holding that officer who was shot in the chest with birdshot and whose wounds were therefore superficial “suffered from his wounds [but] was not seriously injured in the statutory sense”
How later courts described this case
- holding that officer who was shot in the chest with birdshot and whose wounds were therefore superficial “suffered from his wounds [but] was not seriously injured in the statutory sense”
- holding trial court should have given lesser-included offense instruction where a reasonable juror could conclude arrestee shot police officer not to kill him but rather only to injure him and thereby effect an escape
- holding that while a gunshot victim “suffered from his wounds[,] he was not seriously injured in the statutory sense”
- finding no serious physical injury where an officer was struck in the chest with birdshot, leaving “superficial” wounds
Written by the judges who cited it.
The opinion
STEPHENSON, Justice,
dissenting.
I respectfully dissent from the majority opinion for the reason that I believe it is illogical. The second-degree assault instruction required here is based solely on the less than serious wounds received by the police officer. The majority opinion recognizes that had the chest wound been serious, by statutory definition, a first-degree assault instruction would have been required, not for the benefit of the appellant since the penalty is the same, but for the benefit of the Commonwealth. Had Lutt-rell fired at the officer and missed, there would be no additional instruction required other than the instruction given by the trial court in the circumstances presented here. The reasoning leading to the result in the majority opinion, based on the less than serious wound, is unsound. I find this result particularly distressing when the wounding of the police officer was less than serious by the pure happenstance of the round being loaded with birdshot, a condition not known by the appellants.
Further, I believe the majority opinion ignores the well-settled law in this Commonwealth that instructions given in a criminal case are based upon the evidence.
The majority opinion pays lip service to this concept by citing Muse. However, the appellants did not testify as to any exculpatory circumstance or intention on their part so as to justify finding guilt of a lesser charge. And the statement that a reasonable juror could conclude that the appellants fired at the officer not intending to kill him, but intending only to injure him to the extent necessary to effect their escape, based upon Luttrell’s direction to Siillivan to “shoot,” not saying “kill” the officer, approaches fantasy. The victim here was an armed police officer. We are not in the business of conjuring up speculative inferences to give a jury the opportunity to reduce the penalty for a criminal act. Neither Luttrell nor Sullivan testified. Why should we read possible exculpatory reasons into a scenario where Luttrell directed Sullivan to shoot the police officer and then fired into the officer’s chest? How a reasonable juror could from this record conclude no intent to kill, but only intent to injure in order to effect an escape is beyond my comprehension. The officer is alive only because the round in the pistol’s chamber was loaded with birdshot unbeknownst to the appellants. By the same token, I do not believe an instruction on criminal facilitation for Sullivan is required. There is no evidence or reasonable inference from the *81 evidence in this record upon which to base an instruction on second-degree assault or criminal facilitation. In the absence of some testimony by the appellants upon which the instruction could be based, I object strongly to this court manufacturing speculative reasons for the appellants. This record portrays a cold-blooded attempt to murder a police officer without a single mitigating circumstance. For the foregoing reasons I dissent.
The evidence of guilt of the offense charged here is overwhelming to the point of being conclusive. The other assigned errors are, in my opinion, harmless beyond a reasonable doubt.
STERNBERG, J., joins in this dissent.