Com. v. Harris

• Decision Date: 29 May 1987
• Parties: COMMONWEALTH v. Oscar L. HARRIS.
• Court: Appeals Court of Massachusetts

Page 221

505 N.E.2d 221

23 Mass.App.Ct. 687

COMMONWEALTH v. Oscar L. HARRIS.

Appeals Court of Massachusetts,

Norfolk.

Argued Feb. 10, 1987.

Decided March 25, 1987.

Further Appellate Review Denied May 29, 1987.

Scott P. Curtis, Brookline, for defendant.

Stephanie Martin Glennon, Asst. Dist. Atty., for Com.

Before GRANT, KAPLAN and BROWN, JJ.

GRANT, Justice.

Early in 1982 a grand jury sitting in Norfolk County returned separate indictments against the defendant under the provisions of G.L. c. 265, § 18, as in effect prior to St. 1981, c. 678, § 3, ¹ (no. 78253) and those of G.L. c. 265, § 15A, as in effect prior to St. 1981, c. 678, § 1, (no. 78255). ² Indictment no. 78253 bore on its reverse the typed legend "265/15" and the printed inscription "ASSAULT WITH INTENT TO MURDER." ³ The docket for no. 78253 describes the offence charged as "ASSAULT WITH INTENT TO MURDER 265/15."

When he moved for trial, the prosecutor described the offence in no. 78253 as "assault with intent to murder." ⁴ The session clerk advised the venire that the defendant was charged with armed robbery, "assault with intent to murder," and assault and battery by means of a dangerous weapon. After the jury were selected and sworn, the clerk read all three indictments, including no. 78253, which charged that the defendant, "being armed with a dangerous weapon, to wit, a buck knife, did assault [named victim] with intent to murder her." At trial, there was evidence that the defendant had stabbed the victim several times with a sharp knife. The judge, in his charge, dealt first with the various elements of the offences of assault and battery by means of a dangerous weapon and of armed robbery. He then turned to the remaining indictment which, he told the jury, "alleges 'assault with intent to murder.' " He then read no. 78253, including the words "being armed with a dangerous weapon." He referred the jury to the definitions of an "assault" and a "dangerous weapon" which he had already given them on no. 78255. In the course of responding to a request by the jury for further instructions on the questions of "malice aforethought and intent," the judge reread the language of no. 78253 and instructed that the defendant had to have been armed with a dangerous weapon. At no point did the judge instruct on the subject of lesser included offences with respect to any of the indictments.

Shortly thereafter the jury returned with verdict slips on all three indictments. See Mass.R.Crim.P. 27(a), 378 Mass. 897 (1979). The slip for no. 78252 (armed robbery) had been marked on the line for "Not Guilty." The slip for no. 78255 (assault and battery by means of a dangerous weapon) had been marked on the line for "Guilty." The slip for no. 78253 described the offence charged as "Assault W/I Murder" and had been marked on the line for "Guilty." ⁵ The judge, to whom the slips were presumably shown, raised no question with the foreman as to whether the jury had found the defendant guilty of simple assault with intent to murder (G.L. c. 265, § 15) or armed assault with intent to murder (G.L. c. 265, § 18). See Commonwealth v. Brown, 367 Mass. 24, 28, 323 N.E.2d 902 (1975). The clerk made the following notation on the reverse of the indictment: "4/21/82 Jury Returns Verdict Guilty." The following sequence then occurred with respect to no. 78253: "THE CLERK. Members of the jury, what say you, Mr. Foreman, on Indictment No. 78253, assault with intent to murder, is the Defendant guilty or not guilty? THE FOREMAN. Guilty (emphasis supplied). THE CLERK. Members of the jury, harken to your verdict as the Court has recorded it. You upon your oath do say that the Defendant is 'guilty.' THE FOREMAN. Yes. THE CLERK. So say you, Mr. Foreman, so say all you members of the jury. THE JURY. Yes." No effort was made by anyone to clarify the question as to the offence of which the defendant had been convicted before the jury were discharged and its members dispersed. Contrast Commonwealth v. Brown, 367 Mass. at 27-29, 323 N.E.2d 902. The prosecutor promptly moved for sentencing on nos. 78253 and 78255. The prosecutor recommended "on the armed assault with intent to murder, Nineteen to Twenty years, MCI Walpole." When the judge inquired whether he could impose a sentence of that length, the prosecutor responded, "It's armed assault with intent to murder, which is Chapter 265, Section 18A." ⁶ The judge replied, "The caption on the indictment is 265-15." The hearing on disposition was continued for approximately three weeks. When it resumed, the judge remarked that the defendant had been "found guilty on two charges of assault with intent to murder and assault and battery by means of a dangerous weapon." The prosecutor recommended a sentence of nineteen to twenty years "[o]n the armed assault with intent to murder." When the clerk announced the sentence on no. 78253, which he described as "the charge of assault with intent to murder," it was not less than nineteen nor more than twenty years at M.C.I., Walpole (now Cedar Junction). The defendant was also given a concurrent sentence of from nine to ten years for assault and battery with a dangerous weapon (no. 78255).

