Com. v. Dunn

• Decision Date: 26 June 1997
• Citation: 43 Mass.App.Ct. 58,680 N.E.2d 1178
• Parties: COMMONWEALTH v. James DUNN.
• Court: Appeals Court of Massachusetts

Page 1178

680 N.E.2d 1178

43 Mass.App.Ct. 58

COMMONWEALTH v. James DUNN.

Appeals Court of Massachusetts Hampden.

Argued April 8, 1997.

Decided June 26, 1997.

Warren M. Yanoff, Worcester, for defendant.

James M. Wodarski, Assistant District Attorney, for the Commonwealth.

Before PORADA, IRELAND and GREENBERG, JJ.

IRELAND, Justice.

The defendant was convicted by a Superior Court jury of the crime of home invasion, G.L. c. 265, § 18C, and received a sentence of from twenty-four to thirty years in State prison. ¹ The defendant argues that G.L. c. 265, § 18C, is unconstitutionally vague on its face. He also argues that the term of imprisonment under the statute (a minimum of twenty years up to life for a first offense) constitutes cruel and unusual punishment under State and Federal constitutional provisions. Both issues presented in the appeal involve a facial challenge to the home invasion statute; hence, for purposes of appellate review, the facts underlying the conviction are not relevant. See Commonwealth v. Williams, 395 Mass. 302, 303 n. 1, 479 N.E.2d 687 (1985).

1. Vagueness. The well-settled principles for determining whether a criminal statute is unconstitutionally vague and, therefore, a violation of due process are stated in Commonwealth v. Williams, supra at 303-304, 479 N.E.2d 687. A criminal statute must be "sufficiently clear to give notice of the prohibited conduct." Id. at 304, 479 N.E.2d 687, citing Commonwealth v. Bohmer, 374 Mass. 368, 371-372, 372 N.E.2d 1381 (1978). The statute must "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Id. at 304, 479 N.E.2d 687, quoting from Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). Proscribed conduct need not, however, be set forth by "precise legal definition" or with "mathematical precision." Commonwealth v. Williams, supra at 304, 479 N.E.2d 687. A person may fairly be required to conform his conduct "to an imprecise but comprehensible normative standard." Ibid., quoting from Commonwealth v. Orlando, 371 Mass. 732, 734, 359 N.E.2d 310 (1977).

When examining a criminal statute for possible unconstitutional vagueness, we may go beyond the actual language of the statute to give meaning to the words and phrases according to their common law meaning or statutory history. See Commonwealth v. Gallant, 373 Mass. 577, 581, 369 N.E.2d 707 (1977). A criminal statute is to be construed strictly against the Commonwealth and in favor of the defendant. See Commonwealth v. Lightfoot, 391 Mass. 718, 720, 463 N.E.2d 545 (1984). But a statute need not be so strictly construed " 'as to defeat the obvious intention of the legislature' or 'to override common sense.' " LaFave & Scott, Substantive Criminal Law § 2.2(d), at 109 (1986), quoting from Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976), and United States v. Moore, 423 U.S. 122, 145, 96 S.Ct. 335, 346-47, 46 L.Ed.2d 333 (1975).

Bearing these principles in mind, we examine the statute to determine if it is impermissibly vague. General Laws c. 265, § 18C, inserted by St.1993, c. 333, and approved with an emergency preamble, establishes the crime of home invasion. The statute, in pertinent part, reads as follows:

"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 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 by imprisonment in the state prison for life or for any term of not less than twenty years."

From the language quoted, the defendant asserts a number of ambiguities which he claims could make criminal otherwise innocent conduct. First, he contends that the statute fails to distinguish a lawful from an unlawful entry. The term "enters" within the statute is given no special definition. Nonetheless, the word is to be construed as an unlawful entry, consistent with its use in a criminal context. See Black's Law Dictionary 533 (6th ed. 1990) ("In criminal law, entry is the unlawful making [of] one's way into a dwelling or other house, for the purpose of committing a crime therein"). See also Commonwealth v. Ricardo, 26 Mass.App.Ct. 345, 355, 526 N.E.2d 1340 (1988) (for purposes of armed assault within a dwelling, G.L. c. 265, § 18A, entry must be "unpriviledged" or unlawful). Indeed, the act's very caption--"An Act Establishing the Crime of Home Invasion"--bespeaks legislative intent that a consensual or privileged entry is not an "invasion."

