Commonwealth v. Richards

• Citation: 293 N.E.2d 854,363 Mass. 299
• Parties: COMMONWEALTH v. Earl RICHARDS.
• Decision Date: 13 March 1973
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 854

293 N.E.2d 854

363 Mass. 299

COMMONWEALTH v. Earl RICHARDS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 5, 1972.

Decided March 13, 1973.

Francis C. Lynch, Jr., Springfield, for defendant.

Barbara A. H. Smith, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

Earl Richards and Robert Richards, brothers, were each indicted for the crimes of assault on Richard Farrell, a police sergeant, with intent to murder; assault and battery upon Sergeant Farrell by means of a dangerous weapon; and armed robbery from the person of John Tucker, an employee of a supermarket. The brothers were tried together before a Middlesex County jury. At the close of the Commonwealth's case, the judge directed a verdict for Robert Richards, the younger brother, with respect to the charge of assault with intent to murder. At the close of trial, the jury found Robert Richards not guilty of the remaining two charges. They found Earl Richards (the defendant) guilty of all three charges. The case is here on appeal from the ensuing judgments of conviction under G.L. c. 278, §§ 33A--33G, with the defendant claiming error in the judge's instructions as to the armed robbery charge; his refusal to direct a verdict for the defendant on the charge of assault with intent to murder; and his refusal to order a mistrial by reason of two prejudicial (and unresponsive) statements made by a witness for the Commonwealth during cross-examination.

Under the jury's verdicts, we may take it that the facts were as follows. On the morning of October 28, 1969, the defendant arranged to meet one George Abbott and one George Hartnett at a bar in South Boston. The three then picked up Robert Richards, and all proceeded to Maynard, Massachusetts, in two cars, a Rambler and a Pontiac. Arriving in Maynard, they stopped at a car repair shop called J & E Auto Body owned by John Rich, the defendant's brought-in-law. About 1:30 or 1:45 P.M., the four men set out in the Rambler toward Stow, Massachusetts, leaving the Pontiac at the shop. The defendant was driving. When still some distance from Stow, he pulled the car over to the side of the road and stopped it. He said they were 'going up the road to pick up a piece of change.' He handed Hartnett a .22 caliber automatic and a false mustache, and handed Abbott a paper bag containing a .38 caliber pistol. The weapons were loaded.

As the party started again toward Stow, the defendant told Abbott to take the manager of the store to the office; Hartnett would back up Abbott, and the defendant would back them both up. Robert Richards was to stay in the car.

The store to be robbed was the Purity Supreme Market in Stow. It was reached some ten or fifteen minutes after the party left Maynard. The defendant parked the car in a parking space adjacent to the store. Following the plan, Abbott and Hartnett entered the store and sought out Tucker, the assistant manager. Abbott showed Tucker the gun in his trouser belt and ordered Tucker to go to the office. Hartnett remained in the store proper. Tucker, with Abott close behind, walked to the office, and signalled to a Mrs. Emma Huntley, the bookkeeper, to open the door of the office, which she did. Tucker and Abbott entered. Abbott now had the gun in his hand and pointed it at Tucker and Mrs. Huntley. At Abbott's direction, Tucker and Mrs. Huntley took bills from the office safe and loose bills and rolled coins from the cashier's cage in the front of the office and stuffed them into a paper bag provided by Abbott. In the course of these movements, Mrs. Huntley contrived to pull a button that set off an alarm in the Stow police station.

Sergeant Farrell, on duty at the police station, reached the Purity store by car in perhaps two minutes and on entering exchanged a word with Mrs. Huntley who was in the cashier's cage. Meanwhile Tucker had left the office followed by the defendant carrying the paper bag. Tucker saw Sergeant Farrell and evidently shouted to him, and then ducked or crouched. Farrell yelled to Abbott to stop; ¹ Abbott dropped the bag, turned toward a nearby wall, and raising his hands over his head, pressed them to the wall. By this time Hartnett had approached Farrell from the rear and was within a few feet of him. Farrell had barely seen Hartnett when Hartnett shot at Farrell perhaps four times. Farrell fell to the floor seriously injured. He had been shot near the eye and in the head.

Abbott and Hartnett fled from the store toward the waiting car. There was evidence that the defendant had been standing near the car. With the defendant again driving, the Rambler with the four occupants made its way back to the repair shop in Maynard. After waiting a few hours there, the defendant and Robert Richards returned to Boston in the Pontiac; Abbott and Hartnett returned in a Chevrolet with the defendant's sister. The Rambler apparently remained at the shop.

