard to
whether the victim was put in
fear. The defendant there had shot at
the person but missed. That would be
enough, according to the court's reasoning, even if the person was unaware of
the attempt on him; he might indeed have been asleep at the time. In this sense the accused was judged by what
he did without regard to its effect on the mind of his victim. Commonwealth v. Slaney,
supra. at 138‑‑139, 185
N.E.2d 919. See Perkins, Criminal Law
(2d ed.) 114‑‑122. The Slaney case, however, did not deny‑‑what is
clearly envisoned by our decisions‑‑that
an assault could consist, alternatively, of putting a person in fear, as by the
defendant's displaying a gun and the person's apprehending the danger, even if
the defendant did not intend to shoot and in fact did not have the ability to
do so effectively because his gun was not loaded. See Commonwealth v. White, 110 Mass. 407,
409.
[3] If we
take the first form of assault mentioned, the mere attempted battery where the
person is unaware of the attempt, it is doubtful whether this could ever
satisfy the conditions for robbery by force: a battery of some sort seems
requisite, which is the means of or facilitates the theft. Commonwealth v. Jones, Mass.,c
283 N.E.2d 840. In this respect the Slaney case has only a dubious [363 Mass. 304] bearing
on robbery. The alternative form of
assault referred to in the Slaney case, that in which
the person senses that force may be used and is thereby put in fear, does meet
the robbery requirement when the fear facilitates the theft, see Commonwealth
v. Novicki, 324 Mass. at 465, 87 N.E.2d 1;
Commonwealth v. Jones, supra,d 283 N.E.2d 840, but
then it cannot be said the actor is judged by what he does without regard to
the victim's reaction. Nor does the Slaney case consider whether actual apprehension on the
part of the victim may be simply assumed, and mention of it omitted from the
instructions, when proof is abundant that the weapon was displayed as a threat
and the victim recognized it as such.
[4] The Slaney case is thus not dispositive
of the question whether it would be error to fail to instruct the jury that
they could bring in a verdict of guilty on the armed robbery charge only if
they found that Tucker was in fact put in fear.
We have not, however, that precise question to decide, because, as the
judge said, he had 'bent over backwards' in delivering his main instructions;
he had dealt in general terms with the issue of putting in fear. He had distinguished between theft through
violence and through assault and putting in fear, and he had spoken of actual
force in distinction from 'constructive' force‑‑'such as,' he said,
'threatening words or gestures or the display of a deadly weapon, which
operates on the mind of the person to be robbed. That is what you would require as far as the
assault part is concerned.' The judge
went on to mark the difference between larceny and robbery, contrasting theft
by stealth with theft by force or fear.
If the instruction on the matter of fear was not as detailed as the
defendant might have wished, the fault seems to us extenuated by the fact‑‑which
the defendant candidly concedes in his brief‑‑that there was
evidence on which the jury might find that Tucker had in fact felt fear and had
yielded on that account to Abbott's orders.
Indeed it is hard to see how the jury could have found otherwise. In similar circumstances, the court in United
States v. Rizzo, 409 F.2d 400, 403 [363
Mass. 305] (7th Cir.), excused an
entire omission to instruct on the issue of actual apprehension. See United States v. Beasley, 438 F.2d 1279,
1282 (6th Cir.). See also Commonwealth
v. Barker, 311 Mass. 82, 92‑‑93, 40 N.E.2d 265; Commonwealth v.
Aronson, 330 Mass. 453, 457, 115 N.E.2d 362.
Cf. Commonwealth v. Chapman, 345
Mass. 251, 255, 186 N.E.2d 818; Commonwealth v. Slaney,
supra, 345 Mass., at 137, 141, 185 N.E.2d 919.
2. With respect to the armed robbery charge,
just considered, there is no claim by the defendant that he was not equally
responsible with Abbott even though it was Abbott, not the defendant, who
wielded the gun. In a second assignment
of error, however, directed to the charge of assault on Sergeant Farrell with
intent to commit murder, the defendant contends that he should not be held to
share responsibility with Hartnett; there was no enough evidence, he says, to
tie him to the offence committed by Hartnett, especially the intent requisite
to that offence, and the judge erred in refusing to direct a verdict.
