Commonwealth v. Garcia
| Decision Date | 25 July 2012 |
| Docket Number | No. 07–P–1699.,07–P–1699. |
| Parties | COMMONWEALTH v. Ismael GARCIA. |
| Court | Appeals Court of Massachusetts |
OPINION TEXT STARTS HERE
James A. Reidy for the defendant.
Tara L. Blackman, Assistant District Attorney, for the Commonwealth.
Present: KANTROWITZ, RUBIN, & AGNES, JJ.
On October 12, 2006, a jury returned guilty verdicts against the defendant, Ismael Garcia, on indictments charging carrying a dangerous weapon, pursuant to G.L. c. 269, § 10( b ), and mayhem, pursuant to G.L. c. 265, § 14. On appeal, the defendant raises arguments regarding the sufficiency of the evidence and the correctness of the jury instructions on the possession of a dangerous weapon conviction. He also alleges insufficiency of the evidence on the mayhem conviction, ineffective assistance of counsel regarding the introduction of pretrial statements made while he was in detention,1 and error on the part of the trial judge in failing to give a missing witness instruction. We affirm.
Factual background.2 1. The stabbing. Late in the evening of September 5, 2005, Robert DeMenzes (the victim) and his girlfriend, Kendra Anderson, were “hanging out” in Ruggles Park in Fall River. Earlier that evening the victim had departed from the park looking to buy marijuana from an individual named “E.”
The incident at the heart of this case occurred when “E” and the defendant pulled up to the park in a black car with a dent on the side. At this point, the victim was quite drunk. The defendant was holding an item that Anderson at first thought was a pipe or a bat, but later ascertained was “something teenagers now call pimp canes.” Anderson described the “pimp cane” as between twelve and eighteen inches long. At another point she said it was eleven inches long including the handle, admitting she was “not really sure about the length.” The defendant began speaking in another language while advancing into the park. “E” was standing right behind the defendant, screamingthat he had a gun and that everybody should “back the F up.” 3
At this point, the defendant pulled the cover off the “pimp cane,” revealing, Anderson testified, a “big blade” that was about eleven inches long.4 The defendant ran at the victim, screaming things. After a warning shout from Anderson, the victim ran from the defendant. At around the same time, Anderson jumped on the defendant's back and tried to pull him away from the victim. Although Anderson was somewhat successful at first, the defendant broke free and ran after the victim. The victim fell to the ground, either because he tripped or due to his intoxication, at which point the defendant caught up with him. The defendant then repeatedly stabbed the victim with the blade, through his back and arm and “from side to side in his stomach.” The victim attempted to block these attacks with his arms, which were sliced as a result. The defendant then kicked the victim in the head three times with his sneakers. At this point, the black car came down the street and both “E” and the defendant jumped in. The car then drove off. The whole incident lasted less than five minutes.
Anderson picked the victim up and carried him to the steps of a house near the street. The victim was “covered in blood” and his intestines were hanging out. Something fell out of his side while they were on the steps of the house. 5 The police and an ambulance eventually arrived at the scene and took the victim to the Charlton Memorial Hospital. The doctor who treated the victim at the hospital determined that he had suffered at least three stab wounds. The victim had dried blood in a variety of areas and was described as minimally responsive and in critical condition. The doctor further stated that the victim's wounds were “life-threatening.” The victim's blood pressure was also “quite low,” which, in conjunction with the stab wounds, led the doctor to believe that he had severe internal bleeding. The doctor did what he could to stabilize the victim but, due to the complexity of his injuries, decided to transfer him to the trauma center at the Rhode Island Hospital.
2. The jailhouse recordings. The defendant was indicted on December 16, 2005, and held pending trial. While in the Bristol County house of correction, he had conversations in which he made incriminating statements. At the Bristol County house of correction, all inmate phone calls except attorney calls were recorded pursuant to department policy. The defendant was made aware of this policy by the “Bristol County Sheriff's Office Inmate Orientation,Handbook & Rules,” a four-page document that he signed.
Prior to trial, the Commonwealth sent a subpoena to John Silva at the Bristol County sheriff's office, directing him to appear before the court on or before June 1, 2006,6 in order to “give evidence” regarding the defendant's case. See G.L. c. 277, § 68. The subpoena specifically requested that Silva bring with him any audio recordings of calls to or from the defendant from September 15, 2005, through June 1, 2006. The subpoena further requested that Silva forward an additional copy of the recordings directly to the Bristol County district attorney's office. On May 3, 2006, the sheriff's office sent the recordings to the district attorney's office. On June 1, the prosecution sent the recordings to the defense counsel along with other discovery materials he planned to use at trial. The recordings were accompanied by a letter indicating that the prosecutor intended to introduce the incriminating calls in evidence and that he would call Silva as a witness at trial. The trial began on October 10, 2006.