The defendant's appeal to the Appellate Division of the Superior Court was ultimately dismissed. His appeal to this court on the merits of his convictions was transferred to the Supreme Judicial Court on that court's initiative. The Commonwealth recited at the outset of its brief that "[t]hese are appeals from judgments of conviction of assault with intent to murder (no. 78253) (G.L. c. 265 Section 15) ... and assault and battery by means of a dangerous weapon (no. 78255) (G.L. c. 265 Section 15A)...." ⁷ A perusal of the briefs on that appeal discloses that no question was raised as to the validity of the sentence on no. 78253. The court, at the outset of their opinion, said: "The defendant appeals from his convictions of assault with intent to murder and assault and battery by means of a dangerous weapon." Commonwealth v. Harris, 395 Mass. 296, 297, 479 N.E.2d 690 (1985). The opinion made no reference to the sentence on no. 78253. The rescript was, "Judgments affirmed."

Several months after the issuance of the rescript the defendant, acting pro se under Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979), filed a motion in the Superior Court to correct the sentence on no. 78253 on the ground that he had been convicted of simple assault with intent to murder (G.L. c. 265, § 15) rather than armed assault with intent to murder (G.L. c. 265, § 18) and that his sentence of nineteen to twenty years exceeds the maximum of ten years permitted by G.L. c. 265, § 15. See notes 3 and 1, respectively, supra. The trial judge denied the motion without a hearing, and the defendant appealed. Mass.R.Crim.P. 30(c)(8), 378 Mass. 902 (1979).

We reject at the outset the Commonwealth's contention, based on Commonwealth v. Pisa, 384 Mass. 362, 366-367, 425 N.E.2d 290 (1981), that we should hold that the defendant has waived any question as to possible illegality of his sentence by not raising it on the earlier appeal. ⁸ The contention overlooks the language of Mass.R.Crim.P. 30(a), which is explicit that a convicted prisoner "may at any time, as of right, file a written motion requesting the trial judge ... to correct the sentence which he is then serving." See generally Commonwealth v. Lupo, 394 Mass. 644, 646-648, 476 N.E.2d 963 (1985); Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 14 and n. 9, 490 N.E.2d 1195 (1986). That aspect of the rule merely perpetuates the prior practice, although it substitutes a postconviction motion for a petition for a writ of error. See Commonwealth v. Conroy, 333 Mass. 751, 757, 133 N.E.2d 246 (1956).

The only question for decision is whether the defendant was convicted of simple assault with intent to murder (G.L. c. 265, § 15), for which the maximum sentence was and is ten years, or was convicted of armed assault with intent to murder (G.L. c. 265, § 18), for which the maximum sentence was twenty years. The parties, in their briefs, have rehearsed most of the instances already adverted to in which the prosecution, the trial judge or the Supreme Judicial Court used the words "assault with intent to murder" either alone or in contradistinction to the words "armed assault with intent to murder." The prosecution urges that the defendant was convicted of the more serious offence because the jury found him guilty on an indictment which charged him with "[having been] armed with a dangerous weapon" when he assaulted the victim. The defendant points to the fact the foreman of the jury answered "Guilty" in response to a question by the clerk in which he described no. 78253 as charging "assault with intent to murder." He also argues that both the foreman and the jury knew exactly what they were doing because the verdict slip recited that the indictment charged the defendant with "Assault W/I Murder," not "Armed Assault W/I Murder."

Although the question is not entirely free from doubt, we think the defendant has the better of it. Our law is clear that "[t]he only verdict which can be received and regarded, as a complete and valid verdict of a jury, upon which a judgment can be rendered, is an open and public verdict, given in and assented to, in open court, as the unanimous act of the jury, and affirmed and entered of record, in the presence and under the sanction of the court." Lawrence v. Stearns, 11 Pick. 501, 502 (1831). See also Commonwealth v. Tobin, 125 Mass. 203, 206 (1878) ("[T]he verdict which determines the rights of the parties, and is admitted of record, and upon which judgment is rendered, is the verdict received from the lips of the foreman in open court."); Rich v. Finley, 325 Mass. 99, 105-107, 89 N.E.2d 213 (1949); A Juvenile v. Commonwealth, 392 Mass. 52, 56-57, 465 N.E.2d 240 (1984); Commonwealth v. Kalinowski, 12 Mass.App.Ct. 827, 829-830, 429 N.E.2d 368 (1981); Commonwealth v. Diaz, 19...