The
defendant does not attack the judge's instructions on this phase of the case,
that is, the range of accessorial responsibility. These instructions were, in fact, finally
formulated with the cooperation of the defendant's counsel. In his main instructions the judge emphasized
that a specific intent to murder Farrell must be found‑‑'one must have
it in his mind to do this particular act'; of course, the defendant had not
pulled the trigger but he had handed out the guns; did he have the intent, the
judge asked, 'knowing where they (Abbott and Hartnett) were going and what they
were going to do, that if the occasion arose and it was necessary in order to
make good the completion of this crime, whether it was in the actual commission
or getting away after the crime was committed, did he have the intention that
this (the loaded gun) was to be used on Richard Farrell or on any police
officer who might happen on the scene, or a civilian, for that matter, an
employee of the store? If he had, if he
had such an intention, then it is for you to say whether or not he had a
specific intent to murder Richard Farrell.'
The judge then went on to define murder and to [363 Mass. 306] relate
it to the facts of the shooting. After
discussion with counsel the judge added for caution's sake that the defendant
must be found to have had a specific intent that the assault which he was
procuring should result in murder in the first or second degree. The judge did not think this added anything
material to the more graphic instruction previously given, nor do we, at least
if the language is read in relation to the picture developed at trial.
Before
considering whether the jury could have found facts satisfying the instructions‑‑the
precise question put by the present assignment of error‑‑we should
note that the Commonwealth now appears to quarrel with the instructions. It suggests that when a number of persons
join in a criminal enterprise (here the commission of armed robbery), then each
person should be held responsible for any crime committed by any of his
partners which follows naturally and probably from the carrying out of the
enterprise. It would not matter that
that crime was predicated on an intent (here the intent to murder) that was not
shared between the actual perpetrator and the others.
[5] In
urging this broad conception of criminal complicity, the Commonwealth makes an
argument analogous to that once made to support the proposition that a person
who is guilty of the crime of conspiracy should be ipso facto also guilty of
substantive offences committed by any of the other conspirators in furthering
the conspiratorial undertaking. That
argument has been firmly rejected in the Commonwealth. 'One is punished for his own blanmeworthy conduct, not that of others.' Commonwealth v. Stasium,
349 Mass. 38, 48 (see at 47‑‑49), 206 N.E.2d 672, 679; Commonwealth
v. Perry, 357 Mass. 149, 151‑‑152, 256 N.E.2d 745. See Commonwealth v. Bloomberg, 302 Mass. 349,
355‑‑356, 19 N.E.2d 62. Am.Law Inst., Model Penal Code, Proposed Official Draft
(1962) s 2.06(3); see Tent. Draft No. 1
(1953), Commentary, pp. 20‑‑26, on predecessor s 2.04. LaFave & Scott,
Criminal Law, s 65. Cf. Wechsler, Jones
& Korn, The Treatment of Inchoate Crimes in the
Model Penal Code [363 Mass. 307] of the American Law Institute:
Attempt, Solicitation, and Conspiracy, 61 Col.L.Rev.
957, 957‑‑958. A broad
conception of complicity is indeed at work in the special field of so called
felony‑murder, but there is no basis for importing it into the present
case, where murder did not occur.
Compare G.L. c. 265, s 1; Commonwealth v. Devereaux, 256 Mass. 387, 395, 152 N.E. 380; Commonwealth
v. Lussier, 333 Mass. 83, 93‑‑94, 128
N.E.2d 569; Commonwealth v. Devlin, 335 Mass. 555, 567, 141 N.E.2d 269.
[6][7][8][9]
It is only fair to judge the defendant by the narrower standard adopted by the
court below with the help of defence counsel. That standard, moreover, finds support in the
authorities, although the subject has sometimes been obscured by equivocal or
even self‑contradictory language.
