Commonwealth v. Kushner

Massachusetts Appeals Court

Commonwealth v. Kushner

684 N.E.2d 1199, 43 Mass. App. Ct. 918, 1997 Mass. App. LEXIS 200

CourtMassachusetts Appeals Court

DecidedSeptember 8, 1997

DocketNo. 96-P-18

StatusPublished

Cited by3 cases

This text of 684 N.E.2d 1199 (Commonwealth v. Kushner) 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. Kushner, 684 N.E.2d 1199, 43 Mass. App. Ct. 918, 1997 Mass. App. LEXIS 200 (Mass. Ct. App. 1997).

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Opinion

Kushner, the defendant, was convicted of assault by means of a dangerous weapon, of the immediately threatened battery type (G. L. c. 265, § 15B). When instructing the jury, the District Court judge followed generally § 5.402 of the Model Jury Instructions for Use in the District Court Department (1988 ed.).¹ That instruction was erroneous, having been held to be so in Commonwealth v. Musgrave, 38 Mass. App. Ct. 519 (1995), S.C., 421 Mass. 610 (1996), because it failed to inform the jury of the intent element of the crime, i.e., that the defendant intended to cause the victim fear or apprehension of immediate, harm. Id. at 522-524. That issue was in contention. In Musgrave, defense counsel had requested and been refused the “intent to cause fear or apprehension” component of the jury charge; in the instant case, trial counsel for the defendant neither requested that element of the jury charge nor objected to the charge that the trial judge delivered. The error, therefore, can be consequential only if there is a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). That risk is inherent when the elements of a crime are incorrectly stated in the course of a jury charge, for the reason that the defendant may be “convicted for a course of conduct that [was] not criminal at all.” Commonwealth v. Amirault, 424 Mass. 618, 647 n.21 (1997). Accordingly, the conviction of assault by means of a dangerous weapon is reversed, and that verdict is set aside. As to a collateral convictionof operating a motor vehicle so as to endanger the public (G. L. c. 90, § 24), the defendant has advanced [919]*919no argument, and the judgment on that count is affirmed.

Michele R. Moretti for the defendant. Shaun S. McLean, Special Assistant District Attorney, for the Commonwealth.

So ordered.

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Kushner, the defendant, was convicted of assault by means of a dangerous weapon, of the immediately threatened battery type (G. L. c. 265, § 15B). When instructing the jury, the District Court judge followed generally § 5.402 of the Model Jury Instructions for Use in the District Court Department (1988 ed.).¹ That instruction was erroneous, having been held to be so in Commonwealth v. Musgrave, 38 Mass. App. Ct. 519 (1995), S.C., 421 Mass. 610 (1996), because it failed to inform the jury of the intent element of the crime, i.e., that the defendant intended to cause the victim fear or apprehension of immediate, harm. Id. at 522-524. That issue was in contention. In Musgrave, defense counsel had requested and been refused the “intent to cause fear or apprehension” component of the jury charge; in the instant case, trial counsel for the defendant neither requested that element of the jury charge nor objected to the charge that the trial judge delivered. The error, therefore, can be consequential only if there is a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). That risk is inherent when the elements of a crime are incorrectly stated in the course of a jury charge, for the reason that the defendant may be “convicted for a course of conduct that [was] not criminal at all.” Commonwealth v. Amirault, 424 Mass. 618, 647 n.21 (1997). Accordingly, the conviction of assault by means of a dangerous weapon is reversed, and that verdict is set aside. As to a collateral convictionof operating a motor vehicle so as to endanger the public (G. L. c. 90, § 24), the defendant has advanced [919]*919no argument, and the judgment on that count is affirmed.

Michele R. Moretti for the defendant. Shaun S. McLean, Special Assistant District Attorney, for the Commonwealth.

So ordered.

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Bluebook (online)

684 N.E.2d 1199, 43 Mass. App. Ct. 918, 1997 Mass. App. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kushner-massappct-1997.

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