Com. v. Davis

• Decision Date: 02 July 1980
• Citation: 10 Mass.App.Ct. 190,406 N.E.2d 417
• Parties: , 8 A.L.R.4th 1259 COMMONWEALTH v. Hoyt DAVIS (and a companion case).
• Court: Appeals Court of Massachusetts

Page 417

406 N.E.2d 417

10 Mass.App.Ct. 190, 8 A.L.R.4th 1259

COMMONWEALTH v. Hoyt DAVIS (and a companion case).

Appeals Court of Massachusetts, Hampden.

Argued April 15, 1980.

Decided July 2, 1980.

Brownlow M. Speer, Boston, for defendant.

John T. McDonough, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and GREANEY and DREBEN, JJ.

GREANEY, Justice.

On December 16, 1978, the defendant and the victim quarrelled at the "Diamond Mine" Lounge in Holyoke. An encounter ensued, in the course of which the defendant bit off a piece of the victim's left ear. The defendant was indicted for the crimes of mayhem (G.L. c. 265, § 14), and assault and battery by means of a dangerous weapon "to wit, (t)eeth" (G.L. c. 265, § 15A). A Superior Court jury convicted him on both indictments, and he has appealed, assigning as error: (1) the introduction in evidence in connection with the mayhem charge of five photographs showing the piece of the victim's ear which was bitten off and the condition of the ear after the piece was surgically reattached; and (2) the denial of his motion for a directed verdict on so much of indictment no. 79-705 as charged the use of a dangerous weapon, contending that human teeth cannot constitute a dangerous weapon. We hold that the judge did not abuse his discretion in admitting the photographs but that the motion for a directed verdict should have been allowed as to that portion of the assault and battery indictment that charged the use of teeth as a dangerous weapon.

1. The defendant argues that the photographs lacked evidential value on a material issue because there was other evidence at the trial which adequately described the victim's injury. He also contends that the prejudicial effect of the photographs far outweighed their probative value and served to distort the jury's consideration of his testimony (pertaining to the mayhem charge) that he acted in the heat of a fight without specific malicious intent.

The fact that photographs may be inflammatory does not render them inadmissible if they possess evidential value on a material matter. Commonwealth v. Lamoureux, 348 Mass. 390, 392-393, 204 N.E.2d 115 (1965); Commonwealth v. Stewart, 375 Mass. ---, --- - --- ^a, 377 N.E.2d 693 (1978), and cases cited. The determination whether a photograph possesses such value rests within the discretion of the trial judge (id. at ---, ^b 377 N.E.2d 693), and the defendant carries a heavy burden in establishing that the trial judge abused his discretion by admitting in evidence inflammatory photographs. Commonwealth v. Clifford, 374 Mass. 293, ---, ^c 372 N.E.2d 1267 (1978).

An abuse of discretion has not been shown in this case. The photographs aided the jury in better understanding the nature of the victim's injuries (Commonwealth v. Retkovitz, 222 Mass. 245, 248, 110 N.E. 293 (1915); Commonwealth v. Galvin, 323 Mass. 205, 215, 80 N.E.2d 825 (1948)); in considering the medical information contained in the hospital record (Commonwealth v. Lee, 324 Mass. 714, 718-719, 88 N.E.2d 713 (1949)); and in evaluating the issue of malicious intent in connection with the mayhem charge. In view of the judge's thorough instructions in his charge on the mental element required for the crime of mayhem, there is no reasonable likelihood that the photographs could have distorted the jury's evaluation of the defendant's position on the issue of intent; and the notion that other testimony and exhibits adequately described the victim's injuries, rendering use of the photographs unnecessary, is one that has been "invariably rejected" where relevance and authenticity are established. Commonwealth v. Chalifoux, 362 Mass. 811, 817, 291 N.E.2d 635 (1973). Commonwealth v. Clifford, supra, 374 MASS. AT ---, 372 N.E.2D 1267^D.

