Com. v. Marrero

• Decision Date: 11 December 1984
• Citation: 19 Mass.App.Ct. 921,471 N.E.2d 1356
• Parties: COMMONWEALTH v. Jose L. MARRERO.
• Court: Appeals Court of Massachusetts

Page 1356

471 N.E.2d 1356

19 Mass.App.Ct. 921

COMMONWEALTH v. Jose L. MARRERO.

Appeals Court of Massachusetts Essex.

Argued Nov. 15, 1984.

Decided Dec. 11, 1984.

Bruce Ferg, Brockton, for defendant.

Edward F. Connelly, Newton, Dyanne Klein Polatin, Asst. Dist. Atty., with him, for Commonwealth.

Before GREANEY, C.J., and ARMSTRONG and FINE, JJ.

RESCRIPT.

Upon conviction by a jury in the Superior Court of charges of attempted escape (G.L c. 268, § 16) and assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A), the defendant was sentenced to concurrent terms of imprisonment. On appeal, he attacks only his conviction on the assault and battery charge, claiming that the judge erred in denying his motion for a required finding of not guilty and in inadequately instructing the jury. Both contentions involve proof of the dangerous weapon element of the offense.

There was evidence in the Commonwealth's case as follows. On November 2, 1981, the defendant was being held at the Lawrence jail on charges of statutory rape, receiving stolen property, and breaking and entering in the nighttime. That evening he, another inmate named LaCourse and a third unidentified inmate, attempted to escape from the jail by sawing through the bars in a window with hacksaw blades that had been smuggled into the jail. The attempt was unsuccessful and was subsequently discovered by jail officials. The next day, after the evening lockup, the defendant, LaCourse and one Torres went to the victim's cell. The victim had observed the attempted break-out the night before, and LaCourse called him a "rat" for supposedly informing jail officials about the escape. LaCourse placed a paper bag over the victim's head, poking holes for the victim's eyes and mouth, and he, the defendant, and Torres then forced the victim to perform fellatio on them as other inmates watched from outside the cell. LaCourse removed the bag, again called the victim a "rat" and beat him for approximately fifteen minutes.

Coming to the defendant's role in the assault, the victim testified that, after LaCourse stopped beating him, the defendant, who was skilled in karate, began to kick him, jumping up and down on him with "karate kicks." On his direct and redirect examinations the victim testified that the defendant had been wearing boots during the assault. On cross-examination, however, he testified that the defendant had worn sneakers. A police detective testified that the defendant had admitted kicking the victim. The detective further testified that, after the incident, the victim's "face was covered with red welts, bruises. His eyes were black. [He had] red welts about his chest and back. And footprints were visible on his chest area and his back area." The victim was admitted to the hospital with serious and extensive injuries. The victim's father saw his son two days after the beating and observed that the victim "had a bandage over his right eye ... [that] his eyes were swollen ... [and that he had] black and blue all the way down to his cheeks [and] eyes [which] were bloodshot." The father also observed "black and blue marks all the way up" his son's back "in the kidney area." In addition, a series of seven enlarged color photographs of the victim's injuries were admitted in evidence. These photographs depicted the results of a savage beating and showed injuries consistent with the victim's having been kicked or stomped.

1. The defendant argues that his motion for a required finding of not guilty should have been allowed on the dangerous weapon element of the assault and battery charge. To support the argument, he relies upon language in Massachusetts decisions, and cases elsewhere, which indicates that, in determining whether an object is dangerous, a jury "may consider the nature, size, and shape of the object." Commonwealth v. Appleby, 380 Mass. 296, 307 n. 5, 402 N.E.2d 1051 (1980), citing Commonwealth v. Tarrant, 367 Mass. 411, 416, 326 N.E.2d 710 (1975). See also Commonwealth v. Davis, 10 Mass.App.Ct. 190, 193, 406 N.E.2d 417 (1980). The defendant urges that the jury did not have enough evidence before them, by way of a description of his footwear, to warrant a conclusion that the footwear had been used as a dangerous weapon.

Footwear, such as a shoe, when used to kick, can be a dangerous weapon. See Commonwealth v. Durham, 358 Mass 808, 809, 265 N.E.2d 381 (1970); Nolan, Criminal Law § 325 (1976); Annot., 33 A.L.R.3d 922, 927-929 (1970). The essential question, when an object which is not dangerous per se is alleged to be a dangerous weapon, is whether the object, as used by the defendant, is capable of producing serious bodily harm. See Commonwealth v. Appleby, 380 Mass. at 304, 402 N.E.2d 1051, "Of course where the neutral object is in fact used to inflict serious injury it would clearly be a dangerous weapon." Commonwealth v. Tarrant, supra, 367 Mass. at 416 n. 4, 326 N.E.2d 710. Resolution of these questions is invariably for the factfinder, see Commonwealth v. Appleby, supra, and involves not only consideration of any evidence as to the nature and specific features of the object but also attention to the circumstances surrounding the assault and the use of the object, and the manner in which it was handled or controlled. Commonwealth v. Farrell, 322 Mass. 606, 614-615, 78 N.E.2d 697 (1948). Commonwealth v. Appleby, supra, 380 Mass. at 304-305, 402 N.E.2d 1051. Commonwealth v. Davis, supra, 10 Mass.App. at 193, 406 N.E.2d 417.

The evidence most favorable to the Commonwealth in this case, see Commonwealth v. Amaral, 13 Mass.App.Ct. 238, 239, 431 N.E.2d 941 (1982), indicates that ...