In order to hold the defendant as an accessory before the fact (FN2) to the crime of assault with intent to
murder, the principal must first be shown to be guilty of that offence. See Commonwealth v. Bloomberg, 302 Mass. 349,
353, 19 N.E.2d 62; Commonwealth v. Reynolds, 338 Mass. 130, 135, 154 N.E.2d
130. As to Hartnett there was evidence
for all the elements of the crime. He
could be found to have shot at Farrell intending to kill him or at least
knowing that there was a substantial chance of killing him; (FN3) the
circumstances were such that if death ensued, Hartnett could have been found
guilty of murder. See Commonwealth v.
McLaughlin, 12 Cush. 615, 618‑‑619;
Commonwealth v. Reynolds, 120 Mass. 190, 197; Commonwealth v. Demboski, 283 Mass. 315, 322‑‑323, 186 N.E.
589; Commonwealth v. West, 357 Mass. 245, 250, 258 N.E.2d 22. Second, guilt of the accessory is established
when it is further shown that he intentionally assisted the principal in the
commission of the crime and that he did this, sharing with the principal the [363 Mass. 308] mental state required for that crime. State v. Hickam, 95
Mo. 322, 332‑‑333, 8 S.W. 252; State v. Taylor, 70 Vt. 1, 9‑‑11,
39 A. 447. See Commonwealth v. Kaplan,
238 Mass. 250, 254, 130 N.E. 485; Commonwealth v. Alba, 271 Mass. 333, 338‑‑339,
171 N.E. 458; Am.Law Inst., Model Penal Code,
Proposed Official Draft (1962) ss 2.06(3)‑‑(4);
Tent. Draft No. 1 (1953), Commentary,
pp. 24‑‑26, 34, on predecessor s 2.04(3)‑‑(4); Perkins,
Criminal Law (2d ed.) 662. But it would
suffice if the purpose to murder in the mind of the accessory was a conditional
or contingent one, a willingness to see the shooting take place should it
become necessary to effectuate the robbery or make good an escape. State v. Taylor, supra, 70 Vt., at 11, 39 A.
447. See Am.Law
Inst., Model Penal Code, Proposed Official Draft (1962) s 2.02(6), on
conditional purpose; Tent. Draft No. 4
(1955), Commentary, p. 129, par. 8. The
defendant here could be found to have assisted in the assault, and he could to
have assisted in to have had the requisite intent to murder. He was the ringleader and planner. He gave the others a scheme for the robbery
in which they were to lend one another support in stealing the money and
getting away. To these ends the
defendant furnished deadly weapons. The
guns were loaded and the jury could find that they were intended for use if the
need should arise, and were not merely for display. People v. Poplar, 20 Mich.App.
132, 139‑‑140, 173 N.W.2d 732 (similar though less compelling
facts; guilty verdict upheld). Cf.
Commonwealth v. Perry, 357 Mass. 149, 151‑‑152, 256 N.E.2d 745.
[10]
3. A third assignment of error relates
to an untoward occurrence at the trial which came about despite the control
exercised by the trial judge during the proceedings. Abbott, who had pleaded guilty to indictments
against him arising from this robbery, but had not been sentenced,
testified as a witness on behalf of the Commonwealth. Under cross‑examination by counsel for
Robert Richards, he was asked, 'Now, you have been on other jobs with Hartnett,
(FN4) haven't you?' to which Abbott [363 Mass. 309] answered, 'I have been on other jobs with Hartness
(meaning Hartnett) and Richards.' (The
jury could have understood the reference to be to the defendant Earl
Richards.) Counsel for the defendant
moved that the gratuitous reference to Richards be struck, which was done; he
then moved for a mistrial, which was denied, and it is this denial that is
assigned as error. The judge instructed
the jury, promptly and forcefully, to disregard the witness's volunteered
statement. The defendant contends that
the prejudice generated by this attribution of earlier criminality, which could
serve no legitimate probative purpose, compare Commonwealth v. Chalifoux, Mass.,e 291 N.E.2d
635, was ineradicable and so serious as to warrant a mistrial; but we agree
with the judge that the trial was not thus corrupted. The statement was not elicited by the
Commonwealth. It came when the trial was
well under way and the triers' minds were fully
engaged on the issues of fact. The case
made against the defendant was strong even though the Commonwealth relied
mainly on the testimony of Abbott, a confessed participant in the robbery with
some personal stake, as he might have thought, in seeing the defendant
convicted. The defendant offered an
hypothesis as to the events in suit that might clear him, but it was weakly
supported. We should not assume that the
judge's instructions were without effect.
