On October 12, 2006, a jury returned guilty verdicts against the defendant, Ismael Garcia, on indictments charging carrying a dangerous weapon, pursuant to G. L. c. 269, § 10(6), and mayhem, pursuant to G. L. c. 265, § 14. On appeal, the defendant raises arguments regarding the sufficiency of the evidence and the correctness of the jury instructions on the possession of a dangerous weapon conviction. He also alleges insufficiency of the evidence on the mayhem conviction, ineffective assistance of counsel regarding the introduction of pretrial statements made while he was in detention,
Factual background.
The incident at the heart of this case occurred when “E” and the defendant pulled up to the park in a black car with a dent on the side. At this point, the victim was quite drunk. The defendant was holding an item that Anderson at first thought was a pipe or a bat, but later ascertained was “something teenagers now call pimp canes.” Anderson described the “pimp cane” as between twelve and eighteen inches long. At another point she said it was eleven inches long including the handle, admitting she was “not really sure about the length.” The defendant began speaking in another language while advancing into the park. “E” was standing right behind the defendant, scream
At this point, the defendant pulled the cover off the “pimp cane,” revealing, Anderson testified, a “big blade” that was about eleven inches long.
Anderson picked the victim up and carried him to the steps of a house near the street. The victim was “covered in blood” and his intestines were hanging out. Something fell out of his side while they were on the steps of the house.
2. The jailhouse recordings. The defendant was indicted on December 16, 2005, and held pending trial. While in the Bristol County house of correction, he had conversations in which he made incriminating statements. At the Bristol County house of correction, all inmate telephone calls except attorney calls were recorded pursuant to department policy. The defendant was made aware of this policy by the “Bristol County Sheriff’s Office Inmate Orientation, Handbook & Rules,” a four-page document that he signed.
Prior to trial, the Commonwealth sent a subpoena to John Silva at the Bristol County sheriff’s office, directing him to appear before the court on or before June 1, 2006,
Discussion. 1. Possession of a dangerous weapon, a. Statutory standard. The crime of possession of a dangerous weapon pursuant to G. L. c. 269, § 10(¿),
“carrie[d] on his person . . . any stiletto, dagger, or a device or case which enables a knife with a locking blade to be drawn at a locked position, any ballistic knife, or any knife with a detachable blade capable of being propelled by any mechanism, dirk knife, any knife having a double edged blade, or a switch knife, or any knife having an automatic spring release device by which the blade is released from the handle, having a blade of over one and one-half inches . . . .”
G. L. c. 269, § 10(6). In contrast, the statute provides for an alternative mode of proof of guilt in cases in which the defendant is arrested on a warrant or for a breach of the peace and has the alleged dangerous weapon on his person at the time of arrest. In such cases, the statute provides that the defendant is guilty of a § 10(6) violation if he is “armed with or has on his person ... a billy or other dangerous weapon other than those herein mentioned and mentioned in paragraph (c) . . . .” In each case, the offense is a felony punishable by up to five years in State prison. The effect of the statute’s language is that if a person is not armed at the time of his arrest, as in this case, the Commonwealth is required to prove that the defendant possessed one of the weapons enumerated in the statute.
In this case, the prosecutor did not argue at trial that the weapon possessed by the defendant was one of those specific weapons enumerated in G. L. c. 269, § 10(6). However, the prosecutor argued on the defendant’s motion for a new trial, and also argues on appeal, that the defendant’s weapon was a “dirk knife,” one of the enumerated weapons in G. L. c. 269, § 10(6).
The leading case in Massachusetts on the definition of “dirk knife” is Commonwealth v. Miller, 22 Mass. App. Ct. 694 (1986). That case noted that Webster’s Third New International Dictionary 642 (1971) defined a “ ‘dirk knife’ [as] a ‘clasp knife,’ . . . having a large blade like that of a dirk.’ ” Commonwealth v. Miller, supra at 695. This definition is consistent with the usage of the term since before the statute was enacted in 1906 (St. 1906, c. 172, § 2). See Webster’s International Dictionary 417 (1890) (“Dirk Knife” defined as “[a] clasp knife having a large, dirk like blade”; “Dirk” defined as “[a] kind of dagger or poniard”).
