Com. v. Johnston

• Decision Date: 08 June 2005
• Docket Number: No. 04-P-1207.,04-P-1207.
• Parties: COMMONWEALTH v. Craig JOHNSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

828 N.E.2d 568

63 Mass. App. Ct. 680

COMMONWEALTH v. Craig JOHNSTON.

No. 04-P-1207.

Appeals Court of Massachusetts, Hampden.

Argued March 4, 2005.

Decided June 8, 2005.

COPYRIGHT MATERIAL OMITTED

Daniel J. Bennett, Boston, for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Present: PERRETTA, GRASSO, & MILLS, JJ.

GRASSO, J.

In this appeal, we examine the considerable complexity arising from decisional law that defines "malice" for the crime of assault with intent to murder differently from "malice" for the crime of murder. A jury found the defendant guilty of armed assault with intent to murder based on an incident that occurred at his wife's workplace on December 17, 2002. On appeal, the defendant maintains that because the jury heard evidence of his fragile emotional state in the week prior to the incident, a substantial risk of a miscarriage of justice arises from the trial judge's failure to instruct, sua sponte, that "malice" is a required element of the crime.¹ We affirm the defendant's conviction because the evidence was insufficient to require an instruction on malice, which "in this instance means only absence of justification, excuse, and mitigation." Commonwealth v. Velazquez, 61 Mass.App.Ct. 667, 671, 814 N.E.2d 356 (2004), quoting from Commonwealth v. Henson, 394 Mass. 584, 591, 476 N.E.2d 947 (1985).

1. Facts. Viewed in the light most favorable to the defendant, the evidence bearing on mitigation was as follows. The defendant and his wife, Susan, had been married for nearly twenty-seven years and lived together in a home that they owned in Springfield. On the morning of December 11, 2002, the defendant was getting ready for work when individuals arrived at his home, put up a sign that said "auction today," and began to tour the property. Although the defendant's wife knew that the bank had initiated foreclosure proceedings, the defendant was unaware of the depth of the problem. His wife, who controlled the finances, had told him the month before that they were only $800 behind in their mortgage payments. In reality, they were closer to $8,000 in arrears.

That evening, after the defendant had become drunk, he confronted his wife for lying to him about the mortgage, and demanded to know what had become of their money. At some point during the confrontation, the defendant discovered that his wife had purchased a number of expensive new kitchen utensils. He became enraged, attacked her with a pastry brush, and threw beer bottles at the wall.² The next morning, the defendant's wife sneaked from the house while the defendant was still asleep. She checked into a Holiday Inn hotel, and did not return home or see the defendant until the incident at her workplace on December 17.

When the defendant awoke on the morning of December 12, he immediately began to drink. For the next five days, he continued to drink and did not go to work. He attempted to call his wife at her work several times a day, but she refused to take his calls. The defendant described himself as "upset and depressed over the fact that we were losing the house and that [she] had lied to me."

Other witnesses who saw the defendant that week also described his condition. Thomas Bertrand, the defendant's friend for twenty-two years, visited him for approximately one hour. Bertrand stated that he had never seen the defendant in such a state, and described him as intoxicated, crying, shocked, and "quite a bit depressed." The defendant's stepdaughter-in-law, Cheryl Glidden, and her son, Donald, saw the defendant for approximately fifteen to thirty minutes. Cheryl stated that she had never seen the defendant in such an emotional state; she described him as intoxicated, upset, crying, disheveled, depressed, and agitated. Donald described his grandfather as drunk, very stressed out, very sad, and crying. The defendant's stepson, Todd Glidden, who visited the defendant on two separate occasions, described him as very upset, very emotional, and unable to stop crying. He observed that the defendant drank beer and whiskey from early morning until he went to bed drunk. Thomas Bertrand, Cheryl Glidden, and Todd Glidden all urged the defendant to go to a hospital, but the defendant refused to seek assistance.

On the morning of December 17, the defendant attempted to drink, but his body rejected the alcohol, and he threw up. At that point, the defendant decided to carry out a plan that he had been formulating for "a couple of days." Specifically, he planned to go to the hospital where his wife worked and threaten her with a weapon, so as to cause a "big scandal" that would humiliate her in front of her coworkers, just as she had humiliated him. He hoped to get arrested because he could not stand the thought of "sitting there in his house waiting to get evicted." He believed that if he were incarcerated, his wife would be left to pack up all their possessions and forced to survive on one paycheck instead of two. The defendant decided to bring a knife to the hospital so that people would take him seriously and he would not be thrown out immediately. Because injuries sustained in the altercation with his wife on December 11 had left him unable to grip a knife with his right hand, he secured a knife to his hand with electrical tape.

