Commonwealth v. Liakos

421 N.E.2d 486, 12 Mass. App. Ct. 57, 1981 Mass. App. LEXIS 1107
CourtMassachusetts Appeals Court
DecidedJune 10, 1981
StatusPublished
Cited by7 cases

This text of 421 N.E.2d 486 (Commonwealth v. Liakos) 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. Liakos, 421 N.E.2d 486, 12 Mass. App. Ct. 57, 1981 Mass. App. LEXIS 1107 (Mass. Ct. App. 1981).

Opinion

Cutter, J.

A jury returned a verdict of guilty against Liakos on February 15, 1980, on charges of (1) armed assault in a dwelling and (2) mayhem. He was found not guilty of assault with intent to murder. From concurrent sentences of ten to twelve years at M.C.I., Walpole, he appealed. The jury would have been warranted in making the following findings.

On the early morning of May 18, 1979, shortly after midnight, Richard Dailey answered a knock on the door of an apartment in Danvers. He was struck by the opening door and knocked to the floor. He recognized Liakos as one of three assailants. They began to kick Dailey on the floor where he tried to protect himself by curling up and covering his face with his hands, which felt warm blood there. He tried to escape to the bathroom, but before he reached it he was knocked into a wall and became unconscious. When he again was conscious, he saw a large amount of blood on his body.

His roommate, Edwin Febonio, arrived and took Dailey to a hospital. While there, Dailey told Febonio and later told the police that the assault occurred on Warren Street and that he did not know who his assailants were. He later corrected his story and testified that the attack upon him was in the apartment, where the police found bloodstains throughout the premises. There was conflicting evidence about the reasons for Dailey’s inconsistent accounts of the assault upon him.

There also was evidence suggesting that Liakos had shown displeasure at the fact that Dailey had been “dating” Liakos’s sister. After the assault on Dailey, a picture of the sister (formerly taped to the refrigerator in Dailey’s apartment) was missing.

No weapon was received in evidence at trial. Dailey did not testify to observing any weapon in the possession of any assailant. The doctors at the hospital worked over him for [59]*59five hours to repair multiple wounds on various parts of Dailey’s neck, forehead, face, back, and chest area. To cause such wounds, one doctor testified, would require a “very keen instrument, something [with] the sharpness of a razor blade or a very . . . carefully honed knife”. Between 800 and 1,000 sutures were needed to close Dailey’s wounds.

No requests for directed verdicts or required findings were filed in behalf of Liakos. Liakos did not take the stand in his own defense but called several witnesses who testified to his presence at his parents’ house during the period when the attack upon Dailey took place. No objection was made to the trial judge’s instructions, except with respect to an additional instruction which the trial judge at once gave. Other evidence is stated below in discussing the contentions of Liakos’s counsel.

1. Despite the absence of any relevant objection to the charge, Liakos’s counsel now contends that it was error for the judge to charge that “it is reasonable to infer that persons ordinarily intend all the natural and probable . . . consequences of their acts knowingly done or . . . omitted. So, unless the evidence . . . leads you to a different. . . conclusion, you may infer that . . . [Liakos] intended all the natural and probable consequences which one ... in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or . . . omitted by” him. The judge had previously explained that inferences must be based on facts proved beyond a reasonable doubt, must be consistent with each other and with other facts, and that intent may be, and usually must be, proved by circumstantial evidence. There is no merit to Liakos’s contention that this charge created a conclusive presumption. There was no “burden shifting presumption,” of the type held improper in Sandstrom v. Montana, 442 U.S. 510, 524 (1979), and DeJoinville v. Commonwealth, 381 Mass. 246, 253 (1980), created by this instruction. The charge, especially when considered as a whole, permitted the jurors to determine intent by “exercise of the jury’s right and power to draw any reasonable, though not [60]*60necessary, inference from all the circumstances”. See Mr. Justice Quirico’s precise analysis in Commonwealth v. McInerney, 373 Mass. 136, 149-150 (1977), and McInerney v. Berman, 621 F.2d 20, 23-26 (1st Cir. 1980). See also Commonwealth v. Medina, 380 Mass. 565, 577-578 (1980); Commonwealth v. Chasson, 383 Mass. 183,188-193 (1981). Compare Commonwealth v. Callahan, 380 Mass. 821, 824 (1980). As to the propriety of words like “unless the evidence in the case leads you to a different result” (used by the trial judge), see Commonwealth v. Fitzgerald, 380 Mass. 840, 842-846 (1980). In the present case, the judge, both at the beginning of his instructions and at the end, made it clear that in considering all the evidence, circumstantial or direct, the burden rested on the Commonwealth to prove to the jury beyond a reasonable doubt each fact necessary to establish the defendant’s guilt. In the light of these firm instructions there was no occasion for confusion about where the burden of persuasion as to intent rested or the standard of proof as to each essential fact.

2. Again in the absence of any request for a required finding or any relevant objection to the judge’s charge, Liakos’s present counsel contends (a) that there was insufficient evidence that Liakos and his confederates were armed when they entered the apartment, and (b) that the judge gave an inadequate charge on the necessity of proof by the Commonwealth that at least one of the intruders was armed when they entered the apartment. There was ample evidence that the attack upon Dailey was sudden, immediate, furious, and savage. He was left bloody and unconscious, with his body greatly carved by a sharp weapon so that he required nearly 1,000 sutures. From the medical evidence of the special sharpness of the weapon needed to achieve the injuries, and the difficulty of inflicting so many wounds with a razor blade, it was unlikely that any such instrument would be found by the intruder on the premises. From the nature of Dailey’s injuries, and the testimony about the continuous character of the attack upon Dailey, the jury could reasonably infer (although no such weapon was received in [61]*61evidence) that one of the intruders brought such a sharp instrument-weapon with him. See Commonwealth v. Brown, 367 Mass. 24, 27 (1975, testimony that a band of men entered an apartment suddenly and shot a victim eliminated any need of direct testimony that an intruder was armed when he entered); Commonwealth v. Breese, 10 Mass. App. Ct. 757, 758-759 (1980, where the display of a gun in the victim’s premises shortly after the entry by intruders was properly relied on as proof of the defendant’s knowledge that a joint participant was armed when he entered).

The judge at least twice (without objection at trial in behalf of Liakos to the adequacy of the instruction) sufficiently stated the offense as “while being armed with a dangerous weapon entered a dwelling house and while therein assaulted another with intent to commit a felony” (emphasis supplied).

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Bluebook (online)
421 N.E.2d 486, 12 Mass. App. Ct. 57, 1981 Mass. App. LEXIS 1107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-liakos-massappct-1981.