53 Mass. App. Ct. 209 | Mass. App. Ct. | 2001
A jury convicted the' defendant of the following charges: (1) armed assault with intent to murder Bernard French;
1. Facts. In the early afternoon, French was lying down on his bed in his cell. The defendant entered, jumped on him, and started cutting his face. The defendant called French a snitch and accused him of telling guards that the defendant had excess canteen items in his cell. The attack lasted a couple of minutes and the defendant left. French required 350 stitches, mostly to his face. His earlobe, which was “hanging by a thread,” had to be reconnected through plastic surgery. French also required stitches on his right hand.
Capone was using the toilet in a different cell, behind a sheet hung for privacy, when he heard someone “hollering that he was going to kill rats.” The yelling became louder until the defendant pulled down the sheet. Capone felt something like the defendant’s thumb hit his face. Capone saw blood hit the wall. Capone stood up, pulled up his pants and wrapped the sheet around his arm so he could defend himself. The defendant called him a rat and said he was going to kill him. The defendant tried to strike Capone. Capone put his arm up to defend himself and received a nine inch gash on his arm. Capone ran out of his cell, and the defendant chased him to the common area. Capone required medical care, including plastic surgery, for a slash
2. Duplicative convictions, a. Assault and battery with a dangerous weapon and mayhem. On appeal, the defendant argues, with regard to his attack on French, that his conviction for assault and battery by means of a dangerous weapon is duplicative of his conviction for mayhem because the two charges arise from a single course of conduct ■— the knife attack.
b. Assault and battery by means of a dangerous weapon and armed assault with intent to murder. The defendant argues that his convictions for assault and battery by means of a dangerous weapon are duplicative of his convictions for armed assault with intent to murder.
That argument has been considered and rejected by this court in Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 389 (1998).
The charges at issue in Arriaga were identical to the charges the defendant claims are duplicative in this case. The court plainly stated in Arriaga that assault and battery by means of a dangerous weapon “requires proof of battery,” while armed assault with intent to murder “does not; and the latter offense demands proof of a specific intent to kill, while the former requires only a showing of general intent.” Commonwealth v. Arriaga, supra at 386. Because the elements of assault and battery by means of a dangerous weapon are not identical to the elements of armed assault with intent to murder, the multiple convictions were not duplicative, and the judge could properly impose multiple punishments.* ***
Alternatively, the defendant contends that the judge errone
3. Inconsistent intent. The defendant argues that a person cannot harbor, simultaneously, the intent to maim and the intent to murder because the two states of mind are inconsistent. Therefore, the defendant urges this court to grant him a new trial on both crimes, or alternatively, to vacate the conviction on the less serious offense. Experience shows that the human mind is capable of simultaneously harboring inconsistent intent, and case law is in accord with this understanding. See Commonwealth v. Domingue, 18 Mass. App. Ct. 987, 990 (1984)
4. Conclusion. The conviction for assault and battery by means of a dangerous weapon on Bernard French is vacated, the verdict is set aside, and the remaining convictions are affirmed.
So ordered.
General Laws c. 265, § 14, has two bases of liability. The Commonwealth proceeded on the second basis: “[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 . . . .”
The only challenge on appeal to the mayhem conviction is set forth in the defendant’s third argument where he suggests that his conviction for armed assault with intent to murder is inconsistent with his conviction for mayhem.
Because the conviction for assault and battery by means of a dangerous weapon on French is vacated, the defendant’s argument applies only to his attack on Capone.
It appears that the Supreme Judicial Court has not totally abandoned the test of whether crimes are “so closely related in fact as to constitute in substance but a single crime.” Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999) (citation omitted). See Commonwealth v. Wolinski, 431 Mass. 228, 238-239 (2000) (after applying the Morey same element test, Morey v. Commonwealth, 108 Mass. 433, 434 [1871], the court continued: “Morever, the jury could have reasonably concluded that the crimes were not so closely
The defendant cites Commonwealth v. Simpson, supra, to bolster his position that the convictions ought to be viewed as duplicative. That case states, “The defendant does not here challenge as duplicative his conviction and the imposition of a sentence for assault and battery by means of a dangerous weapon, a hammer, which is to be served concurrently with his sentence for
Even if we interpreted the instruction as the defendant urges, that an additional element of battery was thereby imposed, the defendant would still not prevail on this point because an element distinguishing the two crimes would remain. Armed assault with the intent to murder does not require proof that the assault was committed by use of the weapon, whereas assault and battery by means of a dangerous weapon does. In addition, armed assault with the intent to murder requires proof of a specific intent to kill, while assault and battery by means of a dangerous weapon does not. Commonwealth v. Arriaga, supra.