On arriving at the hospital, the defendant proceeded directly to his wife's cubicle. He approached her from behind, grabbed her by the hair with his left hand and yelled at her.³ Hospital employees intervened and restrained the defendant, who continued to struggle. When the police arrived, they secured the knife and took the defendant into custody.

2. Discussion. At trial, the defendant's defense was not one of intoxication or of mental illness. "He did not suggest or even intimate that, as a result of his drinking, he was incapable of forming the requisite specific intent." Commonwealth v. Fano, 400 Mass. 296, 306, 508 N.E.2d 859 (1987). The defendant's entire defense was that he intended to humiliate and humble his wife, not kill her. The evidence of the defendant's drinking and emotional condition in the week prior to the attack portrayed the defendant's response to discovering that his home was about to be foreclosed and that his wife was leaving him. It was not offered to suggest that the defendant did not know what he was doing or that he was unable to formulate a specific intent to kill his wife.⁴

At the charge conference, defense counsel agreed with the judge that there was insufficient evidence of intoxication to require an instruction on intoxication as a factor in determining the defendant's ability to form a specific intent to cause his wife's death. See Commonwealth v. Sylvester, 400 Mass. 334, 336 & n. 3, 509 N.E.2d 275 (1987) (where evidence tends to show that defendant was debilitated by alcohol or other drugs at commission of crime, judge must so instruct jury if requested). Nor did counsel request an instruction on the effect of the defendant's mental condition on his ability to form a specific intent.⁵ See Commonwealth v. Grey, 399 Mass. 469, 470-471, 505 N.E.2d 171 (1987) ("Just as we permit evidence of a defendant's alleged intoxication to be considered when his specific intent to kill is in issue [Commonwealth v. Henson, 394 Mass. 584, 593, 476 N.E.2d 947 (1985)], we should permit the jury to consider evidence of mental impairment at the time of the crime in deciding whether the Commonwealth has proved the defendant's specific intent").

The trial judge instructed the jury, without objection, that to prove armed assault with intent to murder, the Commonwealth needed to establish that the defendant (1) was armed with a dangerous weapon; (2) assaulted a person; and (3) "possessed a specific or actual intent to cause the death of the person who was assaulted."⁶ The judge also instructed on the lesser included offense of simple assault.

The defendant now argues that the evidence raised a reasonable doubt as to his mental frailty that required the judge to instruct the jury that the Commonwealth had the burden to prove that the defendant was acting with malice, which in this circumstance is the absence of mitigation. See Commonwealth v. Boateng, 438 Mass. 498, 515, 517, 781 N.E.2d 1207 (2003). Stated differently, the defendant argues that the judge erred in not providing an instruction on malice because the jury heard evidence of mitigating circumstances—that he was suffering from depression that rose "to the level of human frailty consistent with mental illness." We discern no error and no substantial risk of a miscarriage of justice.

"[M]alice, as an element of assault with intent to murder, has a very specific meaning. In this context, malice means merely the `absence of justification, excuse, [or] mitigation.'"⁷ Commonwealth v. Nardone, 406 Mass. 123, 130, 546 N.E.2d 359 (1989), quoting from Commonwealth v. Henson, 394 Mass. at 591, 476 N.E.2d 947. See Commonwealth v. Velazquez, 61 Mass.App.Ct. at 671 n. 5, 814 N.E.2d 356 (malice for "assault with intent to murder is limited to the absence of justification, excuse, and mitigation, which can logically coexist with the requirement of a specific intent to kill"). An instruction on malice is not required unless and until evidence of justification, excuse, or mitigation is introduced during trial. Id. at 674, 814 N.E.2d 356. See Commonwealth v. Nardone, 406 Mass. at 132, 546 N.E.2d 359 ("Once evidence of mitigation is introduced... malice becomes an issue and the judge must instruct the jury accordingly." [emphasis in original]).⁸

As with intoxication, mental illness was not the theory on which the defendant's case proceeded before the jury. See Commonwealth v. Fano, 400 Mass. at 306, 508 N.E.2d 859 ("theory on which a case is tried below cannot be changed on appeal"). The defendant maintained that his actual plan was to "hurt, humble, and humiliate" his wife, not kill her. Consistent with this theory, ...