Com. v. Ennis

• Decision Date: 07 August 1986
• Citation: 398 Mass. 170,497 N.E.2d 950
• Parties: COMMONWEALTH v. Steven ENNIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 950

497 N.E.2d 950

398 Mass. 170

COMMONWEALTH v. Steven ENNIS.

Supreme Judicial Court of Massachusetts Middlesex.

Argued March 4, 1986.

Decided Aug. 7, 1986.

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

Margot Botsford, Asst. Dist. Atty. (Natalea Skvir, Asst. Dist. Atty., with her) for Com.

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

LYNCH, Justice.

In November, 1983, the defendant, ¹ after a jury trial, was convicted of three charges of assault while armed with a dangerous weapon, with intent to murder, see G.L. c. 265, § 18(b) (1984 ed.), one charge of armed robbery, and a variety of other charges. ² He was sentenced to the Massachusetts Correctional Institution at Cedar Junction for a term of eighteen to twenty years for each conviction for assault while armed with a dangerous weapon, with intent to murder, and for a term of twenty to thirty years for the armed robbery, ³ all sentences to be served concurrently. The defendant appealed only the convictions for assault while armed with a dangerous weapon with intent to murder, and the Appeals Court reversed those convictions. Commonwealth v. Ennis, 20 Mass.App.Ct. 263, 479 N.E.2d 733 (1985). We granted the Commonwealth's application for further appellate review and affirm the convictions.

The indictments for assault while armed with a dangerous weapon, with intent to murder, arose out of a high speed chase which followed the armed robbery of a pharmacy in Winchester in 1983. The defendant and his partner fled the pharmacy in a yellow Volkswagen automobile, pursued by the police. When they finally stopped, a Winchester police officer approached the Volkswagen with his service revolver pointed at the driver, and ordered him, the only person he could see in the car, to get out and put up his hands. The defendant then popped up from the rear seat and pointed a gun at the police officer, who dropped down beside the car for protection. As the officer went down, the rear window of the Volkswagen shattered, the officer "heard a pop," and something struck him on the forehead. ⁴ The Volkswagen then sped away and the officer resumed the chase, with other police joining in. The Volkswagen then approached an officer on traffic duty who had his revolver drawn, having been advised to look out for the car. The defendant fired a shot at him through the windshield of the Volkswagen. The traffic officer "shot one round off" at the rear of the Volkswagen, but the car continued on down the street. As the Volkswagen crossed an intersection in Woburn, a third police officer rammed it with his police car. The Volkswagen's occupants left the car and began to run. After the third officer left his cruiser, drew his revolver, and ordered the suspects to "halt," the defendant turned and fired several shots at him. The officer returned the fire and struck the defendant.

The defendant's appeal was based solely on the judge's instructions to the jury concerning the state of mind necessary for the commission of assault while armed with a dangerous weapon, with intent to murder. The defendant particularly objected to the judge's treatment of the element of specific intent to kill, and argued that the charge permitted the jury to convict without finding an intent to kill. The Appeals Court, applying Commonwealth v. Henson, 394 Mass. 584, 590-592, 476 N.E.2d 947 (1985), ⁵ see Commonwealth v. Ennis, supra 20 Mass.App.Ct. at 265-268, 479 N.E.2d 733, agreed, and held that the judge's instructions on malice, and the structure of the judge's charge, created a substantial risk of a miscarriage of justice. Id. at 269, 479 N.E.2d 733. The Commonwealth now argues that Commonwealth v. Henson, supra, is not to be applied retroactively, and that even if Henson is so applied, the judge's charge did not create a substantial risk of a miscarriage of justice. Although we conclude that Henson is retroactive and thus governs the instant case, we agree that there was no substantial risk of a miscarriage of justice. Accordingly, we affirm the convictions.

1. In Henson, id. 394 Mass. at 590-593, 476 N.E.2d 947, we considered the intent the Commonwealth must prove to demonstrate that a defendant committed an assault with intent to murder. ⁶ The judge had, in effect, charged the jury that "if malice aforethought was proved beyond a reasonable doubt, the intent necessary to prove assault with the intent to murder would be established." We noted that this charge "required the Commonwealth to prove only malice that would support a conviction of murder in the second degree." Id. at 590, 476 N.E.2d 947. We held that, in addition to malice, the crime of assault with intent to murder requires proof of a specific intent to kill. Henson also stated that malice "in this instance means only absence of justification, excuse, and mitigation." Id. at 590, 591, 476 N.E.2d 947.

