Com. v. Hogan

• Decision Date: 08 November 1979
• Parties: COMMONWEALTH v. Alan HOGAN et al. 1 (and two companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 978

396 N.E.2d 978

379 Mass. 190

COMMONWEALTH v. Alan HOGAN et al. ¹ (and two companion cases).

Supreme Judicial Court of Massachusetts, Essex.

Argued Sept. 13, 1979.

Decided Nov. 8, 1979.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

Alan P. Caplan, Boston, for Alan Hogan.

Robert Emmet Dinsmore, Boston, for Gilbert LaRocque.

James B. Krasnoo, Boston, for Joseph F. Quartarone, Jr.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The Appeals Court reversed the defendants' convictions of kidnapping, assault and battery by means of a dangerous weapon, and mayhem and ordered a new trial on the indictments (except as to LaRocque on the mayhem indictment). Commonwealth v. HOGAN, --- MASS.APP. ---, 387 N.E.2D 158 (1979)^A. We granted the Commonwealth's application for further appellate review. We agree with the conclusions reached by the Appeals Court and discuss only certain of the issues raised by the defendants' appeals.

We need not summarize the evidence in detail. It is sufficient to note that there was evidence that the three defendants kidnapped Linda Condon. They drove to an apartment in Newburyport where she lived with her husband. The defendants Hogan and Quartarone left the car with clubs, entered the apartment, and beat Theodore Condon, causing fractures of bones in his legs and other severe injuries.

1. The Appeals Court reversed all convictions because, in its view, the trial judge improperly forbade cross-examination of the Condons designed to show bias because criminal charges were pending against them. We agree with the Appeals Court that the defendants were entitled to show that criminal charges were pending against the Condons. Where such charges are pending, there is a possibility of bias in favor of the government, and normally it is for the jury, and not the judge, to determine the effect, if any, of those pending charges on the witness's testimony. This is not a case in which the record shows that there was no possible basis for finding a prosecutorial threat to the witness's freedom (Commonwealth v. Santos,--- Mass. ---, ---, ^B 384 N.E.2d 1202 (1978)), nor a case in which the witness's testimony was shown to be unaffected by bias because that testimony was consistent in all material respects with the witness's statements given to the police before he was arrested for various unrelated crimes (Commonwealth v. Haywood, --- Mass. ---, --- - ---, ^C 388 N.E.2d 648 (1979)). If, due to pending criminal charges, the possibility of witness bias is present, even if it is an unlikely one, a defendant is entitled to inquire on the subject.

2. The Appeals Court determined that the evidence did not warrant a conviction of LaRocque of the crime of mayhem and that consequently his motion for a directed verdict on that charge should have been granted. Commonwealth v. Hogan, supra --- at ---, ^D 387 N.E.2d 158. We agree that the evidence did not warrant a finding that LaRocque had the intent to aid Hogan and Quartarone in maiming or disfiguring Condon.

The question is whether a jury could have found beyond a reasonable doubt that LaRocque, who stayed in the motor vehicle with Linda Condon while the others entered the apartment carrying clubs, shared or knew of the intent of his companions that Theodore Condon be maimed or disfigured. See Commonwealth v. Latimore, --- Mass. ---, --- - ---, ^E 393 N.E.2d 370 (1979), concerning the standard to be applied in passing on a motion for a directed verdict in a criminal matter. Here, there was no direct evidence of LaRocque's intent or of his knowledge of the intent of Hogan or Quartarone. Thus any finding of such an intent or of knowledge of the intent of the others would have had to have been based on reasonable inferences drawn from the evidence, and those inferences in turn would have had to have warranted a finding beyond a reasonable doubt that LaRocque possessed or was privy to an intent to maim or disfigure Condon.

The evidence, which is correctly summarized by the Appeals Court, ² shows that LaRocque knew that Hogan and Quartarone might use the clubs on Condon, and thus the evidence warranted LaRocque's conviction of assault and battery by means of a dangerous weapon, as he concedes. But that evidence does not warrant an inference beyond a reasonable doubt that LaRocque knew of or shared Hogan's and Quartarone's intent that Condon be maimed or disfigured. See Commonwealth v. Richards, 363 Mass. 299, 307-308, 293 N.E.2d 854 (1973). We have not extended the concept of general complicity applicable in the area of felony murder to other crimes. See Commonwealth v. Ambers, 370 Mass. 835, 839 n.1, 352 N.E.2d 922 (1976); Commonwealth v. Clark, 363 Mass. 467, 473 n.2, 295 N.E.2d 163 (1973); Commonwealth v. Richards, supra 363 Mass. at 306-307, 293 N.E.2d 854; Commonwealth v. Jones, 6 Mass.App. ---, --- - ---, ^F 383 N.E.2d 527 (1978); Commonwealth v. Mangula, 2 Mass.App. 785, 789, 322 N.E.2d 177 (1975). Here LaRocque knew that Hogan and Quartarone might beat Condon with clubs. It is a possible consequence of such a beating that injuries constituting maiming of disfiguring as described in the mayhem statute (G.L. c. 265, § 14) might occur. But neither an intent to maim or disfigure nor the knowledge of the intent of Hogan and Quartarone to maim or disfigure, an essential element of the crime, can be attributed to LaRocque solely from his knowledge that Condon might be beaten. Here, LaRocque could not have conditionally anticipated that infliction of injuries constituting mayhem might become necessary in order to effectuate the crime of assault and battery or to make good an escape. Contrast Commonwealth v. Richards, supra 363 Mass. at 308, 293 N.E.2d 854, where an assault with intent to murder was contingently foreseeable for completion of a planned armed robbery. The Appeals Court correctly ordered that judgment be entered for LaRocque on the mayhem indictment.

3. Although the Appeals Court ordered a new trial on the indictment for assault and battery with a dangerous weapon and also, except as to LaRocque, on the indictment for mayhem, it discussed the propriety of the consecutive sentences on these indictments imposed on Hogan and Quartarone. Commonwealth v. Hogan, supra --- Mass.App., at --- - ---, ^G 387 N.E.2d 158. The Appeals Court considered the evidence and the judge's instructions and, we think, correctly concluded that the judge's charge on mayhem was inadequate. The charge permitted the jury to convict for assault and battery with a dangerous weapon on the basis of the first blow struck and, without requiring a finding of an intent to maim or disfigure, permitted the jury to convict of mayhem on the basis of the blows subsequently struck. The Appeals Court further concluded that the convictions on the mayhem and assault and battery indictments were based on the "same evidence" and consecutive sentences could not be imposed for that reason. COMMONWEALTH V. HOGAN, SUPRA AT ---, 387 N.E.2D 158.^H Our conclusion is that this case does not involve the "same evidence" rule (barring consecutive sentences) but simply a deficient jury instruction on which a conviction of mayhem could not be upheld.

We discuss first our treatment of the "same evidence" rule as bearing on multiple sentences. If, on the evidence and the judge's charge in a particular case, one crime could have been proved completely by evidence forming part of the necessary proof of the other crime, we have disallowed the imposition of consecutive sentences. See Commonwealth v. Stewart, --- Mass. ---, --- - ---, ^I 377 N.E.2d 693; Commonwealth v. Cerveny, ...