Commonwealth v. Hammond

736 N.E.2d 398 (Mass.App.Ct. 2000)

COMMONWEALTH vs. ANDREW J. HAMMOND, THIRD.

No.: 97-P-1138

Massachusetts Court of Appeals Middlesex County

Argued: March 9, 2000.

Decided: October 5, 2000.

Present: Kass, Gillerman, & Jacobs, JJ.

Malicious Explosion. Throwing an Explosive Device. Statute, Construction. Practice, Criminal, Duplicative convictions, Instructions to jury, New trial. Words, "Injure."

Indictments found and returned in the Superior Court Department on June 28, 1996.

The cases were tried before Hiller B. Zobel, J., and a motion for new trial, filed on November 18, 1997, was heard by him.

Michael R. Schneider (Alan M. Dershowitz with him) for the defendant.

Marguerite T. Grant, Assistant District Attorney, for the Commonwealth.

KASS, J.

At about 7:40 P.M. on April 26, 1994, a quarter-stick of dynamite taped to a rock crashed through the living room window of the residence at 15 Winter Road, Woburn. The device exploded in the hand of Jennifer Galante, injuring her severely. There was collateral damage to the house.

Andrew J. Hammond, III, the defendant, was convicted by a jury as an accessory before the fact to the crimes of (1) causing damage to property or injury to a person by malicious explosion (G. L. c. 266, § 101); and (2) throwing an explosive device with intent to damage property or injure a person (G. L. c. 266, § 102).¹ He was acquitted of a charge of mayhem.

On appeal from the judgment, Hammond claims that the convictions of malicious explosion and throwing an explosive device are duplicative, thus, subjecting him to double jeopardy, and that the judge erred in instructing the jury that "injures," as the word is used in G. L. c. 266, §§ 101 and 102, means significant emotional injury as well as physical injury. There is also an appeal from the denial of a motion for a new trial based on newly discovered evidence.

1. Facts. We state the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Hammond's quarrel with Jennifer Galante was that she was telling her best friend, Jennifer Gibbons, that Hammond was bad news. Gibbons was the object of Hammond's affection and they were going together. Such was Hammond's displeasure with Galante that he had on two occasions, over the telephone, threatened to kill her.

The dynamite idea had sprouted some days before the April 26 explosion, while Hammond was hanging out with friends at a spot in Billerica that they favored. One of them, Leonard Pearlstein, had come equipped with a stash of quarter-sticks of dynamite, sometimes called M-80s. He took a stick out, put it in a milk carton, lit the fuse and the four young men watched it explode. Hammond observed, "[I]t could do a lot of harm." He paid Pearlstein five dollars for a quarter-stick. Pearlstein and Hammond taped the quarter-stick to a rock. On the tape was a hand written message saying, "Don't fuck with me [word missing] cunt." Hammond gave Pearlstein Jennifer Galante's address and directions to it. He said he wanted to scare her.

Some days later, i.e., on April 26, 1994, there was first a gathering at Pearlstein's house, at which Hammond, and two others in their circle, Jeff McMillan and Marc Perry, were present. A Mark Hamilton was also present. He asked to be taken home. Hammond, McMillan, Pearlstein, and Perry regrouped at Boomer's, a pool hall in Wilmington at which Hammond sometimes played. Perry stayed in the car in which he had arrived, a stolen BMW, while Hammond, Pearlstein, and McMillan talked for some minutes. After that conversation was over, McMillan and Pearlstein rejoined Perry, McMillan announcing, "We are going for a ride in the car." Pearlstein directed Perry to the Galante house. When they arrived, McMillan got out and returned in about forty seconds shouting: "go, go, go." As Perry sped away, he heard a "big boom," followed by screams. The three returned to Boomer's, where Hammond was in the parking lot. Hammond asked, "[W]as it done?" Pearlstein said, "It was done." The two slapped high five.²

At the blast site, as noted, Jennifer Galante, then seventeen years old, was grievously injured in the hand and suffered shrapnel wounds over her body. Her mother also had been in the living room and her sister and grandparents were at home. There was considerable property damage.

2. Whether convictions under G. L. c. 266, §§ 101 and 102 are duplicative. For convenience, we shall generally refer to the count under G. L. c. 266, § 101, as the malicious explosion indictment and the count under § 102 as the throwing indictment.

Hammond argues that the elements of § 102 are subsumed in § 101, and that his convictions of both are duplicative and, therefore, violate his right to be free from double jeopardy. See Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 384-385 (1998). The defense did not raise that issue at trial but we consider it on the authority of Commonwealth v. Sanchez, 405 Mass. 369, 382 (1989). See Commonwealth v. Gagnon, 37 Mass. App. Ct. 626, 633 (1994).

