Commonwealth v. Mahar

• Decision Date: 06 December 1999
• Citation: 722 NE 2d 461,430 Mass. 643
• Parties: COMMONWEALTH v. RICHARD MAHAR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 643

722 NE 2d 461

COMMONWEALTH v. RICHARD MAHAR.

Supreme Judicial Court of Massachusetts, Suffolk.

December 6, 1999.

January 25, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Nona E. Walker, Committee for Public Counsel Services, for the defendant. Paul B. Linn, Assistant District Attorney (Peter G. Flaherty, II, Assistant District Attorney, with him) for the Commonwealth.

GREANEY, J.

Based on an incident that occurred at about 6 P.M. on March 3, 1997, at the house at 528 Metropolitan Avenue in the Hyde Park section of Boston, a jury in the Superior Court convicted the defendant of armed home invasion, G. L. c. 265, § 18C; armed assault with intent to rob, G. L. c. 265, § 18 (b); several other assaults¹; and wilful and malicious injury to an automobile, G. L. c. 266, § 127. The defendant, represented by new counsel, has appealed from his convictions, and we transferred his appeal to this court on our own motion.

We reject the defendant's argument that his motions for required findings of not guilty on the armed home invasion and armed assault with intent to rob charges were improperly denied. We accept the Commonwealth's concession that the lack of a pertinent jury instruction requires reversal of the defendant's conviction of armed assault with intent to rob. We shall adopt rule 806 of the Proposed Massachusetts Rules of Evidence and conclude that the judge's refusal, consistent with the rule, to admit impeachment evidence offered by the defendant did not prejudice his case. Finally, we conclude that the defendant was not improperly denied a requested jury instruction in connection with the entry element of the crime of armed home invasion.

Based on the Commonwealth's evidence, the jury could have found the following facts. On March 3, 1997, Sandra MaGrath picked up her friend, Gina Venteroso, the defendant's girl friend, and took Venteroso to her house at 528 Metropolitan Avenue. Several people resided at MaGrath's house, including her four children; her boy friend, Richard Coote; and her uncle, Joseph Ventola. MaGrath knew of the defendant because he was a friend of the father of one of her sons, Edward Goss, but she did not know the defendant personally and was not his friend. Coote knew the defendant, but "never hung out with him or nothing." Ventola hardly knew the defendant, but did know who he was.

At approximately 6 P.M. that day, MaGrath and Goss were in her kitchen. Goss was behind a door talking on the telephone. Ventola was in the bathroom, and Venteroso, Coote, and the children were in the living room. The outside door leading into the kitchen was open, and the storm door was closed. To open the storm door, one would have to press a button on the handle and then push on the door.

MaGrath heard a knock on the storm door, looked up, and saw the defendant. He asked for Venteroso. (The top panel of the door was glass which allowed the defendant to be seen by anyone in the kitchen.) MaGrath called Venteroso, and she came into the kitchen. The defendant then opened the storm door and barged into the kitchen with a machete in his hand. The defendant grabbed Venteroso by her shirt, held the machete up to her neck, and said she owed him money. The defendant grabbed Venteroso by her hair and bounced her off the wall and door. The defendant, with the machete raised over his head, told Venteroso that he "was going to chop her" and repeatedly told her that he was going to kill her. The defendant assaulted Venteroso, exclaiming, "I want five hundred dollars," or, "Give me my five hundred dollars." He also threatened Ventola with the machete, saying that, if he moved, the defendant would strike him with the machete.

The defendant dragged Venteroso out of the house by her hair and down three stairs to the ground. While outside, the defendant broke the kitchen storm door window with the machete, jumped up and down on the hood of one of Ventola's automobiles, and used the machete to smash all of the windows of another vehicle owned by Ventola. When Ventola came outside, the defendant jumped in his automobile and tried to run Ventola over.

Shortly after the defendant left, the police arrived. The telephone rang, and Ventola answered it. The defendant was on the line and told Ventola, "That was step one and we're going to go to step two." Ventola handed the telephone to Officer Kevin Doogan of the Boston police department, who took the telephone and heard a male voice say, "I'm going to chop all of yous, and no one is going to get ... anyone that gets in the way of me and my money I'm going to f'n kill."

