Com. v. Bianco

• Citation: 388 Mass. 358,446 N.E.2d 1041
• Parties: COMMONWEALTH v. Peter P. BIANCO (and thirteen companion cases 1 ).
• Decision Date: 09 March 1983
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1041

446 N.E.2d 1041

388 Mass. 358

COMMONWEALTH v. Peter P. BIANCO (and thirteen companion cases ¹).

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued Oct. 5, 1982.

Decided March 9, 1983.

Brownlow M. Speer, Boston, for Robert Walker.

William K. Danaher, Springfield, for Joseph F. Burke.

Imelda C. LaMountain, Pittsfield, for Bruce C. Kern.

Joseph C. Vosit, Pittsfield (Stefan Grotz, Monterey, with him) for Mark E. Hinman.

Frank E. Antonucci, Springfield, for Stephen Piretti.

Henry J. Boitel, New York (George B. Crane, Pittsfield, with him) for Todd Terpak.

David P. Connor, Springfield, and Kermit S. Goodman, Pittsfield, for Peter P. Bianco, were present but did not argue.

Daniel A. Ford, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

Each of the seven defendants was convicted by a jury on two indictments of involuntary manslaughter and one indictment of assault and battery. Concurrent sentences of two and one-half years in a house of correction were imposed on each defendant on the manslaughter indictments and the assault and battery indictments were placed on file. The defendants appealed the manslaughter convictions and we transferred the case to this court on our own motion. Execution of the sentences on the manslaughter convictions was stayed pending appeal. The defendants argue several grounds for reversal, including insufficiency of the evidence to support the convictions. We hold that there was insufficient evidence on the crucial element of causation to support the manslaughter convictions, and we reverse them.

I. Facts.

This case involves the deaths by drowning of Richard Retzel, eighteen years old, and Barry Griffin, nineteen years old, at approximately 1:10 A.M., on June 5, 1981, in Laurel Lake, in Lee. There was evidence that earlier that night the two victims and another friend from Lee, Patrick Mangin, drove about the southern Berkshire area in a white Cadillac automobile. When they arrived at an area known as the "white bridge," they met the defendant Burke and another youth, David Carpenter, who together had stopped alongside the road to urinate in the bushes. The three got out of the white Cadillac, and, because Retzel did not like Burke, he and Mangin pushed Burke into the bushes. Griffin struck Carpenter in the face, breaking his jaw. The three from Lee returned to the Cadillac and continued driving around the area.

Carpenter and Burke returned to Lenox, where they met the defendant Bianco, and one Michael Hadley, and told them that they had been beaten up by three men in a white car. The four drove around looking for the white Cadillac, until, having no success, Carpenter and Burke left the other two. Bianco and Hadley, however, continued looking for the three men from Lee, and eventually found them parked at the boat ramp at Laurel Lake. Although Bianco and Hadley were prepared for a fight, they decided against it when the three denied having beaten Burke and Carpenter. Hadley even attempted to jump-start the white Cadillac because the battery was dead. Once again, Retzel, Mangin, and Griffin returned to driving around the area. Bianco and Hadley then proceeded to a party at the lakeshore cottage of Jack Hathaway. At the party the defendant Burke again described the earlier fight at the white bridge, and the defendant Bianco said to Burke and the other five defendants, "[B]eating up David Carpenter is like beating up [my] little sister, and they are not going to get away with that .... We will go kick ass." The seven defendants left the party in two cars, drove until they found the white Cadillac, and then followed it to Laurel Lake.

Mangin drove the white Cadillac onto the boat ramp, which declined toward the lake. The Cadillac faced the water and was stopped approximately ten feet from its edge. Mangin left the motor running with the gear shift in the "park" position. The defendants parked their cars behind the Cadillac. As they walked toward the Cadillac, they began yelling and then knocking on the windows of the car. Retzel and Griffin were pulled from inside the car, and a fist fight ensued in which, at a minimum, Bianco punched Retzel. Some of the defendants engaged in grabbing, punching, and kicking Mangin, Retzel, and Griffin.

