The SJC on June 8, 2010 gave the go ahead for the full prosecution of disgraced former State Senator James Marzilli in COMMONWEALTH vs. JOSEPH JAMES MARZILLI 457 Mass. 64
In deciding it stated “This court concluded that an indictment alleging an attempt to commit a crime in violation of G. L. c. 274, § 6, namely, indecent assault and battery of a person over the age of fourteen, charges a felony offense that is cognizable under the laws of the Commonwealth, where attempt to commit a crime is a discrete crime with its own elements, and where it was theoretically possible for the Commonwealth to prove that the defendant had a conscious purpose to commit the underlying offense, that he engaged in an overt act toward its commission, and that the substantive crime was not achieved.
Separated into its component parts, a conviction of attempt under G. L. c. 274, § 6, requires “an intention to commit the underlying offense, [and] also an overt act toward its commission.” Commonwealth v. Ortiz, 408 Mass. 463 , 470 (1990) (absent evidence of overt act, evidence insufficient to support conviction of attempted assault and battery by means of dangerous weapon). Accord Commonwealth v. Bell, 455 Mass. 408 , 412 (2009). It also requires proof that the substantive crime was not achieved. Id. The question, therefore, is whether in the present case, where “the underlying offense” is indecent assault and battery, it is theoretically possible for the Commonwealth to prove each of these three elements. With respect to the element of an “overt act” toward the commission of the crime, no one appears to dispute that the Commonwealth, at least as a matter of theory, can meet its burden; the indictment against the defendant alleges such an overt act in some detail. Nor is there disagreement that the substantive crime of indecent assault and battery was not accomplished. Accordingly, we are concerned here only with the question whether it is possible for the Commonwealth to prove intent to commit an indecent assault and battery.
An indecent assault and battery is “an intentional, unprivileged and indecent touching of the victim.” Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184 (1991), quoting Commonwealth v. Perretti, 20 Mass. App. Ct. 36 , 43-44 (1985). Thus, to prove the intent element, the Commonwealth must prove that the defendant intended — had a conscious purpose, see Commonwealth v. Gunter, 427 Mass. 259 , 268-269 (1998) — to commit an indecent or offensive touching of the complainant without her consent. See Commonwealth v. Burke, supra at 482-484. We can discern no logical or theoretical bar to the Commonwealth’s ability to do so. Contrast Commonwealth v. Hebert, 373 Mass. 535 , 537 (1977) (crime of attempted involuntary manslaughter logically impossible, because attempt to commit crime requires proof of intent to commit that particular crime and involuntary manslaughter is homicide unintentionally caused).
General Laws c. 274, § 6, criminalizes an “attempt” to commit a “crime,” without limiting its application (insofar as is relevant here) to particular substantive crimes. While a defendant may not be prosecuted under G. L. c. 265, § 13H, for indecent assault without a completed battery, Eaton, supra, the fortuity that the defendant failed in his attempt to complete a crime does not absolve him from responsibility for it. An attempted indecent assault and battery under § 13H, may serve as a predicate offense under G. L. c. 274, § 6.
Our answer is supported by the observation that the Legislature has recognized the viability of a charge of attempted indecent assault and battery in other contexts. For example, attempt to commit indecent assault and battery is a sex offense for purposes of the sex offender statute, G. L. c. 6, § 178C, and the statute providing for community parole supervision for life, G. L. c. 265, § 45. In addition, the Legislature specifically has excluded some crimes from the operation of the attempt statute, but not aggravated forms of assault and battery. See G. L. c. 274, § 6 (certain larcenies). Presumably, if the Legislature had intended to exclude indecent assault and battery from operation of the attempt statute, it would have done so directly. Finally, the attempt statute has existed in some form since 1832 (St. 1832, c. 62), and was last amended in 1924. St. 1924, c. 164. Both statutes proscribing indecent assault and battery, G. L. c. 265, § 13B (children under the age of fourteen), and G. L. c. 265, § 13H (persons over the age of fourteen), were passed decades later, and we presume the Legislature was aware of the attempt statute, G. L. c. 274, § 6, when it criminalized aggravated forms of assault and battery. Paquette v. Commonwealth, 440 Mass. 121 , 130 (2003) (Legislature presumptively aware of existing statutes when it enacts or amends statutes).
Conclusion. We answer the first reported question in the affirmative and decline to answer the second reported question. The matter is remanded to the Superior Court for further proceedings consistent with this opinion.”
The crimes of Attempt and Indecent Assault and Battery will now go forward at the Superior court level. The trial itself should be a circus considering his erratic behavior which will be testified to.
Attorney Ronald A. Sellon