Commonwealth v. Drewnowski

694 N.E.2d 1301, 44 Mass. App. Ct. 687, 1998 Mass. App. LEXIS 397
CourtMassachusetts Appeals Court
DecidedMay 5, 1998
DocketNo. 96-P-0767
StatusPublished
Cited by16 cases

This text of 694 N.E.2d 1301 (Commonwealth v. Drewnowski) 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. Drewnowski, 694 N.E.2d 1301, 44 Mass. App. Ct. 687, 1998 Mass. App. LEXIS 397 (Mass. Ct. App. 1998).

Opinion

Flannery, J.

A Superior Court jury found the defendant guilty of unarmed robbery, G. L. c. 265, § 19(6).1 On appeal, the defendant contends that the trial judge erred twice (1) in not instructing the jury on the lesser included offenses of larceny from the person of another, G. L. c. 266, § 25(6), and assault with intent to rob, G. L. c. 265, § 20; and (2) in not allowing his motion for a required finding of not guilty of unarmed robbery. We conclude that the denial of the motion for a required finding and the lack of an instruction on assault with intent to [688]*688rob were not error. However, the judge’s failure to instruct on the lesser included larceny offense was error necessitating reversal.

On May 4, 1994, the defendant allegedly took money from the cash register of a Sunoco gas station and then, while escaping, threw a socket wrench at the gas station attendant, Christopher Bozyk, who was attempting to hold the defendant at the scene until the police could arrive. Bozyk testified that, as he was returning from assisting a customer, he found the defendant inside the attendant’s booth. He asked the defendant what he was doing there, and the defendant replied, “I was waiting for you ... to rob you.” The defendant then “pushed by” Bozyk — “[n]ot a push like this, but a movement” — toward the cash register. Bozyk saw the defendant reach into the cash drawer and then try to leave the booth. Bozyk picked up a socket wrench and grabbed the defendant’s coat. The defendant was able to slip out of his coat and run outside. Bozyk attempted to hold him again, but the defendant broke free, knocking Bozyk to the ground and causing him to drop the wrench. Bozyk testified that the defendant then picked up the wrench and, as he rode away on his bicycle, threw it at Bozyk — striking him on the shoulder.2 Bozyk also stated that as a result of the second struggle the defendant dropped some money on the ground, and that after the money was returned to the register, the account was even.

The defendant conceded that he walked into the attendant’s booth at the Sunoco station with the intent to take money from the cash register. He testified, however, that the drawer was empty when he reached inside it. When Bozyk entered the booth, the defendant explained to him that he was looking for a job application. Bozyk then stepped into the doorway, told the defendant that the police were coming, and grabbed him by the coat. The defendant asked Bozyk to let him go, and when Bozyk refused, he pulled out of his coat and rode away on his bicycle. The defendant denied throwing the socket wrench.

Jury instruction on the lesser included offenses. The defendant contends that the judge erred in declining to instruct [689]*689on assault with intent to rob3 and on larceny from the person of another4 as lesser included offenses of unarmed robbery.5 The Commonwealth argues that the defendant failed to preserve the issue for appeal under Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). At the conclusion of the evidence, the defendant made an oral request for a jury instruction on larceny from the person, which the judge immediately rejected. The judge then suggested that he might instruct on the lesser included offense of assault with intent to rob. The defendant agreed, and the judge decided to reserve his decision until the next morning.

(a) An instruction on the lesser included offense of assault with intent to rob was not mentioned the following morning before the jury were charged, and it was not given to the jury as an instruction. The defendant made no objection after the jury were charged.6 The defendant’s agreement with the judge’s suggestion was not a request for an instruction. By not requesting such an instruction and failing to object to its omission, the defendant waived any right to claim error on appeal. See Commonwealth v. Torres, 420 Mass. 479, 482-483 (1995). “It is a fundamental rule of practice that where a party alleges error in a charge he must bring the alleged error to the attention of the judge in specific terms in order to give the judge an opportunity [690]*690to rectify the error, if any.” Ibid.., quoting from Commonwealth v. Keevan, 400 Mass. 557, 564 (1987).

The defendant argues that, regardless of waiver, the judge should have given that lesser included instruction because there was sufficient evidence to support it. Therefore, the argument runs, a new trial should be granted to avoid a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-64 (1967). Although, “[ojrdinarily, even in the absence of a specific request, rule 24(b) notwithstanding, a judge should instruct on lesser included offenses when there is a rational basis in the evidence to do so,” Commonwealth v. Yunggebauer, 23 Mass. App. Ct. 46, 52 (1986), we do not believe application of the Freeman principle is warranted in this case.

Three elements are preconditions for the application of the Freeman exception:

“First, there must be a genuine question of guilt or innocence. Where evidence of guilt is strong arid one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice. See Commonwealth v. Rembiszewski, 391 Mass. [123,] 134-135 (1984); Commonwealth v. Hughes, 380 Mass. 596, 601-602 (1980). Compare Commonwealth v. Rossi, 19 Mass. App. Ct. 257, 259-260 (1985). Second, the error must be sufficiently significant in the context of the trial to make plausible an inference that the result might have been otherwise but for the error. See Gibson v. Commonwealth, 377 Mass. 539, 543 (1979) (“one [defective] sentence in charge which occupies fifty-seven pages of transcript”). Compare Commonwealth v. Shelley, 374 Mass. 466, 470 (1978). Third, it must be inferable from the record that counsel’s failure to object was not simply a reasonable tactical decision. See, e.g., Commonwealth v. Johnson, 374 Mass. 453, 464-465 (1978)” (footnote omitted).

Commonwealth v. Amirault, 424 Mass. 618, 650-651 (1997), quoting from Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).

This is not a case where the evidence was one-sided..There was sufficient evidence, however, for a jury to conclude that the defendant was guilty of unarmed robbery. The Commonwealth [691]*691presented evidence that the money was taken, and force thereafter effectuated the taking. See Commonwealth v. Assad, 19 Mass. App. Ct. 1007, 1008-1009 (1985) (even though force was only used to facilitate escape, it was sufficient that force was “connected to the objective of stealing property”).

We do not believe that the absence of the instruction was “sufficiently significant” to “make plausible an inference that the result might have been otherwise but for the error.” Commonwealth v. Miranda, 22 Mass. App. Ct. at 21. Furthermore, because the defendant did not object to the absence of the instruction, he must show that, “taking the proceedings as a whole, the purpose and value of [the instruction] ha[s] not been sufficiently served and that as a result there is a substantial risk that the outcome of the trial would have been different.

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Bluebook (online)
694 N.E.2d 1301, 44 Mass. App. Ct. 687, 1998 Mass. App. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-drewnowski-massappct-1998.