Com. v. Antonmarchi

• Decision Date: 11 October 2007
• Docket Number: No. 06-P-1106.,06-P-1106.
• Citation: 874 N.E.2d 665,70 Mass. App. Ct. 463
• Parties: COMMONWEALTH v. Victor A. ANTONMARCHI.
• Court: Appeals Court of Massachusetts

874 N.E.2d 665

70 Mass. App. Ct. 463

COMMONWEALTH v. Victor A. ANTONMARCHI.

No. 06-P-1106.

Appeals Court of Massachusetts, Hampden.

Argued May 3, 2007.

Decided October 11, 2007.

Carlo A. Obligato, Committee for Public Counsel Services, for the defendant.

Sidney E. Reavey, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, KANTROWITZ, & McHUGH, JJ.

CYPHER, J.

Convicted by a Superior Court jury of two charges of home invasion, G.L. c. 265, § 18C, and other crimes related to that invasion, the defendant appeals, claiming that one of the two home invasion convictions was duplicative and should be vacated.¹

Background. Mary Jones,² whose home was invaded, and the defendant lived together until August, 2002, and thereafter remained friends and occasionally were intimate. On January 24 2003, Jones picked up the defendant at his place of employment and drove him to his home. At trial, she testified that she told him she was going out that evening and the defendant "wasn't happy."

Sometime after 9:00 A.M. the next morning, after receiving no response from Jones to his prolonged knocking on the front and rear doors, and ringing the doorbell of the building where she lived in Holyoke, the defendant entered through a living room window, and angrily confronted her. She testified that when she told him she had not opened the door because she was with a man, he asked, "why did I do that to him," and "[w]here is he?"

After taking a brief look around and seeing no one, the defendant pulled Jones into the bathroom, touched her "private parts," put his finger inside her, apparently "check[ing]" to determine whether she recently had sexual intercourse. He pushed her against the wall. Continuing his search, the defendant found a man, Jose Rivera, hiding in a bedroom closet, and pulled him out. A struggle between them followed. Rivera swung at the defendant with a metal clothes rod he had extracted from the closet. The defendant pointed a nine millimeter handgun³ at Rivera and repeatedly hit him about the head with it, resulting in one shot being discharged, which grazed Rivera's head and caused him to fall to his knees, bleeding profusely. The struggle ended with the defendant falling on Rivera, who then suffered a broken ankle.⁴

At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty on all the charges, particularly claiming that because the charges of home invasion were based on a single act of entry, he only should have been charged with one home invasion. In response to that claim, the judge, essentially relying on Commonwealth v. Melton, 50 Mass.App.Ct. 637, 642-643, 741 N.E.2d 69 (2001), stated that application of a statute such as G.L. c. 265, § 18C, permits prosecution for each of multiple victims assaulted in a home invasion. In this appeal, the defendant no longer challenges the sufficiency of any evidence on Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979), grounds, but maintains that it was error not to dismiss one of the charges of home invasion.⁵

Discussion. Claiming that the home invasion statute is an "anomaly," and that its plain meaning, and the interpretation of closely related statutes, indicate that its "purpose is to deter home invasions," the defendant asks that we interpret it, as the armed burglary statute, G.L. c. 266, § 14, has been, to permit only one conviction for entry in a dwelling, no matter how many assaults follow. Compare Commonwealth v. Gordon, 42 Mass.App. Ct. 601, 604-605, 678 N.E.2d 1341 (1997).⁶ No Massachusetts appellate decision has analyzed whether multiple convictions may be sustained under the home invasion statute, G.L. c. 265, § 18C.⁷

In addressing the issue, we are mindful of the proscription of the double jeopardy clause of the Fifth Amendment to the United States Constitution, but "few, if any, limitations are imposed by that clause on the legislative power to define offenses." Commonwealth v. Levia, 385 Mass. 345, 347, 431 N.E.2d 928 (1982).

We begin with the wording of the statute. General Laws c. 265, § 18C, inserted by St.1993, c. 333, states in relevant part:

"Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within[,⁸] while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished...."

The defendant acknowledges that the "teaching of our cases is that, where the intent of the Legislature in the enactment of a criminal statute is primarily to protect the safety of individuals, as opposed to one's possessory interest in property, the number of victims determines the number of units of legitimate prosecution." Commonwealth v. Melton, 50 Mass.App.Ct. 637, 643, 741 N.E.2d 69 (2001), S.C., 436 Mass. 291, 295, 763 N.E.2d 1092 (2002).