Section 101, the statutory basis of the malicious explosion indictment, reads:

"Whoever wilfully, intentionally and without right, by the explosion of gunpowder or of any other explosive, unlawfully damages or destroys property or injures a person, shall be punished . . . ."

Section 102, the statutory basis of the throwing indictment, reads:

"Whoever wilfully and intentionally throws at or near any person and whoever wilfully, intentionally and without right throws into, against or upon, any property real or personal, or puts, places or explodes or causes to be exploded in, upon or near such property, or near any person, gunpowder or other explosive . . . with an intent unlawfully to destroy or damage property or injure any person, or whoever has in his possession or under his control such an article or instrument with said intent, shall be punished . . . ."

To convict a defendant of two statutory offenses arising out of a single incident, "each crime requires proof of an additional fact that the other does not." Commonwealth v. Jones, 382 Mass. 387, 393 (1981). Commonwealth v. Crocker, 384 Mass. 353, 358 (1981). Commonwealth v. Arriaga, 44 Mass. App. Ct. at 386.

Section 101, the malicious explosion statute, describes causing an unlawful explosion that occurs and damages or destroys property or injures a person. It is a completed act. The offense described by § 102, the throwing statute, may not be a completed act. It is possible to offend against the statute by throwing an explosive device at or near a person or throwing it into property, without having the device explode; or, the device may explode and cause no damage or injury. If the thrown device explodes, § 102 is nonetheless violated; i.e., § 102 is more than an attempt crime. See Commonwealth v. Poor, 18 Mass. App. Ct. 490, 492-493 (1984). Although an explosion may occur in each statute, the throwing offense involves the additional fact or element of throwing, which the malicious explosion statute does not. There is -- at least the Legislature could so conclude -- a special element of terror in hurling an explosive at a person or into a property. It is quite possible to cause an explosion without throwing the explosive.³ The act of the defendant, therefore, offended against two statutes, even though it arose out of one incident. Commonwealth v. Crocker, 384 Mass. at 358. Commonwealth v. Arriaga, 44 Mass. App. Ct. at 389. Commonwealth v. Smith, 44 Mass. App. Ct. 394, 396 (1998). Contrast Commonwealth v. DeCicco, 44 Mass. App. Ct. 111, 125-126 (1998) (throwing explosive device in violation of G. L. c. 266, § 102, subsumes the lesser offense stated in G. L. c. 266, § 102A, of possession of an infernal machine).

3. Instruction to jury about meaning of "injure." Historically, the antecedents of G. L. c. 266, §§ 101 and 102, defined crimes against property.⁴ Concern with injury to persons was added by St. 1957, c. 688, §§ 21 and 22. As the judge instructed the jury on the elements of the crimes charged, a juror interjected the question: "Your Honor, does injury include mental anguish as well as physical injury?" After discussion with counsel, the judge said to the jury: "I will define injury as meaning any direct adverse effect on a person. It has to be something more than trivial, but it has to be a direct adverse significant effect." After the jury had deliberated for some time, the foreman sent to the judge the following written question: "Injury, can there be a more detailed definition? Does it include emotional or mental injury/trauma?" After hearing further from counsel, the judge, over defense objection, instructed the jury in writing: "'Injury' includes significant emotional injury." The position of the defense is that the statutory phrase, "injures a person" -- it appears in both § 101 and § 102 -- signifies physical injury and that the jury were wrongly instructed.

In its classical meaning, the primary meaning of "injure" was to do injustice or wrong to a person as in, "When have I injured thee? when done thee wrong?"⁵ To insult, revile, or slander is to injure. Oxford English Dictionary 1439 (Compact ed. 1971). More recent American definition places physical harm at the fore. The American Heritage Dictionary 929 (3d ed. 1992). In current usage, "injure" has wide range and the question is whether, consonant with the principle that plausible ambiguities in a criminal statute should be resolved in favor of a defendant, Commonwealth v. Wotan, 422 Mass. 740, 742 (1996),⁶ are we required to read the modifier "physically" or "bodily" as appurtenant in the statutes to the word "injure"?

We think not. Had the Legislature desired that limitation, it could have expressed it, as it has done on many occasions. See, e.g., G. L. c. 148, § 55 (explosive golf ball "tending . . . to inflict bodily injury"); G. L. c. 265, § 13J (assault and...