Com. v. Parenti

• Decision Date: 24 November 1982
• Citation: 14 Mass.App.Ct. 696,442 N.E.2d 409
• Parties: COMMONWEALTH v. Michael P. PARENTI.
• Court: Appeals Court of Massachusetts

Page 409

442 N.E.2d 409

14 Mass.App.Ct. 696

COMMONWEALTH v. Michael P. PARENTI.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 13, 1982.

Decided Nov. 24, 1982.

Ellen A. Howard, Boston, for defendant.

Kevin J. Ross, Legal Asst. to the Dist. Atty., East Cambridge, for the Commonwealth.

Before GREANEY, CUTTER and PERRETTA, JJ.

GREANEY, Judge.

On December 21, 1979, a Superior Court jury convicted Parenti of armed robbery and unlawfully carrying a firearm. On December 24, 1979, it convicted him of assault with intent to kill. See G.L. c. 265, § 29; Commonwealth v. Demboski, 283 Mass. 315, 186 N.E. 589 (1933). The latter conviction was returned on an indictment charging Parenti, under G.L. c. 265, § 18, with armed assault with intent to commit murder. Concurrent sentences of imprisonment to the Massachusetts Correctional Institution at Walpole were imposed on the armed robbery and firearms convictions; a consecutive sentence of six to ten years was imposed on the assault conviction. On appeal, Parenti argues that the judge's instructions to the jury on the offense of assault with intent to kill were framed in terms of assault with intent to commit involuntary manslaughter, a nonexistent crime. He also contends that his right to a fair trial was prejudiced by certain remarks in the prosecutor's closing argument and by an encounter with two jurors who observed him leaving the courthouse in handcuffs. We reverse the conviction of assault with intent to kill and affirm the convictions on the armed robbery and firearms charges.

The East Arlington branch of the Suburban National Bank was robbed on May 3, 1979, by two masked men carrying pistols. The jury could have found that Parenti and an accomplice were the robbers and that they fled the scene in a blue automobile driven by the accomplice. Officer Thomas Calautti of the Arlington police arrived at the bank in a marked police cruiser just as the blue car pulled away. He immediately gave chase. At a point more than a mile from the bank, Parenti leaned his upper body out of the passenger window and fired three shots in the direction of the pursuing police cruiser. When the shots were fired, the cruiser was approximately 100 to 200 feet behind the blue car. The vehicles were then traveling at a speed between forty and fifty miles per hour. None of the shots hit the cruiser. Parenti was captured by other police officers after he jumped from the moving vehicle.

Before closing arguments, the prosecutor, Parenti's trial counsel, and the judge discussed jury instructions on the charge of armed assault with intent to murder. Both counsel concurred in the judge's view that the jury should also be instructed on assault with intent to kill, which was perceived as a lesser-included offense within the charge of armed assault with intent to murder. ¹ In his main charge, the judge stated that assault with intent to kill "describes in essence the crime of manslaughter as opposed to murder." He then went on to define manslaughter as "the intentional doing of a wanton or reckless act absent an intent to kill, but the act or acts are so dangerous, reckless and wanton that they are likely to cause death or grave bodily harm." Parenti's counsel made no objection to these instructions. The jury subsequently returned guilty verdicts on the armed robbery and firearms charges. After additional deliberations on the assault indictment, however the jury made a request for a "definition on 'armed assault with intent to kill'." In response to the request, the judge further instructed the jury that "we are talking about the doing of an intentional act which if completed would be manslaughter and not murder. Manslaughter is an unintentional killing which results from the doing of a wanton or reckless act that is likely to cause death or serious bodily injury." Parenti's counsel did not object to the supplementary instruction, requesting instead that the instruction be expanded to permit the jury to consider the "lesser-included offense of simple assault." The judge refused the request.

1. The Supreme Judicial Court has held that "an attempt to commit involuntary manslaughter is logically impossible" because an attempt necessarily involves intent and "[i]nvoluntary manslaughter is homicide unintentionally caused." Commonwealth v. Hebert, 373 Mass. 535, 537, 368 N.E.2d 1204 (1977), and cases cited. Since intent is an express element of the crime of assault with intent to kill, the quoted language from the Hebert decision requires the conclusion that assault with intent to kill as defined in the jury instructions in the instant case is also a logical impossibility because the killing in that crime, if accomplished, would have been involuntary manslaughter, which by definition is unintended. Several other jurisdictions which have considered the question have reached the same conclusion, see People v. Otis, 111 Cal.App.3d 467, 473, 168 Cal.Rptr. 708 (1980); Fortner v. State, 119 Fla. 150, 155-156, 161 So. 94 (Brown, J., concurring); Thetge v. State, 83 Ind. 126, 128 (1882); State v. Smith, 228 Or. 340, 350-352, 364 P.2d 786 (1961); Shorter v. State, 147 Tenn. 355, 360, 247 S.W. 985 (1922); State v. Parmely, 65 Wyo. 215, 230-232, 199 P.2d 112 (1948), as have textwriters. See 2 Torcia, Wharton's Criminal Law § 199, at 327 (14th ed. 1979); 40 C.J.S. Homicide § 85 (1944).

