Com. v. Thomas

• Decision Date: 31 January 1986
• Citation: 21 Mass.App.Ct. 183,486 N.E.2d 66
• Parties: COMMONWEALTH v. Michael THOMAS.
• Court: Appeals Court of Massachusetts

Page 66

486 N.E.2d 66

21 Mass.App.Ct. 183

COMMONWEALTH v. Michael THOMAS.

Appeals Court of Massachusetts Essex.

Argued Oct. 17, 1985.

Decided Dec. 4, 1985.

Further Appellate Review Denied

Jan. 31, 1986.

Hugh Samson, Boston, for defendant.

Elin H. Graydon, Asst. Dist. Atty., for the Com.

Before DREBEN, CUTTER and FINE, JJ.

FINE, Justice.

The defendant was found guilty of two offenses: breaking and entering a dwelling in the nighttime with the intent to commit a felony and assaulting a person lawfully therein (burglary with assault); and larceny. The same Superior Court jury found him not guilty of assault and battery. ¹ The charges stemmed from an incident which occurred in Lawrence during the early morning hours of July 18, 1983. The evidence was that two individuals, a female, and a male dressed in white, broke into a dwelling occupied by several members of a family, struck a young pregnant woman on the head knocking her unconscious, and stole a purse and other items. Before she was struck, the victim of the attack saw the male intruder standing over her, but she did not state that she saw who struck the blow. One witness identified the intruders as the defendant and his sister, who lived across the street from the house which was invaded. Another witness testified that, soon after she heard screams, she observed the defendant running across the street in the direction of his sister's house, and that he wasn't carrying anything. Shortly afterwards, the pair was arrested. At the time of his arrest, the defendant was wearing white clothing, and the stolen property was in his possession. The thrust of the defense at trial was that the male intruder was not the defendant but was, instead, the female intruder's boyfriend, one Michael Nichols.

Before final arguments, the judge conferred with counsel as to the content of the charge. He informed counsel that he would not instruct the jury on the principles of joint enterprise because he felt there was insufficient evidence to justify such an instruction. Defense counsel did not object. His closing argument focused on the identity of the male intruder. It was Nichols, the attorney suggested, not the defendant. In explaining larceny and the other two offenses to the jury, the judge indicated that a guilty finding would have to be based upon the conduct of the defendant.

In the midst of deliberations, the jury posed a question: "Your honor, if two persons break and enter and one leaves with stolen property, is the other guilty of larceny?" The judge informed counsel that in response to the question he intended to instruct the jury on the principles of joint enterprise. The defendant objected on the grounds that the evidence was insufficient to justify such a charge and that, had he known at the time of the jury charge conference that joint enterprise would be an issue, he might have argued differently. He gave several examples of points he would have made to the jury, all relating to the attack on the female victim. ² Defense counsel also, for the first time, requested that the jury be instructed that on the burglary with assault charge (G.L. c. 266, § 14), they could return a verdict of guilty of the lesser included offense of breaking and entering in the nighttime with intent to commit a felony (G.L. c. 266, § 16). The judge reinstructed the jury, explaining joint enterprise but making no reference to the lesser included offense.

Reinstruction of the Jury. It was not error for the judge to respond to the jurors' question with a general explanation of the principles of joint enterprise. Two of the victim witnesses testified that they had seen two intruders in the house. There was no direct testimony pinpointing which of the two actually stole the property or struck the woman. Thus, the state of the evidence was such that an instruction on joint enterprise was appropriate. Commonwealth v. Dyer, 389 Mass. 677, 683-684, 451 N.E.2d 1161 (1983).

It is obvious from the jury's verdict that they believed that the male intruder was the defendant, not Nichols. With respect to the larceny charge, the confusion which produced the question from the jurors was understandable. They were satisfied, apparently, that a theft had occurred, but they had no proof that it was the defendant rather than the female intruder who had actually removed the purse and other items. The judge's original instructions were misleading, creating the impression that only the defendant's personal acts could give rise to guilt. The alertness of the jury in this situation was impressive, and, unless for some particular reason it would be unfair to do so, the judge was obligated to respond with an accurate statement of the law. "When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-613, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). This is so even when the reinstruction includes matters not included in the original charge. United States v. Castenada, 555 F.2d 605, 612 (7th Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 152, 54 L.Ed.2d 113 (1977). United States v. Viserto, 596 F.2d 531, 539 (2d Cir.), cert. denied, 444 U.S. 841, 100 S.Ct. 80, 62 L.Ed.2d 52 (1979). See United States v. Bolden, 514 F.2d 1301, 1308-1309 (D.C.Cir.1975). True, the trial judge could have responded in a more limited way, restricting his response to the larceny charge, the subject of the question. However, "[a]s a general proposition, the necessity, extent, and character of ... any supplemental instructions are matters within the discretion of the judge." United States v. Castenada, 555 F.2d at 611. See Commonwealth v. King, 366 Mass. 6, 10, 313 N.E.2d 869 (1974), cert. denied sub nom. McAlister v. Massachusetts, 419 U.S. 1115, 95 S.Ct. 794, 42 L.Ed.2d 814 (1975). The decision to give the broader instruction was not an abuse of discretion.

Relying on Mass.R.Crim.P. 24(b), 378 Mass. 895-896 (1979), the defendant maintains that the belated decision to instruct the jury on joint enterprise, even if justified by the evidence, prejudiced him unfairly. That rule requires that a trial judge inform counsel as to his proposed instructions before final argument. The purpose of the rule is to enable counsel to argue intelligently to the jury. See United States v. Wander, 601 F.2d 1251, 1262-1263 (3d Cir.1979), commenting on similar language in Fed.R.Crim.P. 30.

The question to be decided is whether, having been informed before final argument that joint enterprise would not be an issue presented to the jury, the defense was undermined by the supplemental instruction because "the critical role of good argument was vitiated." United States v. Viserto, 596 F.2d at 539. See also Whitlock v. United States, 429 F.2d 942, 946 (10th Cir.1970), and cases cited. We examine, therefore, the course the defendant had pursued at trial up to the point of final argument. The thrust of the defense was to show that the defendant was mistakenly identified as the male intruder and that he was confused with another individual, somewhat similar in age and appearance, closely identified with the defendant's sister, and frequently seen in the neighborhood. The joint enterprise instruction in no way undermined that theory. Compare United States v. Martin, 525 F.2d 703, 707 (2d Cir.), cert. denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d 410 (1975), with Loveless v. United States, 260 F.2d 487 (D.C.Cir.1958), and United States v. Wander, 601 F.2d at 1260-1263.

Lesser Included Offense. If the evidence in a case would permit a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of the conviction of the lesser included crime, and failure to do so constitutes reversible error. Commonwealth v. Campbell, 352 Mass. 387, 392, 226 N.E.2d 211 (1967). Commonwealth v. Hobbs, 385 Mass. 863, 871, 434 N.E.2d 633 (1982). Commonwealth v. Martinez, 393 Mass. 612, 614, 473 N.E.2d 167 (1985). Beck v. Alabama, 447 U.S. 625, 635-637, 100 S.Ct. 2382, 2388-2389, 65 L.Ed.2d 392 (1980).

We think there...