Opinion
14-P-1599
03-23-2016
COMMONWEALTH v. JOHN E. KISIL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his conviction of assault and battery, the defendant assigns error to the refusal by the trial judge to administer a requested jury instruction on mental impairment short of insanity, and asserts that his trial counsel was constitutionally ineffective by reason of his failure to request a jury instruction on lack of criminal responsibility when his requested instruction on impairment was refused. We affirm.
1. Mental impairment short of insanity. As the Commonwealth observes, the crime of assault and battery is a general intent crime; all that is required is that the defendant intentionally touched the victim without the victim's consent, and there is no requirement that the Commonwealth prove that the defendant had a specific intent to injure the victim. See Commonwealth v. Deschaine, 77 Mass. App. Ct. 506, 514 (2010), and cases cited. The model jury instruction requested by the defendant is expressly directed to crimes requiring specific intent. The language requested by the defendant did not include the instruction endorsed in Commonwealth v. Sires, 413 Mass. 292, 300-301 (1992). As administered, the judge's instruction advised the jurors that they had heard evidence that they "may consider in determining whether the defendant intentionally committed an act that was a criminal offense," and further instructed them that they could consider such evidence in determining whether the Commonwealth had proved beyond a reasonable doubt that "the defendant consciously and deliberately intended the touching to occur." Where the instruction requested by the defendant by its terms applied solely to specific intent crimes, did not include the Sires instruction, and where the judge's instruction as administered advised jurors that they could consider the evidence presented by the defendant in determining whether he acted with intent, we discern no cause to disturb the judgment.
As observed in Deschaine, supra, "assault and battery upon a person of a certain type requires that the defendant know that the other is of a certain type." The present case involves simple assault and battery, and the status of the victim as a nurse attending to the defendant at the time of the battery is immaterial to the crime.
As the trial judge observed, the model jury instruction submitted by trial counsel includes the following phrase just below its title: "For specific intent crimes only." In addition, the instruction includes the statement that "one of the elements . . . which the Commonwealth must prove beyond a reasonable doubt is that the defendant specifically intended to [describe required specific intent]," and concludes with the following language: "You may consider any evidence of the defendant's mental condition, along with all the other evidence in the case, in deciding whether the Commonwealth has proved beyond a reasonable doubt that the defendant acted with the intent to ___." Instruction 9.220 of the Criminal Model Jury Instructions for Use in the District Court (2009). In the present case, of course, there is nothing to supply in the blank, as the Commonwealth had no burden to prove that the defendant acted with a specific intent.
The defendant raises no claim that his trial counsel was ineffective by reason of his failure to request the Sires instruction rather than the model jury instruction designed for crimes of specific intent.
2. Lack of criminal responsibility. We likewise discern no cause for relief in the defendant's claim of ineffective assistance of counsel, based on trial counsel's failure to request a jury instruction on lack of criminal responsibility. The claim is raised on direct appeal; consequently we are limited to the evidence in the trial record in our assessment of the defendant's claim. Contrary to the defendant's contention, however, the factual basis for his claim does not appear indisputably on the trial record. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Though the defendant presented expert testimony concerning his condition at the time of the incident giving rise to the charges, including testimony that he was experiencing delirium tremens, none of that testimony touched on the essential elements of the defense of lack of criminal responsibility. See Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967), quoting from American Law Institute, Model Penal Code § 4.01, Proposed Official Draft 66 (1962) ("A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law"). While it is true that "[a]n expert witness is not required to fashion an answer to the exact language in McHoul in order to justify an instruction," Commonwealth v. Monico, 396 Mass. 793, 800 (1986), the evidence nonetheless must suggest not merely some degree of mental impairment or condition, but that the defendant is unable by reason of the impairment or condition either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Compare id. at 799-800. None of the expert testimony in the present case (including the testimony during expert voir dire) expressed a view about the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. We decline to speculate whether the defendant's experts might have offered such an opinion, if examined on the question; the appropriate avenue to develop a record on the question is through the traditional mechanism of a motion for a new trial. See Zinser, supra at 810-811.
Judgment affirmed.
By the Court (Green, Katzmann & Grainger, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 23, 2016.