In addition, there was evidence that the defendant Terpak jumped on the hood of the Cadillac, kicked in the windshield, and then jumped down to the driver's side, reached in and made a sweeping downward movement with his hand. At this moment, the Cadillac began rolling toward the water. Retzel and Griffin jumped into the car, and for a brief moment, the car stopped rolling. Then suddenly, the front wheels lifted off the ground and the car plunged into the water. As it sank, the defendants ran back to their cars and drove off.

Seeing the car in the water, Mangin dove in and attempted to open the doors of the submerged car. Thereafter, the police arrived. ² When the car was hoisted from the lake, Retzel and Griffin were found dead. The cause was drowning. The defendants returned to the party at the Hathaway cottage where they were told by another youth of the deaths. They initially agreed not to cooperate with the police. But, later, five of the seven defendants made statements to the police admitting their involvement in the incident.

II. Manslaughter.

These indictments were tried on the theory that the defendants jointly committed one or more batteries that caused the deaths of Retzel and Griffin. A battery that causes death is manslaughter. Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211 (1967). Commonwealth v. Sostilio, 325 Mass. 143, 145, 89 N.E.2d 510 (1949). The prosecutor argued to the jury that there was a joint enterprise among the defendants to beat the young men from Lee in revenge for their attack on Burke and Carpenter, and that this beating caused Retzel and Griffin to attempt an escape from further attack by jumping into the Cadillac as it rolled toward the water. The prosecutor argued that the escape attempt failed because Terpak had put the gear shift lever into low, and as a result, Retzel's instinctive reaction to move the lever two places from drive to reverse in fact put the lever from low into drive, thereby plunging the Cadillac into the lake.

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); Commonwealth v. Dorazio, 365 Pa. 291, 296-298, 74 A.2d 125 (1950); Letner v. State, 156 Tenn. 68, 299 S.W. 1049 (1927); R. Perkins, Criminal Law 710-711 (2d ed.1969); W. LaFave & A.W. Scott, Jr., Criminal Law § 35, at 258 (1972); Focht, Proximate Cause in the Law of Homicide--With Special Reference to California Cases, 12 S.Cal.L.Rev. 19, 33 (1938). Assuming this to be a valid principle, we must address the preliminary question whether a rational trier of fact could have found in this case that a battery caused Retzel and Griffin to attempt flight.

The evidence warranted the defendants' convictions of assault and battery on Retzel. We conclude, however, that the evidence was insufficient to establish beyond a reasonable doubt that the assault and battery on Retzel caused Retzel and Griffin to enter the Cadillac. See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). There was a critical void, therefore, in the Commonwealth's proof of manslaughter.

The evidence was that Retzel and Griffin ran to the Cadillac only when it began rolling toward the water after Terpak smashed the windshield and made the downward motion of his hand inside the car. Whether Retzel was attempting to put the gear shift lever into park or reverse is purely conjectural. Even if he was attempting to put it into reverse, it is equally conjectural whether he and Griffin were seeking to avoid combat, thereby leaving Mangin to whatever might befall him, or were merely seeking to preserve the car from further damage. While it is entirely possible on the evidence that Retzel and Griffin jumped into the Cadillac to effectuate an escape from bodily injury, as the Commonwealth contends, the alternative possibility may be argued with equal force. Since a causal relationship between the battery on Retzel and the deaths of Retzel and Griffin is required for manslaughter, Commonwealth v. Campbell, supra; Commonwealth v. Sostilio, supra, and the evidence did not warrant that finding beyond a reasonable doubt, the defendants' convictions of manslaughter were unwarranted.

The Commonwealth did not argue to the jury that, even if Retzel and Griffin entered the car to prevent it from entering the water, the defendants' conduct caused that event and the resulting deaths. Terpak's conduct with respect to the car was not presented at trial as the conduct underlying the defendants' guilt of manslaughter, nor did the Commonwealth argue that Terpak should be convicted even if the other defendants were not. Because the attack on the Cadillac was not the basis of the Commonwealth's theory at trial, ³ we need not now consider whether a criminal act against property may be the basis for a manslaughter conviction. The defendants other than Terpak could not have been convicted on such a theory, in any event, because there was insufficient evidence that they shared the mental state required of joint venturers with respect to the attack on the car. See Commonwealth v. Casale, 381 Mass. 167, --- Mass.Adv.Sh. (1980) 1711, 1717, 408 N.E.2d 841; Commonwealth v. Soares, 377 Mass. 461, 470-472, 387...