Com. v. O'Connor

• Decision Date: 14 June 1990
• Citation: 407 Mass. 663,555 N.E.2d 865
• Parties: COMMONWEALTH v. Richard F. O'CONNOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 865

555 N.E.2d 865

407 Mass. 663

COMMONWEALTH v. Richard F. O'CONNOR.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 6, 1990.

Decided June 14, 1990.

Andrew Silverman, Committee for Public Counsel Services, for defendant.

Kathy Rabin, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

On February 3, 1988, a Middlesex County jury found the defendant, Richard F. O'Connor, guilty of assault and battery on the fourteen year old daughter of his girl friend. He was living with both at the time. The defendant appeals from both the judgment and the sentence, ¹ asserting the judge committed reversible error by (1) refusing a belated oral request to instruct the jury on the privilege of a parent or one in loco parentis to use reasonable means to discipline a child; (2) admitting in evidence the victim's mother's testimony of her daughter's account of the defendant's attack on her; (3) limiting cross-examination of the victim regarding conversations and meetings with representatives of the district attorney's office and the Department of Social Services; (4) allowing a police officer to identify himself as head of the department's "domestic violence" unit; and (5) seeming to take into consideration the more severe charges of which the jury had acquitted the defendant, ² in sentencing him for the assault and battery. Except in one instance there was no error, and in the sole instance of error, we conclude it was not prejudicial. Therefore, we affirm the conviction and the sentence.

At the time of the event in question, the defendant lived with the victim's mother and her two daughters. He was the father of two children born to the victim's mother. ³ Throughout this period, the defendant was also well acquainted with the father of the victim. The father frequently visited his ex-wife's household, for hours at a time, about three to four days each week, and was a regular participant, with the mother and the defendant, in discussions about household rules affecting his daughters. The two girls would also go visit their father at his home from time to time.

The incident that formed the basis for the defendant's assault and battery conviction occurred sometime in January, 1986, and was triggered by a dispute over the victim's use of the telephone. What the defendant considered to be an excessive amount of time spent by the victim on the telephone, had been a bone of contention in the household, and was a frequent topic of discord between the victim and the defendant. According to the defendant, the single telephone in the apartment was often "tied up" by the victim, so that when he telephoned home during his work day, ⁴ he was generally not able to get through.

On this particular day in January, the victim was home sick from school, and the defendant, upon going out to work, told her not to use the telephone. When he returned to find her on the telephone with her boy friend, the victim testified, the defendant "jumped all over" her, slamming her into the walls repeatedly and blocking her from trying to get away. The victim then stated she "punched him between the legs, and he got even more mad," grabbed her as she ran down the hall, and pushed her against the wall again. As a result, she testified, she sustained bruises to her back and her neck, and had a bump on the back of her head.

Sometime after the altercation, the victim's mother testified that she found the victim crying and angry, and observed that "[s]he had finger marks on her arms. She had bruises on her back and she had a bump on her head in the back." Over the defendant's objection, she was allowed to testify that her daughter told her that in the course of a struggle the victim had "grabbed" and "ripped" the defendant's shirt, and he had "banged her up against the walls."

The defendant denied punching, slamming, pushing, or hitting the victim in the course of the January, 1986, dispute over the use of the telephone. He acknowledged only that he had at one point during the argument grabbed the victim by her arm.

1. Request for "in loco parentis" jury instruction. At the time he submitted his other requests for jury instructions, the defendant did not ask for a jury instruction on the right of a parent, or one in loco parentis, to use reasonable measures in chastising a child. Nor did he object to the judge's failure to charge on this issue before the jury retired. The defense was that the assault and battery did not occur as described.

During the second day of the jury's deliberations, the foreman sent the judge a note, asking him to "redefine the law covering assault and battery." At that point, defense counsel asked the judge "to consider instructing in regard to assault and battery concerning the legal right of one in loco parentis." The judge stated he was unfamiliar with the existence of such a defense in Massachusetts and, if it was available, what its boundaries would be. ⁵ The judge declined to give the instruction, and added, "I'll save your rights to that ruling." The defendant asserts that the judge's failure to instruct on this issue was error. We disagree.

The defendant's oral request for an instruction raised for the first time after the jury had already begun deliberating, failed to comply with rules governing requests for jury instructions. Under rule 70 of the Rules of the Superior Court (1989), such requests "shall be made in writing before the closing arguments unless special leave is given to present requests later." See Commonwealth v. Lammi, 310 Mass 159, 164, 37 N.E.2d 250 (1941); Commonwealth v. Coward, 7 Mass.App.Ct. 867, 386 N.E.2d 748 (1979). Rule 14(b) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 874 (1979), is to the same effect. Furthermore, the rule requires an objection to the charge before the jury retires. None of these requirements was met.

