Com. v. Adorno

• Decision Date: 15 May 1990
• Citation: 553 N.E.2d 942,407 Mass. 428
• Parties: COMMONWEALTH v. Angel A. ADORNO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 942

553 N.E.2d 942

407 Mass. 428

COMMONWEALTH v. Angel A. ADORNO.

Supreme Judicial Court of Massachusetts Plymouth.

Argued March 6, 1990.

Decided May 15, 1990.

Charles K. Stephenson, South Amherst, for defendant.

Linda M. Fleming, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

The defendant, Angel A. Adorno, appeals from his conviction of murder in the first degree (by reason of deliberate premeditation and extreme atrocity or cruelty) ¹ claiming that the judge's instructions to the jury were deficient because they misplaced the burden of proof on the issues of criminal responsibility and diminished capacity. The defendant also claims that the indictments against him should be dismissed because the Commonwealth failed to bring him to trial within the time limits specified in Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979). In addition, the defendant contends that we should reduce his conviction to murder in the second degree pursuant to our extraordinary power under G.L. c. 278, § 33E (1988 ed.). We affirm the conviction and conclude that there is no reason to exercise our power under G. L. c. 278, § 33E.

The evidence at trial indicated that, during the week prior to April 20, the defendant had argued with his girl friend, the victim's sister, who then left the State. The defendant became depressed and contemplated suicide. On April 20, 1984, the defendant took a knife from his sister's kitchen and put it in his back pants pocket. That evening, sometime before 8 P.M., he went to the apartment of the victim's mother in the hope that he might be able to speak to his girl friend when she telephoned from New York.

Shortly after arriving at the apartment, the defendant became involved in an argument with the victim and her mother. The victim left the apartment, and the defendant followed her. In the course of an exchange between the two, the defendant stabbed the victim in the back and ran from the scene after threatening two witnesses. The knife punctured the victim's heart and she died shortly thereafter.

The defendant claimed that he only remembered leaving the apartment with the victim and speaking with her. His next memory was that of standing on the roof of the automobile supply store where he was apprehended by the police.

The defendant testified that in July, 1983, he had suffered a head injury in an automobile accident, and that he had subsequently suffered numerous blackouts. There was conflicting expert testimony at the trial concerning the defendant's mental state. The psychiatrist testifying on behalf of the defendant opined that the defendant lacked criminal responsibility and the capacity to premeditate.

The Commonwealth's psychiatric witness disagreed and stated his opinion that the defendant had never suffered an acute period of depression as was claimed and that the defendant would not be capable of a purposeful activity, such as stabbing the victim and fleeing from the scene, in the midst of a partial seizure.

1. The burden of proof. The defendant claims that the judge's instructions to the jury impermissibly shifted the burden of proof to the defense with regard to the issues of criminal responsibility and diminished capacity. The defendant relies on numerous instances in the course of the judge's instructions where he used the phrase "[i]f you find," or "[y]ou must find," or "[i]f you were to find." This court has recognized that such language may improperly imply that the defendant has the burden of proof on the issue and also fails to "describe precisely what degree of persuasion is required." Connolly v. Commonwealth, 377 Mass. 527, 534, 387 N.E.2d 519 (1979). See Commonwealth v. Richards, 384 Mass. 396, 405, 425 N.E.2d 305 (1981); Commonwealth v. Rodriguez, 370 Mass. 684, 691, 352 N.E.2d 203 (1976).

Because defense counsel did not object, we review the alleged error pursuant to G.L. c. 278, § 33E, solely to determine whether it created a substantial likelihood of a miscarriage of justice. Commonwealth v. Callahan, 401 Mass. 627, 631, 519 N.E.2d 245 (1988). In so doing, we are guided by the principle that we must view the instructions "in their entirety, to determine the 'probable impact, appraised realistically ... upon the jury's factfinding function.' " Commonwealth v. Richards, supra 384 Mass. at 399-400, 425 N.E.2d 305, quoting United States v. Wharton, 433 F.2d 451, 457 (D.C.Cir.1970).

Viewing the instructions in their entirety, we conclude that the judge's instructions did not impermissibly shift the burden of proof or confuse the jury on the quantum of proof necessary to support a conviction. Crucial to our determination is the fact that the judge began his instructions on these issues with the admonition that the Commonwealth had to show the presence of criminal responsibility and the absense of diminished capacity beyond a reasonable doubt. Furthermore he repeated this admonition in unequivocal language frequently throughout his discussion of these issues on several separate occasions. At one point, for example, the judge instructed the jury:

"You should note though that the test depends upon the existence of a mental disease or defect. At the outset, if you are satisfied beyond a reasonable doubt that there was no mental disease or defect, then you are not involved with criminal responsibility. It is not part of your decision-making process. If you find as a fact that the defendant had no such disease, and you are satisfied beyond a reasonable doubt that the Commonwealth has proven all of the elements beyond a reasonable doubt as to the crimes charged or lesser included crimes, you must find the defendant guilty. Under those circumstances, it would...