Com. v. Perry

• Decision Date: 02 August 1978
• Citation: 6 Mass.App.Ct. 531,378 N.E.2d 1384
• Parties: COMMONWEALTH v. George W. PERRY.
• Court: Appeals Court of Massachusetts

Page 1384

378 N.E.2d 1384

6 Mass.App.Ct. 531

COMMONWEALTH v. George W. PERRY.

Appeals Court of Massachusetts, Suffolk.

Argued May 10, 1978.

Decided Aug. 2, 1978.

Barry P. Wilson, Boston (Cathy J. Gross, Boston, with him), for defendant.

John A. Kiernan, Asst. Dist. Atty. (Dennis J. Curran, Asst. Dist. Atty., with him), for the Commonwealth.

Before HALE, C. J., and GRANT and BROWN, JJ.

HALE, Chief Justice.

In this trial, conducted pursuant to G.L. c. 278, §§ 33A-33G, the jury could have found that on the morning of February 14, 1977, the victim, a sixty-six year old woman, was returning home after a short walk to the grocery store. As she was unlocking the door to her apartment building, the defendant, posing as a heating man, demanded entrance to her apartment. He followed her up the stairs and entered the apartment with her despite her protests that there was nothing wrong with the heating system. After he came into the apartment he closed the outside door, which locked automatically. He pretended to check the heating system and then pulled a "gun" (which was later discovered to be a black plastic toy pistol), putting it over the head of the victim with one hand and throwing her down to the floor with his other hand. The victim was "petrified." She asked the defendant not to kill her and said she would give him whatever he wanted. She obtained money from various places in her apartment and gave it to the defendant. He continued to threaten her and search her apartment for more money. The victim remained in her bedroom as ordered by the defendant. After fifteen or twenty minutes, four policemen, who had been summoned by a neighbor who had heard the victim's cries, knocked at the door, and, receiving no response, broke down the door and arrested the defendant. The police read him the Miranda rights, to which he responded, "I know my rights; I've been through this before." In response to brief questioning the defendant made certain admissions. Further facts will be related as necessary to our discussion of those assignments which the defendant has argued.

The defendant was indicted on charges of armed robbery (G.L. c. 265, § 17) and armed assault in a dwelling with intent to commit a felony (G.L. c. 265, § 18A, as appearing in St.1969, c. 473). He was found guilty and sentenced to ten to fifteen years on each indictment, the sentences to run concurrently. He has brought nineteen assignments of error before this court but has expressly waived five of them.

The defendant's arguments fall into five categories: (1) claimed error in the denial of his motion for a directed verdict of not guilty on the charge of armed assault in a dwelling, (2) claimed errors in the judge's instructions to the jury regarding the meaning of "dangerous weapon" as used in G.L. c. 265, §§ 17 and 18A, (3) the denial of the defendant's motion to suppress statements made to the police, (4) an allegation that he was denied the effective assistance of counsel, and (5) several alleged errors in rulings made during the course of trial. We shall discuss them separately.

1. At the conclusion of the Commonwealth's case the defendant moved for a directed verdict on the armed assault charge. ¹ The motion was denied. He argues that to convict under G.L. c. 265, § 18A, requires that the defendant be shown to have been armed with a weapon which is in fact dangerous.

At the outset it should be pointed out that the meaning of "dangerous weapon" as the term is used in § 18A has received no judicial attention by either this court or the Supreme Judicial Court. We will therefore be guided in part by the rules of statutory construction. One such rule is that "if reasonably practicable, words used in one place in a statute with a plain meaning are given the same meaning when found in other parts of the same statute to the end that there may be a harmonious and consistent body of law." Randall's Case, 331 Mass. 383, 386, 119 N.E.2d 189, 190, (1954). General Laws c. 265 defines various crimes against persons and metes out differing penalties therefor. Among the crimes described in that chapter, some are obviously more serious than others. Several factors serve to aggravate the crimes of assault, assault and battery, and robbery from the person. Among the aggravating factors are the age of the victim, (e. g., §§ 13B, 24B), the place of the assault (18A), whether the assault occurs as part of an attempt to commit another crime (e. g., §§ 15, 18, 20, 24, 24B, 29), and whether the perpetrator is armed (e. g., §§ 15A, 15B, 17, 18, 18A). The statutes consistently provide that crimes committed either by means of a dangerous weapon (§§ 15A and 15B) or while the perpetrator is armed with a dangerous weapon (§§ 17, 18 and 18A) carry more severe penalties than crimes committed without the use of a weapon or in other aggravating circumstances.