Daggers, however, are a class of weapons that do not have this limitation. Historically, the term “dagger” has been considered a “general term” for a “short weapon used for stabbing” that includes poniards, stilettos, and dirks. Webster’s International Dictionary 365 (1890). See A Standard Dictionary of the English Language 464 (1895) (“dagger” defined as “[a] short edged and pointed weapon fitted primarily for stabbing; a general term covering the dirk, stiletto, poniard, etc.”). The broad scope of this term remains to this day. See Webster’s Third New International Dictionary 570 (2002); State v. Harrell, 342 S.W.3d 908, 914 (Mo. App. 2011).
As we recognized in Miller, 22 Mass. App. Ct. at 696, the legislative purpose of G. L. c. 269, § 10, was “to outlaw the carrying of those knives which are primarily designed for stab
b. Sufficiency of the evidence. We determine sufficiency of the evidence under the familiar standard, “whether after viewing the evidence in the light most favorable to the prosecution,
However, sufficient evidence was presented to the jury to find that the weapon possessed by the defendant was a “dagger” under G. L. c. 269, § 10(6). See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (appellate court free to affirm ruling on grounds different from those relied on by motion judge). As noted supra, “dagger” is a general term that refers to a relatively short weapon primarily designed for stabbing. The weapon possessed by the defendant was described as a “big blade” which with the handle measured “eleven inches.” The blade was contained in what initially appeared to be a “pipe or a bat” that was “[bjetween twelve and eighteen inches” in length, but which the witness later realized was a “pimp cane.” That the blade could be held within a cane leads to a strong inference that it was a slim blade.
Viewing this evidence in the light most favorable to the Commonwealth, a rational trier of fact could find that the blade was a “dagger” under G. L. c. 269, § 10(6). The efficacy of the weapon at stabbing was graphically and tragically demonstrated by the stab wounds sustained by the victim in this case. That the weapon was designed for stabbing is buttressed by the inference that it was a relatively slim weapon. The defendant has suggested no alternative innocuous usage for the weapon, nor is
Nor is the blade too long to be considered a dagger. While the blade in question was referred to by the witness and the Commonwealth as a “sword,” this does not preclude it from being considered a “dagger” under the statute. There is not a bright line dividing longer daggers and shorter swords. See 3 Oxford English Dictionary 7 (1978) (defining dagger as “[a] short . . . weapon, like a small sword, used for thrusting and stabbing”); The Random House Dictionary of the English Language 364 (1973) (defining dagger as “a short, swordlike weapon”); State v. Leatherman, 100 Wash. App. 318, 323 (2000) (pointing out one of dictionary definitions of “dagger” also “a weapon resembling a short sword”).
c. Improper jury instruction. The jury were improperly instructed on the elements of possession of a dangerous weapon where the weapon was not found on the defendant at the time of the arrest. The judge defined “dangerous weapon” in this instruction by referring to an earlier instruction in the context of the elements of mayhem. That earlier instruction, properly in that context, stated that the jury had to find that an item is “inherently dangerous because it can be readily used to cause death or great bodily harm” for it to qualify as a dangerous weapon for the purposes of mayhem. See Commonwealth v.
Because there was no objection to the jury instruction below, we review to determine whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Belcher, 446 Mass. 693, 696 (2006). Generally, there is not a substantial risk of a miscarriage of justice where an improper jury instruction concerned an element that the defendant did not contest at trial because he pursued a defense of misidentification. Commonwealth v. Robinson, 444 Mass. 102, 107 (2005), citing Commonwealth v. Jenkins, 47 Mass. App. Ct. 286, 292 (1999). Here, the defendant chose to pursue a defense based on mis-identification and did not contest that the weapon in question was a dangerous weapon prohibited by G. L. c. 269, § 10(6). In these circumstances, given that there was sufficient evidence for the jury to find that the “pimp cane” described by the witness was a dangerous weapon under the statute, there was no substantial risk of a miscarriage of justice.
