Com. v. Fitzgerald

• Decision Date: 10 June 1980
• Citation: 406 N.E.2d 389,380 Mass. 840
• Parties: COMMONWEALTH v. Michael FITZGERALD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 389

406 N.E.2d 389

380 Mass. 840

COMMONWEALTH v. Michael FITZGERALD.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 8, 1980.

Decided June 10, 1980.

Douglas M. Watson, Boston, for defendant.

Robert M. Raciti, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

WILKINS, Justice.

The defendant appeals from two convictions of murder in the second degree, and convictions of unlawfully carrying a firearm and of armed assault with intent to murder. ¹ He argues three assignments of error in support of his claim for a new trial and, each of those failing, asks that we direct the entry of verdicts of guilty of manslaughter on the murder convictions pursuant to our authority under G.L. c. 278, § 33E. We affirm the convictions and find no justification for directing the entry of verdicts of manslaughter in lieu of the verdicts of guilty of murder in the second degree. As we consider the defendant's various arguments, we shall recite such facts as are necessary to their resolution.

1. We turn first to the defendant's claim that the judge's charge erroneously placed the burden of proof on the defendant with respect to the issues of self-defense, excessive force, malice, and provocation. The defendant admitted that he shot the three victims at a bar in Everett in the early morning of December 13, 1974. The case was tried basically on the issues of whether the defendant (a) acted in self-defense, warranting a finding of not guilty, (b) used excessive force in circumstances in which he was justified in acting to protect himself, (c) acted with malice aforethought, or (d) acted on reasonable provocation, reducing the crime from murder to manslaughter. Experienced defense counsel, who is not appellate counsel, made no request for instructions and raised no objection to the judge's charge to the jury. The trial took place in April, 1976.

It is incontrovertible that the burden is on the Commonwealth to prove or disprove beyond a reasonable doubt each of the elements constituting the crime of murder that were in issue in this case. Commonwealth v. Rodriguez, 370 Mass. 684, 691-692, 352 N.E.2d 203 (1976) (self-defense). Commonwealth v. Stokes, 374 Mass. 583, --- - ---, ^a 374 N.E.2d 87 (1978) (excessive force). Commonwealth v. Medina, --- Mass. ---, ---, ^b 404 N.E.2d 1228 (1980) (malice). Commonwealth v. Fluker, --- Mass. ---, ---, ^c 385 N.E.2d 256 (1979) (provocation). It is also settled that, in any case tried before our decision in Commonwealth v. Rodriguez, supra, "this court will review the constitutional adequacy of the instructions to the jury as to the burden of proof . . . where the evidence adequately raises the issues of self-defense or provocation, even though the defendant addressed no objections or exceptions to that issue." Commonwealth v. Collins, 374 Mass. 596, ---, ^d 373 N.E.2d 969 (1978). ²

Although we shall examine individually the judge's instructions on self-defense, excessive force, malice, and provocation, the true "test of the charge is the impression created by it as a whole." Commonwealth v. Benders, 361 Mass. 704, 707, 282 N.E.2d 405, 408 (1972). See Commonwealth v. Fluker, supra, --- Mass. at --- - ---, ^e 385 N.E.2d 256, and cases cited. The overall charge definitely placed the burden of proof on the Commonwealth. The judge charged the jury on the presumption of innocence and told them that the Commonwealth had to prove every essential element of the crimes charged in the indictments. He gave extensive instructions on the Commonwealth's burden of proof beyond a reasonable doubt and stated that "(t)hat burden never shifts." Most importantly, the judge emphasized in his charge that the defendant was to receive the benefit of any reasonable doubt. Considering the charge as a whole in relation to the specific portions of it that we are about to discuss, we conclude that there was no error on the issue of burden of proof.

(a) Self-defense. The judge charged the jury concerning the burden of proof on self-defense as follows:

"You have had raised here the issue of self defense. Many of you might have the opinion that the defendant is raising here the issue of self defense and he, therefore, has the burden of proving it. That is not so. It is the burden of the Commonwealth, as I told you, to prove every essential element here. That burden never shifts and the evidence produced by the defendant if it has satisfied you that this was in fact justifiable homicide, as I shall explain it, then the Commonwealth has failed to prove beyond a reasonable doubt that it was an unlawful killing. Therefore, the defendant would be entitled to a not guilty, not because he sustained the burden of proving it was in self defense but because the Commonwealth didn't succeed in proving it was unlawful."