The Supreme Judicial Court has held with regard to G.L. c. 265, § 17, that whether an instrument is a dangerous weapon depends upon whether it "has the apparent ability to inflict harm, whether the victim reasonably so perceived it, and whether the perpetrator by use of the instrumentality intended to elicit fear in order to further the robbery." Commonwealth v. Tarrant, 367 Mass. 411, 417, 326 N.E.2d 710, 715 (1975). See also Commonwealth v. Delgado, 367 Mass. 432, 435-437, 326 N.E.2d 716 (1975). The defendant argues that this "reasonable apprehension standard" should not be applied to § 18A and that a conviction under § 18A requires proof that the defendant was armed with a weapon which was in fact dangerous. In support of that argument the defendant offers the supposed intention of the Legislature as gleaned from his reading of the statutory history. The similarities between §§ 17 and 18A are more revealing as to what acts the Legislature intended to punish. While under § 17 a crime may take place anywhere and the victim may part with property because of fear, under § 18A the crime must take place in a dwelling and the inducement of fear need only be accompanied by an intent to commit a felony, which need not occur. Each section, however, has a central requirement that the victim be put in fear, as well as a requirement that the perpetrator be armed with a dangerous weapon. We are not persuaded that the Legislature intended the words in § 18A "armed with a dangerous weapon" to have a meaning different from the very same words used in § 17 and which the Supreme Judicial Court interpreted in the Tarrant case.²

The public policy of deterrence of injury and violence which underlies § 18A also dictates this interpretation of the meaning of "dangerous weapon" in the section. See Commonwealth v. Tarrant, 367 Mass. at 415, 326 N.E.2d 710. In this case the defendant's possession of an instrumentality with the apparent capability of causing harm³ so frightened the victim that she yielded to his directions. She also suffered "a tightening in (her) chest" and was taken to a doctor because of a pre existing heart condition. As the Supreme Judicial Court noted in Tarrant, at 415, 326 N.E.2d at 714: "(I)t is . . . the potential for injury, and the tendency toward resistance, conflict, and violence in result which exists where robbery is perpetrated with the use of a dangerous weapon" which makes the crime of armed robbery aggravated. The policies that support the Tarrant definition as applied to § 17 are equally applicable to acts committed in violation of § 18A. The evidence was sufficient to warrant a finding that the toy gun was a "dangerous weapon" within the meaning of § 18A.

2. There is no merit to the defendant's complaint concerning the judge's instructions to the jury on the meaning of the words "dangerous weapon" as used in G.L. c. 265, §§ 17 & 18A. As we noted earlier, the defendant entered the victim's apartment armed with a black plastic toy revolver. The defense and the Commonwealth are in agreement that the toy revolver, not intrinsically a dangerous weapon, could be found to be a dangerous weapon by the jury under proper instructions from the judge. The judge properly instructed the jury on the meaning of the term "dangerous weapon" as defined by the Supreme Judicial Court in Commonwealth v. Tarrant, supra at 417, 326 N.E.2d 710. In fact, he read to the jury from Tarrant, explaining by hypotheticals how the case applied to the evidence before them. He then repeated the definition and instructed them that "you could find that plastic gun to be a dangerous weapon, or you could find it was not a dangerous weapon, depending on how you apply the facts to the standard I just gave you."

The defendant also contends that the judge's further instructions to the jury in response to a question from them were erroneous. The jury asked, "Explain 'to wit, a handgun.' Do we understand the weapon to be a handgun or used as a handgun." At a lobby conference at which both the defendant's counsel and the prosecutor were present, the judge said that he understood the question to refer to the wording of so much of the indictments as charged the defendant with "being armed with a dangerous weapon, to wit: a handgun." He said he thought that the jury were asking whether, if they should find the plastic gun to be a dangerous weapon, such a finding would comport with the meaning of the word "handgun" which was used in the indictments. He indicated that his answer would be "yes." There was no objection from defense counsel to that reading of the question. When the jury were brought back in, the judge instructed them in answer to their question that they could read "handgun" to mean the same thing as a "dangerous weapon". He then reread the Tarrant definition of a dangerous weapon. The jury indicated that they understood what the judge was saying and that he had answered their question. The defendant objected to the instruction, urging that the proper instruction would be that "it's the appearance of being a handgun that...