Com. v. Johnson, 88-P-1204

• Decision Date: 02 November 1989
• Docket Number: No. 88-P-1204,88-P-1204
• Parties: COMMONWEALTH v. Christopher JOHNSON.
• Court: Appeals Court of Massachusetts

Page 22

543 N.E.2d 22

27 Mass.App.Ct. 746

COMMONWEALTH v. Christopher JOHNSON.

No. 88-P-1204.

Appeals Court of Massachusetts Suffolk.

Argued June 7, 1989.

Decided Aug. 28, 1989.

Further Appellate Review Denied Nov. 2, 1989.

Andrew Silverman, Committee for Public Counsel Services, for defendant.

Jane A. Donohue, Asst. Dist. Atty., for Com.

Before ARMSTRONG, KASS and FINE, JJ. KASS, Justice.

To the cashier and night cook of the Dragon Inn Restaurant in Dorchester the defendant Johnson had become a familiar face. He had robbed the Dragon Inn five times and had attempted a sixth robbery within a four-month period. Shot and apprehended during the last visit, the defendant was convicted on five indictments of armed robbery and one indictment of armed assault with the intent to commit robbery. On his appeal Johnson protests that he was not armed on the sixth raid on the Dragon Inn's cash register; that the judge imposed a vindictively harsh sentence; and that veiled references by prosecution witnesses to previous arrests of the defendant were inadequately neutralized. We affirm.

1. Whether the defendant was armed with a dangerous weapon on the occasion of the last assault. On the first four occasions that the Dragon Inn was held up, the robber, who was identified as the defendant, ¹ brandished a firearm. On the fifth occasion, which occurred at 9:30 P.M. on April 30, 1987, the robber appeared to be armed in that he had his hand in his left jacket pocket, held up about waist high, pointing away from him. He demanded money and received a little over $30. Later that night, at 10:45 P.M., the robber turned up again, similarly suggested a weapon in his pocket and demanded "all the money." After the earlier episode, the cashier, Robert Cheung, had called his landlord, Thomas Williams. Accompanied by his son, Williams entered the restaurant while the second holdup of the night was under way. Some struggle ensued, during the course of which the younger Williams shot and wounded the defendant.

No firearm was found on the defendant. Next to where he collapsed after having been shot, the police found a hairbrush. That is the dangerous weapon with which the defendant stands convicted of having been armed when he attempted the aborted robbery. It was open to the jury to find that the hairbrush had spilled from Johnson's pocket and that, when he attempted the holdup, he had grasped the hairbrush in his pocket so as to simulate a handgun. The defendant urges that a hairbrush cannot be the basis for a conviction of assault with intent to rob while armed with a dangerous weapon. G.L. c. 265, § 18(b ).

It is not necessary that the object designated as a dangerous weapon be inherently dangerous, so long as that object, from the perspective of the victim, reasonably appears capable of inflicting bodily harm, and the accused intends the victim to be intimidated. Commonwealth v. Tarrant, 367 Mass. 411, 417, 326 N.E.2d 710 (1975) (a dog). Commonwealth v. Nicholson, 20 Mass.App.Ct. 9, 17, 477 N.E.2d 1038 (1985) (toy gun). Commonwealth v. Garafolo, 23 Mass.App.Ct. 905, 907, 499 N.E.2d 839 (1986) (toy gun). To the cashier at the Dragon Inn, who had seen the defendant point a real gun on at least four occasions, the concealed hairbrush pointed at him reasonably represented "an objective threat of danger." Commonwealth v. Tarrant, 367 Mass. at 416, 326 N.E.2d 710. In Commonwealth v. Howard, 386 Mass. 607, 611, 436 N.E.2d 1211 (1982), the court decided that a finger concealed in a pocket could not be defined as a dangerous weapon. Even if an accused said he was armed, if he did not, at the time of the offense, have "some instrumentality in his possession, there can be no conviction of robbery while 'armed with a dangerous weapon.' " Ibid.

The concurring Justice in Howard (O'Connor, J.), envisioned circumstances uncomfortably close to those we now consider in illustrating his skepticism about the object versus part-of-the-body differentiation. That standard, he observed, "distinguish[es] between a statement plus a finger in a pocket and a statement plus a pocket comb or a pen." Id. at 617, 436 N.E.2d 1211. Yet there may be sound ground for fitting seemingly innocuous objects within the term "dangerous weapon" when that is how they are reasonably perceived. One of the reasons that an offense is aggravated if committed while armed with a dangerous weapon is the potential for sudden and violent reaction when objects are used in a way which makes a person appear to be armed. Commonwealth v. Slaney, 345 Mass. 135, 140, 185 N.E.2d 919 (1962). Commonwealth v. Henson, 357 Mass. 686, 693, 259 N.E.2d 769 (1970). Commonwealth v. Tarrant, 367 Mass. at 415, 326 N.E.2d 710. Commonwealth v. Carter, 396 Mass. 234, 237, 484 N.E.2d 1340 (1985). Commonwealth v. Perry, 6 Mass.App.Ct. 531, 535-536, 378 N.E.2d 1384 (1978). See the cases assembled in Commonwealth v. Davis, 10 Mass.App.Ct. 190, 192-193, 406 N.E.2d 417 (1980), among which such every day items as a flashlight, a walking stick, a chair, a broomstick, a dog, a lighted cigarette, and lighter fluid were placed in the "dangerous" category as used.

