Commonwealth v. Dreyer
Commonwealth v. Dreyer
Opinion of the Court
Dreyer appeals from the convictions upon various complaints. We reverse the convictions on grounds outlined below.
1. Assault and Battery by Means of a Dangerous Weapon.
Dreyer contends that the judge’s instructions on assault and battery by means of a dangerous weapon improperly did not require the jury to find that he intended to use a screwdriver as a dangerous weapon.
2. Attempted Larceny of a Motor Vehicle.
The judge correctly denied Dreyer’s motion for a required finding of not guilty of attempted larceny of a motor vehicle.
3. Possession of B urglorious Implements.
Dreyer was charged with a violation of G. L. c. 266, § 49, as appearing in St. 1966, c. 269, § 1. That section makes it an offense to possess a “machine, tool or implement adapted and designed for . . . forcing or breaking open a building, room, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for such purpose” that is, breaking into the depository (emphasis supplied). Dreyer’s counsel has argued that the passenger compartment of an automobile may not be considered a depository for purposes of G. L. c. 266, § 49, a point generally decided to the contrary in Commonwealth v. Aleo, post 916, 917 (1984). A majority of the panel are of opinion that on the evidence Dreyer could be convicted of a violation of § 49.
In 1984, a locked passenger automobile reasonably can be inferred to be a depository, for it ordinarily contains a radio,
The breadth of § 49 was recognized in Commonwealth v. Krasner, 358 Mass. 727, 729-732 (use of device to break into a room to commit a misdemeanor, trespass), S.C., 360 Mass. 848 (1971). In Commonwealth v. Armenia, 4 Mass. App. Ct. 33, 38 (1976), the indictment did not charge intention “to commit any other crime” within the automobile there involved but alleged only an intention to “steal” from it. Commonwealth v. Johnson, 7 Mass. App. Ct. 191, 195 (1979), and Commonwealth v. Mahnke, 13 Mass. App. Ct. 1057, 1058-1059 (1982), dealt with generally similar indictments.
4. Charge on the Lesser Included Offenses.* *
“A judge must charge the jury concerning a lesser included offense if the evidence provides a rational basis for acquitting the defendant of the crime charged and for convicting him of the lesser included offense.” Commonwealth v. Hawkins, 388 Mass. 1014 (1983). Commonwealth v. Powell, 10 Mass. App. Ct. 57, 58 (1980). As to this aspect of the case Dreyer makes two contentions, each calling for reversal in the circumstances.
(a) Dreyer argues that the trial judge erred in failing to charge on the lesser included offense of assault and battery because it could have been concluded that there was no intent to use the screwdriver as a dangerous weapon. See Commonwealth v. Washington, 15 Mass. App. Ct. 378, 383 (1983). The offense of assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A) “is complete once the threat is consummated by the application of any force upon the victim by means of the instrumentality” (emphasis supplied). Commonwealth v. Appleby, 380 Mass. at 308. Here, the evidence showed that Dreyer hit Officer Karlon in the shoulder .with a screwdriver. It could have been found on the evidence that the screwdriver as used by the defendant was not dangerous.
5. Instruction on Alibi.
The trial judge refused to give alibi instructions in accordance with the instructions recommended in Commonwealth v. McLeod, 367 Mass. 500, 502 n.1 (1975). On the issue of alibi the trial judge should have followed the recommendation in the McLeod case. See Commonwealth v. Bowden, 379 Mass. 472, 480-482 (1980).
Judgments reversed.
Verdicts set aside.
In part, the judge instructed the jury that in order “to prove an assault and battery, the Commonwealth must establish an intentional and unjustified use of force upon the person of another, however slight” and that an “[a]ssault and battery is essentially the intentional, offensive, unprivileged touching of the person of another.” He further charged that “[a] dangerous weapon can be any instrument so constructed or used so as to be likely to produce great bodily injury .... In resolving the issue as to whether the instrument is dangerous, the jury may consider the nature, size and shape of the object, as well as the way in which it is handled or controlled. ...”
There was evidence that about 3:00 a.m. the police discovered Dreyer standing next to a black Ford in a substantially empty, well-lighted, parking lot in Worcester. When Dreyer saw the cruiser, he ducked between the Ford and a cement wall. As the officers approached the vehicle, Dreyer ran from behind it, struck one of the officers with an instrument (later discovered to be a screwdriver), and fled. After an unsuccessful chase, the officers returned to the parking lot. There they found a coat hanger sticking out of the window on the driver’s side of the Ford. From this evidence, the jury could infer that Dreyer had intended to enter the vehicle, using the coat hanger, and, once inside, to use the screwdriver to tamper with the ignition. See Commonwealth v. Graud, 8 Mass. App. Ct. 915 (1979). On the evidence, the judge reasonably submitted to the jury the question “whether the defendant intended permanently to deprive the owner of the automobile.” Commonwealth v. Subilosky, 352 Mass. 153, 166 (1967).
Commonwealth v. Dellinger, 10 Mass. App. Ct. 549, 561-562 (1980), later dealt with largely on other grounds in 383 Mass. 780 (1981), was a case in which (at 561) this court said that the evidence there presented did not show beyond a reasonable doubt any intention to use the tools found
The record does not reflect any objection to the judge’s failure to instruct on the lesser included offenses. The judge, however, refused to permit counsel to approach the bench after the charge. See Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). “Defense counsel was not required to make a futile offer of proof ‘in face of the judge’s unequivocal adverse ruling. ’ ” Commonwealth v. Graziano, 368 Mass. 325, 330 (1975). Commonwealth v. Jewett, 17 Mass. App. Ct. 354, 356 n.3 (1984). Failure to allow defense counsel to approach the bench before the juiy retires creates at least the risk that there will be an inadequate record on appeal.
Concurring in Part
(concurring in part and dissenting in part). The defendant’s motion for a required finding of not guilty of possession of burglarious implements should have been allowed. The indictment here charged the defendant with possession of a “machine, tool, or implement adapted and designed for cutting through, forcing or breaking open a building, room, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, . . . with intent to use or employ or allow the same to be used or employed for such purpose” (emphasis supplied). Compare Commonwealth v. Armenia, 4 Mass. App. Ct. 33, 38-39 (1976). I am unable to subscribe to the majority’s view that in the instant circumstances the Commonwealth is not required to produce any “evidence that the automobile was used to store valuables or [the defendant’s] purpose was to enter the automobile to remove valuables” in order to secure a conviction for violation of G. L. c. 266, § 49, as appearing in St. 1966, c. 269, § 1.
The defendant has argued that the passenger compartment of an automobile may not be considered a depository for pur
I also reject the majority’s reasoning and result on a policy basis. The decision creates the anomaly of largely obliterating the statutory distinction between the treatment of car thieves as felons and joy riders as misdemeanants. From this day on, regardless of the tool or device the joy rider may use to break into a locked car, he now will be subjected to treatment as a felon.
I concur in all other aspects of the majority’s opinion, particularly the admonition regarding departures from the requirements of Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). See n.4 of the majority opinion, supra. Appellate courts, busy or otherwise, look upon needless error the way General Custer would have felt about more Indians.
It is understandable why the Commonwealth takes this position, as it presented no evidence as to the contents of the automobile or of the defendant’s intent or purpose. I am not prepared to make the great leap that “a locked passenger automobile reasonably can be inferred to be a depository, for it ordinarily contains a radio, a glove compartment or shelf with some contents” (at 564-565), and perhaps a trunk compartment. No such leap was made in Commonwealth v. Aleo, supra.
Reference
- Full Case Name
- Commonwealth vs. William L. Dreyer, Jr.
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- Published