Com. v. Amaral

• Decision Date: 16 May 1983
• Citation: 450 N.E.2d 142,389 Mass. 184
• Parties: COMMONWEALTH v. Albano AMARAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 142

450 N.E.2d 142

389 Mass. 184

COMMONWEALTH v. Albano AMARAL.

Supreme Judicial Court of Massachusetts Bristol.

Argued Dec. 6, 1982.

Decided May 16, 1983.

Brian J. Sullivan, Chelmsford, for defendant.

Patricia O. Ellis, Asst. Dist. Atty. (Alvin Youman, Asst. Dist. Atty., with her); for the Commonwealth.

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

NOLAN, Justice.

The defendant, Albano Amaral, was convicted of murder in the first degree on June 25, 1981, after a jury trial in which he presented his lack of criminal responsibility as a defense. He was sentenced to the Massachusetts Correctional Institution, Walpole, for a term of life imprisonment. The trial judge denied the defendant's motions to set aside the verdict, and for a new trial; the defendant appeals and, pursuant to G.L. c. 278, § 33E, he seeks relief. The defendant raises three principal issues: (1) that the trial judge erred in failing to give a charge on manslaughter, (2) that the Commonwealth failed to meet its burden of proving that the defendant was criminally responsible and that, consequently, the jury's verdict was against the weight of the evidence, and (3) that certain alleged misstatements of law made at trial by the prosecutor, defense counsel, and the judge misled the jury as to the proper test of criminal responsibility. The defendant also argues that, under G.L. c. 278, § 33E, we should order a new trial or reduce the verdict of murder in the first degree to manslaughter. We affirm the conviction and leave the verdict undisturbed.

On the evidence, the jury were warranted in finding the following. At approximately 7:30 P.M. on August 27, 1980, the victim, Jorge Pedro, and his uncle, Manuel Luz, were standing in front of the Portuguese Citizens Club, also known as the "Z Club" (club), on County Street in New Bedford. The defendant approached the two men and inquired whether the cafe next door to the club was open. Luz answered that he did not know. The victim then began pushing the defendant, who responded by asking, "Are we friends or what?" The victim replied, "No, I want to have a fight with you." Several such exchanges occurred. The defendant then said that he was going into the cafe. Instead, he returned to his car, which was parked on County Street north of the club. The defendant drove north a short distance to a parking lot where he turned around and headed south on County Street toward the club. As he drove, the defendant took his rifle from the back seat ¹ and placed it on the front seat next to him.

During this time, the victim and Luz remained in front of the club. Luz warned the victim not to have anything to do with the defendant. The victim answered that he was only playing and that when the defendant returned he was going to pretend to throw a bag of beer at him.

Two or three minutes after the shoving incident, the defendant pulled up his car across the street from the club. The victim picked up an empty bag, walked toward the car, and made a motion as if to throw the bag at it. The defendant positioned his rifle out the window of the car and fired some twelve shots. The victim was struck by four or five of these shots as he ran zig-zag fashion toward the door of the club, where he eventually fell. After the shooting, the defendant looked over at Luz, who said, "It's nothing to do with me." The defendant then drove off quickly and went home, where he ate, washed, and went to bed.

Acting on the description provided by witnesses, three New Bedford police officers visited the defendant at his place of employment the following day. The officers advised the defendant of his Miranda rights ² and told him that they were investigating a shooting. They asked him whether he owned a Chevrolet Nova automobile. The defendant answered that he did and he agreed to accompany the police officers to the police station to pursue the matter. After again being advised of his rights, the defendant gave an alibi statement. He denied owning a firearm, but when the police confronted him with their knowledge that he owned a .22 caliber rifle, the defendant gave a statement which essentially corroborated Luz's description of the events and added some of the details mentioned above. The defendant also stated that shortly after he purchased the gun in late June, 1980, the victim approached him as he was showing the gun to a third person. The victim punched the defendant and pushed the gun. A police officer typed the statement.