Discussion. 1. Possession of a dangerous weapon. a. Statutory standard. The crime of possession of a dangerous weapon pursuant to G.L. c. 269, § 10( b ), 7 as amended through St.1986, c. 581, § 1, is a single offense which can be proved in one of two different ways depending on whether the defendant was carrying the weapon at the time of his arrest. Where, as here, the weapon is not on the defendant's person at the time of his arrest, the Commonwealth is required to prove that the defendant
“carrie[d] on his person ... any stiletto, dagger, or a device or case which enables a knife with a locking blade to be drawn at a locked position, any ballistic knife, or any knife with a detachable blade capable of being propelled by any mechanism, dirk knife, any knife having a double edged blade, or a switch knife, or any knife having an automatic spring release device by which the blade is released from the handle, having a blade of over one and one-half inches....”
G.L. c. 269, § 10( b ). In contrast, the statute provides for an alternative mode of proof of guilt in cases in which the defendant is arrested on a warrant or for a breach of the peace and has the alleged dangerous weapon on his person at the time of arrest. In such cases, the statute provides that the defendant is guilty of a § 10( b ) violation if he is “armed with or has on his person ... a billy or other dangerous weapon other than those herein mentioned and mentioned in paragraph ( a )....” In each case, the offense is a felony punishable by up to five years in State prison. The effect of the statute's language is that if a person is not armed at the time of his arrest, as in this case, the Commonwealth is required to prove that the defendant possessed one of the weapons enumerated in the statute.
In this case, the prosecutor did not argue at trial that the weapon possessed by the defendant was one of those specific weapons enumerated in G.L. c. 269, § 10( b ). However, the prosecutor argued on the defendant's motion for a new trial, and also argues on appeal, that the defendant's weapon was a “dirk knife,” one of the enumerated weapons in G.L. c. 269, § 10( b ).8, 9 The defendant contends that the weapon described by the witness falls under none of the weapons prohibited by the statute. Because we find that the weapon possessed by the defendant could not be considered a “dirk knife” under the statute, we explore the definitional scope both of “dirk knife” and of the other prohibited weapons listed in G.L. c. 269, § 10( b ), in particular that of “dagger[s].” In so doing, we are mindful that in interpreting statutes, “[w]ords and phrases shall be construed according to the common and approved usage of the language,” except where they have acquired a “peculiar and appropriate meaning in law.” G.L. c. 4, § 6, Third. See Commonwealth v. McDowell, 62 Mass.App.Ct. 15, 20, 814 N.E.2d 1139 (2004). 10 We must presume that the Legislature is familiar with common-law definitions of the terms it uses in a statute. See Commonwealth v. Fortier, 56 Mass.App.Ct. 116, 120, 775 N.E.2d 785 (2002).11 “If the language of the statute is ‘fairly susceptible [of] a construction that would lead to a logical and sensible result’ ... we will construe [it] so ‘as to make [it an] ... effectual piece[ ] of legislation in harmony with common sense and sound reason.’ ” Commonwealth v. Williams, 427 Mass. 59, 62, 691 N.E.2d 553 (1998), quoting from Commonwealth v. A Juvenile, 16 Mass.App.Ct. 251, 254, 450 N.E.2d 1089 (1983). However, regardless of the interpretive rule applied, any construction of a statute must give way when its observance “would involve a construction inconsistent with the manifest intent of the law-making body.” Commonwealth v. Moran, 80 Mass.App.Ct. 8, 11, 951 N.E.2d 356 (2011).12 We note also, as Justice Kaplan put it in a different context, no form of words is “self-interpreting.” Antonellis v. Northgate Constr. Corp., 362 Mass. 847, 851, 291 N.E.2d 626 (1973). Finally, because this is a criminal case, the statute must be construed strictly, and any ambiguity resolved in favor of the defendant. See Commonwealth v. Lupo, 394 Mass. 644, 649, 476 N.E.2d 963 (1985).
The leading case in Massachusetts on the definition of “dirk knife” is Commonwealth v. Miller, 22 Mass.App.Ct. 694, 497 N.E.2d 29 (1986). That...
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