41 Mass. App. Ct. 214 | Mass. App. Ct. | 1996
An indictment (no. 93-004) charged the defendant, James K. Cleary, with a violation of the mayhem statute, G. L. c. 265, § 14. The statute
*215 “[1] Whoever, with malicious intent to maim or disfigure . . . puts out or destroys an eye , ... or [2] whoever, with intent to maim or disfigure, assaults another person with a dangerous weapon . . . and by such assault disfigures, cripples or inflicts serious or permanent physical injury upon such person . . . shall be punished ”2
At trial to a Franklin County jury, the government presented the following basic scenario through its witnesses. On a cold evening in December, 1992, the defendant was out in his hometown of Greenfield with friends. He and others eventually drove to the No-Name Bar. The defendant’s brother, Michael Cleary, was also at the bar. An argument about money led to a physical confrontation between the defendant and another patron of the bar, James Mahar. As they scuffled across the barroom, one member of Mahar’s party, Michael Elie, was bumped and expressed disgust at the flare-up between the two men. Michael Cleary grabbed Elie. Eventually the combatants settled down and continued to imbibe until closing time. The defendant had his brother and two other men with him in his car when he was leaving the parking lot at the No-Name.
The victim, Matthew Scott Noska, and some of his friends, including Michael Elie, were also at the No-Name until closing time. They went to the parking lot and were on their way to a Dunkin’ Donuts restaurant for an early breakfast. As Noska crossed the parking lot to enter his car, the defendant, without headlamps lit, backed his car out of a parking space and nearly hit him. Noska quickly jumped out of the car’s path. Noska and one or more of those with him kicked the door panels to show their disgust.
There was testimony that, after the defendant’s car was kicked, the occupants of the car got out. When the defendant tried to get out of the car, the door was pushed against him. Fighting ensued between the men with Matthew Scott Noska and those with the defendant. At some point, the defendant
There is no question that the injury sustained by Noska was serious and permanent. The blow fractured the orbital bone, ruptured the eye globe, and resulted in a detached retina of the right eye. The retina surgeon who performed the surgeries to reattach the detached retina testified that the prognosis for Noska regaining any “useful vision” in his right eye is poor. The surgeon also testified that it was unusual for there to be both an orbital fracture and a rupture to the eye. She ofiered her opinion that “[h]is injuries were consistent with a blunt rupture, a blunt injury, ... the wounds and the globe, . . . occurring together, . . . indicate^] that the force used was substantial.”
At the close of the Commonwealth’s evidence, the defendant made a motion for a required finding of not guilty on both indictments. The defendant waived argument on the indictment charging assault and battery by means of a dangerous weapon. The defendant argued that, on the indictment charging mayhem, the Commonwealth had failed to prove the specific intent required to constitute the crime. The trial judge denied the motion. The defendant then presented his case which included evidence that he acted in self-defense.
After closing arguments, the judge instructed the jury on the elements of assault and battery by means of a dangerous weapon and on mayhem. Over the defendant’s objection, the judge’s charge concerning the essential elements of battery included the instruction that the jury could convict if they found his conduct to be wanton and reckless. See Commonwealth v. Burno, 396 Mass. 622, 625-627 (1986). The jury brought in verdicts of guilty on both indictments, and judgments of conviction followed.
1. Sufficiency of the evidence on the mayhem charge. The defendant makes a compelling argument that the govem-
Under Massachusetts case law, the specific intent to maim or disfigure can be established by “direct or inferential proof that the assault was intentional, unjustified, and made with reasonable appreciation on the assailant’s part that a disabling or disfiguring injury would result.” Commonwealth v. Davis, 10 Mass. App. Ct. 190, 196 (1980). Prior to the passage of G. L. c. 265, § 14, the rule existed as matter of common law. See 4 Blackstone, Commentaries * 205.*
Against this backdrop of cases, we conclude that the government failed to establish, in its case-in-chief, that the defendant acted with the specific intent to maim or disfigure. Thus, the defendant’s motion for a required finding on that charge (or as later repeated at the close of the defendant’s case) was mistakenly denied. In the present situation, the defendant’s conduct, however inexcusable, does not constitute the type of heinous attack that supports an inference that he intended to disfigure Noska. Nor does the government’s case show a sustained or prolonged type of assault on his part from which the requisite intent may be inferred. Viewed in its best light, the government’s evidence shows that the defendant acted on the spur of the moment after Noska kicked his car. This is not a case in which it is apparent from the context of the confrontation that the defendant intended to disfigure someone.
2. The jury instruction on assault and battery by means of a dangerous weapon. Besides providing the jury with the classic definition of assault and battery, see Commonwealth v. Mc-Can, 277 Mass. 199, 203 (1931), the judge also instructed that assault and battery by means of a dangerous weapon, like assault and battery, may rest on reckless, as well as on intentional, conduct. Commonwealth v. Welch, 16 Mass. App. Ct. 271, 273-277 (1983). The defendant contends that the instruction, given over his objection, was not warranted on the evidence and that it confused the jury regarding the intent to prove mayhem. We need not address the latter assertion in view of our determination in the defendant’s favor in the pre
3. Miscellaneous matters. There is nothing in the record before us that remotely indicates that the judge abused her discretion in declining to excuse a juror who admitted to a casual acquaintanceship with one of the government’s witnesses. The judge properly determined that their relationship would not affect her ability to render an impartial verdict on the case. See Commonwealth v. Jackson, 376 Mass. 790, 799 (1978). There was no objection to the judge’s ruling on the defendant’s recusal motion, so that issue is waived. See Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 14 (1986).
The judgment on indictment no. 93-004 is reversed. The verdict is set aside, and judgment for the defendant shall enter on that indictment.
The judgment on indictment no. 93-005 is affirmed.
So ordered.
The statute contains two branches. Commonwealth v. St. Pierre, 377 Mass. 650, 661 & n.14 (1979). Commonwealth v. Robinson, 26 Mass. App. Ct. 441, 445 & n.6 (1988). The indictment at issue here seems to combine both branches of the statute. It reads, in relevant part, that “James K. Cleary . . . did assault Matthew Scott Noska and with malicious intent to
The defendant was also charged with assault and battery by means of a dangerous weapon (indictment no. 93-005).
The defendant was sentenced to from nine to ten years imprisonment in State prison on the assault and battery by means of a dangerous weapon conviction. Upon the mayhem conviction, the defendant was sentenced to from fifteen to twenty years in State prison, the execution of that sentence
Mayhem is defined by Blackstone as “the violently depriving another of the use of such of his members, as may render him the less able in fighting, either to defend himself, or to annoy his adversary.”
We also need not address the Commonwealth’s offer to vacate the assault and battery conviction on the basis that sentencing on both convictions violates the principles set forth in Commonwealth v. Jones, 382 Mass. 387, 394-397 (1981), in view of our reversal of the mayhem conviction.