Com. v. Martin

• Decision Date: 02 February 1976
• Citation: 369 Mass. 640,341 N.E.2d 885
• Parties: COMMONWEALTH v. Daniel R. MARTIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 885

341 N.E.2d 885

369 Mass. 640

COMMONWEALTH

v. Daniel R. MARTIN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 4, 1975.

Decided Feb. 2, 1976.

Joseph F. Flynn, for defendant.

Alan L. Kovacs, Asst. Dist. Atty., for the Commonwealth.

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

KAPLAN, Justice.

The defendant Daniel R. Martin appeals under G.L. c. 278, §§ 33A--33G, from his multiple convictions, described in the margin, ¹ arising from a clash between inmates and guards at Massachusetts Correctional Institution at Concord on October 15, 1972. The issue on appeal is whether the trial judge committed error in failing to instruct the jury with respect to the defendant's claimed justification or defense, namely, that the acts of which he was accused were part of an attempt on his part to come to the aid of a fellow inmate and friend, Gene Tremblay (tried and convicted together with the defendant ²), who was being unlawfully beaten by prison guards. The Commonwealth, without expressly conceding the matter, does not actually dispute that the evidence adduced by the defendant at the trial provided a basis in fact for such instructions. It contends, however, that no proper request was made for the instructions, ³ and doubts whether the law of Massachusetts recognizes the use of force for the protection of another person as a justification or defense for the actor.

Only the defendant Martin's convictions are before us on this appeal.

1. We sketch very briefly the facts as they appeared at trial. The prosecution was of course intent to show that the defendant's acts were simply aggressive attacks on the correction officers in a prison brawl, while the defendant strove to prove that he acted honestly and reasonably upon observing the inmate Tremblay being beaten by the officers.

According to the prosecution's case, a struggle erupted between two correction officers and two inmates as the inmates were being escorted from a second-floor segregation unit down to a first-floor area for showers and exercise. One of the inmates, Tremblay, fought with an officer near the stairwell and the officer fell or was shoved down the stairs, with Tremblay following him down. The fallen officer yelled to officers on the first floor for help, and one of them, John Quealey, restrained Tremblay, while others went to summon aid. Officer Quealey held Tremblay by the hair while pushing him toward and into an open cell on the first floor. According to the prosecution's proof, Tremblay was held in the cell but not beaten; no clubs or other weapons were used by the officers in the affray although it appeared that clubs were kept in a nearby desk.

Meantime the second inmate involved in the fight on the second floor had taken the cell keys from the other officer and released other inmates of the segregation unit. Several of the inmates, including the defendant, ran down the stairs and met officers who had arrived to give help. In the melee, Officer Quealey was stabbed a number of times in the chest and once on the arm. Officer Quealey testified that as he was struggling with an inmate, he saw the defendant strike at him three times, and he saw a knife in the defendant's hand as the defendant stepped back. Other officers testified that they saw an attack by the defendant on Officer Quealey, or saw the defendant with a knife immediately after the attack (the testimony was not entirely consistent). There was further testimony that the defendant struck Frederick Taylor, a correction officer, with his fist and threatened him with a knife, saying 'Back off, or I will give it to you, too.'

The defendant took the stand to give his version of the facts. He was corroborated in part by the codefendant Tremblay. Because the defendant's view was obstructed by a partition between the rows of cells on either side of the second floor, he had not been able to see the fight there and did not know who had started it. When his cell was opened, he walked to the end of the partition but, seeing blood on the floor and hearing sounds of a struggle on the stairs, he started back to his cell. He then heard Tremblay calling for help and surmised that Tremblay was in grave danger. The defendant raced down the stairs and saw Officer Quealey and two other officers striking Tremblay with clubs and a metal mop handle as he lay on the floor of an open cell. Tremblay had his arms over his head and was trying to fend off the blows. He was yelling for help. The defendant struck several officers, including Officers Quealey and Taylor, with his fists in his effort to pull the officers off Tremblay. The defendant denied that he had a knife at this time; he did not stab Officer Quealey or threaten Officer Taylor with a knife. He testified that he first saw the knife on the floor where another inmate had dropped it after the stabbing of Officer Quealey.

