Com. v. Moore, 92-P-1857

• Decision Date: 09 May 1994
• Docket Number: No. 92-P-1857,92-P-1857
• Citation: 36 Mass.App.Ct. 455,632 N.E.2d 1234
• Parties: COMMONWEALTH v. Bruce S. MOORE.
• Court: Appeals Court of Massachusetts

Page 1234

632 N.E.2d 1234

36 Mass.App.Ct. 455

COMMONWEALTH v. Bruce S. MOORE.

No. 92-P-1857.

Appeals Court of Massachusetts,

Plymouth.

Argued Dec. 14, 1993.

Decided May 9, 1994.

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

Paul C. Dawley, Asst. Dist. Atty., for the Com.

Before BROWN, KAPLAN and LAURENCE, JJ.

BROWN, Justice.

A jury in the Superior Court convicted the defendant upon the following indictments: (1) assault and battery with a dangerous weapon to wit: a motor vehicle (G.L. c. 265, § 15A[b ] ); (2) assault and battery on a police officer (G.L. c. 265, § 13D); and (3) larceny of a motor vehicle (G.L. c. 266, § 28). ¹ The jury acquitted the defendant upon an indictment for assault with intent to murder. See G.L. c. 265, § 13. The appeal is all about the jury instructions. The defendant raised no objection at trial either to the instructions as given or the judge's failure to deliver certain requested instructions.

We are compelled to reverse because the judge misstated an element of the offense of larceny, thereby creating a substantial risk of a miscarriage of justice. As there were also errors in the instructions on the other offenses arising out of the same incident, we conclude that a new trial is warranted on all three indictments. We set out only such facts as are pertinent to our analysis of the legal issues. The defendant stole a Chevy pickup truck owned by one Duquette from an alleyway behind a drinking establishment in Brockton. A police officer took up pursuit, and when the defendant stopped at an intersection, the officer attempted to get into the vehicle for the purpose of taking the defendant into custody. As the officer was reaching for a door handle, the defendant (according to the officer's testimony) grabbed hold of the officer's wrist (the assault and battery on a police officer offense) and took off. The officer attempted to mount the running board and to free himself, but he was unsuccessful. The officer was dragged some distance (about one hundred yards) with his left leg on the ground. As the vehicle was swerving and "swaying back and forth," the officer was continually being slapped against it (the assault and battery with a dangerous weapon offense). See and compare Commonwealth v. LeBlanc, 3 Mass.App.Ct. 780, 334 N.E.2d 647 (1975). Eventually, the officer dropped off and became unconscious. He suffered a concussion and other injuries.

1. Instructions on larceny of a motor vehicle.

The defendant maintains that the judge erred in instructing the jury that they could find the defendant guilty of larceny if they found either an intent permanently to deprive the owner of his property or an indifference to whether the owner recovered his property. There was no objection to the instruction at trial.

"One who takes property without the authority of the owner and so uses it or disposes of it as to show indifference whether the owner recovers possession may be found to intend to deprive the owner of it permanently" (emphasis supplied). Commonwealth v. Salerno, 356 Mass. 642, 648, 255 N.E.2d 318 (1970). See also Commonwealth v. Coyle, 17 Mass.App.Ct. 982, 984, 459 N.E.2d 119 (1984) ("[t]he trial judge correctly instructed the jury that the disposal of property of another with utter indifference to whether the owner recovers its possession may indicate an intent to deprive the owner of it permanently"); Nolan & Henry, Criminal Law § 346, at 259 (2d ed. 1988). Here, however, the judge instructed the jury that to convict the defendant they must find the defendant "to have intended to permanently deprive the owner of the property or ... to have taken the property without authority in a state of mind wherein he was indifferent to whether the [owner] ever got it back or not. He's either got to intend to permanently interfere with the ownership of the property or be indifferent to whether the defendant got it back or not." (Emphases supplied.)

Although indifference to whether the owner recovers possession of the property may indicate that a defendant had the requisite intent to permanently deprive the owner of possession, such indifference is not an alternative to the intent to permanently deprive. It does not automatically suffice to prove the mental element of larceny; it merely may serve as the evidentiary basis from which the jury may infer that an intent to deprive permanently exists. Because this basic element of larceny was misstated, the conviction of that offense must be reversed.

2. Assault and battery instructions.

The defendant contends that the instructions on the "mens rea" element with respect to the assault and battery offenses failed to state the applicable law correctly. He asserts that, in essence, the judge told the jury that all that was required for a finding of guilty on the underlying assault and battery elements of the offenses of assault and battery with a dangerous weapon and assault and battery on a police officer was proof that the defendant did some intentional act, the result of which was a touching of the victim, but that it was not necessary that it be shown that the defendant intended that a touching occur. The defendant did not object at trial to this instruction.

The judge instructed the jury, in part, that to prove the defendant guilty of assault and battery with a dangerous weapon, the Commonwealth must prove that "the defendant touched the person of [Officer] Smith however slightly without having any right or excuse for doing so; second, that the touching was intentional in the sense that it did not happen accidentally; third, that the touching was done with a dangerous weapon." ² The judge then stated, "It is not necessary that the defendant specifically intended to touch [Officer] Smith. It is only necessary that he intentionally did that act which resulted in touching as opposed to having done it accidentally." (Emphasis supplied.) When instructing on the assault and battery elements of the offense of assault and battery of a police officer, the judge repeated the underlined portion of the previous charge. Later, in response to a question from the deliberating jury requesting that the judge redefine assault and battery by means of a dangerous weapon, the judge essentially reiterated the three elements of the offense mentioned above, including the portion that the touching be intentional and not accidental. However, he also included the following:

"Second, the touching must be intentional in that it can't be accidental. If you are riding on a subway and the car lurches and you smash into somebody, it's not an assault, nor a battery because it's an unintentional contact. It has to be an intentional act, but it does not have to have specific intent, you remember. It has to have only general intent. The touching must be done with a dangerous weapon. ... When the law says the touching must be done with the dangerous weapon, it means that the touching must be brought about by the dangerous weapon. In this instance, the Commonwealth alleges the dangerous weapon to be a vehicle. ... [T]he touching [must be] done or brought about by virtue of the use of an object being used as a dangerous weapon."

Although the portion of the instruction underlined above essentially tracks a portion of instruction 5.401 of the Model Jury Instructions for Use in the District Court (1989), this portion ("[i]t is only necessary that he intentionally did that act which resulted in the touching as opposed to having done it accidentally") was inapplicable to the facts of the case and could only mislead the jury.

The crime of assault and battery is defined as the "intentional and unjustified use of force upon the person of another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another" (emphasis supplied). Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633 (1931). The judge in this case did not give (and the Commonwealth did not request) an instruction under the alternative theory--the intentional doing of a wanton or grossly negligent act causing personal injury to another (which requires proof of actual physical injury). Therefore, to convict the defendant of assault and battery, the jury had to do so...