2. We turn now to the question whether human teeth or parts of the body should be excluded from consideration by the fact finder as instrumentalities which can be used as dangerous weapons in indictments framed under G.L. c. 265, § 15A (inserted by St.1927, c. 187, § 1). Section 15A punishes assaults and batteries committed by "means of a dangerous weapon" but does not expressly define the term "dangerous weapon." Instead, the meaning of the term was evolved through case law. Recently in COMMONWEALTH V. APPLEBY, --- MASS. ---, 402 N.E.2D 1051 (1980)^E the Supreme Judicial Court stated that the concept of a dangerous weapon as used in § 15A embraces two classes of objects "dangerous weapons per se" (those specially designed and constructed to produce death or great bodily harm, id. at --- - ---, ^f 402 N.E.2d 1051); and objects which are not dangerous per se but which can be used in a dangerous fashion to inflict serious harm. Id. at --- - ---, ^g 402 N.E.2d 1051. A wide variety of objects have been held to fall within the latter category. See Commonwealth v. Farrell, 322 Mass. 606, 615, 78 N.E.2d 697 (1948) (lighted cigarette); Commonwealth v. Tarrant, 2 Mass.App. 483, 486-487, 314 N.E.2d 448 (1974), Id., 367 Mass. 411, 326 N.E.2d 710 (1975) ("kitchen-type" knife and German shepherd dog); Commonwealth v. LeBlanc, 3 Mass.App. 780, 334 N.E.2d 647 (1975) (automobile door used to strike police officer); United States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963) (chair brought down upon victim's head); United States v. Loman, 551 F.2d 164, 169 (7th Cir.), cert. denied, 433 U.S. 912, 97 S.Ct. 2982, 53 L.Ed.2d 1097 (1977) (walking stick used with enough force to break it); People v. White, 212 Cal.App.2d 464, 465, 28 Cal.Rptr. 67 (1963) (a rock); Commonwealth v. Branham, 71 Ky. (8 Bush.) 387, 388 (1871) (a chisel used for stabbing); Bennett v. State, 237 Md. 212, 216, 205 A.2d 393 (1964) (microphone cord tied around victim's neck); People v. Buford, 69 Mich.App. 27, 30, 244 N.W.2d 351 (1976) (dictum) (automobile, broomstick, flashlight and lighter fluid all may be dangerous as used); State v. Howard, 125 N.J.Super. 39, 45, 308 A.2d 366 (App.Div.1973) (straight razor); State v. Martinez, 57 N.M. 174, 176, 256 P.2d 791 (1953) (a knife with a blade two inches long); Regan v. State, 46 Wis. 256, 258, 50 N.W. 287 (1879) (large stones). We recognize that our cases have held that questions as to whether instrumentalities which are not dangerous per se have been used in a dangerous fashion are generally reserved to the fact finder to be decided on the basis of the circumstances surrounding the crime, the nature, size and shape of the object, and the manner in which it is handled or controlled. See Commonwealth v. Farrell, 322 Mass. at 614-615, 78 N.E.2d 697; Commonwealth v. Tarrant, 367 Mass. 411, 416, 326 N.E.2d 710 (1975) (armed robbery); COMMONWEALTH V. APPLEBY, --- MASS. AT ---, 402 N.E.2D 1051.^H However, for the reasons now discussed we think that human teeth and other parts of the human body should be removed from consideration as dangerous weapons in § 15A indictments, even on a case-by-case basis.

First, all the Massachusetts cases which have considered the use of neutral objects as potential weapons in the commission of assault crimes have considered instrumentalities apart from the defendant's person. The Farrell, Tarrant and Appleby decisions considered a lighted cigarette, an attack dog, and a riding crop, respectively. Even when the act of "kicking" underlies the charge of assault with a "dangerous weapon," the shoe or boot, not the foot, is the object which is considered as the "weapon" subjecting the assailant to a charge of aggravated assault. See Ransom v. State, 460 P.2d 170, 171-172 (Alaska 1969). See also Commonwealth v. Durham, 358 Mass. 808, 809, 265 N.E.2d 381 (1970) (shoe used to stomp on victim's hand); Nolan, Criminal Law § 325 (1976) ("(a) person's shoe . . . when used to kick a person . . . becomes a dangerous weapon"); Annot., 33 A.L.R.3d 922, 927-929 (1970). Since the adoption of § 15A, there has been no decision reported in this State which holds that human hands, feet or teeth alone can constitute a dangerous weapon. This suggests that for over fifty years prosecutors have not considered assault cases involving the use of hands, feet, fingers or teeth as incidents where "dangerous weapons" were employed. It also suggests that prosecutors have been reluctant to read our judicial precedent on the subject as inviting indictments pressing factual contentions that parts of the body can be used as weapons. Rather, where serious or disabling injuries are inflicted, and the requisite intent is present, district attorneys typically bring indictments under § 14 (mayhem) or § 15 (assault with intent to maim or disfigure) of c. 265; otherwise § 13A (assault and battery) is used as the prosecutorial tool to vindicate society's interest. Thus in the context of the practical application of the statute the concept of neutral objects used as dangerous weapons has been confined to independent nonhuman instrumentalities. These considerations, in light of the fact that fifty-three years have elapsed since the Legislature enacted § 15A, call, in our view, for the exercise of judicial restraint in expanding the concept beyond its traditional scope.

Second, the notion that parts of the body may be used as dangerous weapons has not been generally accepted elsewhere. The clear weight of authority is to the effect that bodily parts alone cannot constitute a dangerous weapon for the purpose of an aggravated assault based on the alleged use of such a weapon. This is so, irrespective of the degree of harm inflicted. See Ransom v. State, 460 P.2d at 172; Dickson v. State, 230 Ark. 491, 492, 323 S.W.2d 432 (1959); Reed v. Commonwealth, 248 S.W.2d 911, 914 (Ky.1952); State v. Calvin, 209 La. 257, 265-266, 24 So.2d 467 (1945); People v. VanDiver, 80 Mich.App. 352, 356-357, 263 N.W.2d 370 (1977); People v. Vollmer, 299 N.Y. 347, 350, 87 N.E.2d 291 (1949); Bean v. State, 77 Okl.Cr. 73, 81-84, 138 P.2d 563 (1943); State v. Wier, 22 Or.App. 549, 540 P.2d 394 (1975); State v. Hariott, 210 S.C. 290,...