While going over the first typewritten statement, the defendant told the police of a second incident where the victim had come upon him as he showed the gun to another person, and, according to the defendant, the victim kicked the rifle, punched the defendant, and told the defendant that he was going to attack him and that he hoped someone would steal the rifle. The defendant stated that he had been treated by a Dr. Ambadgis in 1974, and that the doctor had given him "mind pills" for the "pictures in his mind." He said that he had stopped seeing Dr. Ambadgis in 1979, and had stopped taking the pills in 1980. The defendant stated that he was currently under treatment by a Dr. Sousa for a stomach ailment. A police officer retyped the statement to incorporate the new information. On review, the defendant indicated that Dr. Sousa was treating him for nervousness. He wrote the word "nerves" next to the reference to Dr. Sousa's treatment and then initialed the correction.

1. The failure to give a manslaughter instruction. The trial judge refused the defendant's request for an instruction on voluntary manslaughter because he believed it was not warranted on the evidence. Defense counsel objected to this refusal and, referring to Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927 (1980), suggested that the jury should be allowed to consider the defendant's mental state at the time of the killing to determine whether it was murder or manslaughter. The judge refused to give such an instruction. ³ We consider first the defendant's contention that the evidence supported a traditional voluntary manslaughter instruction. ⁴

"Whenever death ensues from sudden transport of passion or heat of blood, if upon a reasonable provocation and without malice, or if upon sudden combat, it will be manslaughter; if without such provocation, or the blood has had reasonable time or opportunity to cool, or there be evidence of express malice, it will be murder." Commonwealth v. Webster, 5 Cush. 295, 307 (1850). In order for a jury to find that a "defendant formed an intent to kill in a transport of passion or in the heat of blood, ... [t]here must be evidence that would warrant a reasonable doubt that something happened which would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint, and that what happened actually did produce such a state of mind in the defendant." Commonwealth v. Walden, 380 Mass. 724, 727-728, 405 N.E.2d 939 (1980). If any view of the evidence would permit a finding of manslaughter, rather than murder, the judge should instruct the jury on the elements of manslaughter. Id. at 726, 405 N.E.2d 939. We consider only whether the incidents immediately preceding the killing constituted reasonable provocation. Any history of prior hostilities between the victim and the defendant can only be viewed as a cause of the incidents preceding the killing and not as an element of the provocation. Cf. Commonwealth v. Jones, 366 Mass. 805, 807-808, 323 N.E.2d 726 (1975) (earlier arguments precipitated violent quarrel and fatal attack).

Even if we assume that the shoving incident minutes before the shooting could create reasonable provocation, any threat to the defendant stemming from the shoving incident disappeared when the defendant left the scene. See Commonwealth v. Walden, supra, 380 Mass. at 728, 405 N.E.2d 939 (threat of harm to defendant from combat ended when victim was knocked to the ground). Cf. Commonwealth v. Stillwell, 366 Mass. 1, 4-6, 313 N.E.2d 872 (1974), cert. denied, 419 U.S. 1115, 95 S.Ct. 794, 42 L.Ed.2d 814 (1975), new trial granted on another ground, 387 Mass. 730, 443 N.E.2d 1272 (1982). Without evidence of a threat of an "immediate and intense offense," Commonwealth v. Bermudez, 370 Mass. 438, 442, 348 N.E.2d 802 (1976), instructions on manslaughter would not be appropriate. It is evident that the victim's gesture with the bag could not, by itself, present reasonable provocation. ⁵ There is no error in the judge's denial of traditional voluntary manslaughter instructions.

The defendant next argues that the jury should have been allowed to consider his mental state at the time of the killing to determine whether the killing was murder or manslaughter. More particularly, the defendant urges that "evidence of mental illness should be allowed to be considered as to whether the defendant was provoked during the pushing and shoving incident and whether such provocation continued until he shot the victim." He views his argument as a logical extension of our holding in Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927 (1980), where we concluded that the jury should be allowed to consider evidence of a defendant's mental illness in determining whether he acted with deliberate premeditation or with extreme atrocity or cruelty. Essentially, the defendant's argument is that the adequacy of the provocation and the cooling period should be determined by a subjective standard. ⁶ In making this argument, the defendant ignores the fact that subsequent to the Gould case we declined to adopt a subjective test of malice. "Malice aforethought simply does not require any actual intent to kill or to do grievous bodily harm, or any foresight of such consequences, if the jury thought them obvious in the circumstances known to the defendant" (emphasis supplied)....