Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault
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Wilful or Malicious v. Wanton: Wilful or malicious act injurious to property is deemed criminal when it is shown to have been committed with a spirit of cruelty, revenge, or hostility. Wanton destruction of property concerns a spirit of indifference or recklessness, perhaps even arrogance or insolence, but not cruelty, revenge or hostility. Commonwealth v. Ruddock, 25 Mass. App. Ct. 508 (1988). “Willful” means intentional and by design, in contrast to that which is thoughtless or accidental. Commonwealth v. McGovern, 397 Mass. 863 (1986). “Malicious” refers to state of mind of cruelty, hostility or revenge. Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437 (1983). Both wilfulness and malice must be proved beyond a reasonable doubt. Commonwealth v. Armand, 411 Mass. 167, 170 (1991). A wilful actor intends both his conduct and the resulting harm, whereas a wanton or reckless actor intends his conduct but not necessarily the resulting harm. Commonwealth v. Smith, 17 Mass. App. Ct. 918, 920 (1983). Wanton conduct is synonymous with a reckless disregard for the rights of others. Commonwealth v. Byard, 200 Mass. 175, 177-78 (1908). Wanton destruction requires only a showing that the actor’s conduct was indifferent to or in disregard of probable consequences. Commonwealth v. Armand, 411 Mass. 167, 171 (1991).
Wanton is not a lesser included offense of willful and malicious since wanton requires proof of an element not required for willful and malicious (that the likely effect of the def.’s conduct is substantial harm). Commonwealth v. Schuchardt, 408 Mass. 347 (1990).
To determine whether a malicious destruction of property offense is a felony (damage greater than $250) or a misdemeanor (damage is less than $250) where only a portion of the property is damaged, the “value of the property” is the reasonable cost of repair or replacement, or the pecuniary loss. This also applies to the felony offense of wanton destruction of property. Commonwealth v. Deberry, 441 Mass. 211 (2004). The finder of fact may determine from common experience or descriptive testimony that the damaged property has a value in excess of $250. Commonwealth v. Hosman, 257 Mass. 379, 386 (1926). An owner may be permitted to offer an opinion as to the value of his property. Selby Associates v. Boston Redevelopment Authority, 27 Mass. App. Ct. 1188, 1190 (1989). Disorderly Conduct; Disturbing the Peace ch. 272, § 53
Drugging Person for Sexual Intercourse ch. 272, § 3
Firearms, Use of In Committing Felony ch. 265, § 18B
Indecent Assault & Battery ch. 265, § 13H
Indecent Assault & Battery, or A& B, Mentally Retarded Person ch. 265, § 13F
Intimidation of Witness/Victim ch. 268, § 13B
The intimidation of a witness statute has a broad scope and proscribes activity beyond attempts to influence a witness’s testimony. Commonwealth v. Cathy C, 64 Mass. App. Ct. 471 (2005).
Intimidation, unlike a threat of force, does not require that a victim be placed in fear or apprehension of actual physical harm. Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 235-36 (1998). Because the test is objective, the def.’s subjective intent is irrelevant. Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 236 (1998). Use of “endeavors” indicates legislative intent to punish any willful conduct that amounted to “effort or essay.” Endeavor is a lower threshold than attempt. Commonwealth v. Rondeau, 27 Mass. App. Ct. 55 (1989). The term “witness” includes any person who has been or who may possibly be called upon to testify in a criminal proceeding. Commonwealth v. Burt, 40 Mass. App. Ct. 275, 277-78 (1996). The exact nature of the underlying criminal proceeding is irrelevant. Commonwealth v. Wiencis, 48 Mass. App. Ct. 688, 691 (2000). Not essential element that actual witness or juror be approached. Commonwealth v. Rondeau, 27 Mass. App. Ct. 55 (1989) (victim’s niece paid by mistake, instead of victim, to drop A&B).
While def.’s intent may have had an element of ambiguity, his violent confrontation with a witness at the very door of the courtroom could have led a jury to properly infer that his purpose was either to rattle the witness or to influence his testimony. Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 800-01 (1998). Pulling phone cord out of a wall after his sister-in-law stated that she was going to call police was sufficient because the def. “forcefully interfered with his sister-in-law’s attempt to furnish information to the police… .” There is no requirement that the investigation be “on-going” when the intimidation occurs. Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, further app rev. den., 427 Mass. 1103 (1998). Def. called witness day after she testified in a stalking case made statements intending to frighten her. Commonwealth v. Potter, 39 Mass. App. Ct. 924 (1995).
Kidnapping/Unlawful Restraint ch. 265, § 26
Def. could be found guilty after locking victim in apt. for two hours or placing car in such a way to prevent victim from leaving premises in her car. Commonwealth v. Sumner, 18 Mass. App. Ct. 349, rev. den. 393 Mass. 1101 (1984). Def. moved into victim’s car uninvited, shoved victim from steering wheel and took him to secluded area, where further confined him. Commonwealth v. Saylor, 27 Mass. App. Ct. 117 (1989). Fact that kidnapping and assault victim might have tried to escape or summon help but failed to do so would not palliate abduction or assault. Commonwealth v. Dean, 21 Mass. App. Ct. 175 (1985), rev. den.. 396 Mass. 1105 (1986).
Physical force need not be applied against the victim, if the victim is subdued by “display of potential force.” Sufficient evidence that def. intended forcibly to confine victim against her will, where 18 year-old stepdaughter of def. was “scared” of def., followed his instruction to sit in the car; def. drove away and held her against her will while threatening to kill her; and stepdaughter escaped only by fleeing from def.’s grasp when car stopped. Commonwealth v. Titus, 32 Mass. App. Ct. 216, rev. den., 412 Mass. 1104 (1992).