The defendant's failure to comply with the rules regarding requests for jury instructions was not remedied by the judge's remark, "I'll save your rights to that ruling." That remark "saved" the defendant's right to appellate review of the judge's decision not to give the requested instruction at that time. Furthermore, the judge explained to defense counsel that he believed the jury's question focused on the requirements of assault and battery, and thus he intended to handle the query by instructing the jury again on the elements of that crime. The necessity, extent, and character of supplemental instructions in response to a jury request are matters within a trial judge's discretion. Commonwealth v. King, 366 Mass. 6, 10, 313 N.E.2d 869 (1974). Commonwealth v. Thomas, 21 Mass.App.Ct. 183, 186, 486 N.E.2d 66 (1985). The defendant does not argue that the judge failed properly to instruct the jury on the elements of the crime.

We nevertheless review in order to determine whether the judge's failure to instruct on an in loco parentis defense was "so erroneous that it created a 'substantial risk of a miscarriage of justice.' " Commonwealth v. Durning, 406 Mass. 485, 498, 548 N.E.2d 1242 (1990), quoting Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). We conclude that it was not.

No Massachusetts decision or statute grants parents or others a right to use reasonable force in disciplining a child. Other jurisdictions recognize a common law principle that a parent, or one standing in loco parentis to a minor child, is justified in using reasonable force on the child "for the purpose of safeguarding or promoting the child's welfare." Bowers v. State, 283 Md. 115, 126, 389 A.2d 341 (1978). See State v. Rigler, 266 A.2d 887, 889 (Del.Super.Ct.1970); Martin v. United States, 452 A.2d 360, 362 (D.C.1982); People v. Parris, 130 Ill.App.2d 933, 936-937, 267 N.E.2d 39 (1971); State v. Black, 360 Mo. 261, 268, 227 S.W.2d 1006 (1950); State v. Pittard, 45 N.C.App. 701, 703, 263 S.E.2d 809 (1980). See also Annot., Criminal Liability for Excessive or Improper Punishment Inflicted on Child by Parent, Teacher or One in Loco Parentis, 89 A.L.R.2d 396 (1963).

Of course, as a predicate to establishing such a disciplinary privilege, a person who is not a parent must prove that he or she stands in loco parentis to the child. Annot., 89 A.L.R.2d, supra at 399 n. 1. To be entitled to the legal status of one in loco parentis, a person must assume all the duties and obligations of a parent toward the child. Martin v. United States, supra at 362. Nova Univ., Inc. v. Wagner, 491 So.2d 1116, 1118 n. 2 (Fla.1986). Peterson v. Kabrich, 213 Mont. 401, 408, 691 P.2d 1360 (1984). Kransky v. Glen Alden Coal Co., 354 Pa. 425, 428, 47 A.2d 645 (1946). Gribble v. Gribble, 583 P.2d 64, 66 (Utah 1978). The key factors to a threshold showing of in loco parentis status are the intent to take over the position of parent, and the discharge of support and maintenance responsibilities toward the child. Klein v. Sarubin, 324 Pa.Super. 363, 367-368, 471 A.2d 881 (1984). State v. Pittard, supra 45 N.C.App. at 703, 263 S.E.2d 809. Fevig v. Fevig, 90 N.M. 51, 53, 559 P.2d 839 (1977). State ex rel. Gilroy v. Superior Court, 37 Wash.2d 926, 933, 226 P.2d 882 (1951). McManus v. Hinney, 35 Wis.2d 433, 437, 151 N.W.2d 44 (1967).

Intent to replace a natural parent is never to be lightly inferred. In re Appeal of Fowler, 130 Vt. 176, 179-180, 288 A.2d 463 (1972). For example, an in loco parentis relationship does not arise merely because someone in a position of a stepparent has taken a child into his or her home and cares for the child. Klein v. Sarubin, supra 324 Pa.Super. at 368, 471 A.2d 881. In re Appeal of Fowler, supra 130 Vt. at 181, 288 A.2d 463. Matter of Montell, 54 Wash.App. 708, 712, 775 P.2d 976 (1989). An impermanent living arrangement shared between the adult and the child has been held to demand even greater affirmative indication of the adult's intention to assume parental responsibilities...