Opinion
14-P-1760
03-04-2016
COMMONWEALTH v. SOKSOURSDEY ROEUNG.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Soksoursdey Roeung, appeals from his convictions of armed assault with intent to murder, in violation of G. L. c. 265, § 18(b); three counts of assault and battery on a correction officer, in violation of G. L. c. 127, § 38B(b); aggravated assault and battery by means of a dangerous weapon, to wit, a metal shank, in violation of G. L. c. 265, § 15A(c); and assault and battery by means of a dangerous weapon, to wit, a floor, in violation of G. L. c. 265, § 15A(b). The defendant maintains his convictions should be reversed for two reasons. First, the defendant argues that there was insufficient evidence to find him guilty of assault and battery by means of a dangerous weapon because there was no evidence that he knowingly participated with his cellmate in the commission of a joint venture. Second, the defendant contends that there was insufficient evidence to find him guilty of armed assault with intent to murder because there was no evidence that the defendant shared the same motive or intent as his cellmate. We affirm.
Background. We summarize the facts in light most favorable to the Commonwealth, reserving some facts for issues raised on appeal. Commonwealth v. Lonardo, 74 Mass. App. Ct. 566, 567 (2009).
The incident occurred at the Souza-Baranowski Correctional Center (SBCC), a maximum security prison operated by the Department of Corrections (DOC). SBCC is divided into alpha-numeric housing units, each containing approximately ninety inmates. Inmates live on one of two cell floors, the flats (lower level) and the top tier (located about twenty feet above the flats). The cell floors are arranged with a central common area with metal tables and chairs. Inmates living on the flats are prohibited from entering the top tier and inmates living on the top tier are prohibited from loitering outside their cells in the walkway. Two correction officers guard the housing unit from the officer's station located at the open end of the flats.
On 1:30 P.M. on June 25, 2012, correction Officer Nathan Beauvais (Officer Beauvais) was patrolling the P-1 housing unit. Cells were open and inmates were present in the common area. Many inmates present in the common area directed their attention toward the defendant's cell while other inmates, including the defendant, lined up along a section of the top tier railing directly facing the defendant's cell from across the common area. The defendant, who lived on the flats, was not allowed to be in this area. Also, inmates from the top tier were not allowed to loiter on the top tier outside their cells. As Officer Beauvais walked past the defendant's cell, Pak jumped out and punched him on the left side of his face. Pak punched Officer Beauvais and stabbed him in the back of the neck with a ten inch metal shank as Officer Beauvais fell to his knees. The shank broke in Officer Beauvais's neck and Pak continued to strike him in a stabbing motion twenty-three more times, while he laid on the floor.
The day prior to the assault, June 24, 2012, Officer Beauvais was making daily rounds in the P-1 housing unit when he stopped to search the defendant's and his cellmate's, Rarn Pak's (Pak), cell. Officer Beauvais, after he entered the cell, discovered a yellow jug that was cut in half and designed to be used as a "cook pot." Officer Beauvais removed the item, because it was contraband under DOC regulations, but did not issue a disciplinary report.
Correction Officer Benjamin McGinnis (Officer McGinnis) saw Officer Beauvais under attack from his vantage point at the officer's station at the opposite end of the corridor and radioed for backup as he ran to help his partner, Officer Beauvais. The defendant tracked Officer McGinnis's movements from the top tier. Officer McGinnis tackled Pak to get him off Officer Beauvais. The defendant then jumped over the railing of the top tier onto a table and punched Officer McGinnis in the face. This caused Officer McGinnis to release his grip on Pak, who returned to assault Officer Beauvais. However, before Pak reached Officer Beauvais, correction Officer Stephanie Erickson (Officer Erickson), who was responding to Officer McGinnis's distress call, ran into Pak. Pak grabbed Officer Erickson by the hair and slammed her head into the floor. Officer Beauvais attempted to defend Officer Erickson by throwing himself between her and Pak. Pak then unsuccessfully attempted to remove the shank from Officer Beauvais's neck.
At this point, Officer Beauvais had lost motor control over the right side of his body.
While the defendant fought with Officer McGinnis, another inmate broke a wooden crutch over Officer McGinnis's face, which rendered him unconscious, and pushed him back into the defendant's cell. Pak was now detained by a large group of correction officers. The defendant then stood up and struck Officer Beauvais in the back of the head until the defendant was overtaken by responding correction officers and taken into custody.
Pak's wrists and ankles had been wrapped with strips of torn bed sheets in attempt to make it harder to detain him. The defendant did not have similar wraps on him.
Discussion. A. Aggravated assault and battery by means of a dangerous weapon. The defendant argues that there was insufficient evidence that he knew that Pak was armed with a metal shank during the attack against Officer Beauvais, precluding his conviction of aggravated assault and battery by means of a dangerous weapon. On review, we determine "whether the evidence, in its light most favorable to the Commonwealth, . . . is sufficient . . . to permit [any rational trier of fact] to infer the existence of the essential elements of the crime charged." Commonwealth v. Kelley, 370 Mass. 147, 150 (1976), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). "The relevant question is whether the evidence" permits a fact finder "to find guilt, not whether the evidence requires a finding." Commonwealth v. Fickling, 434 Mass. 9, 14 (2001), quoting from Commonwealth v. Lydon, 413 Mass. 309, 312 (1992).