1. Upon this record, the defendant assigns as error that in instructing on armed robbery the judge did not make it clear (so the defendant argues) that the jury, in order to convict, would have to find out only threats or displays of force by the actor, Abbott, but actual fear of harm on the part of the victim.

Under our statutes, as at the common law, robbery may be encompassed in either of two ways: by force applied to the person, with intent to steal, or by an assault putting the person in fear, with the same intent. G.L. c. 265, § 17 (armed robbery), § 19 (robbery by unarmed person); c. 277, § 39 (construction of words used in indictment). Commonwealth v. Novicki, 324 Mass. 461, 465, 87 N.E.2d 1; Commonwealth v. McCarthy, Mass., ^a 276, N.E.2d 283. See Commonwealth v. Humphries, 7 Mass. 242, 244; Commonwealth v. Clifford, 8 Cush. 215, 216; Commonwealth v. Nickologines, 322 Mass. 274, 276--277, 76 N.E.2d 649; Commonwealth v. Mahoney, 331 Mass. 510, 513, 120 N.E.2d 645; COMMONWEALTH V. JONES, MASS., 283 N.E.2D 840.^B The Commonwealth did not claim that the defendant committed a battery upon Tucker, but relied on the other alternative, and this focused attention on the extent to which apprehension must be charged and proved.

Discussion of this subject between the court and counsel was rather confused, but it appears that the charge given was adequate.

At a bench conference after the judge had given his main instructions there was a spirited debate about the need to instruct that Tucker must be shown to have experienced fear when confronted with Abbott's pistol and commands. The judge said during the colloquy 'fear was not a necessary element; . . . the perpetrator should be judged by what he does.' For this proposition he relied on Commonwealth v. Slaney, 345 Mass. 135, 185 N.E.2d 919.

That case considered the essentials of a simple criminal assault, not a robbery, and, reverting to the oldest conception of assault, said that if could be made out by proof of an attempted but unaccomplished battery without regard to whether the victim was put in fear. The defendant there had shot at the person but missed. That would be enough, according to the court's reasoning, even if the person was unaware of the attempt on him; he might indeed have been asleep at the time. In this sense the accused was judged by what he did without regard to its effect on the mind of his victim. Commonwealth v. Slaney, supra. at 138--139, 185 N.E.2d 919. See Perkins, Criminal Law (2d ed.) 114--122. The Slaney case, however, did not deny--what is clearly envisoned by our decisions--that an assault could consist, alternatively, of putting a person in fear, as by the defendant's displaying a gun and the person's apprehending the danger, even if the defendant did not intend to shoot and in fact did not have the ability to do so effectively because his gun was not loaded. See Commonwealth v. White, 110 Mass. 407, 409.

If we take the first form of assault mentioned, the mere attempted battery where the person is unaware of the attempt, it is doubtful whether this could ever satisfy the conditions for robbery by force: a battery of some sort seems requisite, which is the means of or facilitates the theft. COMMONWEALTH V. JONES, MASS., 283 N.E.2D 840.^C In this respect the Slaney case has only a dubious bearing on robbery. The alternative form of assault referred to in the Slaney case, that in which the person senses that force may be used and is thereby put in fear, does meet the robbery requirement when the fear facilitates the theft, see Commonwealth v. Novicki, 324 Mass. at 465, 87 N.E.2d 1; Commonwealth v. Jones, supra, ^d 283 N.E.2d 840, but then it cannot be said the actor is judged by what he does without regard to the victim's reaction. Nor does the Slaney case consider whether actual apprehension on the part of the victim may be simply assumed, and mention of it omitted from the instructions, when proof is abundant that the weapon was displayed as a threat and the victim recognized it as such.

The Slaney case is thus not dispositive of the question whether it would be error to fail to instruct the jury that they could bring in a verdict of guilty on the armed robbery charge only if they found that Tucker was in fact put in fear. We have not, however, that precise question to decide, because, as the judge said, he had 'bent over backwards' in delivering his main instructions; he had dealt in general terms with the issue of putting in fear. He had distinguished between theft through violence and through assault and putting in fear, and he had spoken of actual force in distinction from 'constructive' force--'such as,' he said, 'threatening words or gestures or the display of a deadly weapon, which operates on the mind of the person to be robbed. That is what you would require as far as the assault part is concerned.' The judge went on to mark the difference between larceny and robbery, contrasting theft by stealth with theft by...