Com. v. Ennis

• Decision Date: 26 June 1985
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Steven ENNIS.

Page 733

479 N.E.2d 733

20 Mass.App.Ct. 263

COMMONWEALTH v. Steven ENNIS.

Appeals Court of Massachusetts Middlesex.

Argued May 8, 1985.

Decided June 26, 1985.

Maureen B. Brodoff, Committee for Public Counsel Services, Boston, for defendant.

Natalea Skvir, Asst. Dist. Atty., for the Com.

Before GRANT, ARMSTRONG and SMITH, JJ.

ARMSTRONG, Justice.

In the immediate aftermath of their armed robbery of a pharmacy in Winchester in 1983, the defendant and his accomplice fled in a yellow Volkswagen, pursued by police. After a high speed chase, they stopped, and a police officer approached the Volkswagen from behind, telling the driver--the only person he could see in the car--to come out with his hands up. The defendant suddenly popped up in the rear seat and, breaking the rear window, fired a shot at the officer. ¹ The Volkswagen sped off. The officer had felt something graze his forehead and found later that he was cut over one eye. He nevertheless resumed the chase. Other officers joined in. More shots were fired on both sides before the defendant and his accomplice were apprehended. In addition to the armed robbery itself and a variety of other charges, the defendant was tried and convicted on three charges of armed assault with a dangerous weapon with intent to murder (G.L. c. 265, § 18[b] ) ² based on the shots fired at different pursuing officers. The three appeals before us are from those convictions only. ³

The appeals are based solely on the judge's instructions to the jury concerning the state of mind necessary for commission of the offenses: in particular, the element of specific intent to kill. See Commonwealth v. Reynolds, 120 Mass. 190, 197-198 (1876); Commonwealth v. Henson, 394 Mass. 584, 590-592, 476 N.E.2d 947 (1985). The defendant concedes that the judge several times instructed the jury that they could not convict without finding "specific intent" (sometimes stated as "specific intent to kill", sometimes as "specific intent to murder," and sometimes unqualified), but he argues that the import of that instruction was substantially undermined by the definition given the jury of "malice", the element which has been held to be the distinction between assault with intent to murder (G.L. c. 265, § 15; if armed, § 18) and assault with intent to kill (G.L. c. 265, § 29). Commonwealth v. Henson, 394 Mass. at 591, 476 N.E.2d 947. Commonwealth v. Alfonso, 19 Mass.App. 599, 604, 476 N.E.2d 621 (1985). The judge defined malice to include "any unexcused intent to kill, to do grievous bodily harm, or to do an act creating a plain and strong likelihood that death or grievous harm will follow." ⁴ That definition, the defendant argues, in effect contradicted the instruction concerning specific intent to kill, planting in the jurors' minds the thought that they might find the defendant guilty of assault with intent to murder on a showing of something less than an intent actually to kill the pursuing officers, such as an intent to wound them or to scare them off by creating a grave hazard.

Commonwealth v. Henson was decided after the trial of this case. It represents the culmination of a line of recent cases (Commonwealth v. Hebert, 373 Mass. 535, 368 N.E.2d 1204 [1977]; Commonwealth v. Parenti, 14 Mass.App. 696, 442 N.E.2d 409 [1982]; Commonwealth v. Alfonso, supra) discussing the specific intent element necessary to convict of assault with intent to murder and assault with intent to kill. The Henson case, as we understand its holding at 590-592, settles that both charges have as an element an actual, subjective intent on the part of the defendant to kill, and that an intent merely to disable or to scare off a pursuer, but not to kill him, does not constitute the intent required by G.L. c. 265, §§ 15, 18, and (in the case of assault with intent to kill) § 29. Recognizing that the requisite intent is far more specific than that implied by the general concept of malice, the Henson case holds that, in the context of these statutes, malice (as the element distinguishing assault with intent to murder from assault with intent to kill) "means only absence of justification, excuse, and mitigation." 394 Mass. at 591.