The violence ended when assistant deputy superintendent Nicholas Genakos ordered the officers to withdraw while he and Jon Cooke, a social worker, negotiated with the inmates. During the negotiation Cooke saw the defendant with a knife and, when Genakos asked for it, the defendant said, 'We'll see how this goes.' The defendant testified that he made the statement and that he did have a knife, but only for a short interval when Cooke saw it. A search by the State police after the inmates had returned peaceably to their cells failed to turn up a knife.

The evidence on the part of the defendant, summarized above, was sufficient to lay a basis for a charge to the jury on the justification claimed by him (see point 3 below). It is of course immaterial that the triers might very well, in the end, lend no credence whatever to the defendant's version of the facts. As was said in Commonwealth v. Campbell, 352 Mass. 387, 398, 226 N.E.2d 211, 219 (1967), quoting from People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281 (1951), "However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." See Commonwealth v. Vanderpool, --- Mass. ---, --- - ---, ^a 328 N.E.2d 833 (1975); United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969), and cases cited.

2. The judge instructed the jury with respect to self-defense and even related these instructions to the question whether the defendant was privileged to use a dangerous weapon to protect himself from attack by Officer Quealey. But he gave the jury no instructions on the subject of the privileged use of force to protect another. This failure seems to have been due to the judge's belief that the claimed justification was not recognized in the law of Massachusetts.

The defendant made due request in writing for jury instructions on the subject. His request was submitted the day before the judge charged the jury. The main requested instruction (No. 9) was a quotation from the relevant statute law of Illinois as reproduced in the case of People v. Johnson, 4 Ill.App.3d 249, 251, 280 N.E.2d 764 (1972): 'A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. . . .' Smith-Hurd Ill.Ann.Stat. c. 38, § 7--1 (1972). Five further instructions were requested related to the subject. ⁴ After the judge had concluded his charge, the defendant's counsel, directing attention to the six instructions by their numbers in the written request previously handed, up excepted to the judge's failure to give any of them: 'On behalf of the defendant Martin, I would like to take an exception to the failure of the Court to give my requests for instructions to the jury, No. 9, 10, 12, 13, 14 and 15 . . ..'

We do not accept the Commonwealth's suggestion that the exception was insufficient to advise the judge of the asserted error. The present case is distant from Commonwealth v. Shea, 323 Mass. 406, 82 N.E.2d 511 (1948), cited by the Commonwealth, where the defendants attempted to take a 'shot-gun exception' to so much of the charge as was inconsistent with the requests for rulings, and did not point out the portions of the charge they considered inconsistent and erroneous, despite the judge's request that they do so. Id. at 416, 82 N.E.2d 511; and see the bill of exceptions in that case at 78. Although it is of course possible in the context of a particular trial that a reference by numbers to a sequence of requests may not be clear or emphatic enough to alert the judge to the substance (cf. Delancey v. Motichek Towing Serv., Inc., 427 F.2d 897, 900--901 (5th Cir. 1970); Burns v. United States, 286 F.2d 152, 157 (10th Cir. 1961); 5 L. Orfield, Criminal Procedure Under the Federal Rules § 30:52, at 79 (1967)), we do not think there was any such difficulty here. The transcript suggests that the judge was actually looking at the written requests when counsel took his exception but, even if he was not, he could not have been unaware, in light of the line of interrogation counsel had pursued throughout the trial, a colloquy with counsel at the bench, and counsel's summation, ⁵ that the privilege to defend another was the keystone of hte defense. The judge's failure to charge on the matter therefore appears not to be a consequence of the defendant's failure to inform him of error in the charge, but rather to be traceable, as we have said, to the judge's view of the governing law.

3. We hold that a justification corresponding roughly to that quoted from the Illinois statute ⁶ is recognized by the law of the Commonwealth. Of course the justification may exist although it is not found in so many words in our statute law: ⁷ it may be read into the definition of a statutory offense or considered a common-law adjunct to, or qualification of, the offense. This is easily accepted and understood as to the more commonplace justification of...