Opinion
10-P-186
10-27-2011
COMMONWEALTH v. JASON D. OKUNIEWICZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of: (1) assault with intent to kill, (2) assault and battery by means of a dangerous weapon, (3) aggravated assault and battery by means of a dangerous weapon, and (4) assault by means of a dangerous weapon. On appeal, the defendant argues: (1) that his conviction and sentence for assault and battery by means of a dangerous weapon must be vacated because it is duplicative of his conviction of aggravated assault and battery by means of a dangerous weapon, (2) that the judge erroneously instructed the jury that a folding knife was an inherently dangerous weapon, and (3) that the judge's instructions on self-defense and excessive force impermissibly shifted the Commonwealth's burden. We vacate in part and affirm in part.
1. Duplicative convictions. The Commonwealth concedes that the defendant's conviction of assault and battery by means of a dangerous weapon should have been dismissed as a lesser included offense of his conviction of aggravated assault and battery by means of a dangerous weapon causing serious bodily injury. Convictions of both greater and lesser included offenses must rest on 'separate and distinct acts.' Commonwealth v. King, 445 Mass. 217, 225 (2005). Here, the two convictions arose out of the same set of actions and circumstances. 'Because the Commonwealth is entitled to a verdict on the highest crime charged,' Commonwealth v. Vao Sok, 435 Mass. 743, 759 (2002), the aggravated assault and battery by means of a dangerous weapon conviction stands, while the conviction of assault and battery by means of a dangerous weapon is vacated.
2. Instruction that the knife was an inherently dangerous weapon. The defendant contends that the judge was erroneous in instructing the jury that the knife used in the charged crimes was a dangerous weapon per se. We disagree. The judge's instruction was not objected to at trial, so we review the objection for error and a substantial risk of a miscarriage of justice. See Commonwealth v. Hill, 387 Mass. 619, 625 (1982). The knife in question was a folding pocketknife, though there seems to be disagreement as to whether it contained a locking device. Relying on Commonwealth v. Turner, 59 Mass. App. Ct. 825, 828 (2003), the defendant claims that a folding pocketknife is not a dangerous weapon per se. However, a very recent decision by the Supreme Judicial Court in Commonwealth v. Wynton W., 459 Mass. 745 (2011), holds that 'straightness of a blade, like its length, a locking mechanism, a serrated edge, or any other individual feature is not dispositive of the question whether a knife is dangerous per se under common law.' Id. at 754-755 n.5. Therefore, the presence or absence of a locking mechanism would not be dispositive in our analysis. Ibid.
The Commonwealth argues it may be inferred there was a locking device due to the decision of the prosecutor to ask a trooper for assistance in folding the knife back into the handle. The defendant's brief simply states there was no evidence it had a locking device. The knife was made an exhibit at trial. We have examined the exhibit and determine that the jury could conclude from their inspection of the knife that it had a locking blade.
Even if the knife had no locking mechanism, and does not qualify as a dangerous weapon per se, there was no substantial risk of a miscarriage of justice created by the jury instruction. 'It was undisputed at trial that the defendant used the knife to inflict multiple stab wounds on the victim . . . . Whatever the nature of the knife in question, it was admittedly used in a manner to inflict serious bodily harm, and thus was used as a dangerous weapon.' Commonwealth v. Delaney, 442 Mass. 604, 615 (2004). As we do here, the court in Delaney found '[t]here was no dispute that the knife, as used, qualified as a dangerous weapon, and therefore no substantial risk of a miscarriage of justice stemming from the judge's erroneous definition of ' dangerous weapon." Ibid.
3. Self-defense instruction. The defendant next contends that the judge erred in giving a general self-defense instruction rather than a self-defense instruction as to each indictment. We disagree. Because the instruction was not objected to at trial, we review this instruction for error and a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). The judge gave the model jury instruction on self-defense, which came after he read all the indictments. The defendant relies on cases that support findings of a miscarriage of justice when the instructions themselves were flawed, but not because a self-defense instruction was not given after each indictment. See Commonwealth v. Baseler, 419 Mass. 500, 503- 504 (1995); Commonwealth v. Santos, 454 Mass. 770, 772-777 (2009). The judge repeatedly informed the jury that the burden was on the Commonwealth to disprove the defendant's self-defense theory. The defendant claims that even though the jury charge was succinct and closely paralleled the model instruction, it was still fundamentally flawed. However, the defendant is not arguing that the instructions themselves were improper, only that they should have been given more than once. We find no error. On the charge of assault and battery by means of a dangerous weapon, the judgment is vacated, the verdict is set aside, and the indictment shall be dismissed. The remaining judgments are affirmed.
So ordered.
By the Court (Meade, Wolohojian & Milkey, JJ.),