These instructions made clear to the jury that the Commonwealth bore the burden of proving beyond a reasonable doubt that the defendant had not acted in self-defense. Although the language "if it has satisfied you" is regrettable (see Commonwealth v. Rodriguez, 370 Mass. at 690-691 & n.8, 352 N.E.2d 203), it did not shift the burden of proof to the defendant on the issue of self-defense. See Commonwealth v. Medina, supra --- MASS. AT ---, 404 N.E.2D 1228 (1980)^F. One isolated suggestion that the jury be "satisfied" with the evidence on self-defense in order to acquit will not invalidate a charge that overcame and outweighed any such suggestion both by an initially correct instruction and by the language of the instructions considered as a whole. See Gibson v. Commonwealth, --- Mass. ---, --- - ---, ^g 387 N.E.2d 123 (1979); Connolly v. Commonwealth, --- Mass. ---, ---, ^h 387 N.E.2d 519 (1979). In fact, the judge's charge on the burden of disproving self-defense is similar to language in other jury charges that has withstood constitutional challenge. See Lannon v. Commonwealth, --- Mass. ---, ---, ⁱ 400 N.E.2d 862 (1980); Commonwealth v. Cobb, --- Mass. ---, ---, ^j 405 N.E.2d 97 (1980); Commonwealth v. Harris, --- Mass. ---, ---, ^k 380 N.E.2d 642 (1978).

(b) Excessive force. The judge's instructions on excessive force were given in conjunction with the preceding charge on self-defense. Because the trial judge gave an adequate and accurate charge on the Commonwealth's burden of disproving self-defense, he was not required to repeat the same instruction with regard to excessive force. See Gibson v. Commonwealth, --- Mass. ---, ---, ^l 387 N.E.2d 123 (1979); Commonwealth v. Redmond, 357 Mass. 333, 342, 258 N.E.2d 287 (1970). The judge did instruct the jury that if the defendant had been acting in self-defense but used excessive force, the crime would be manslaughter, not murder. See Commonwealth v. Kendrick, 351 Mass. 203, 211-212, 218 N.E.2d 408 (1966). Thus, the jury's verdict of murder in the second degree impliedly rejected any theory of self-defense. See Commonwealth v. Hicks, 356 Mass. 442, 445, 252 N.E.2d 880 (1969). If the jury found that the Commonwealth had failed to disprove self-defense, but then incorrectly placed the burden of disproving excessive force on the defendant, the verdict would have been manslaughter. Once the Commonwealth has proved beyond a reasonable doubt that the defendant did not act in self-defense, the issue of excessive force becomes irrelevant.

(c) Malice. After giving thorough instructions on the Commonwealth's burden of proving the defendant's guilt beyond a reasonable doubt, the judge defined murder as "the unlawful killing of another with malice aforethought" and stated that "the ingredient malice is an ingredient of murder common to both first and second degree." Subsequently, he told the jury that "in order to find murder in the first degree you must have the crime of murder to prove, which means malice and if . . . (there was) deliberate . . . premeditation, then it is murder in the first degree." The logical implication of these statements is that malice is one of the essential elements of murder that the Commonwealth was required to prove. Nowhere did the judge state that the defendant bore the burden of disproving malice. See Gagne v. Commonwealth, --- Mass. ---, ---, ^m 377 N.E.2d 919 (1978). The judge did not tell the jury that the defendant had to prove or disprove anything with respect to malice. See Gibson v. Commonwealth, --- Mass. ---, ---, ⁿ 387 N.E.2d 123 (1979). The judge summed up his charge on malice by saying, "If you don't find malice aforethought as I have tried to explain to you, you don't have murder." This statement indicated that the jury were required to find malice in order to convict of murder; it did not imply that the jury had to find an absence of malice in order to acquit of murder. Contrast Connolly v. Commonwealth, --- Mass. ---, --- - ---, ^o 387 N.E.2d 519 (1979); Commonwealth v. Harrington, --- Mass. ---, --- & n.3, ^p 399 N.E.2d 475 (1980).

At one point in the judge's fifty-page charge to the jury, he referred to a "presumption of malice of aforethought" that arises "(w)hen the killing is caused by the intentional use of a deadly weapon." However, the judge also stated that "the circumstances which attend the killing may be shown to rebut that presumption." Contrast Sandstrom v. Montana, 442 U.S. 510, 517, 99 S.Ct. 2450, 2456, 61 L.Ed.2d 39 (1979). Elsewhere in his charge, the judge referred to "implied malice," a "(r)easonable inference" of malice and told the jury that malice "may be implied from an act." In another part of the instructions, he correctly explained the meaning of inference with respect to intent. The judge apparently used the word "presumption" interchangeably with "permissible inference," ³ but it was otherwise evident from his charge that the Commonwealth retained the burden of proving every element of the crime, including malice, beyond a reasonable doubt. See Commonwealth v. Medina, --- Mass. ---, ---, ^q 404 N.E.2d 1228 (1980); Commonwea...