Opinion
No. 15–P–393.
05-31-2016
COMMONWEALTH v. Elton J. SANCHES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in Superior Court, the defendant was convicted of assault by means of a dangerous weapon, G.L.c. 265, § 15B(b), armed assault with intent to kill (as a lesser offense of armed assault with intent to murder), G.L.c. 265, § 18(b), and mayhem, G.L.c. 265, § 14. On appeal the defendant contends that the trial judge erred in instructing the jury only on self-defense by means of deadly force, without also providing an instruction on self-defense by means of nondeadly force. Additionally, the defendant asserts that there was insufficient evidence to support his conviction of mayhem, and that his conviction of assault by means of a dangerous weapon is duplicative both of his convictions of mayhem and of armed assault with intent to kill. We affirm in part and reverse in part.
Armed assault with intent to kill is a lesser included offense of armed assault with intent to murder, G.L.c. 265, § 18(b), where the specific intent equates to an intent to kill. See Commonwealth v. Vick, 454 Mass. 418, 428 (2009) (“Mitigation reduces the crime from assault with intent to murder to assault with intent to kill, a lesser included offense”).
The defendant was convicted of additional charges that are not the subject of this appeal: possession of a firearm without a firearm identification card, G.L.c. 269, § 10(a), possession of ammunition without a firearm identification card, G.L.c. 269, § 10(h), and assault and battery by means of a dangerous weapon, G.L.c. 265, § 15A, which the Commonwealth acknowledged was a lesser included offense of mayhem. The defendant was acquitted of armed robbery with a firearm, G.L.c. 265, § 17.
Background. Except where otherwise noted we refer to the facts as the jury could have found them. On December 11, 2012, the defendant, along with Jose Monteiro (the victim), Jailee Washington, and two other friends drove to a beach to smoke marijuana. Both the defendant and the victim had prior relationships with Washington, and the defendant had fathered a child with her.
When the group arrived at the beach, the defendant indicated that he needed to speak with the victim outside the car. Shortly after exiting the car, the defendant took a pistol out, pointed it at the victim and told the victim that he was being robbed. The victim handed approximately $300 to the defendant. When the victim observed the defendant cocking the gun, he attempted to disarm the defendant by grabbing and punching him. A scuffle ensued and the defendant hit the victim over the head with the gun several times before the victim ran away. As a result of the bludgeoning, the victim bled considerably and sustained multiple lacerations to his head, requiring sutures. A gun with the victim's blood on the handle was later recovered.
After the altercation, the defendant observed that the gun “looked weird” and he believed it could discharge at any time. The defendant dismantled the gun and wrapped the pieces in his T-shirt. One of the defendant's friends, who was also present in the car during the altercation, took the dismantled gun and hid it in a crawl space in her father's house. The police later recovered the gun from that crawl space.
Discussion. 1. Self-defense instruction. The defendant neither objected to the trial judge's instruction on the use of self-defense by means of deadly force nor requested an additional instruction for self-defense by means of nondeadly force. He now contends that the trial judge erred in failing, sua sponte, to provide an instruction on the use of nondeadly force in self-defense. We discern no error in the trial judge's decision to instruct the jury on self-defense exclusively by means of deadly force.
It is well established that a defendant is “entitled to an instruction on the use of nondeadly force if any view of the evidence, regardless of the credibility, and resolving all reasonable inferences in favor of the defendant, would support a finding that nondeadly force was, in fact, used in self-defense.” Commonwealth v. Lopes, 440 Mass. 731, 740 (2004). See Commonwealth v. Noble, 429 Mass. 44, 46 (1999). To apply this standard we adopt the defendant's testimony at trial, testimony that presented the following version of events: While the two men were arguing, the victim (and not the defendant) produced the gun; in the ensuing struggle both men fell to the ground with the victim on top of the defendant. The defendant gained possession of the gun while the victim was on top of him and used the gun to strike the victim in the head. The defendant pushed the victim off, and as both men rose from the ground, the defendant again hit the victim in the head with the gun. The victim ran away, ending the scuffle.
Deadly force is “force intended or likely to cause death or great bodily harm.” Commonwealth v. Cataldo, 423 Mass. 318, 321 (1996), quoting from Commonwealth v. Klein, 372 Mass. 823, 827 (1977). By contrast, nondeadly force is “force neither intended nor likely to cause death or great bodily harm.” Cataldo, supra at 325. See Noble, supra at 46 (nondeadly force generally includes force exerted with “one's fists, hands, and arms”). In determining whether a nondeadly or deadly force instruction is warranted, “[t]he relevant inquiry is what level of force was used, not what the resulting injuries were.” Commonwealth v. Pike, 428 Mass. 393, 396 n. 3 (1998). See id. at 396 (where defendant threw a metal radio at the victim's head, “[t]he standard for self-defense by deadly force should be applied, even though death did not result”).
Because the charges rested on the defendant's use of the gun to beat the victim, we analyze the defendant's claim that he was entitled to an instruction on self-defense by means of nondeadly force at the point in time when, according to his testimony, he gained possession of the gun as the two men struggled on the ground. The principal issue is whether the act of striking the victim several times in the head with the metal gun could constitute nondeadly force as a matter of law. Even viewing the evidence in the light most favorable to the defendant, he repeatedly bludgeoned the victim in the head with the gun. See ibid. (striking the victim in the head with a metal object appropriately analyzed under self-defense by means of deadly force). The judge did not err in finding that the force of striking the victim in the head with a metal object constituted force that was “likely to cause death or great bodily harm.” Cataldo, 423 Mass. at 321, quoting from Klein, 372 Mass. at 827. Significantly, the metal object was a loaded firearm that could have discharged, with grievous or fatal consequences. Accordingly, the defendant's actions, viewed in the light most favorable to him, did not warrant an instruction on self-defense by means of nondeadly force.
