Com. v. Albert

• Decision Date: 15 May 1984
• Citation: 466 N.E.2d 78,391 Mass. 853
• Parties: COMMONWEALTH v. Eugene ALBERT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 78

466 N.E.2d 78

391 Mass. 853

COMMONWEALTH v. Eugene ALBERT.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 12, 1984.

Decided May 15, 1984.

Henry D. Katz, Boston, for defendant.

Margaret Steen Melville, Asst. Dist. Atty. (Timothy M. Burke, Asst. Dist. Atty., with her), for Commonwealth.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The defendant was convicted of murder in the first degree, on November 24, 1982, and was sentenced to life imprisonment. He now appeals, and requests that we exercise our power under G.L. c. 278, § 33E, to order a new trial or to direct the entry of a verdict of a lesser degree of guilt.

The defendant alleges that the trial judge's instructions to the jury were deficient in that they (1) failed to place the burden of proof regarding self-defense and provocation clearly on the prosecution, (2) invaded the jury's fact-finding function by suggesting an inference of malice from the intentional use of a deadly weapon, and (3) employed improperly an "objective" standard of behavior and wrongly defined the scope of the defendant's "dwelling" in connection with the charge on self-defense. The defendant's only objections at trial were based upon the latter two contentions with respect to the self-defense charge. We find no error in this regard. We have considered the other arguments individually and collectively, and we find no "showing of grave prejudice or substantial likelihood that a miscarriage of justice has occurred." Commonwealth v. Roberts, 378 Mass. 116, 123, 389 N.E.2d 989 (1979). Therefore, we decline to exercise our power under G.L. c. 278, § 33E, and we affirm the judgment below.

Natalie Harvey is the mother of the victim's (Anthony Brooks') one year old daughter and the defendant's five year old son. At the time of the incident, Harvey and her two children were living with the victim. On the afternoon of March 27, 1982, according to her testimony, Harvey rebuked the victim for not spending enough time with her and with their daughter. At the conclusion of the argument, the victim said, "Since you getting on me, I'm going to get on Gene" (referring to the defendant). The victim had been drinking that day. The victim, Harvey, and the two children drove to the defendant's home in Roxbury, where the defendant lived with his mother. Resisting her attempts to prevent his leaving the car, the victim left Harvey and the children there and went up to the defendant's second floor apartment. Harvey remained in the car for about five minutes watching through a hallway window what appeared to be a heated discussion between the defendant and the victim. After this interval, Harvey left the car and entered the building. Reaching the first landing, she observed and heard what was now a loud exchange of words between the defendant and the victim.

At this point, the testimony given by Harvey, and by the defendant and his mother, diverges significantly regarding the nature of the ensuing confrontation. Harvey saw the defendant reenter his apartment, and at some point during the argument the victim stuck his foot in the door, and "[t]hen somehow the door got closed." The victim started down the stairs. The defendant's mother then opened the door and the victim went back up to the apartment, introducing himself as "Tony." Harvey then observed the defendant's mother "holding her arms out like she was holding somebody back." The victim was heard to say, "You want to go outside?" and he again started to walk down the stairs. At the time, Harvey was on the first landing; a second later she looked up and saw the defendant stabbing the victim in the back with a knife. The victim then turned around and was stabbed in the forehead, according to Harvey's account. After this attack, the victim managed to stagger outside, where he fell. The defendant and Harvey also went outside. Harvey testified that the defendant then kicked the victim as he lay on the ground. About five minutes later, the police arrived.

