Commonwealth v. Dorvil

Decision Date25 June 2015
Docket NumberSJC–11738.
Citation472 Mass. 1,32 N.E.3d 861
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Jacob B. Stone, Randolph, for the defendant.

Audrey Anderson, Assistant District Attorney, for the Commonwealth.

Rebecca Kiley, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.




, J.

We are called upon in this case, where the defendant stands convicted of assault and battery for spanking his minor child, to examine the contours of a parental privilege defense. On appeal, the defendant contends that the use of force to control and discipline his child in the circumstances was justified, excusing him from liability for conduct that otherwise would constitute a crime. Although we have on several prior occasions assumed that such a common-law privilege exists, we have neither expressly recognized it nor considered its proper scope. We do so today, deeply mindful of the dual important interests implicated in the defense: the welfare of children requiring protection against abuse, on the one hand, and, on the other, the avoidance of unnecessary State interference in parental autonomy as it concerns child rearing.1

1. Background. a. Overview. After a jury-waived trial, the defendant was convicted of assault and battery for spanking his daughter, then almost three years old. He also was convicted of threatening to commit a crime, based on his conduct while he was held at the police station following his arrest. He was acquitted of two other charges stemming from the same series of events.

In his appeal to the Appeals Court, the defendant argued, among other things, that the evidence was insufficient to sustain a conviction of assault and battery in light of the parental privilege to use force in disciplining a minor child. The Appeals Court, in

an unpublished memorandum and order issued pursuant to its rule 1:28, determined that the defendant's conduct fell outside of the parental privilege defense and affirmed the defendant's convictions. See Commonwealth v. Dorvil, 85 Mass.App.Ct. 1117, 7 N.E.3d 494 (2014)

. We granted further appellate review, limited to the assault and battery conviction, to clarify the scope of the parental privilege defense. We now reverse that conviction.2

b. Facts. We recite the facts based on the evidence introduced at trial. We construe the evidence offered to support the defendant's conviction of assault and battery in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979)

. We note conflicting testimony where relevant in light of the defendant's acquittal of certain charges.

The Brockton police station sits across the street from the Brockton Area Transit bus terminal. At shortly before 4 p.m. on May 13, 2011, Detective Ernest S. Bell of the Brockton police department was arriving at the police station at the end of his eight-hour shift; at the same time, Lieutenant Mark Porcaro was arriving to begin his eight-hour shift. Both officers observed a commotion at the bus terminal, although their accounts of the incident at trial differ somewhat.

Bell testified that he observed the defendant yelling, [S]hut up, shut up,” at a young child and a woman while walking on the sidewalk near the bus station. Bell then saw the defendant kick the child in the backside. He described the kick as “kind of like a football kick,” and indicated that the defendant was wearing sneakers at the time. The defendant then shouted, [S]hut up,” again before bending over and “smack[ing] the child on the buttocks.” Right after the kick and the smack, Bell observed the woman bend down and pick up the child; Bell testified that he regarded this as an effort “to shield” the child from the defendant. Throughout the incident, according to Bell, the defendant appeared “very upset” and “angry,” and he was shouting sufficiently loudly to be audible at the police station, approximately thirty-five yards away. Bell indicated that the child was crying and “looked frightened.”

Porcaro also observed the defendant yelling at the woman and child, and saw the defendant kick the child. Porcaro, however, testified that the kick “wasn't like a full blown, swift kick”; instead,

he said, “it was ... slow and there was almost like a hesitation to it, but he eventually came ... up and made contact with the girl.” Additionally, although the police report that Porcaro completed following the arrest indicated that he saw the defendant hit the child, he testified at trial that he did not have any memory of the child being hit.

The police officers approached the trio and separated the defendant from the woman and the child. The defendant, the child's father, denied kicking the child, instead saying that he was “just playing around with her.” With respect to the spanking, the defendant indicated that he was “disciplining his child.” The child's mother, Crystal Steele, likewise stated that the defendant and the child were “horseplaying,” but that the defendant then became upset when the child was disobedient.