In fact the defendant testified that the gun discharged during the scuffle as he and the victim fell to the ground.
2. Sufficiency of the evidence—mayhem. The defendant was convicted under the second branch of the mayhem statute, G.L.c. 265, § 14, for striking the victim in the head with the gun. On appeal, the defendant argues that there was insufficient evidence to support a conviction of mayhem because there was no evidence indicating that he acted with the specific intent to maim or disfigure the victim. We consider the defendant's argument viewing the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
The second branch of the mayhem statute states:
“[W]hoever, with intent to maim or disfigure, assaults another person with a dangerous weapon, substance or chemical, and by such assault disfigures, cripples or inflicts serious or permanent physical injury upon such person ... shall be punished....”
G.L.c. 265, § 14.
The mental state required to support a mayhem conviction “is satisfied by direct or inferential proof that the assault was intentional, unjustified, and made with the reasonable appreciation on the assailant's part that a disabling or disfiguring injury would result.” Commonwealth v. Ogden O., 448 Mass. 798, 800 (2007), quoting from Commonwealth v. Davis, 10 Mass.App.Ct. 190, 196 (1980). “[S]pecific intent may ... be inferred from the severity and extent of the victim's injuries.” Commonwealth v.Forbes, 86 Mass.App.Ct. 197, 199 (2014) (quotation omitted).
The robbery, of which the defendant was acquitted, may have been planned, but it appears that the scuffle between the defendant and the victim was not. The record indicates that the scuffle occurred in the “spur of the moment,” which is generally insufficient to support a conviction of mayhem, absent a defendant's particularly “heinous” conduct. See Commonwealth v. Cleary, 41 Mass.App.Ct. 214, 218 (1996) (single blow to an eye with a bladeless axe handle was insufficient to support a mayhem conviction where evidence showed the defendant acted in the spur of the moment after the victim kicked his car); Commonwealth v. Johnson, 60 Mass.App.Ct. 243, 247 (2003) (beer bottle broken over victim's head was insufficient evidence of specific intent to maim because injuries were the product of a single blow, in the course of a fight).
Furthermore, the victim's injuries, while serious, do not amount to the grievous level of disfiguration suffered in cases where mayhem convictions were upheld. See, e.g., Commonwealth v. Mercado, 24 Mass.App.Ct. 391, 393 (1987) (after the victim had been beaten senseless, the defendant hit him over the head with a baseball bat, fracturing his face and permanently damaging his inner ear); Commonwealth v. Hap Lay, 63 Mass.App.Ct. 27, 30 (2005) (intent to maim established where defendant struck the victim with a metal object such as a tire iron or crowbar with such force that blood and brain matter sprayed out); Commonwealth v. McPherson, 74 Mass.App.Ct. 125, 128–129 (2009) (the defendant swinging and hitting the victim in the head with a baseball bat, crushing the bridge of his nose and severely injuring his left eye was sufficient to prove intent to maim). Absent evidence that the defendant acted with the specific intent required to support a mayhem conviction, and also absent evidence of “disfigur[ing], crippl[ing] or ... serious or permanent” injuries, there was insufficient evidence to uphold the mayhem conviction. See G.L.c. 265, § 14.
A reversal of the defendant's mayhem conviction on sufficiency grounds does not invalidate any of the elements of the lesser included offense of assault and battery by means of a dangerous weapon, of which he was found guilty but for which he was not sentenced. Therefore, this matter shall be remanded to the Superior Court for resentencing. See Commonwealth v. Labadie, 467 Mass. 81, 88 (2014), citing Commonwealth v. French, 462 Mass. 41, 49–51 (2012).
3. Duplicative convictions. The defendant contends that his conviction of assault by means of a dangerous weapon is duplicative of his conviction of armed assault with intent to kill. We disagree. “[A] defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.” Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). “[A]ssault by means of a dangerous weapon requires proof that the defendant used the weapon in the course of the assault, whereas armed assault with intent to [kill] requires only that the defendant be armed at the time of the assault; ‘the weapon need not have been used.’ “ Commonwealth v. Bright, 463 Mass. 421, 445–446 (2012), quoting from Salemme v. Commonwealth, 370 Mass. 421, 424 (1976). Conversely, armed assault with intent to kill requires proof of a specific intent to kill, whereas assault by means of a dangerous weapon, a general intent crime, does not. Bright, supra at 445. Accordingly, the defendant's convictions of armed assault with intent to kill and assault by means of a dangerous weapon were not duplicative.
Having determined that there was insufficient evidence of mayhem, we need not address whether a conviction of assault by means of a dangerous weapon is duplicative of mayhem (second branch). See Commonwealth v. Martin, 425 Mass. 718, 722 (1997).
However, we are constrained by the decision of Commonwealth v.. Porro, 458 Mass. 526, 533–534 (2010), to conclude that the conviction of assault by means of a dangerous weapon conviction can no longer stand, as it is a lesser included offense of assault and battery by means of a dangerous weapon, upon which the defendant will now be sentenced (see part 2, supra ).
--------
Conclusion. On the indictment charging mayhem, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. On the indictment charging assault by means of a dangerous weapon, the judgment is vacated, the verdict is set aside, and the indictment is to be dismissed. The remaining judgments are affirmed. The verdict on the indictment charging assault and battery by means of a dangerous weapon is to stand, and the case is remanded to the Superior Court for resentencing.
So ordered.