Commonwealth v. Armstrong

766 N.E.2d 894, 54 Mass. App. Ct. 594, 2002 Mass. App. LEXIS 570
CourtMassachusetts Appeals Court
DecidedApril 26, 2002
DocketNo. 00-P-1124
StatusPublished
Cited by2 cases

This text of 766 N.E.2d 894 (Commonwealth v. Armstrong) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Armstrong, 766 N.E.2d 894, 54 Mass. App. Ct. 594, 2002 Mass. App. LEXIS 570 (Mass. Ct. App. 2002).

Opinion

Greenberg, J.

At the conclusion of a bench trial, a Superior Court judge found the defendant guilty of armed assault with intent to murder (seven counts), assault by means of a dangerous weapon (six counts), malicious injury to a police officer, [595]*595unlawful possession of a firearm, and resisting arrest.1 On appeal, the defendant alleges that (1) the trial judge improperly relied on extrajudicial evidence, (2) the evidence as to one count of assault with intent to murder was legally insufficient, and (3) his right of cross-examination was improperly limited. None of these claims has merit, and we affirm the judgments.

1. Facts. Based on the evidence adduced at trial, the judge could have found as follows: Belchertown residents Thomas and Patricia Fuller were alerted by the sound of a car crash on Jenson Road in front of their house. Thomas decided to investigate while Patricia called the police. In relatively short order, he spotted the defendant, covered with blood, hobbling toward him. A wrecked vehicle, turned upside-down, was in the middle of the road. Fuller started to dial his cordless telephone. That Samaritan-like gesture was not appreciated, to put it mildly. The defendant grabbed the telephone out of Fuller’s hand and yelled, “Don’t do it, fucker, don’t do it.” As the defendant spun around and threw the telephone into the nearby woods, Fuller saw a handgun in the defendant’s waistband; the two stood about ten feet apart. The defendant pulled his gun and pointed it at Fuller’s chest, prompting Fuller to jump behind the nearest tree. Simultaneously, he heard a gunshot, but did not know in what direction it had been fired. He ran to his neighbor’s house for help and saw the defendant walking in the opposite direction toward Route 181, an adjacent highway.

Meanwhile, Patricia Fuller heard the gunshots, called the police, and set out to find her husband. When she reached Jenson Road at the scene of the car wreck, she saw the defendant sitting on a grassy area at the side of the road. They were acquainted, so she asked, “Where’s Tom?” The defendant answered, “He’s okay.” Because the defendant continued to brandish a weapon, she ran up a hillside out of his range.

By this time, Belchertown police Officer Edward Oey had arrived at the scene. From his patrol car, Oey saw the defendant, bleeding from his injuries, lying on the side of the road. From the top of the hill, Patricia Fuller warned him that the. defendant was armed. Oey commanded the defendant to show his hands. [596]*596The defendant responded by puffing out his handgun and firing three more shots, this time at Oey, who drove down the road a short distance to avoid him. One shot just missed the left side mirror of his cruiser, another struck the center pillar post, and the third strayed far from the mark.

Another Belchertown officer, William Zobka, then arrived in his police car. Having heard the three shots that the defendant had fired at Oey, Zobka got his shotgun from the cruiser and, with a third officer, began to move through the woods along Jenson Road in pursuit of the defendant.

At the same time, three State police officers arrived in separate vehicles and stopped beside Oey’s cruiser. Those officers and Oey started to cross Jenson Road to join up with Zobka and his partner. While they were in the middle of the road, Oey and the three State police officers saw three muzzle flashes and heard three more bullets pass by them. Those shots were fired at a point about ninety feet south of where they were standing. It is not necessary to recount all of the events that followed, except to say that by the time the police had flushed the defendant out of the woods, by their estimation he had fired an additional eight to nine rounds at them. On several occasions, the State police officers were forced to return fire. Eventually, the defendant was found cowering behind a tree and was placed under arrest. On the following day, police retrieved the defendant’s Clock semiautomatic pistol. Many discharged cartridges were found in areas at or near where the various officers and Thomas Fuller had confronted the defendant.

2. Alleged reliance on extrajudicial evidence. The defendant called Dr. Ronald Ebert, a licensed psychologist, for the purpose of establishing that the defendant would have been unable to form the specific intent to murder, an essential element of assault with intent to murder. Commonwealth v. Henson, 394 Mass. 584, 590-592 (1985). From a review of the defendant’s medical records, which indicated that he was suffering from major depression, and from interviews with the defendant, Dr. Ebert formed an opinion concerning the defendant’s intent. Dr. Ebert concluded that the defendant, who just before his capture had asked the police to kill him, was suicidal and was suffering from cocaine psychosis. Another physician called by the [597]*597defendant, Dr. Brian Pape, opined that the defendant’s excessive use of drugs and his expressed death-wish were consistent with a person who was suicidal. The prosecution had agreed in a pretrial conference to notify the defense of any expert witnesses and their expected testimony. The defense was advised that the Commonwealth might call a medical expert, but ultimately the prosecution did not submit any expert evidence, although a government medical expert was present in the courtroom during the defense’s presentation.

During closing argument, defense counsel commented on the absence of any expert testimony for the Commonwealth and stated that “the deafening silence of the Commonwealth’s experts, one of whom was here in the courtroom, confirmed much of what the defendant’s experts had concluded about his state of mind.” Then defense counsel said, “I’d. suggest the Court can take that into consideration.” To this argument, the judge replied:

“I draw no adverse inference against the Commonwealth for not calling their psychologist. There was no reason to do so. He had already reviewed the testimony of Fuller and the law enforcement officers on the scene, which clearly established and convinced him that the defendant was focused in his action and on achieving the desired result of killing the target when he fired at the target.”

The plaintiff alleges that these comments by the judge suggested that she improperly relied on extrajudicial evidence.

The limitations bearing on a judge’s comments on the evidence when a case is tried without a jury, were discussed in Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992). In that case, during defense counsel’s closing argument, the judge interjected a remark regarding the defendant’s entrapment defense, and implied that the defendant’s supervisor at work, whom the government had used to importune him to sell cocaine to acquaintances, may not have been an agent of the government. Id. at 306-307. We held in Colon that the judge was warranted in his ultimate finding that the defendant was not entrapped, and that his remark, corroborated by the record, was nothing more than a comment that the evidence was very thin on the [598]*598agency question. Id. at 307. We concluded, “[cjomments made by a judge in colloquy with counsel, particularly when counsel are permitted to carry on for the purpose of persuading the judge, are not to be taken as a ruling of law by the judge.” Id. 308. Moreover, “it is presumed that the judge as trier of fact applies correct principles.” Commonwealth v. Milo M.,

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Bluebook (online)
766 N.E.2d 894, 54 Mass. App. Ct. 594, 2002 Mass. App. LEXIS 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-armstrong-massappct-2002.