Commonwealth v. Chambers

• Decision Date: 09 January 2003
• Docket Number: No. 00-P-1816.,00-P-1816.
• Citation: Commonwealth v. Chambers, 57 Mass.App.Ct. 47, 781 N.E.2d 37 (Mass. App. 2003)
• Parties: COMMONWEALTH v. JASON CHAMBERS.
• Court: Appeals Court of Massachusetts

57 Mass. App. Ct. 47

781 NE 2d 37

COMMONWEALTH v.JASON CHAMBERS.

No. 00-P-1816.

Court of Appeals of Massachusetts, Suffolk.

September 20, 2002.

January 9, 2003.

Present: RAPOZA, KASS, & MILLS, JJ.

Mark W. Helwig for the defendant.

Joseph M. Ditkoff,Assistant District Attorney(Joshua I. Wall,Assistant District Attorney, with him) for the Commonwealth.

KASS, J.

On the basis of the evidence most favorable to the Commonwealth, the jury were warranted in finding that Jason Chambers, in jealous rage, aimed and drove his automobile into one in which his former lover was a passenger, and which was owned and driven by her new paramour.For that expression of wrath, a Superior Court jury convicted Chambers of four counts of assault by means of a dangerous weapon, an automobile.G. L. c. 265, § 15B(b).¹

The crime of assault breaks down into two subcategories: an attempted battery (e.g., intentionally swinging at a person with a baseball bat and missing) or a threatened battery (e.g., waving a bat toward a person in an overt and objectively menacing way).SeeCommonwealth v. Gorassi,432 Mass. 244, 247-248(2000);Commonwealth v. Melton,436 Mass. 291, 294(2002);Commonwealth v. Musgrave,38 Mass. App. Ct. 519, 521(1995), S.C.,421 Mass. 610(1996).The defendant Chambers's claim on appeal is that while there was evidence of attempted battery, there was insufficient evidence of threatened battery.As the case went to the jury on a general verdict, the defense argues there is no way to know whether the jury arrived at a verdict on a version of the crime that the evidence supported.In this respect, the aspect of the case on appeal resembles Commonwealth v. Purrier,54 Mass. App. Ct. 397, 397-398(2002).The issue was preserved by the defense by timely motions for required findings of not guilty.SeeCommonwealth v. Fickett,403 Mass. 194, 197(1988).

1.Elements of threatened battery.The defense acknowledges that there was evidence sufficient to prove an attempted battery: an overt step toward making intended physical contact (touching) to which the target has not consented and coming pretty near to accomplishing the crime.Commonwealth v. Richards,363 Mass. 299, 303(1973).Commonwealth v. Melton,436 Mass. at 295.Commonwealth v. Musgrave,38 Mass. App. Ct. at 520-521 & n.3.Commonwealth v. Purrier,54 Mass. App. Ct. at 401.In the case of an attempted battery, the victim need not be aware of the hostile act.Commonwealth v. Slaney,345 Mass. 135, 138-139(1962).Commonwealth v. Richards, supra.Commonwealth v. Gorassi,432 Mass. at 248.Threatened battery requires proof that the defendant has engaged in objectively menacing conduct with the intent of causing apprehension of immediate bodily harm on the part of the target.Commonwealth v. Gorassi, supra at 248.Commonwealth v. Musgrave,38 Mass. at 524."Objectively menacing" conduct means that the target reasonably would feel immediate menace.The defense urges that the occupants of the car that Chambers struck did not apprehend the attack at all, and, hence, there was no threatened battery.Language in recent threatened battery decisions hints at, but does not squarely answer, whether the object of a threatened battery must be aware of the threatening act.Conduct might be of a kind that objectively would make a reasonable person apprehend imminent bodily injury, but what if that person were unaware of the menace?

One could imagine, for example, our hypothetical bat being waved menacingly behind the back of the object of menace, with only a percipient bystander to tell the tale.In Commonwealth v. Slaney,345 Mass. at 138-139, the court remarked, "The criminal law is designed primarily to preserve the public peace.The imperturbability or fortitude of a victim, or the unawareness of an intended victim, should not afford a defense to the criminal prosecution of the wrongdoer....It follows from what we have said that in this Commonwealth neither fear, nor terror nor apprehension of harm is an essential ingredient of the common law crime of assault."Although preceded by a threat to shoot, the Slaney case was about an attempted battery kind of assault.The defendant Slaney shot and missed one of two persons who were the objects of his ire.Of the two targets, only one testified and he said — remarkably — "that he was not afraid at any time."Id. at 136-137.There is also a reference in the Slaney opinion to the alternative form of assault whereby the target of the assault apprehends imminent danger of physical harm.Id. at 139-141.That alternative form of criminal assault, in which the target of menace is aware of impending danger, was explicated in Commonwealth v. Richards,363 Mass. at 303-304.

