453 Mass. 880 | Mass. | 2009
A judge in the Superior Court dismissed an indictment against the defendant charging him with armed assault with intent to murder his girl friend in violation of G. L. c. 265, § 18 (b).
1. Background. On January 17, 2008, a grand jury returned indictments against the defendant for several crimes, including armed assault with intent to murder.
The defendant’s thirtieth birthday was October 18, 2007. Several of the defendant’s friends took him out for an evening celebration on October 17, 2007. Chipman did not attend the celebration, but was instead on duty as a patrol officer in Milton during the night shift. Around 1:30 a.m., the middle of her shift, Chipman took a break and returned home to let her dog out. She arrived in her police uniform, and was carrying her department-issued, loaded gun bolstered in her uniform safety belt, as well as her police radio. When she entered the house, she met the defendant in their bedroom, and they argued. The defendant called her a
2. Discussion. The standard delineated in McCarthy governs our analysis in this case: “[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him” (citations omitted). McCarthy, 385 Mass, at 163. See Commonwealth v. Stevens, 362 Mass. 24, 26 (1972), quoting Beck v. Ohio, 379 U.S. 89, 91 (1964) (describing probable cause to arrest as “reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense”).
The McCarthy case must be considered against the backdrop of our time-honored rule that courts ordinarily do not “inquire into the competency or sufficiency of the evidence before the
The crime of armed assault with intent to murder has three elements: assault; intent to kill; and malice, which in this context means an absence of justification, excuse, or mitigation. See Commonwealth v. Henson, 394 Mass. 584, 591 (1985). Accord Commonwealth v. Johnston, 446 Mass. 555, 558 (2006). The grand jury must be presented with evidence on each of the three elements, but the defendant here challenges only the evidence concerning the element of intent. The evidence of the defendant’s intent included the defendant’s own threatening statement that he “would f’ing kill [Chipman]” if she did not leave the
Direct evidence of a person’s specific intent is not always available, but may be inferred from the facts and circumstances presented. See Commonwealth v. Gollman, 436 Mass. 111, 116 (2002); Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Appropriately considered in the light most favorable to the Commonwealth, see Commonwealth v. Levesque, 436 Mass. 443, 444 (2002), the evidence before the grand jury warranted a finding of probable cause that the defendant intended to kill Chipman on October 18, 2007.
The motion judge determined the evidence showed only that the defendant threatened to kill Chipman and intended to put her in fear, but did not support an inference of a specific intent to kill; and that no jury could rationally convict the defendant of armed assault with intent to murder. In doing so, the judge appeared to conflate the standards applicable to reviewing the sufficiency of evidence to support an indictment, and whether there was sufficient evidence to warrant a finding of guilt at trial. The standards are not the same. See, e.g., Commonwealth v. Roman, 414 Mass. 642, 647 (1993) (“[I]t seems likely that the evidence presented to the grand jury would have been insufficient to support a guilty verdict. . . . However, as we have said, in order to indict the defendant, the grand jury did not need evidence warranting a finding of the defendant’s guilt beyond a reasonable doubt. It needed only evidence establishing probable cause to arrest.” [Citation omitted.]); Commonwealth v. O’Dell, 392 Mass, at 451 (“a requirement of sufficient evidence to establish the identity of the accused and probable cause to arrest him is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding”). See also Commonwealth v. Levesque, 436 Mass, at 452. Cf. Lataille v. District Court of E. Hampden, 366 Mass. 525, 531-532 (1974) (difference between evidentiary
3. Conclusion. The order dismissing the indictment charging the defendant with armed assault with intent to murder is reversed. We remand the case to the Superior Court for further proceedings consistent with this opinion.
So ordered.
General Laws c. 265, § 18 {tí), provides as follows:
“Whoever, being armed with a dangerous weapon, assaults another with intent to rob or murder shall be punished by imprisonment in the state prison for not more than 20 years. Whoever, being armed with a firearm, shotgun, rifle, machine gun or assault weapon assaults another with intent to rob or murder shall be punished by imprisonment in state prison for not less than five years and not more than 20 years.”
The additional indictments against the defendant charged intimidation of a witness, G. L. c. 268, § 13B; assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b); assault with a dangerous weapon, G. L. c. 265, § 15 (b) (two indictments); malicious destruction of property over $250, G. L. c. 266, § 127; assault and battery, G. L. c. 265, § 13A (three indictments); and threat to commit a crime, G. L. c. 275, § 2.
Kristen Chipman testified before the grand jury, and much of the evidence described in the text is based on her testimony.
The grand jury heard additional evidence about another altercation between
The defendant also moved to dismiss the indictment charging him with malicious destruction of property valued over $250, but did not go forward with that aspect of his motion, stating that he was reserving his right to do so at a later time. We do not consider the indictment charging malicious destruction of property.
The Commonwealth has not explained or discussed why it initially sought relief pursuant to G. L. c. 211, § 3, rather than appealing to the Appeals Court from the dismissal of the indictment pursuant to G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 (1996). The Commonwealth should have pursued such a course. See Commonwealth v. Friend, 393 Mass. 310, 311-314 (1984). Accord Commonwealth v. Ortiz, 425 Mass. 1011, 1012 (1997). However, because the single justice reported the case to this court without decision, and it is fully briefed, we address the merits.
The grand jury’s historic function is as an investigative and accusatory body. Its purpose is not to adjudicate. The grand jury have “the dual function of determining whether there is probable cause to believe a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Lataille v. District Court of E. Hampden, 366 Mass. 525, 532 (1974). See Commonwealth v. McLeod, 394 Mass. 727, 733, cert, denied sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985).
This court has stated that the limited departure from the general rule of noninterference represented by Commonwealth v. McCarthy, 385 Mass. 160, 161-162 (1982), “showed a proper concern for the integrity of grand jury proceedings without substantially affecting the grand jury’s historic function as an investigative and accusatory body, or its procedures.” Commonwealth v. O’Dell, 392 Mass. 445, 450 (1984). It should be noted, however, that the O’Dell case illustrates an additional departure from the rule of noninterference, which is that courts will review a claim that “the integrity of the grand jury proceedings was impaired.” Id. at 449-450. See Commonwealth v. St. Pierre, 377 Mass. 650, 655-657 (1979). There is no argument in this case that the integrity of the grand jury proceedings was impaired.
The judge expressed concern that the defendant’s statement about killing Chipman was contingent: “that he would kill her if she did not leave” (emphasis in original). The grand jury were not required to credit the defendant’s declaration of the condition as determinative of his intent; it could find that conditional or not, the defendant had an intent to kill Chipman at the time he assaulted her with the pointed gun. See Holloway v. United States, 526 U.S. 1, 11 (1999), quoting R. Perkins & R. Boyce, Criminal Law 647 (3d ed. 1982) (“a defendant may not negate a proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose; ‘[a]n intent to kill, in the alternative, is nevertheless an intent to kill’ ”). In any event, we agree with the Commonwealth that it was not necessary or appropriate to