Commonwealth v. Graham, No. 03-P-697 (MA 12/7/2004)
| Decision Date | 07 December 2004 |
| Docket Number | No. 03-P-697.,03-P-697. |
| Citation | 62 Mass. App. Ct. 642 |
| Parties | COMMONWEALTH vs . ROBERT GRAHAM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Burglary. Attempt. Practice, Criminal, Instructions to jury. Evidence, Prior conviction, Hearsay, Intent, State of mind, Emotional state. Resisting Arrest. Assault and Battery on Certain Public Officers and Employees. Self-Defense.
Indictments found and returned in the Superior Court Department on December 29, 1999.
The cases were tried before Robert Malcolm Graham, J.
Robert A. O'Meara for the defendant.
Timothy J. Pomarole (Dean A. Mazzone, Assistant District Attorney, with him) for the Commonwealth.
Present: Duffly, Cohen, & Green, JJ.
Convicted by a jury of numerous offenses, the defendant's appeal focuses on his convictions of attempted burglary, G. L. c. 274, § 6; resisting arrest, G. L. c. 268, § 32B; and three counts of assault and battery on a police officer, G. L. c. 265, § 13D.1, 2 We affirm the conviction of attempted burglary, as to which the defendant makes the following claims: (1) the judge erred in denying the defendant's motions for a required finding of not guilty because the evidence from which intent could be inferred was insufficient to convict him of attempted burglary; (2) the judge instructed the jury incorrectly on the requisite intent to prove attempted burglary; (3) evidence of his prior convictions of similar crimes was erroneously admitted; and (4) testimony of a defense witness was wrongly precluded.
We agree that the judge's failure to give a requested self-defense instruction was an error that prejudiced the defendant and requires reversal of the convictions of resisting arrest and assault and battery on a police officer.
1. Attempted burglary. We begin with a summary of the facts the jury could have found, drawn from the Commonwealth's case, in order to address the defendant's claims with respect to his conviction for attempted burglary, leaving for later discussion evidence relevant to his other claims.
In the early morning hours of September 12, 1999, Martyn Botsfield, a resident of an apartment building located at 363 Marlborough Street in Boston, was awakened by the sound of his apartment buzzer. Once awake, he could hear other buzzers ringing in the building. When his apartment buzzer rang a second time and he asked the person to identify himself, he was told, "Let me in." After Botsfield refused entry, he heard the person walk down the stairs. Twenty minutes later, when Botsfield heard someone creeping up the fire escape of his building, he called the police.
Officers Robert Charbonnier and Patrick Foley of the Boston police department responded to this call. Officer Charbonnier left his cruiser and approached the building, shining his flashlight onto the fire escape. There he observed a black male, later identified as the defendant, in a kneeling position on the fire escape, pulling on a window grate with his hands. When Officer Charbonnier ordered him to come down, the defendant ran up the fire escape and onto the roof, whereupon the officer lost sight of him. The officers gained access to the roof and were joined by several other uniformed police officers who assisted in a rooftop search of 363 Marlborough Street. The defendant was not located there, but the officers noticed that a skylight on the adjacent building, a residence with an address of 13 Hereford Street, was ajar. Officers Charbonnier and Foley entered that building through the skylight and identified themselves to the building's owner, Adelbert Spitzer. The officers conducted a search of the dwelling but did not find the suspect. Spitzer then made his own search before allowing his wife and daughters to return to their bedrooms. In one daughter's bedroom he observed that toy bins typically kept underneath the bed were sticking out. He pulled the toy bins aside and looked under the bed, where he saw the back of an individual lying with his face against the wall. Spitzer alerted police, who were still outside, and several officers proceeded to the bedroom. Officer Thomas Antonino entered first, with his service revolver drawn. Officer Foley lifted the mattress from the bed and saw the defendant curled up in a fetal position against the wall. The defendant was ordered to come out from under the bed.