Def. could be prosecuted and convicted for both the kidnapping and rape, where evidence showed confinement of victim occurred at bus station and on way to building where rape occurred. Commonwealth v. Vasquez, 11 Mass. App. Ct. 261 (1981). Where def.’s confinement of victim exceeded restraint incidental to rape, def. could be convicted of both rape and kidnapping. Commonwealth v. Sumner, 18 Mass. App. Ct. 349, rev. den., 393 Mass. 1101 (1984). Kidnapping of Child by Relative ch. 265, § 26A
Open & Gross Lewdness (Indecent Exposure) ch. 272, § 16
Similar to common law offense of indecent exposure. Commonwealth v. Broadland, 315 Mass. 20 (1943). Imposition of lewdness or nudity upon unsuspecting or unwilling person. PBIC v. Byrne, 313 F. Supp. 757 (D. Mass. 1970). Exposure or attempted exposure of genitalia is not an essential element of an open and gross lewdness offense. Buttocks and/or female breasts are included as well. Commonwealth v. Quinn, 439 Mass. 492 (2003).
The defendant’s act must be committed in such a way as to cause alarm or shock in the victim. Commonwealth v. Fitta, 391 Mass. 394, 396 (1984); Commonwealth v. Wardell, 128 Mass. 52, 53 (1880). The “tender years” Supplemental Jury Instruction 5.42 for use in District Court should not be given in cases involving open and gross lewdness because the instruction suggests that it is unnecessary to prove the element of alarm or shock where children are involved. Commonwealth v. Kessler, 442 Mass. 770 (2004). Shock and alarm equated with discomfort and unease; that child victim did not act hysterical not dispositive. Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 303-04 (1999). However, mere nervousness and offense has never been held sufficient to warrant a finding that the viewer was alarmed or shocked. Commonwealth v. Kessler, 442 Mass. 770 (2004). Conduct which produces alarm or shock is element for ch. 272, § 16, but not for indecent exposure in ch. 272, § 53. Indecent exposure only requires intentional act of lewd exposure offensive to one or more persons. Commonwealth v. Fitta, 391 Mass. 394 (1984). The disparity in sentencing between the two crimes is not unconstitutional.
While the statute has been primarily applied to children (victims), it does not expressly include such a requirement nor has it been so construed. Commonwealth v. Gray, 40 Mass. App. Ct. 901, 902 n.1 (1996).
Lewdness in secret is not enough. Commonwealth v. Catlin, 1 Mass. 8 (1804). It is enough if it be an intentional act of lewd exposure, offensive to one or more persons. Commonwealth v. Broadland, 315 Mass. 20, 21-22 (1943). Manslaughter ch. 265, § 13
Manslaughter is simply battery causing death. Manslaughter may be found if the act causing death was intentionally done, even if death was accidental. Involuntary manslaughter is “an unlawful homicide, unintentionally caused (1) in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life … or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.” Commonwealth v. Campbell, 352 Mass. 387, 397 (1967).
Involuntary manslaughter is “intentional conduct unintentionally causing death.” Commonwealth v. Sullivan, 29 Mass. App. Ct. 93, 99 (1990). “(E)ach type of involuntary manslaughter requires a showing that the defendant knew, or should have known, that his conduct created a high degree of likelihood that substantial harm would result to another.” Commonwealth v. Sneed, 413 Mass. 387, 393 (1992). The only form of “unlawful act” manslaughter recognized under modern Massachusetts law is a misdemeanor battery causing death, an involuntary manslaughter (i.e. a fatal punch to the face). See Commonwealth v. Sheppard, 404 Mass. 774, 775-77 (1989). “The difference between the elements of the third prong of malice for purposes of murder and wanton and reckless conduct amounting to involuntary manslaughter lies in the degree of risk of physical harm that a reasonable person would recognize was created by the particular conduct, based on what the defendant knew.” Commonwealth v. Sires, 413 Mass. 292, 303 n.14 (1992).
When a defendant claims his conduct was accidental, such a claim is a defense to a charge of involuntary manslaughter and the jury should be given an accident instruction if factually appropriate. Commonwealth v. Figueroa, 56 Mass. App. Ct. 641 (2002).
Voluntary manslaughter instructions are given if there is “... evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Halbert, 410 Mass. 534, 538 (1991); see Commonwealth v. Fuller, 421 Mass. 400, 413 (1995) (given the evidence of defendant’s long-smoldering anger at the victim, “the failure to instruct on voluntary manslaughter because of a killing in a sudden rage or on provocation was not error”). Voluntary manslaughter instruction not required, where def. and victim argued over money and def. told police “she was going to throw me out and so I shot her.” Commonwealth v. Callahan, 401 Mass. 627 (1988). Hostile and obscene character of wife’s statements to estranged husband was not sufficient provocation to reduce murder to voluntary manslaughter. Commonwealth v. Bermudez, 370 Mass. 438 (1976). Quarreling alone cannot provide sufficient provocation to reduce murder to manslaughter. Commonwealth v. Watkins, 373 Mass. 849 (1977). Provocation is not viewed subjectively, but objectively: would reasonable person have become sufficiently provoked. Commonwealth v. Halbert, 410 Mass. 534 (1991). Download 1.82 Mb. Share with your friends:
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