Com. v. Washington

• Decision Date: 27 April 1983
• Citation: 15 Mass.App.Ct. 378,446 N.E.2d 83
• Parties: COMMONWEALTH v. Michelle WASHINGTON.
• Court: Appeals Court of Massachusetts

Page 83

446 N.E.2d 83

15 Mass.App.Ct. 378

COMMONWEALTH v. Michelle WASHINGTON.

Appeals Court of Massachusetts,

Suffolk.

Argued Dec. 16, 1982.

Decided March 1, 1983.

Further Appellate Review Denied April 27, 1983.

Ellen K. Wade, Boston (Henry F. Owens, III, Boston, with her), for defendant.

Michael J. Traft, Asst. Dist. Atty. (Linda M. Poulos, Asst. Dist. Atty., with him), for the Commonwealth.

Before PERRETTA, KASS and SMITH, JJ.

PERRETTA, Justice.

The defendant was found guilty as a joint venturer on indictments charging her with an armed assault with intent to murder and assault and battery by means of a dangerous weapon, a knife. On appeal she argues that the evidence was insufficient to show that she had participated in the attack on the victim or that she had intended that the victim be murdered. The defendant also claims that her trial counsel was ineffective in representing her. We conclude that the evidence was insufficient to show beyond a reasonable doubt that the defendant knew that the principal possessed a knife and planned to murder the victim, and hence, that the defendant shared the principal's intent. We reverse the convictions and remand for resentencing on the lesser offense of assault and battery.

1. The Facts.

The evidence against the defendant was essentially the testimony of the victim who survived the brutal attack and related the following. In 1980, the victim was pregnant by one David Nickerson, the codefendant at trial. Nickerson did not want this child, and the victim had an abortion. Nickerson threatened to kill the victim if she again conceived by him. In January, 1981, the victim discovered that she was again pregnant by Nickerson. He did not want the child, but the victim told him that she intended to have and to keep the baby. The victim's parents demanded that Nickerson help the victim financially or jail would be probable.

The victim continued to see Nickerson, meeting him away from her home, and on April 3, 1981, the day before the attack, Nickerson spoke with the victim. He invited her to attend a flower show the following day, and he cautioned her to tell no one about their date. The next afternoon the victim met Nickerson at Park Street, Boston, as arranged, and they walked to Downtown Crossing. They were there but a few moments, browsing in front of a window display of knives, when the defendant and another woman, whose identity remains unknown, came along. Nickerson introduced both women to the victim without disclosing their names, calling them his cousins.

As a timely aside, later testimony by the victim on cross-examination by the defendant revealed that the defendant and Nickerson are not cousins; rather, the defendant is the mother of Nickerson's son. During her first pregnancy, the victim became aware of the fact that Nickerson had a son by a woman named Michelle Washington. Nickerson would tell the victim that this woman was a "pain" who was always calling him for one thing or another. The victim, however, had never met the defendant and knew of her by name only, although she once saw a picture of her and Nickerson's child in Nickerson's wallet.

At Downtown Crossing, the defendant told Nickerson that she and her friend had been shopping, had found nothing, and asked that he take them to the Dedham Mall. Nickerson asked the victim if she would like to go for a ride, she agreed, and Nickerson got his car. No further mention was made of the flower show, and the group went to Dedham. At the mall, the defendant and her friend separated from Nickerson and the victim.

Again as revealed by later testimony, in the course of the afternoon and early evening, and once while at the mall, Nickerson made several telephone calls to the victim's family, asking to speak with the victim.

The four later regrouped, left the mall, and drove to Franklin Park, Boston, arriving at around 6:00 P.M., just as it was getting dark. Nickerson parked the car on the street and asked the victim if she would like to take a walk. She agreed, and he led her to a wooded section of the park. Nickerson and the victim were embracing and kissing when the defendant and the other woman appeared. The victim asked what they were doing there, and they replied that they were "just being nosy."

As they all started to return to the car, the two women began to "crowd" the victim. With that, Nickerson stated, "Let's get to it," and grabbed the victim from behind. The defendant and the other woman then came at the victim, who closed her eyes. The victim testified that next "[t]hey pounded on my stomach." The victim lost her balance under the blows, and Nickerson let her fall to the ground. Nickerson dropped to his knees beside the victim, took a knife from his jacket, and began stabbing her. As Nickerson was stabbing her, the victim heard, but did not see, the two women running away. ¹

Nickerson stabbed the victim repeatedly, twenty-six times in all, inflicting wounds in her back, breast, jugular vein, arms, and stomach, and left her. The victim remained still until she heard the car start, and then she managed to find her way back to the street and flag down a motorist who drove her to a hospital.