All of the officers who testified to the events that followed made essentially identical statements, to the effect that the defendant lunged from the bed and that there ensued a violent struggle during which the defendant kneed and elbowed the officers. Attempts to spray the defendant with mace did not subdue him, and Officer Charbonnier, who weighed 220 pounds, held onto the defendant, but lost control of him. The officers then tackled the defendant in the hallway outside the bedroom. Ultimately, it took several police officers to subdue the defendant and handcuff him. During a routine pat-down search of the now-handcuffed defendant, police found six "hits" of "crack" cocaine in the defendant's socks, and several empty plastic baggies in the landing area.
a. Sufficiency of the evidence. The statutory basis for the conviction of attempted burglary is two-fold. The crime of "attempt[ing] to commit a crime" is set forth in G. L. c. 274, § 6, and requires that the defendant "engage[] in some overt act" toward commission of a crime with the intent to commit that crime. Commonwealth v. Burns, 8 Mass. App. Ct. 194, 196 (1979). The underlying crime here was "break[ing] and enter[ing] a dwelling house in the night time, with intent to commit a felony." G. L. c. 266, § 14. "[T]he Commonwealth must prove not only a breaking and entering but that it was done `with intent to commit a felony.'" Commonwealth v. Lewis, 346 Mass. 373, 377 (1963), cert. denied, 376 U.S. 933 (1964), quoting from G. L. c. 266, § 18. The indictment is silent as to the nature of the felony, but the trial judge instructed the jury that "the felony that the Commonwealth is alleging in this indictment is that the defendant intended to commit a larceny in the dwelling." See Commonwealth v. Willard, 53 Mass. App. Ct. 650, 653 (2002).
The evidence of the defendant's attempt to gain entry to the building in the middle of the night by ringing buzzers, his subsequent lurking on a fire escape outside of an apartment, and his pulling on a window grate was sufficient to establish the first two elements of the offense: that the defendant harbored the intent to break and enter the building at 363 Marlborough Street, in the night time. See G. L. c. 266, § 14; Commonwealth v. Anderson, 396 Mass. 306, 311 (1985). The defendant concedes that he was attempting to break and enter the dwelling but claims that he did so in order to hide from police, not to steal, and he argues that this evidence was insufficient to establish his intent to steal. Additional evidence of the defendant's intent, beyond the attempted break and entry itself, however, supported the inference that the defendant harbored the intent to steal once inside the building.
Here, the attempt was made in the night time; when coupled with the additional evidence that defendant fled when discovered by police on the fire escape, hid from police, and gave explanations that could be found to be false as to why he was trying to get into the building, the evidence was sufficient to warrant a finding that he intended to steal.3 See Commonwealth v. Eppich, 342 Mass. 487, 492 (1961) (). See also Commonwealth v. Ronchetti, 333 Mass. 78, 81-82 (1955); Commonwealth v. Maia, 429 Mass. 585, 587-588 (1999).
Though not required to do so, the jury were warranted in finding an intent to steal "from the circumstances attending the act, and from the conduct and declarations of the defendant." Commonwealth v. Lewis, 346 Mass. at 378, quoting from Commonwealth v. Shedd, 140 Mass. 451, 453 (1886).4
b. Larceny instruction. Relying on G. L. c. 266, § 30 (), the defendant argues that the jury should have been instructed that they had to find beyond a reasonable doubt the property that the defendant intended to steal had a value in excess of $250. The instruction was not required. "[L]arceny in a building is a felony regardless of the value of the items stolen." Commonwealth v. Cruz, 430 Mass. 182, 188 (1999). See Commonwealth v. Lewis, 346 Mass. at 378 ().
In any event, to determine whether the stealing in this case constituted a felony, the relevant statute is not G. L. c. 266, § 30, but G. L. c. 266, § 20, which provides: "Whoever steals in a building, ship, vessel or railroad car shall be punished by imprisonment in the state prison for not more than five years or by a fine of not more than five hundred dollars or by imprisonment in jail for not more than two years." As defined by G. L. c. 274, § 1, "[a] crime punishable by . . . imprisonment in the state prison is a felony." Thus, "[t]here [is] no need to prove the value of the [stolen item] as larceny from a building is a felony itself without regard to the value of the stolen property." Commonwealth v. Lattimore, 6 Mass. App. Ct. 873 (1978). See Commonwealth v. Ronchetti, 333 Mass. at 82 (); Commonwealth v. Willard, 53 Mass. App. Ct. at 655-656 (same). Compare Commonwealth v. Hill, 57 Mass. App. Ct. 240, 248 (2003) (). The instruction was proper.
c. Evidence of prior conviction. During cross-examination of the defendant, the trial judge permitted...
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