Commonwealth v. MoranCommonwealth v. Moran
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- Botsford
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
1. Background. On January 17, 2008, a grand jury returned indictments against the defendant for several crimes, including armed assault with intent to murder.2 All the charges arose out of a series of altercations between the defendant and his then girl friend, Kristen Chipman, that are alleged to have occurred in 2006 and 2007. Evidence presented to the grand jury included the following.3 During the time period in question, the defendant was employed as a police officer in Duxbury, Chipman was a police officer in Milton, and they were romantically involved. On July 4, 2006, the defendant was driving Chipman home from a fireworks display when they got into an argument. They arrived at Chipman’s home where they continued arguing in the garage; the argument ended with the defendant shoving Chipman against the garage wall. Nonetheless, their relationship continued, and some time later, the defendant and Chipman bought a home together in Quincy. By that time they had been dating for eight months.
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, 2007.8 See Commonwealth v. Smith, 58 Mass. App. Ct. 381, 386 (2003) (evidence sufficient to support indictment for
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.
Notes
“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,
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 and Chipman that occurred on November 9, 2007, three weeks after the October 18 incident, in which the defendant grabbed Chipman, twice pushed her head against a chain link fence and then smashed the console and dashboard of the truck in which they were traveling.
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
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 parse the defendant’s statement too finely; this is a matter for a petit jury to consider in light of all the facts and circumstances presented by the evidence at trial. Cf. Commonwealth v. Goldstein, 54 Mass. App. Ct. 863, 867-868 (2002), quoting Brunson v. Commonwealth, 369 Mass. 106, 120 (1975) (reversing dismissal of defendants’ indictments for armed robbery where grand jury evidence raised close question whether defendants’ use of force occurred during robbery or after its completion: “The problem with the motion judge’s analysis is that it depends upon a precise sequencing of events that is best reserved for a petit jury to sort out under proper instructions from the trial judge. In the last analysis, the grand jury is not the appropriate forum for reconciling subtle gradations of offenses .... It must be recognized that ‘[t]he grand jury is an investigatory and accusatory body only. It cannot and does not determine guilt’ ”). Nor do we consider as dispositive in any way on the question of intent the fact that when Chipman told the defendant to put down the gun after he made the statement about killing her, he did so. Again, the significance of the defendant’s dropping the gun to the issue of his intent during the assault is one best left for a petit jury to weigh.