There is much appeal to the proposition that a crime against a person is no less a crime because the victim is unaware that the offense has occurred.The good order of society has been violated, and the offender ought to be punished.As the instant case demonstrates, measuring what is menacing conduct is more likely to be successful than determining the awareness of the object of menace.In Commonwealth v. Tarrant,367 Mass. 411, 417 n.5(1975), an armed robbery case that dealt primarily with whether a dog could be used as a dangerous weapon (the answer was "yes"), the court, in an aside, commented "that the crucial point is whether the victim could reasonably have feared impending harm and it is not necessary that the victim be shown to have, in fact, experienced fear"(emphasis original).

Other cases and authorities, however, when dealing specifically with threatened battery, seem to indicate that apprehension by the target of menacing conduct is an essential ingredient of the offense of threatened battery.So, for example, Commonwealth v. Delgado,367 Mass. 432, 436-437(1975), speaks of "an act placing another in reasonable apprehension that force may be used" as sufficient to make out a case of criminal assault.The court also employed that language in Commonwealth v. Gordon,407 Mass. 340, 349(1990), in describing threatened battery, in the context of interpreting the abuse prevention statute, G. L. c. 209A.The opinion in Gordon also restated the Slaney principle that fear on the part of the target is not a required element of the attempted but unaccomplished battery category of criminal assault.In the Gordon case, however, the statute at issue, G. L. c. 209A, § 1(b)(as appearing in St. 1990, c. 403, § 2), defined "abuse" as "placing another in fear of imminent serious physical harm," and it was not a subject of discussion whether the wife was aware of the defendant's action; that was a given.The question was whether the defendant's conduct in that case was objectively menacing.The court concluded that a jury could find that the wife "entertained a reasonable apprehension that her husband might physically abuse her."Id. at 350.Similarly, in Commonwealth v. Matsos,421 Mass. 391, 394-395(1995), the victim was acutely aware of the threats made by the defendant.The threatened battery form of criminal assault was the subject of extended analysis in Commonwealth v. Musgrave,38 Mass. App. Ct. at 520-522 & n.2.Again, awareness was not an issue.The target of the threat, a police officer, said he was "scared stiff."Id. at 520.The court, citing Commonwealth v. Richards,363 Mass. at 303, referred to the "modern rule" encompassing apprehension of danger.Commonwealth v. Musgrave, supra at 521.Most recently, in Commonwealth v. Melton,436 Mass. at 295 n.4, the court said that to establish the "immediately threatened battery" form of criminal assault, the prosecution"must prove that the defendant intentionally engaged in menacing conduct that reasonably caused the victim to fear an imminent battery."That is, the target must be aware of the threat.²SeeCommonwealth v. Gorassi,432 Mass. at 247-248.

Such is also the view of the drafters of the Model Penal Code.Section 211.1(1)(c) of the code defines as a variant of the crime of assault "attempts by physical menace to put another in fear of imminent serious bodily injury."³Model Penal Code § 211.1(1)(c)(1980).The commentary to the code provision explains that the crime of threatened battery came as an importation into the criminal law of the civil tort of assault, which involved a threat of harm to the plaintiff.SeeModel Penal Code § 211.1 comment 7, observing that the majority of jurisdictions have "assimilated the civil notion of assault into the criminal concept."Similarly, Perkins & Boyce, Criminal Law159, 161-163 (3d ed. 1982), describes a variant of the crime of assault as characterized by an intentional "act which places another in reasonable apprehension of receiving an immediate battery," and traces the basis of threatened battery to the law of torts.⁴

Given the roots of threatened battery in tort, one understands how awareness of harm became engrafted on the crime of assault in the form of a threatened battery.The tort presumes a person wronged, and, logically, a person unaware of a threat is not wronged by it.While importing awareness into the "threatened battery" branch of criminal assault was not inevitable, as the purpose of criminal law is different, it seems to have occurred, and we are obliged to examine the case before us on the basis that the occupants of the car struck by Chambers needed to have been aware of impending harm.

2.Awareness of the occupants of the car that the defendant was aiming a car at them.There were four occupants in the automobile that the defendant Chambers rammed into; hence the four counts of assault with a dangerous weapon.SeeCommonwealth v. Melton,436 Mass. at 300(one shot supported findings of an assault on all occupants of a car).Of those four, Kelly McCormack was a front seat passenger.Chambers had been McCormack's former love interest and, indeed, they had a child together.She had left Chambers for Brian Kelly, who was...