2. In dicta, the Hebert court also reconfirmed the cases in which assault with intent to kill was treated as assault with intent to commit manslaughter and recognized the identity between this crime and "attempted voluntary manslaughter." The court concluded that "the crime is more likely to be understood by a jury if it is referred to as 'assault with intent to kill' rather than as 'assault with intent to commit manslaughter,' " Hebert, supra 373 Mass. at 538, 368 N.E.2d 1204, in part because "[m]anslaughter may comprehend a variety of cases where intent to kill is not essential," including "cases of wanton or reckless conduct." Id. at 538-539, 368 N.E.2d 1204. It is clear that the Hebert court comprehended assault with intent to kill as encompassing only those assaults which carry the legal potential for conviction of voluntary manslaughter if death ensues. Since the judge's instructions referred to the crime of "manslaughter," committed by wanton or reckless conduct, we must inquire whether that theory will support a conviction for assault with intent to kill on a voluntary manslaughter theory in view of the language in Hebert. We conclude it should not.

The degree of danger accompanying an act causing an unintended death may, when judged in light of common experience, result in the actor's being held liable for murder. See, e.g., Commonwealth v. Pierce, 138 Mass. 165, 178 (1884); Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551 (1899); Commonwealth v. Madeiros, 255 Mass. 304, 309, 315, 151 N.E. 297 (1926); Commonwealth v. Gricus, 317 Mass. 403, 410, 58 N.E.2d 241 (1944); Commonwealth v. Huot, 380 Mass. 403, ---, Mass.Adv.Sh. (1980) 977, 982, 403 N.E.2d 411; Commonwealth v. Swift, --- Mass. ---, ---, Mass.Adv.Sh. (1980) 2457, 2462, 413 N.E.2d 717. It may also result in a conviction of manslaughter. See, e.g., Commonwealth v. Pierce, supra, 138 Mass. at 178; Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (1944); Commonwealth v. Godin, 374 Mass. 120, 128-130, 371 N.E.2d 438 (1977), cert. denied, 436 U.S. 917, 98 S.Ct. 2263, 56 L.Ed.2d 758 (1978); Commonwealth v. Gallison, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 1260, 1266, 425 N.E.2d 276; Commonwealth v. Marcelli, 14 Mass.App. 567, 568-569, 441 N.E.2d 270 (1982). As Justice Holmes put it in the Pierce decision (at 178): "[I]t is familiar law that an act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it." In Commonwealth v. Chance, 174 Mass. 245, 54 N.E. 551, the element of malice in the crime of murder was defined (at 252, 54 N.E. 551) in these terms: "[M]alice in murder means knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act ...." The Chance formulation of malice, or one substantially like it, has been applied in a legion of homicide cases since 1899, the Huot and Swift cases cited above being but two recent examples. ² In Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902, the crime of involuntary manslaughter by wanton or reckless conduct was defined (at 399) as follows: "The essence of wanton or reckless conduct is intentional conduct, by way either of commission or omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another." Voluntary manslaughter, on the other hand, has traditionally been viewed in this State as comprehending cases in which a killing was committed under mitigating circumstances such as "a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon a sudden combat." Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211 (1967) (quoting from Commonwealth v. Bouvier, 316 Mass. 489, 494, 55 N.E.2d 913 [1944] ), and cases cited.

It would be theoretically possible to formulate a category of manslaughter based upon wanton or reckless conduct which poses a higher degree of risk than the risk of involuntary manslaughter described in Welansky, and add the resulting offense to those already treated as voluntary manslaughter. The line between the two offenses could most logically be drawn at the point where the defendant's conduct creates a probability of death as distinguished from the "high degree of likelihood [of] substantial harm" described in Welansky, supra 316 Mass. at 399, 55 N.E.2d 902. To express voluntary manslaughter, however, in terms of more aggravated conduct than that considered in the Welansky case would so closely approximate...