2. Sufficiency of evidence of mayhem. The defendant argues that there was insufficient evidence of the severity of the victim’s wounds for a rational jury to convict him of the crime of mayhem. The crime of mayhem may be satisfied by a showing under one of two theories. Commonwealth v. Ogden O., 448 Mass. 798, 800 (2007). The Commonwealth may prove the crime of mayhem under the second theory by showing that a person, “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.” Ibid., quoting from G. L. c. 265, § 14. The victim in this case was described by an eyewitness as covered in blood with his intestines hanging out. In addition, he was in critical condition when he arrived at the Charlton Memorial Hospital, his wounds were described as “Ufe threatening,” and the doctor inferred that he had severe internal bleeding. There is no doubt that, under the standard of Latimore, 378 Mass. at 676-678, a
3. Effective assistance of counsel. The defendant argues that his trial counsel was constitutionally ineffective in failing to file a motion to suppress the defendant’s telephone statements made while in pretrial detention. To succeed on a claim of ineffective assistance of counsel, a defendant must show (1) “serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer” and, if that is found, (2) that this ineffectiveness “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 315 (2011), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
In 2009, the Supreme Judicial Court held in Commonwealth v. Odgren, 455 Mass. 171, 172 (2009) (Odgren), that the Commonwealth may not subpoena the production of records from a third party in advance of a trial or an evidentiary hearing under the authority granted by G. L. c. 277, § 68, without first obtaining judicial approval pursuant to Mass.R.Crim.P. 17(a)(2), 378 Mass. 886 (1979), as construed by Commonwealth v. Lampron, 441 Mass. 265, 268-271 (2004). See Mass.G.Evid. § 1108 (2012). It is uncontested that the Commonwealth violated the rule in Odgren by not seeking judicial approval under Mass. R.Crim.P. 17(a)(2) for issuing a subpoena, in advance of trial, for the recordings of the defendant’s telephone calls made during his pretrial detention.
Even were that the case, the defendant has not shown a likelihood that such a motion would have succeeded. While Odgren did not preclude the possibility of suppression for an improperly issued subpoena, it found two reasons that suppression was not warranted in that case, both of which are applicable here. See id. at 187-188. Just as in Odgren, the defendant here has not shown a violation of a constitutional right that would warrant suppression. See id. at 188. In addition, the defendant here was provided copies of the subpoenaed recordings well before trial, much like in Odgren, and thus cannot show prejudice in his ability to prepare for trial that would warrant suppression. See ibid.
4. Missing witness instruction. The defendant alleges that the judge’s decision not to give a missing witness instruction due to the victim’s failure to testify was manifestly unreasonable. “The decision whether to provide a missing witness instruction to the jury is within the discretion of the trial judge, and will not be reversed unless the decision was manifestly unreasonable.” Commonwealth v. Saletino, 449 Mass. 657, 667 (2007).
Conclusion. There was sufficient evidence for a rational jury to find that the weapon possessed by the defendant fell within the definition of a “dagger” under G. L. c. 269, § 10(A). While the jury instructions regarding what constitutes a dangerous weapon for the crime of possession of a dangerous weapon where the weapon was not found on the defendant’s person at the time of arrest were clearly erroneous, we find no substantial risk of a miscarriage of justice given the defendant’s failure to contest the issue. None of the defendant’s remaining contentions has merit. The defendant’s convictions and the denial of the defendant’s motion for a new trial are affirmed.
Judgments affirmed.
Order denying motion for new trial affirmed.
