Com. v. Mercado

• Decision Date: 26 June 1987
• Citation: 509 N.E.2d 300,24 Mass.App.Ct. 391
• Parties: COMMONWEALTH v. Rolando MERCADO.
• Court: Appeals Court of Massachusetts

Page 300

509 N.E.2d 300

24 Mass.App.Ct. 391

COMMONWEALTH v. Rolando MERCADO.

Appeals Court of Massachusetts,

Middlesex.

Argued April 14, 1987.

Decided June 26, 1987.

Suzanne Rudalevige, Watertown, for defendant.

Catherine E. Sullivan, Asst. Dist. Atty., for Comm.

Before GRANT, KAPLAN and WARNER, JJ.

KAPLAN, Justice.

Ivan and Rolando Mercado, brothers, stood joint trial on four charges against each: armed assault with intent to murder, mayhem, assault and battery with a dangerous weapon, to wit, a baseball bat, and the same offense with a shod foot, all arising from an incident in Belmont on May 6, 1985. The "intent to murder" charges were reduced by the trial judge to "intent to kill." As to Ivan only, the shod foot charge was dismissed at the close of the Commonwealth's case. A Middlesex jury brought in verdicts of guilty on the other charges. ¹ We deal with Rolando's appeal in which he complains of the judge's denial of motions for required findings of not guilty, and of certain instructions to the jury. We affirm his convictions except the shod foot conviction, which we reverse.

1. The case. The jury could well have seen the case thus. About 3:45 P.M., the eventual victim, Patrick Conlon, having finished his day's work, arrived home at 8 Bradley Road, Belmont. He had a meal and about 4:30 P.M. tried to take a nap in his bedroom on the second floor. This fronts on Bradley Road, a narrow, east-west, one way street, with traffic directed west; 8 Bradley is on the southerly side of the street. Conlon found sleep impossible because of extended, loud revving of a car engine. Looking out the window he saw the offending vehicle, a blue Chevrolet Malibu, parked at the curb in front of his house. The hood was up, but as Conlon watched, a man emerged from under the hood, closed it, and entered the car. The car took off, passed west to the end of the street, raced to the right up Pearson Road and, evidently circling the block, returned to Bradley Road and parked in the same spot as before, some five feet back of another parked car. Conlon had seen the car narrowly miss a child crossing the street on a tricycle. Revving began again, the hood went up, and a man resumed work under it.

Conlon went downstairs, walked to within four or five feet of the man at the hood, told him he shouldn't be speeding because of danger to children on the block, and complained of the noise. The man, identified as the defendant Rolando, slammed his wrench on the radiator, approached Conlon, and said, "What are you going to do, huh?" He struck at Conlon, who blocked the blow with his left hand and knocked Rolando to the ground with his right.

Here Ivan, who, unobserved by Conlon, had been sitting in the car, or standing near the hood, went to the back of the car and took from the trunk a black aluminum baseball bat. He stepped behind Conlon, who was "hunched over" Rolando with an arm raised. Without a word, Ivan, using a two handed grip as if hitting a baseball, brought the bat down on the back of Conlon's skull. Conlon put a hand to the wound; blood ran through his fingers. He tried to rise. Ivan, moving to Conlon's right side, swung again with the same grip and caught Conlon in the forehead above the right eye. As Conlon collapsed to the street, Rolando, unharmed, scrambled up. While righting himself, Rolando "sort of kicked" Conlon, "like a nudge," between kidney and chest. About the same time, or perhaps some seconds after the kick, Ivan struck Conlon's inert body with the bat between shoulder and head. At this point, Rolando took the bat from Ivan and, from his upright position, brought it down on ("whacked") Conlon; probably, as will be seen, the blow struck Conlon on the head. The bat was then thrown into the trunk of the car. The brothers entered the car together and, with the defendant driving, sped off, leaving Conlon on the street, lying on his side, motionless and bleeding, with his head resting on the rear tire of the parked car. The whole episode, from Rolando's blocked blow to the brothers' departure, lasted no more than two minutes or so.

Conlon was taken to Mt. Auburn Hospital in Cambridge where his wounds were observed thus. (i) A three-inch horizontal laceration to the back of the head slightly to the right of center, with a fracture of the occipital bone just below the laceration. (ii) A three-inch, bone deep, diagonal laceration over the right side of the forehead. (iii) A fracture of the right petrous temporal bone (inside the ear) with resulting blood in the right ear drum. (iv) A constellation of fractures down the right side of the face and into the right eye socket: these included two fractures of the orbit bone (surrounding the eye socket), one near the bottom of the right eye, the other near the nose, and fractures of the maxilla (central bone of the face and upper jaw). This constellation accounted for a noticeable flattening of the right side of the face and a displacement of the right eye, which was swollen shut. The first, second, and third injuries may be related to Ivan's three blows as above described; the fourth (constellation) to Rolando's blow or the combined effect of Ivan's third blow and Rolando's. At all events, Rolando's blow was to the head area, for Conlon suffered no other injuries consistent with their being inflicted by a bat; indeed, the injuries in the head area were the only ones requiring medical treatment. ²

Conlon was in the hospital for nine days, returned after eight days for a restorative operation requiring four hospital days, and was out of work for three months. Besides a disfiguring scar on his forehead, he suffers from an enophthalmos condition (nonalignment of his right eye with the left), total loss of sense of smell, and total loss of hearing in his left ear.