The definition of malice given by the judge is a traditional and approved definition in Massachusetts, derived from a succession of much cited cases, including Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551 (1899), and Commonwealth v. Huot, 380 Mass. 403, 408, 403 N.E.2d 411 (1980). See discussion in Commonwealth v. McInerney, 373 Mass. 136, 141, 365 N.E.2d 815 (1977); Commonwealth v. Starling, 382 Mass. 423, 427-428, 416 N.E.2d 929 (1981); Commonwealth v. Parenti, 14 Mass.App.Ct. at 699-702, 442 N.E.2d 409. Had one of the three police officers been struck and killed by the defendant's bullets and the defendant charged with murder, an instruction to the jury explaining "malice" in the exact words used here by the judge would have been correct and appropriate. Indeed, the judge prefaced his instruction by saying that, for the purpose of defining the concept of murder for the jury, he would explain as if the officers assaulted had in fact been killed. The instruction to the jury on the crime of assault with intent to murder was structured on (1) an explanation of assault, (2) an instruction that the charge necessitated proof of specific intent to murder, and (3) an explanation of the elements of murder. ⁵

A charge so structured (i.e., by reference to what crime would have been committed if death had resulted) can trace its origin to Commonwealth v. Demboski, 283 Mass. 315, 323, 186 N.E. 589 (1933), where, quoting with approval from State v. Butman 42 N.H. 490, 493 (1861), the court stated that "if the evidence shows an intent to kill under such circumstances as to constitute a murder, if death had followed, the party may be convicted of assault with intent to murder. If the offense, if completed, would be manslaughter only, the party may be convicted of assault with intent to kill only, or may be convicted of an assault only." A charge structured around the difference between murder and manslaughter in effect suggests to the jury that they determine which crime would have been committed if death had resulted, and then give effect to the fact that death did not result by finding assault with intent to murder, or assault with intent to kill only, in accordance with whether the crime would have been murder or only manslaughter if death had followed.

Such a charge invites misunderstanding because neither murder nor manslaughter requires an actual intent to kill. Commonwealth v. McInerney, 373 Mass. 136, 141, 365 N.E.2d 815 (1977). Commonwealth v. Hebert, 373 Mass. 535, 538-539, 368 N.E.2d 1204 (1977). Commonwealth v. Puleio, 394 Mass. 101, 107, 474 N.E.2d 1078 (1985). The misleading potential of such a charge cannot be illustrated better than by referring to the familiar class of cases, of which this is one, where a fleeing robber shoots at pursuing police officers. If a bullet should strike and kill one of the officers, the robber would be guilty of murder because (apart from the felony-murder concept) his act was malicious in the legal contemplation of that term, regardless whether his purpose was to kill or merely to frighten off his pursuers. But if a death does not result, he cannot be convicted of assault with intent to murder or assault with intent to kill if his intent was merely to frighten off his pursuers.

In light of the Henson case, we feel that it is inadvisable to structure jury charges in cases of assault with intent to murder in a manner that involves the traditional definition of murder. Such an instruction will tend to confuse the jury because of its incorporation of a definition of malice that is less specific than the state-of-mind element needed for conviction of assault with intent to murder. It will be more helpful to the jury if the crime is described as consisting of three elements: (1) assault, (2) a specific (or actual) intent to kill the person assaulted, and (3) malice. ⁶ The third element should be defined, as the Henson case indicates, as an absence of justification or mitigation. ⁷ The lesser included offense of assault with intent to kill consists of the first two elements coupled with the absence of justification and the presence of mitigation. See Nolan, Criminal Law § 324 (1976).

It is conceded by both the defendant and the Commonwealth that, in this case, the judge was correct in omitting to charge the jury on the lesser included offense of assault with intent to kill. In the typical case of a fleeing felon shooting at pursuing police officers, there will be no suggestion of mitigation such as to call for an instruction on assault with intent to kill and surely no suggestion of justification. It is settled that the judge should not charge on a lesser included offense not suggested by any reasonable view of the evidence. Commonwealth v. Rembiszewski, 363 Mass. 311, 320-321, 293 N.E.2d 919 (1973); Commonwealth v. Walden, 380 Mass. 724, 727-728, 405 N.E.2d 939 (1980); Commonwealth v. Bellamy, 391 Mass. 511, 514-515, 461 N.E.2d 1215 (1984).

From appellate examination of transcripts in assault-with-intent-to-murder cases, we recognize that the form of charge given in this case has been used frequently, without objection. Where, as here, no objection was raised at the trial, reversal is called for if there is a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). Commonwealth v. Williams, 378 Mass. 242, 242-243, 390 N.E.2d 1114 (1979). In the class of cases we are considering (the fleeing felon eluding arrest), the evidence does not, as a rule, show overwhelmingly an intent on the part of the felon to kill, rather than merely to wound or frighten off, his pursuers. Where examination of the judge's instructions, read as a whole, leaves the impression that the jury could have understood...