Commonwealth v. Crehan, 345 Mass. 609, 613,
188 N.E.2d 923, and authorities cited.
Commonwealth v. Eagan, 357 Mass. 585, 590‑‑592, 259 N.E.2d
548. See Commonwealth v. Cabot, 241
Mass. 131, 150‑‑151, 135 N.E. 465.
The jury showed a discriminating judgment in finding Robert Richards not
guilty, and this adds to our confidence that their finding with respect to the
defendant was based on the evidence properly before them. A court's assessment of the effect of
prejudicial matter can never be certain; it should take in the whole case
including atmospheric factors operating in the course of trial, but the latter
cannot be altogether recaptured even when the whole transcript is read and
appreciated. Nevertheless we feel safe
in concluding on the whole that it is highly [363 Mass. 310]
probable the jury would have voted the same way if Abbott's unresponsive
statement had not been made.
Commonwealth v. Eagan, supra, 357 Mass. at 590‑‑591, 259
N.E.2d 548. Commonwealth v. Bottiglio, 357 Mass. 593, 598, 259 N.E.2d 570.
[11] The
defendant also complains of another unresponsive statement by Abbott during the
same cross‑examination. He was
asked how many times he had talked to Lieutenant Burns after he surrendered to
the police, and he answered, 'I don't know.
I was given a lie‑detector test in Charles Street, I talked to
him.' Counsel persisted, 'I asked how
many times,' and Abbott finally said four times. Defence counsel
passed over Abbott's reference to the lie‑detector test without any
objection or comment, but now seeks to make it a ground for a new trial. The situation is not one in which we are
inclined to excuse the absence of timely objection and exception and to
consider the point although not presented for review as orderly procedure
requires. Compare Commonwealth v.
Conroy, 333 Mass. 751, 756‑‑757, 133 N.E.2d 246, and Commonwealth
v. Freeman, 352 Mass. 556, 563‑‑564, 227 N.E.2d 3, with
Commonwealth v. Crowell, 347 Mass. 771, 198 N.E.2d 623, and Commonwealth v.
Kiernan, 348 Mass. 29, 33, 201 N.E.2d 504.
If we reached the merits we would assess at a considerable discount the defendant's
argument that Abbott's remark was the virtual equivalent of the admission in
evidence, contrary to our decisions,
see Commonwealth v. Fatalo, 346 Mass. 266, 270, 191
N.E.2d 479, of the favorable results of a lie‑detector test to support
Abbott's credibility as a witness. In
all events we can doubt that the jury took any more notice of Abbott's remark
than counsel did at the time.
Judgments
affirmed.
(FN1.)
Abbott testified that Farrell shot at him but this is doubtful.
(FNA.) Mass.Adv.Sh. (1971)
1739, 1740‑‑1741.
FNb. Mass.Adv.Sh. (1972)
1155, 1157.
FNc. Mass.Adv.Sh. (1972)
1155, 1157‑‑1158, 1160.
FNd. Mass.Adv.Sh. (1972)
at 1158.
(FN2.)
General Laws c. 274, s 2, states that accessories before the fact shall
be indicted, tried, and punished as principals.
See Commonwealth v. Benjamin, 358 Mass. 672, 680, 266 N.E.2d 662 (1971).
(FN3.)
This required intent is often referred to as 'specific' but the
characterization does not facilitate analysis.
See LaFave & Scott, Criminal Law, s 28; Am.Law Inst., Model Penal Code, Proposed Official Draft
(1962) s 2.02; Tent.Draft No. 4 (1955), Commentary,
pp. 124‑‑125.
(FN4.)
Hartnett had pleaded guilty to charges arising from the robbery and had
received sentence. He did not testify.
FNe. Mass.Adv.Sh. (1973)
93, 96‑‑97.