Reserved to point 4 below are the facts regarding the arrest of Ivan and Rolando by the police on May 7, the day after the incident.

2. Denial of required findings of not guilty. Eyewitnesses at the scene, called by the Commonwealth, besides Conlon himself, were Daniel Shaughnessy and Robert Valstyn, who at the time were on the outer steps of 19 Bradley Road, across the way from the encounter, and Robert Wilkins, Conlon's neighbor at 60 Pearson Road, at the corner of Bradley Road and Pearson Road, who was on his side porch, which looked out on Bradley Road. As might be expected in such a case, the accounts of these three men do not tally in all details but the main features of the picture are sufficiently clear, with Valstyn's testimony the most consecutive and coherent. The account of Ivan's blows and Rolando's taking the bat from him has multiple support in the evidence, and here we need to emphasize that this evidence also supports a finding that Rolando was so positioned that he could observe and apprehend fully what Ivan was doing to Conlon and the gross effects of those attacks upon Conlon. Valstyn explained how his attention was diverted just after the bat was in Rolando's hands. ³ Wilkins, however, observed Rolando "whacking" Conlon. It is perhaps unnecessary for analytic purposes to locate where on Conlon's body the whacking bat fell, since the blow was in any case accumulative to Ivan's blows and their results, which Rolando saw. As indicated, however, the probabilities appear to be, and the jury could find, that the blow was to Conlon's head and, further, was a severely damaging blow. On the whole case, the jury could find Rolando guilty of three of the offenses charged on both an individual and a joint-enterprise basis.

Individual guilt: There was enough to justify a jury in convicting of assault and battery by means of a dangerous weapon--a baseball bat used in a dangerous way. See Commonwealth v. Appleby, 380 Mass. 296, 308, 402 N.E.2d 1051 (1980); Commonwealth v. Davis, 10 Mass.App.Ct. 190, 192-193, 406 N.E.2d 417 (1980). Regarding the mayhem charge, the jury could find the weapon was applied to a person already seen to be beaten senseless. An intent to maim or disfigure could readily be inferred; the purpose was furthered by the defendant and was surely achieved. See Commonwealth v. Farrell, 322 Mass. 606, 618-619, 78 N.E.2d 697 (1948); Commonwealth v. LeBlanc, 11 Mass.App.Ct. 960, 960-961, 417 N.E.2d 978 (1981). See also Commonwealth v. Hogan, 7 Mass.App.Ct. 236, 244, 387 N.E.2d 158, Id., 379 Mass. 190, 396 N.E.2d 978 (1979). As to armed assault with intent to kill, the jury could look to all the circumstances, see Commonwealth v. Reynolds, 120 Mass. 190, 197-198 (1876); Commonwealth v. Henson, 394 Mass. 584, 591, 476 N.E.2d 947 (1985): here was Conlon with a nice prospect of dying which this defendant acted to hasten; wounds were repeated and serious, with large blood loss, repeated hospitalizations, difficult surgery, and lasting injuries. See Commonwealth v. Gabbidon, 398 Mass. 1, 5-6, 494 N.E.2d 1317 (1986); Commonwealth v. Shea, 398 Mass. 264, 270, 496 N.E.2d 631 (1986); Commonwealth v. Fidler, 23 Mass.App.Ct. 506, 515, 503 N.E.2d 1302 (1987).

Complicity: In the particular case, it requires but a small shift of emphasis to find guilt of the foregoing crimes on a basis of joint venture. Of course this is not an instance of partners deliberating in advance to commit a crime, with subsequent acts rendering each responsible for the other's conduct as well as his own. But, whether from the time of Ivan's entry into the fray, ⁴ or from the moment of the approximate coincidence of Rolando's kick and Ivan's third swing of the bat, to the time of the joint flight from the scene, we have an identity of purpose and a common endeavor, symbolized by the passing of the bat, which could be found to constitute a criminal joint venture. Similarly, in Commonwealth v. Fidler, supra, the defendant Fidler and others fell upon three persons on a deserted street at night. As the assault appeared coordinated, some prior planning might have occurred, but we did not rely on that possibility. It...