This case handsomely illustrates that it is not just high altitude theory to suppose that an object which is dangerous or, as used, looks dangerous may ignite violence and harm. ² Reasonable apprehension that the defendant Johnson was armed with a gun, as he had been on previous occasions, provoked Williams to produce his own weapon and to shoot Johnson, as well as to cause a melee and gunfire in a restaurant during business hours. Not only did the hairbrush produce an intended fear of harm, it fulfilled a dangerous weapon's consequential tendency to provoke a breach of the peace. We think the jury could consider whether, in factual context, the hairbrush was a dangerous weapon. The defendant's motion for a required finding of not guilty on the indictment arising out of the aborted robbery was, therefore, properly denied.

2. Vindictive sentencing. After the close of the evidence and final arguments of counsel there was a conference among the judge and counsel, some of it off the record. Immediately preceding his charge to the jury, the judge said:

"All right, I just want to put on the record that I made an offer to you, to your client relative to numbers six to nine. Six to nine is the number, and we'll put this on the record, and your client's rejected that."

When the jury returned verdicts of guilty on all six indictments, the judge imposed concurrent nine to fifteen year sentences. The defendant argues that imposition of the more severe sentences after the defendant chose to go the entire distance to jury verdicts suggests a "reasonable likelihood of vindictiveness," United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982), "unrebutted by objective proof dispelling a vindictive motive." Commonwealth v. Damiano, 14 Mass.App.Ct. 615, 623 & n. 14, 441 N.E.2d 1046 (1982).

Participation by a trial judge in plea bargaining, although not proscribed in Massachusetts, ³ is discouraged. See Commonwealth v. Damiano, 14 Mass.App.Ct. at 618-619 & n. 7, 441 N.E.2d 1046; Reporter's Notes to Mass.R.Crim.P. 12(b)(2), Mass.Ann.Laws, Rules of Crim.P. at 203 (Law.Co-Op.1979); Smith, Criminal Practice & Procedure § 1212 (2d ed. 1983). As this case demonstrates, a judge's involvement in the process risks generating charges of coercion or vindictiveness. Given that risk, a judge should be particularly reluctant to engage in bargaining with the defendant after all the evidence has been received and the preponderance of the time and effort involved in a trial has been expended. That an action may not be favored, however, does not automatically make that action error.

Error enters the picture if a defendant is punished for exercising his right to trial and the verdict of a jury. Letters v. Commonwealth, 346 Mass. 403, 405, 193 N.E.2d 578 (1963). Commonwealth v. Coleman, 390 Mass. 797, 804 n. 7, 461 N.E.2d 157 (1984). Commonwealth v. Joseph, 11 Mass.App.Ct. 879, 881, 421 N.E.2d 105 (1981). Commonwealth v. Damiano, 14 Mass.App.Ct. at 618, 441 N.E.2d 1046. Commonwealth v. Banker, 21 Mass.App.Ct. 976, 978, 489 N.E.2d 1029 (1986). That a defendant receives a stiffer sentence than was offered does not, by itself, betoken vindictiveness. See Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 2206-2207, 104 L.Ed.2d 865 (1989); Hitchcock v. Wainwright, 770 F.2d 1514, 1519 (11th Cir.1985) (en banc), rev'd on other grounds sub nom. Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). The willingness of the defendant to admit guilt, for example, is a proper factor in more lenient sentencing. American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 1.8 (Approved Draft, 1968), cited with approval in United States v. Williams, 459 F.2d 763, 768 (3d Cir.1972); Moody v. United States, 497 F.2d 359, 363 n. 4 (7th Cir.1974); Frank v. Blackburn, 646 F.2d 873, 885-886 (5th Cir.1980) (en banc), cert. denied, 454 U.S. 840 (1981).

Notably absent from this record is any expression by the judge of displeasure about Johnson's failure to accept the sentence offered him or that consequences would follow from that failure. In those cases in which a more severe sentence following a rejected plea bargain has been held violative of the constitutional right to trial, the common thread has been the offer of a more lenient sentence in a "plea or else" form. See United States v. Stockwell, 472 F.2d 1186,...