The defendant was arrested, brought to the police station for booking, and placed in a holding cell. Six hours later, at approximately 10 p.m. that evening, Porcaro had another encounter with the defendant; their accounts of the encounter again differ. Porcaro testified that, while he was administering to a prisoner with a medical emergency in a nearby holding cell, the defendant began talking, yelling at him and another officer, and spitting on the plexiglass. According to Porcaro, the defendant claimed that Porcaro was “lying about seeing him kick the girl,” called Porcaro various insulting names, and indicated that he wanted to box” Porcaro.

The defendant testified in his own defense at trial, along with Steele. The defendant denied calling Porcaro names, and denied yelling or spitting at the officers. The defendant did testify, however, that he told Porcaro, [I]f you know where there's a ring around here, ... we can go box it out.” The defendant insisted that this was not meant as a threat.

As to the initial incident at the bus terminal, the defendant and Steele offered accounts at trial that were essentially similar to one another and to the accounts that they gave to the police officers at the scene. The defendant stated that, after the trio got off the bus, he was playing a game where he chased his daughter and lifted her up with his legs, “like [he] was playing soccer.” He continued in that manner for a period, chasing his daughter and yelling loudly at her. He indicated that at the time she was “happy,” explaining, [S]he likes when I play like that with her.”

The defendant then told his daughter to go to her mother. She responded, [N]o,” telling him, [Y]ou go to your mother.” He

chastised her for talking back to him. He cautioned that he would spank her if she continued talking back, saying, [D]addy will pow pow, if you don't stop.” He then “tapped her” on “her butt” in an effort to make her “calm down.” The defendant testified that the child never fell down or began crying, either when they were playing or when he spanked her. He also denied ever telling his daughter to “shut up.”

Steele similarly testified that, after the defendant and the child got off the bus, they were “playing ... very loudly,” and that she had seen the defendant and their daughter “play together in a similar manner in the past.” The defendant then told the child to go to her mother; Steele explained that the child “was running around,” and speculated that the defendant “didn't want her to run into ... the street or anything.” The defendant then told his daughter, [W]e're not playing anymore,” and “gave her a little tap on her behind.” Steele indicated that the child was not crying and did not appear fearful when she picked up the child after the spanking.

c. Proceedings. The defendant was charged with assault and battery by means of a dangerous weapon (a shod foot), based on the kick; assault and battery, based on the spanking; and witness intimidation and threatening to commit a crime, based on the defendant's statements indicating his desire to “box” Porcaro at the police station. Defense counsel argued in closing that there had been no kick, and, as the defendant and Steele testified, the defendant simply had been playing with the child. As to the second count, counsel conceded that the “pat on the butt” did occur, but asserted that the pat was permissible because the defendant had “a right to use reasonable force in disciplining [his] child.” As to the third and fourth counts, counsel argued that there was no evidence that the defendant “had a specific intent to try to influence the outcome of an investigation or a criminal action or prosecution,” and that the evidence failed to show that the defendant “intended to harm and place ... Porcaro in fear.”

After closing arguments, the judge denied the defendant's renewed motion for a required finding of not guilty. The judge found the defendant guilty of assault and battery and threatening to commit a crime, and not guilty of assault and battery by means of a dangerous weapon and witness intimidation. The judge issued no written findings of fact or conclusions of law. Her remarks at sentencing, however, provide some indication of her thinking.

The judge acknowledged that “it's not easy being a parent.” She indicated that the defendant had not been convicted for the kick, noting that, in light of the inconsistency between the police officers' testimony, the defendant “could've been playing around with [his] daughter.” The judge explained her decision to convict the defendant of assault and battery, however, by observing that, while she did not “think [the defendant] intended to kick [his] daughter, ... [he] did hit her.” In apparent response to the...

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