The defendant's and his mother's accounts of the confrontation are similar, although they vary significantly from Harvey's observations. The defendant testified that the victim arrived at his apartment, and, after knocking loudly on the door, told the defendant "[l]ike he was in a real hurry," that he needed to speak with him. The defendant, who was partially dressed, asked the victim to wait a minute, and he went back into the apartment to put on his shoes and a shirt. When the defendant returned to the hallway, the victim told him again to "[h]urry up," and then stated quite categorically to the defendant, "I'll kill you." The defendant testified that he did not believe the victim at first; however, the victim repeated this threat several times, and began to swear at the defendant. In the face of these repeated threats, the defendant began to back away from the victim. The victim continued to threaten the defendant, and he tapped the defendant's nose a few times for emphasis. The defendant also noticed that the victim's right hand was in his pocket, as if he were grasping something. According to the defendant, he tried to close the apartment door on the victim, but the victim stuck his foot in the door. The defendant "ran" back into the apartment, and the victim approached him. Upon reaching the kitchen, the defendant grabbed a knife from the counter. At this juncture, his mother appeared from her bedroom and attempted to intervene; the victim lunged at the defendant, who stepped past his mother, and then "swung the knife" at the victim. The defendant testified that he had no recollection of how many times he stabbed the victim or the precise sequence of events thereafter, but eventually the victim left the apartment and went downstairs. The defendant followed him out and saw him fall. He denied having kicked the victim, and shortly after the struggle he noticed that his own finger was badly cut.

Although the two versions of the confrontation and the stabbing differ greatly up to this point, there is little dispute about what happened next. The police arrived soon after, and found the victim lying on the sidewalk outside the apartment building. A search revealed no weapons on the victim's person or in the immediate area. After speaking with Harvey and persons in a crowd that had gathered, the police approached the defendant, who was standing at the periphery of the group. Upon being informed of his rights, the defendant confessed to the stabbing, and directed the police to his apartment for retrieval of the knife. An officer went upstairs, noticing along the way bloodstains in the stairwell which extended into the defendant's apartment. After the knife was found, the defendant was taken to the police station and then to the hospital for treatment of the cut on his hand. No tests were done to determine whether the blood found in the defendant's apartment was his or that of the victim. The autopsy of the victim revealed that he had died of five stab wounds, of which two had been inflicted to his back, two to his forehead, and one to his chest.

The defendant's arguments center on the instructions given by the trial judge to the jury. The defendant avers that the instructions regarding self-defense and provocation implicitly shifted the burden of proof from the prosecution to him, and thus were constitutionally defective under the due process standards set out in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). These objections to the charge were not raised at trial. We therefore consider them in accordance with our duty under G.L. c. 278, § 33E. Commonwealth v. Palmer, 386 Mass. 35, 36-37, 434 N.E.2d 983 (1982). Commonwealth v. Callahan, 380 Mass. 821, 822, 406 N.E.2d 385 (1980).

It is clear that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). In Mullaney, supra, 421 U.S. at 697-698, 95 S.Ct. at 1888-1889, this principle was applied not only to facts which could exculpate a defendant but also to those which could lessen the degree of criminal liability. Consistent with this holding, we have emphasized in the past that the Commonwealth must bear the burden of proof that a defendant did not act in self-defense. Commonwealth v. Rodriguez, 370 Mass. 684, 691-692, 352 N.E.2d 203 (1976). Cf. Commonwealth v. Stokes, 374 Mass. 583, 593, 374 N.E.2d 87 (1978) (burden of proof on excessive force); Commonwealth v. Fluker, 377 Mass. 123, 130, 385 N.E.2d 256 (1979) (provocation).

However, our unqualified adoption of the holding in Mullaney does not imply that we meant to require jury instructions to conform to any one set of specific guidelines in order to pass constitutional muster. "If Mullaney imposed such a requirement, reversal would follow with mathematical certainty in all cases where self-defense or reasonable provocation had been raised in the evidence sufficiently and where the burden of proof as to these precise issues had not been placed by specific language on the Commonwealth." Commonwealth v. Stokes, supra 374 Mass. at 590, 374 N.E.2d 87. See also Lannon v. Commonwealth, 379 Mass. 786, 791, 400 N.E.2d 862 (1980). In accordance with the long-accepted practice regarding jury instructions, "legal sufficiency of the instructions to the jury is to be judged on the basis of the charge as a whole, and not on the basis of limited or isolated portions of it." Commonwealth v. Redmond, 357 Mass. 333, 342, 258 N.E.2d 287 (1970). Commonwealth v. Leaster, 362 Mass. 407, 416-417, 287 N.E.2d 122 (1972).

The judge's instructions in the instant case made it clear that the Commonwealth had the burden of proving beyond a reasonable...