Com. v. Francis
Decision Date | 04 August 1987 |
Citation | 24 Mass.App.Ct. 576,511 N.E.2d 38 |
Parties | COMMONWEALTH v. Kevin FRANCIS. |
Court | Appeals Court of Massachusetts |
Diana L. Maldonado, Committee for Public Counsel Services, for defendant.
Harry D. Quick, III, Asst. Dist. Atty., for the Com.
Before GREANEY, C.J., and DREBEN and KASS, JJ.
The defendant was convicted of assault and battery on a correction officer. G.L. c. 127, § 38B. He claims error in the judge's instructions. More specifically, he urges that the judge did not, as required, instruct that the defendant's knowledge of the officer's status is an element of the offense and that the Commonwealth had the burden of proof on this issue. The defendant also complains of the judge's instructions on self-defense. We affirm.
The evidence relevant to this appeal was, in large part, undisputed. The defendant, an inmate of North Central Correctional Institution at Gardner, was in the serving line in the dining hall of that institution when another inmate, one Everett Selvelky, threw a tray of food at him. A struggle ensued, punches were exchanged, and Selvelky attempted to jab the defendant with a fork. In the course of restraining the two inmates, a correction officer was injured. The Commonwealth contended that the officer was assaulted by the defendant.
The defendant claimed that he did not know that a correction officer was involved. He testified that, after Selvelky threw the tray at him, Selvelky tried to stab him in the neck and midsection with a fork. In defending himself, the defendant struck Selvelky. The defendant testified that he did not know who was trying to subdue him or that the persons who grabbed him from behind were correction officers. He was just trying to get away and may have flailed his arms in the attempt.
The relevant statute, G.L. c. 127, § 38B, set forth in the margin, 1 does not explicitly require that a defendant have knowledge of the victim's identity. In construing a similar statute, G.L. c. 265, § 13D, as appearing in St.1975, c. 680, assault and battery "upon a police officer engaged in the performance of his duty," we have required a specific intent to strike a police officer. Commonwealth v. Rosario, 13 Mass.App.Ct. 920, 430 N.E.2d 866 (1982). Older cases suggest that knowledge of the officer's identity was required to establish the commonlaw offense. See Commonwealth v. Kirby, 2 Cush. 577, 579, 581-582 (1849); Commonwealth v. Hurley, 99 Mass. 433, 434 (1868); Commonwealth v. Sawyer, 142 Mass. 530, 533, 8 N.E. 422 (1886). See also G.L. c. 277, § 79, suggesting an indictment form including the language "as said (defendant) well knew." 2
We need not belabor the point because, in any event, as we point out later, the judge charged that knowledge of the victim's identity as a correction officer was required. We also note that where, as here, the issue of self-defense against an officer is material, the question of the defendant's knowledge or at least his reason to know of the officer's identity is relevant. This is true even under the Federal authorities and is based on the premise that "an honest mistake of fact would not be consistent with criminal intent." United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 1264, 43 L.Ed.2d 541 (1975). See United States v. Ulan, 421 F.2d 787, 789-790 (2d Cir.1970); United States v. Perkins, 488 F.2d 652, 654-655 (1st Cir.1973), cert. denied, 417 U.S. 913, 94 S.Ct. 2612, 41 L.Ed.2d 217 (1974); United States v. Nerone, 563 F.2d 836, 850 (7th Cir.1977), cert. denied sub. nom. Hornstein v. United States, 435 U.S. 951, 98 S.Ct. 1577, 55 L.Ed.2d 801 (1978); United States v. Plummer, 789 F.2d 435, 438 (6th Cir.1986).
The right of an individual to defend himself is modified where a police or correction officer is involved. Even in circumstances where the defendant would be justified in using force in lawful defense of his person against a third person, he may not do so against a police or correction officer unless the officer uses excessive or unnecessary force. Commonwealth v. McMurtry, 20 Mass.App.Ct. 629, 632, 482 N.E.2d 332 (1985). Where the status of the victim affects the privileged use of force in self-defense, the cases cited above indicate that the prosecution should show that the defendant knew or had reason to know of the victim's identity. See also Commonwealth v. Moreira, 388 Mass. 596, 601, 447 N.E.2d 1224 (1983).
We turn to the judge's charge. The judge first instructed the jury on assault and battery generally. When he reached the more specific offense of assault and battery on a correction officer, he outlined the right of an officer to use force to effectuate an arrest or to maintain order. See G.L. c. 127, § 33. He explained the general rules applicable to self-defense and then pointed out, in accordance with the principles set forth above, that the rules in prison are different. He stated:
"I have outlined for you now, the jury, the considerations you must weigh in deciding whether the Correctional Officers used appropriate or excessive force and whether the Defendant Francis committed an unlawful assault and battery or acted in justifiable self-defense against excessive force in the dining hall."
After discussing certain issues relating to a codefendant, the judge continued:
(Emphasis supplied.) 3
At the close of the judge's charge, the defendant's counsel requested that "it should be made perfectly clear to the jury that the defendant must have known at the time of the striking that he was striking a corrections officer." Counsel also asked the judge to charge on the principles of self-defense which would be applicable if the defendant did not realize that the victim was a correction officer. It was the judge's view that he had already instructed in accordance with the defendant's requests based on Commonwealth v. Rosario, 13 Mass.App.Ct. at 920, 430 N.E.2d 866. 4
1. We think the charge sufficiently alerted the jury to the requirement that the defendant had to have knowledge that the victim was a correction officer, and that the burden of proof on this issue was on the Commonwealth. In addition to the excerpts from the charge set out above, the judge instructed the jury extensively on the Commonwealth's burden of proof beyond a reasonable doubt, the presumption of the defendant's innocence, and the fact that the defendant did not have the burden of proving himself not guilty. Viewing the instructions as a whole, we do not consider the italicized language to have shifted the burden of proof. See Commonwealth v. Sylvester, 400 Mass. 334, 337-338, 509 N.E.2d 275 (1987).
While the defendant now urges that knowledge of the victim's identity should have been stated as an element of the offense, he did not make any such request at trial. In any event, the instructions set forth a requirement of knowledge even though not defined as an element of the crime charged. See United States v. Dixon, 558 F.2d 919, 921 (9th Cir.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1237, 55 L.Ed.2d 764 (1978). See also Commonwealth v. Aronson, 330 Mass. 453, 457-458, 115 N.E.2d 362 (1953).
2. We find unpersuasive the defendant's criticism of the charge on self-defense. Just prior to the giving of the instruction on self-defense quoted above, the judge told the jury:
The defendant objects to the standard "has reason to know." Here again he made no protest to the trial judge. In any event, there was no error. The language is almost verbatim that of Commonwealth v. Moreira, 388 Mass. at 601, 447 N.E.2d 1224--"a person...
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