"The appropriate inquiry in a case like this ... asks what `unit of prosecution' was intended by the Legislature as the punishable act.... The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution ... keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant's favor." Commonwealth v. Rabb, 431 Mass. 123, 128, 725 N.E.2d 1036 (2000).

In Commonwealth v. Dunn, 43 Mass. App.Ct. 58, 680 N.E.2d 1178 (1997), the court determined that G.L. c. 265, § 18C, is not constitutionally vague and does not impose cruel and unusual punishment, taking into consideration the "nature of the offense of home invasion and the degree of harm to society that the statute seeks to prevent." Id. at 63, 680 N.E.2d 1178. The court stated that while the crime of home invasion is "akin to that of armed burglary, G.L. c. 266, § 14, and armed assault within a dwelling, G.L. c. 265 § 18A[,] ... [w]hat sets home invasion apart from the other two crimes—and we think legitimately triggers a longer minimum sentence—is the additional element that the armed intruder knows, or should know, that an occupant is present before he enters the dwelling." Id. at 63-64, 680 N.E.2d 1178. "The home invasion statute punishes more severely the armed intruder who invades another's dwelling while knowing that one or more individuals are present and then proceeds to assault those individuals." Id. at 64, 680 N.E.2d 1178.

"These scienter requirements distinguish § 18C from § 18A." Commonwealth v. Ruiz, 426 Mass. 391, 393, 688 N.E.2d 963 (1998). Sections 18A and 18C "are functionally much closer than sections 18C and G.L. c. 266, § 14." Id. at 394 n. 4, 688 N.E.2d 963.

Placement in the General Laws is a legitimate indication of the Legislature's intent. Commonwealth v. Levia, 385 Mass. at 347, 431 N.E.2d 928, considered whether the Legislature intended that the taking of money from two individuals in a single episode would constitute one or two robberies under G.L. c. 265, § 17. The court noted that the armed robbery statute appears in the "chapter of the General Laws entitled `Crimes against the Person,' rather than under the chapter (c. 266) entitled `Crimes against Property.'" Id. at 348, 431 N.E.2d 928. The court also noted it had "previously stressed the assault aspect of the crime" in Commonwealth v. Weiner, 255 Mass. 506, 152 N.E. 359 (1926). Ibid. The Levia court concluded, "[i]n light of the emphasis that the [Legislature] and this court have placed on the assault element of the crime of robbery, we conclude that the `offense' is against the person assaulted, and not against the entity that owns or possesses the property taken." Id. at 350-351, 431 N.E.2d 928.

Here, the Legislature placed G.L. c. 265, § 18C, in c. 265, Crimes Against the Person. "Influential [in Levia] was the text of the defining statute which spoke of the `person' as the object of protection; so also the fact that armed robbery falls under the statutory heading `Crimes Against the Person.'"⁹ Commonwealth v. Dello Iacono, 20 Mass.App.Ct. 83, 89-90, 478 N.E.2d 144 (1985). So, too, we conclude in this case that the home invasion statute clearly and unambiguously is concerned with the assault of persons in the invaded dwelling. Moreover, the language of § 18C sets it apart from G.L. c. 266, § 14, and, when viewed in the light of Levia, we conclude that the unit of prosecution is the person assaulted.¹⁰

The reasoning of Levia was applied in Commonwealth v. Doucette, 430 Mass. 461, 720 N.E.2d 806 (1999), a case very similar to the present case. There, the defendant, armed with a knife, entered an apartment, assaulted one victim with mace and fought with him, and stabbed another. Id. at 463-464, 720 N.E.2d 806. He was convicted inter alia, of two charges of armed home invasion, with one charge as the underlying felony for a conviction of first degree felony-murder. The "Commonwealth asserted that the defendant used force on persons in the apartment when he assaulted [two named persons]." Id. at 466, 720 N.E.2d 806. Citing Commonwealth v. Levia, 385 Mass. at 348, 351, 431 N.E.2d 928, as authority,¹¹ the court concluded that each charge of home invasion "alleged a separate and distinct offense, and, when proved, constituted a separate conviction under G.L. c. 265, § 18C." Id. at 471, 720 N.E.2d 806.¹² Doucette is strong precedent for the result we reach in this case.¹³

Judgments affirmed.

1. The other convictions were armed assault with intent to kill, as a lesser included offense under G.L. c. 265, § 18(b); and assault and battery by means of a dangerous weapon (a handgun), G.L. c. 265, § 15A(c)(i). The defendant was found not guilty on a...