The defendant also makes a due process argument regarding the introduction of these statements, but tacitly admits that this argument is precluded by Matter of a Grand Jury Subpoena, 454 Mass. 685, 688-690 (2009). We thus do not address this argument.
Parts of the factual record were disputed below, such as the identity of the assailant. In light of the jury’s verdicts, we recount the version of events presented in the Commonwealth’s case except where the defendant’s version is relevant to the issues raised on appeal.
The record indicates there were at least a handful of other people in the park at the time.
This blade was described as and referred to as a “sword” during the course of the trial.
A photograph of “[t]he steps and the pile of the stuff that came out of [the victim’s] body on the side of it” was admitted in evidence, but it is not contained in the record on appeal. Without the photograph we cannot assess whether it had any impact on the sufficiency of the evidence of the victim’s wounds.
This was the date of the final pretrial conference.
General Laws c. 269, § 10(a) and (c), set out separate offenses regarding the possession of firearms. These crimes are not relevant to the present case.
The prosecutor also suggested during the motion hearing that the sword could have been “a device or case which enables a knife with a locking blade to be drawn at a locked position.” Under the circumstances it is not necessary to discuss this issue.
Insofar as the Commonwealth relies on Commonwealth v. Molligi, 70 Mass. App. Ct. 108, 112-113 (2007), to support a claim that dangerous weapons
“When interpreting a statute, we attempt to give effect to the intent of the Legislature as ascertained from the ordinary use of the language employed, the reasons for the enactment, and the main object to be accomplished. The language of the statute itself is our primary source of insight into legislative purpose. For assistance with interpretation, we may utilize other statutes relating to the same matter as the statute being construed, and we may examine the general statutory framework in which the statute in question is located.” Commonwealth v. McDowell, 62 Mass. App. Ct. at 20 (citations omitted).
See, e.g., Commonwealth v. Wynton W., 459 Mass. 745, 749 (2011) (in construing phrase “dangerous weapon” as it appears in G. L. c. 269, § 10[/1, court noted that phrase “has a defined meaning under the common law that is routinely applied to those statutory crimes that have a dangerous weapon element”).
To this end, while we make reference to dictionary definitions in construing the terms of G. L. c. 269, § 10(6), we do so with the understanding that “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” United States v. Costello, 666 F.3d 1040, 1043 (7th Cir. 2012), quoting from Cabell v. Markham., 148 F.2d 737, 739 (2d Cir. 1945) (Hand, J.). See United States v. Costello, supra at 1044 (“Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings"). Courts also must be cautious because of the “fundamental indeterminacy” of so many dictionary definitions. See Note, Looking It Up: Dictionaries and Statutory Interpretation, 107 Harv. L. Rev. 1437, 1445 (1994).
See also A Standard Dictionary of the English Language 519 (1895) (defining “dirk knife” as a “clasp knife with a large dirk-shaped blade” and “dirk” as a “dagger or poniard”); Webster’s Third New International Dictionary 642 (2002).
The same authority defines a “dirk” as “a kind of dagger or poniard,” specifically “[t]he dagger of a Highlander,” or “[a] small sword or dagger formerly worn by junior naval officers on duty.” 4 Oxford English Dictionary 709 (2d ed. 1989). The Oxford English Dictionary’s approach, by which a
The statute bans carrying a “dirk knife” but not a “dirk.”
The term “clasp knife” has meant a knife, the blade of which folds into the handle, since before the enactment of the statute. See Webster’s International Dictionary 262 (1890); A Standard Dictionary of the English Language 348 (1895).
“Daggers may be described as falling into one or more specific varieties including poniard, dirk, facón, military-issued combat knifes, stilettos, or rondel. When these historical archetypes, as well as the dictionary definitions, are examined, several attributes repeatedly appear including a fixed or locking blade, with sharpened edges, shorter than a sword and longer than an ordinary pocketknife, ranging between 4 and 25 inches, hilt, and designed with the intent to be used primarily for stabbing during combat.” State v. Harrell, 342 S.W.3d at 914, quoting from State v. Payne, 250 S.W.3d 815, 820-821 (Mo. App. 2008).