Further, the word "enters" appears in related statutory contexts, including G.L. c. 265, § 18A, supra, and G.L. c. 266, §§ 14-19 (pertaining generally to burglary and to breaking and entering). As here, the word contemplates the common law meaning of an unlawful, or nonconsensual, entry. Terms appearing within the same or related statutes are to be given the same meaning unless the Legislature intends a different meaning. See Commonwealth v. Perry, 6 Mass.App.Ct. 531, 535, 378 N.E.2d 1384 (1978).

The defendant next points out that the statute's omission of a comma immediately before the phrase, "while armed with a dangerous weapon," means that that phrase could refer to the occupant of the dwelling and not to the perpetrator. We need not interpret a statute so as "to override common sense," LaFave, supra at 109, or reach an absurd result, even when faced with minor and insignificant flaws or oversights in draftsmanship. The simple insertion of a comma immediately before the phrase makes the meaning clear. Other criminal statutes include the same element or requirement as the home invasion statute that a perpetrator be "armed with a dangerous weapon." See G.L. c. 265, § 17 (armed robbery); G.L. c. 265, § 18 (assault with intent to rob or murder); G.L. c. 265, § 18A (armed assault in a dwelling); and G.L. c. 266, § 14 (armed burglary). See also Commonwealth v. Perry, supra at 535, 378 N.E.2d 1384. The phrase "armed with a dangerous weapon" obviously refers to the perpetrator of the crime of home invasion and not to the potential victim.

The defendant seizes upon the statute's failure to state what constitutes "a dangerous weapon," or to specify whether the dangerous weapon is legally or illegally possessed, or even to make clear whether the force or threat of force must be occasioned by actual use of the dangerous weapon. Nowhere in the roundup of statutes we have already cited is "dangerous weapon" defined. Rather, its meaning is left largely to the factfinder to determine "the instrumentalities's potential for harm as it might ... objectively seem[ ] to a reasonable individual." Commonwealth v. Tarrant, 367 Mass. 411, 414, 326 N.E.2d 710 (1975) (referring to dangerous weapon under the armed robbery statute, G.L. c. 265, § 17). What constitutes "a dangerous weapon" does not fluctuate with the particular statute in which that term appears. See Commonwealth v. Shea, 38 Mass.App.Ct. 7, 15-16, 644 N.E.2d 244 (1995). The failure to describe what is meant by a dangerous weapon does not render the statute vague.

Whether a "dangerous weapon" is illegally possessed or is used during the commission of the crime of home invasion to commit an assault or battery are both irrelevant under the statute. When the Legislature has intended to criminalize the unlawful, versus lawful, possession of certain types of weapons, it has done so. See G.L. c. 269, § 10. And when the Legislature has intended to distinguish crimes that are committed "by means of a dangerous weapon" from other crimes that are committed simply be "being armed with a dangerous weapon", whether or not the weapon is actually used, it has also done so. Compare G.L. c. 265, § 15A (assault and battery with a dangerous weapon), and G.L. c. 265, § 15B (assault with a dangerous weapon), with G.L. c. 265, §§ 17, 18, 18A, and G.L. c. 266, § 14, supra. See, e.g. Commonwealth v. Hawkins, 21 Mass.App.Ct. 766, 768, 490 N.E.2d 489 (1986).

Finally, the defendant complains of the statute's lack of specificity as to the modicum of actual or threatened force that is required. According to the defendant, a mere offensive touching of the dwelling's occupant could suffice. We agree that serious bodily injury need not be inflicted or threatened in order to satisfy the element of force. That, however, does not render the statute invalid. As with robbery, "the degree of force is immaterial." Commonwealth v. Jones, 362 Mass. 83, 87, 283 N.E.2d 840 (1972). Commonwealth v. Jones, 12 Mass.App.Ct. 489, 491, 426 N.E.2d 726 (1981). The defendant who "threatens the imminent use of force," G.L. c. 265, § 18C, has committed criminal assault regardless of whether the dwelling's occupant was in fear or apprehension of harm, Commonwealth v. Dixon, 34 Mass.App.Ct. 653, 657, 614 N.E.2d 1027 (1993), or whether the defendant actually intended to harm the occupant. Commonwealth v. Matsos, 421 Mass. 391, 395, 657 N.E.2d 467 (1995).

We conclude that G.L. c. 265, § 18C, is not unconstitutionally vague. The elements of the crime--most of which appear in substantially the same form elsewhere in related criminal statutes--are set forth with reasonable clarity and provide adequate notice of the conduct that the Legislature wishes to proscribe.

2. Cruel and unusual punishment. The defendant contends that the statute's mandatory minimum sentence of twenty years--compared to sentences that appear in other criminal statutes--is excessive and disproportionate, amounting to cruel and unusual...