Officer Doogan spoke with Venteroso, who was crying hysterically and having difficulty breathing. Venteroso's hair and clothes were disheveled. She had red welts on her face and neck, and she had a bleeding injury to her left ring finger at the knuckle. Venteroso told Officer Doogan what had happened to her. She explained that she had received a settlement check, and that the defendant wanted some of the money she had received.

The police arrested the defendant. While being transported to the police station, the defendant stated to the police, "You ain't never going to find that mother-fucking machete; I made sure of that," and, "The machete is nice and safe. It will come out when I get out." (The machete was never found.) The defendant also stated, "Those people ... will never testify against me. I put the fear of God into them." Later at the police station, the defendant stated that, when he came out, "there would be more than one beef."

1. We first decide the defendant's claims concerning his motions for required findings of not guilty on the armed home invasion and armed assault with intent to rob charges.

(a) General Laws c. 265, § 18C, defines the crime of armed home invasion as follows: "Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished...." The defendant focuses on the entry element of the crime and argues that he was entitled to a required finding of not guilty because the Commonwealth's evidence did "not make out a nonconsensual entry; indeed [the evidence] indicates that the defendant's entry into the house was consensual." To support his contention, the defendant principally relies on Commonwealth v. Dunn, 43 Mass. App. Ct. 58 (1997). There, the Appeals Court discussed a contention that G. L. c. 265, § 18C, "fail[ed] to distinguish a lawful from an unlawful entry." Id. at 60. The court stated: "The term `enters' within the statute is given no special definition. Nonetheless, the word is to be construed as an unlawful entry, consistent with its use in a criminal context. See Black's Law Dictionary 533 (6th ed. 1990) (`In criminal law, entry is the unlawful making [of] one's way into a dwelling or other house, for the purpose of committing a crime therein'). See also Commonwealth v. Ricardo, 26 Mass. App. Ct. 345, 355 (1988) (for purposes of armed assault within a dwelling, G. L. c. 265, § 18A, entry must be `unprivileged' or unlawful). Indeed, the act's very caption — `An Act Establishing the Crime of Home Invasion' — bespeaks legislative intent that a consensual or privileged entry is not an `invasion.'" (Emphasis added.) Id. Thus, the Appeals Court concluded that the word "entry" in the statute "contemplates the common law meaning of an unlawful, or nonconsensual entry" (emphasis added). Id. The Commonwealth argues that the evidence, considered under governing standards, see Commonwealth v. Martino, 412 Mass. 267, 272 (1992); Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), was sufficient to prove an unlawful entry. We agree.

While there was evidence that the defendant opened the storm door and came into the house only after Venteroso had been called and had come into the kitchen, Venteroso told Officer Doogan that the defendant "barged" into the kitchen. There was no evidence the defendant was an occupant of the house, and no evidence that the defendant was accustomed to entering the dwelling without explicit permission. The evidence indicates that the defendant purposely hid the machete from sight when he came to the storm door, so he would not be prevented from entering. As we shall explain in more detail in Part 3 of this opinion, this is not a case in which the defendant could properly assert that his entry was consensual. On the Commonwealth's evidence, the jury permissibly could find that his entry was unlawful.²

(b) General Laws c. 265, § 18 (b), defines the crime of armed assault with intent to rob as follows: "Whoever, being armed with a dangerous weapon, assaults another with intent to rob or murder shall be punished...." An essential element of this crime is that the defendant had a specific intent to rob. A defendant lacks the requisite intent if he has an honest and reasonable belief that he took his own property. See Commonwealth v. White, 5 Mass. App. Ct. 483, 488 (1977). The defendant argues that he was entitled to a required finding of not guilty because the Commonwealth's proof was insufficient to establish that he had a specific intent to rob Venteroso, as "there was no evidence indicative of the defendant's intent to do anything other than recover his own money." Again, we disagree. There was evidence that Venteroso told Officer Doogan that she had received a settlement check and that the defendant had claimed some of the proceeds. Venteroso also told Officer Doogan that the defendant had a machete and attacked her....