See note 12, supra, discussing the importance of considering the legislative purpose in construing statutes.
California added a statutory definition of the terms “dirk” and “dagger” beginning in 1994. See People v. Rubalcava, 23 Cal. 4th 322, 327-329 (2000). Under California law, a “dirk” or “dagger” is defined as a weapon that is “capable of ready use as a stabbing instrument that may inflict great bodily injury or death.” Id. at 327-328, citing Cal. Penal Code § 12020(c)(24). In Rubalcava, the California Supreme Court observed that prior to the statute, the courts of California applied the common-law definition of these terms. The court noted that the terms “dirk” and “dagger” were used synonymously to refer to “any straight stabbing weapon” or any weapon “fitted primarily for stabbing.” Id. at 328-329.
See Knight v. State, 116 Nev. 140, 146 (2000) (“A steak knife is a ‘pointed’ implement that may be employed as a weapon ‘for thrusting and stabbing.’ Nevertheless, a steak knife is not primarily designed or fitted for use as a weapon”). On the other hand, a household item modified for stabbing may fall within the definition of a dagger.
The indictment in this case makes specific reference to a violation of “G. L. c. 269, § 10(6),” and describes the “dangerous weapon” as “a sword.” Although the indictment does not use the word “dagger,” the fact that a “dagger” is specifically referred to in § 10(6) and, as we explain in this opinion, is a general term that includes blades like the one possessed by the defendant, renders any variation between the indictment and the proof immaterial. See G. L. c. 277, §§ 34, 35. The defendant could have filed a motion for a bill of particulars. See G. L. c. 277, § 38.
It is furthermore worth noting, as we explained in Miller, “[a] dirk is a long straight bladed dagger or short sword,” which indicates that certain long daggers and short swords are roughly equivalent. Miller, 22 Mass. App. Ct. at 696.
Having reached this conclusion, we recognize that the common understanding of the weapons enumerated in G. L. c. 269, § 10(6), may not be as clear to people today as they were in the past. The Legislature may wish to examine the statute to state in more current terms what items are prohibited. See Commonwealth v. Wood, 398 Mass. 135, 137 n.3 (1986); DiGregorio v. Registrar of Motor Vehicles, 78 Mass. App. Ct. 775, 782 n.14 (2011).
In addition, the subpoena required Silva to produce the recordings at the final pretrial conference, rather than for either a hearing or trial as required by G. L. c. 277, § 68. See Odgren, 455 Mass. at 183 n.23. The subpoena also incorrectly requested that a copy of the records be sent directly to the district attorney’s office, rather than the court. Id. at 184 n.24.
A similar misunderstanding of the proper use of subpoenas was noted by at least one Federal court under the directly analogous Fed.R.Crim.P. 17(c). Odgren, 455 Mass. at 187 n.27, citing United States vs. Eye, U.S. Dist. Ct., No. 05-00344-01-CR-W-ODS (W.D. Mo. April 15, 2008).
The defendant argues that the inculpatory nature of the evidence warrants suppression, but “[t]he relevant prejudice is whether the defendant receives the material sufficiently before trial to prepare a defense, not whether the admissible evidence is inculpatory.” Commonwealth v. Kastner, 76 Mass. App. Ct. 131, 137 n.10 (2010). The defendant argues that we should look at the degree to which the evidence is inculpatory because the Commonwealth could not have obtained judicial approval for the subpoena. Even if this were the law, the defendant has not shown that the Commonwealth could not obtain judicial approval under the liberal standards of Commonwealth v. Lampron, 441 Mass. at 268-271. In addition, the Commonwealth correctly points out that even if it did not meet the Lampron standard, it could have obtained the evidence by requiring Silva to bring the materials to trial under G. L. c. 277, § 68.
The degree of discretion is reduced but not eliminated where, as here, the