In determining whether an opinion concerning "decisional law" is retroactive, the threshold question is whether the opinion announced a "new rule." Commonwealth v. Breese, 389 Mass. 540, 541, 451 N.E.2d 413 (1983). "Decisional law usually is retroactive." Commonwealth v. Paszko, 391 Mass. 164, 179-180, 461 N.E.2d 222 (1984), quoting Commonwealth v. Breese, supra. It is when an opinion announces a new rule that "the issue arises whether it will be applied only prospectively." Breese, supra. Thus, assuming Henson to be a pronouncement of decisional law, see Henson, supra 394 Mass. at 591, 476 N.E.2d 947, (referring to assault with intent to murder as a "common law crime"), we must resolve whether Henson announced a new rule.

We have recognized that, for a rule to be considered "new," it "must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed...." Id. 389 Mass. at 542, 451 N.E.2d 413, quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). For a decision to be applied only prospectively, it must represent "a clear break with the past." Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969), and a question of nonretroactive application of a decision is not presented unless it "constitute[s] a sharp break in the line of earlier authority or an avulsive change which causes the current of the law thereafter to flow between new banks," Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 499, 88 S.Ct. 2224, 2234, 20 L.Ed.2d 1231 (1968). See Commonwealth v. Breese, supra. A decision may also establish a new rule if it overturns a "longstanding and widespread practice to which [a high court] has not spoken, but which a near-unanimous body of lower court authority has expressly approved." United States v. Johnson, 457 U.S. 537, 551, 552-553, 102 S.Ct. 2579, 2587, 2588, 2589, 73 L.Ed.2d 202 (1982), and cases cited. Cf. Solem v. Stumes, 465 U.S. 638, 646-648, 104 S.Ct. 1338, 1343-1344, 79 L.Ed.2d 579 (1984) (case which established "bright-line" rule safeguarding preexisting rights constitutes "new rule" where it overturned practice approved of by some lower courts, and where other lower courts disapproved of the practice or acknowledged that the constitutionality of the practice was unsettled).

The Commonwealth contends that by "adding ... a requirement of a specific intent to kill [to the crime of assault with intent to murder], Henson announced a new rule." We disagree. By "explicitly" defining "intent to murder," Henson, 394 Mass. at 591, 476 N.E.2d 947, Henson did not "add" a new requirement to the elements of this crime. Henson's holding that intent to murder means, in the context of this offense, a specific intent to kill, was foreshadowed by prior case law. See Commonwealth v. Breese, supra 389 Mass. at 542, 451 N.E.2d 413. As Henson itself notes, this court had previously held that G.L. c. 265, § 18, required the Commonwealth to prove a specific intent to murder. Commonwealth v. Henson, supra 394 Mass. at 591, 476 N.E.2d 947. See Commonwealth v. Lopez, 383 Mass. 497, 500, 420 N.E.2d 319 (1981); Salemme v. Commonwealth, 370 Mass. 421, 424, 348 N.E.2d 799 (1976). See also Commonwealth v. West, 357 Mass. 245, 249-250, 258 N.E.2d 22 (1970), overruled on other grounds, Commonwealth v. Maguire, 392 Mass. 466, 470, 467 N.E.2d 112 (1984). The requirement of a specific intent to kill as an element of assault with intent to kill had been clearly recognized prior to Henson. See Commonwealth v. Henson, supra, and cases cited. Assault with intent to kill is a crime long understood to be a lesser included offense within the crime of assault with intent to murder. Id. See Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589 (1933). See also Commonwealth v. Hebert, 373 Mass. 535, 538, 368 N.E.2d 1204 (1977). In addition, the specific intent to kill was recognized as an element of assault with intent to murder in Commonwealth v. Richards, 363 Mass. 299, 307 & n. 3, 293 N.E.2d 854 (1973). We note as well that in stating that the "general view of the common law crime of assault with intent to murder is consistent with our view that the prosecutor must prove a specific intent to kill," Commonwealth v. Henson, supra 394 Mass. at 591-592, 476 N.E.2d 947, and authority cited, the court did not suggest that past Massachusetts decisional authority in this area deviated from this general view.

Our reference in Henson to malice as "in this instance mean[ing] ... absence of justification, excuse, and mitigation," id. at 591, 476 N.E.2d 947, was no more than an observation, flowing logically and predictably from the requirement of a specific intent to kill, that the two other prongs of malice: intent to do grievous bodily harm, Commonwealth v. Huot, 380 Mass. 403, 408, 403 N.E.2d 411 (1980); and "knowledge of such circumstances that according to common experience...