2. Required Findings of Not Guilty. ²

The defendant contends that it was error to deny her motion brought under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), because there was no evidence to show that she had participated in the punching and stabbing of the victim or that she intended that the victim be murdered. In resolving this issue, "we consider only the evidence introduced during the Commonwealth's case in chief, Commonwealth v. Kelley, 370 Mass. 147, 150 (1976)," Commonwealth v. Soares, 377 Mass. 461, 464, 387 N.E.2d 499 (1979), in order to determine "whether the evidence and the inferences permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 678, 393 N.E.2d 370 (1979)." Commonwealth v. Casale, 381 Mass. 167, ---, Mass.Adv.Sh. (1980) 1711, 1712, 408 N.E.2d 841.

The defendant's claim as to the punching segment of the attack is based upon the victim's statement that she closed her eyes as the women approached her. It is the defendant's contention that the "they" who pounded on the victim's stomach could well have been Nickerson, as he restrained her from behind, and the other woman. We summarily reject the defendant's argument and conclude that the evidence was sufficient to warrant a jury in finding that, at the very least, the defendant had participated in a plan to beat the victim with her fists. See Commonwealth v. Britt, 358 Mass. 767, 769, 267 N.E.2d 223 (1971).

Whether the defendant could be found guilty of an armed assault with intent to murder and assault and battery by means of a dangerous weapon turns on the sufficiency of the Commonwealth's proof of a joint enterprise. "The theory underlying joint enterprise is that one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime is guilty as a principal .... The jury may infer the requisite mental state from the defendant's knowledge of the circumstances and subsequent participation in the offense. See Commonwealth v. Ferguson, 365 Mass. 1 (1974)." Commonwealth v. Soares, 377 Mass. at 470, 387 N.E.2d 499 (citations omitted). We have no doubt that the defendant and Nickerson planned to harm the victim. But, assuming the evidence sufficient to show that Nickerson stabbed the victim with the intention of murdering her, we conclude that it is insufficient to show that the defendant knew Nickerson possessed a knife with which he intended to murder the victim and that the defendant shared his requisite mental state, notwithstanding "all the facts and circumstances developed at the trial." Commonwealth v. Casale, 381 Mass. at ---, Mass.Adv.Sh. (1980) at 1717, 408 N.E.2d 841.

The Commonwealth argues that the defendant's mental state can be inferred from: (1) her knowledge that Nickerson had a knife; and (2) the improbability of Nickerson's inviting unknowing participants to witness his evil deed after he had carefully staged an alibi. As to the evidence of the defendant's knowledge that Nickerson was carrying a knife, the Commonwealth points to the victim's testimony that she knew from her intimate relationship with Nickerson that he carried a knife "once in a while." Because the defendant and Nickerson had a comparable relationship, the Commonwealth argues that it is permissible to infer that the defendant also knew Nickerson carried a knife "once in a while" and, hence, that he would do so on the day in question. We view such an inference as more speculative and remote than reasonable and possible. Compare Commonwealth v. Ferguson, 365 Mass. at 9-10, 309 N.E.2d 182; Commonwealth v. Soares, 377 Mass. at 472, 387 N.E.2d 499; Commonwealth v. Casale, 381 Mass. at ---, Mass.Adv.Sh. (1980) at 1718, 408 N.E.2d 841. Additionally, while there may be initial appeal in the suggestion that it would be unlikely that Nickerson, intending to murder the victim, would tolerate the presence of witnesses with less than their full knowledge of and participation in the stabbing, we think that reasoning lacks probative value with respect to whether the defendant intended the victim to be murdered.

Finally, because there is an absence of evidence to show that the defendant knew of the knife or that she planned to do more than beat the victim with her fists, we think it also impermissible to infer a conditional or contingent intent that the plan be extended if necessary, as with robbery to armed robbery. See Commonwealth v. Ferguson, 365 Mass. at 9, 309 N.E.2d 182; Commonwealth v. Mangula, 2 Mass.App. 785, 789-790, 322 N.E.2d 177 (1975).

3. Assault and Battery.

The defendant next argues that we cannot order her to be sentenced for...