Criminal liability as a joint venturer requires proof that "the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). The Commonwealth must demonstrate that the defendant knew the principal was armed during the commission of the crime if the offense upon which the joint venture is based requires proof of possession of a weapon. See Commonwealth v. Watson, 388 Mass. 536, 544 (1983). However, a defendant's knowledge may be inferred circumstantially. See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) ("A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial"); Commonwealth v. Carnes, 457 Mass. 812, 823 (2010) ("The defendant's intent may be inferred from his knowledge of the circumstances and participation in the crime"). See also Commonwealth v. Claudio, 418 Mass. 103, 118 (1994) (such evidence may include defendant's own actions); Commonwealth v. Netto, 438 Mass. 686, 702-703 (2003) (such evidence may include prior relationship between coventurers); Commonwealth v. Lee, 460 Mass. 64, 69-70 (2011) (such evidence may include shared motive between coventurers).
In the light most favorable to the Commonwealth, there was sufficient evidence for the judge to find all the elements of aggravated assault and battery by means of a dangerous weapon on a joint venture theory. See Commonwealth v. Kelley, 370 Mass. at 150. First, the evidence was sufficient to permit the following inferences. The defendant, from his vantage point, saw Pak punch Officer Beauvais and stab him with the ten inch metal shank. After seeing his cellmate, Pak, stab Officer Beauvais, the defendant jumped down to the flats and began to fight with Officer McGinnis. The defendant had knowledge of the dangerous weapon after he saw Pak stab Officer Beauvais, and the defendant attempted to stop Officer McGinnis from apprehending Pak so Pak would be able to continue his assault against Officer Beauvais. See Commonwealth v. Fidler, 23 Mass. App. Ct. 506, 513 (1987) ("[A]t the climactic moments the parties consciously acted together in carrying out the criminal endeavor, each thereby becoming responsible for the acts of the other[]").
Second, the defendant and his cellmate Pak spent hours in a confined space prior to the attack. This proximity permits the inference that they not only planned an attack against Officer Beauvais, but the defendant could have learned that Pak possessed a metal shank. See Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976) (crimes "marked by some degree of planning, preparation and purpose"). Also, the defendant was in an area that was off limits to inmates living on the flats, like himself, and where loitering was prohibited, which gave him a full vantage point to watch Pak stab Officer Beauvais. See ibid. See also Commonwealth v. Seminara, 20 Mass. App. Ct. 789, 790-792 (1985) (strategic positioning of getaway car). It was reasonable for the judge, acting as the finder of fact, to infer that the defendant's role in the attack against Officer Beauvais was to look out for correction officers interceding and to attack them so that Pak would be successful in killing Officer Beauvais. All of these factors combined, in the light most favorable to the Commonwealth, permitted the judge to find that the defendant had knowledge of Pak's dangerous weapon. See Commonwealth v. Kelley, 370 Mass. at 150. We conclude that the evidence was sufficient to permit the inference of knowledge of a weapon beyond a reasonable doubt.
The defendant, on appeal, contends that he was not in a coordinated attack against Officer Beauvais with Pak because he did not have strips of sheets wrapped on his wrists and ankles. However, the defendant could not have had such strips wrapped on his wrists and ankles because his role in the attack was outside his cell and it would have created suspicion if he were dressed like that.
B. Armed assault with intent to murder. The defendant maintains that the evidence was insufficient to prove he shared with Pak the same intent to murder Officer Beauvais. Conviction of armed assault with intent to murder requires proof of an assault with a dangerous weapon and a specific intent to kill that equates with malice. See G. L. c. 265, § 18(b); Commonwealth v. Vick, 454 Mass. 418, 428 (2009). "'Malice' in this context 'means only the absence of justification, excuse, and mitigation.'" Commonwealth v. Johnston, 446 Mass. 555, 558 (2006), quoting from Commonwealth v. Henson, 394 Mass. 584, 590-591 (1985).
The defendant argues that he lacked the requisite intent for assault with intent to murder because he had no motive to kill Officer Beauvais. Specifically, he states that there were no prior negative incidents between the two of them; it was not his, but Pak's cook pot that was confiscated; and that the defendant did not touch the metal shank that was lodged in Officer Beauvais's neck during the assault.
Viewed in the light most favorable to the Commonwealth, there was sufficient evidence for the judge to find all essential elements of assault with intent to murder beyond a reasonable doubt. See Commonwealth v. Kelley, 370 Mass. at 150. "The defendant's intent may be inferred from his knowledge of the circumstances and participation in the crime." Commonwealth v. Carnes, 457 Mass. at 823. The same facts stated in part B above can be used to infer the defendant's specific intent to murder Officer Beauvais. We also note that there was a lack of any credible justification, excuse, or mitigation.
Judgments affirmed.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 4, 2016.