Com. v. Blake

• Decision Date: 15 January 1991
• Citation: 564 N.E.2d 1006,409 Mass. 146
• Parties: COMMONWEALTH v. Bruce BLAKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1006

564 N.E.2d 1006

409 Mass. 146

COMMONWEALTH v. Bruce BLAKE.

Supreme Judicial Court of Massachusetts Barnstable.

Argued Nov. 5, 1990.

Decided Jan. 15, 1991.

Thomas T. Merrigan, Greenfield, for defendant.

Thomas M. Yonce, Sp. Asst. Dist. Atty., for Com.

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

LYNCH, Justice.

After a jury trial in the Superior Court, the defendant was convicted of murder in the first degree by reason of extreme atrocity or cruelty, and arson of a motor vehicle. On appeal, the defendant contends the trial judge's instructions erred in several respects, including: (a) improperly shifting the burden of proof for the element of malice; (b) prohibiting the jury from considering the effect of intoxication on the defendant's ability to form general intent; and (c) failing to instruct the jury, sua sponte, on the defenses of lack of criminal responsibility and self-defense. The defendant also contends the trial judge erred in excluding expert testimony concerning the defendant's inability due to intoxication to form the requisite criminal intent, and in admitting certain photographs of the victim. Further, the defendant contends that: the prosecutor engaged in improper cross-examination and closing argument; his indictment and conviction for murder in the first degree based upon extreme atrocity or cruelty violated his State and Federal constitutional right to due process and the term is unconstitutionally vague; he was denied effective assistance of counsel; and that he is entitled to reversal or reduction of the verdict under G.L. c. 278, § 33E (1988 ed.). We uphold the defendant's convictions on both the murder and the arson charge and see no reason to exercise our power under G.L. c. 278, § 33E.

On December 26, 1987, the defendant, Blake, spent the evening at a lounge bar in Hyannis. According to the defendant, he consumed at least twenty beers and a gram of cocaine at the bar. Employees of the bar testified he did not appear to be drunk or "out of hand."

At closing time, the defendant asked the victim for a ride home, and she agreed. When they arrived at the defendant's apartment, they went inside and smoked marihuana in his living room. The defendant also drank beer and ingested cocaine.

The defendant testified to the following scenario: As he and the victim were in his bedroom starting to have intercourse, the victim yelled that she should not be there that she had a boyfriend, and she began scratching him. She went into the living room to put her clothes back on. When the defendant followed her into the living room "to see what was wrong" and attempted to kiss her, she started scratching and hitting him. The defendant hit her, and she fell on the floor, her face bleeding. The defendant "freaked out." According to the defendant, after the victim fell she was not breathing.

From this point on, the defendant's recollection became spotty. The evidence showed that the victim was severely beaten on eight different areas of the head and face; beaten on her shoulders and body; stabbed in the face, the head, and the back; and strangled. The medical examiner testified that all these injuries were inflicted while the victim was still alive, and that the nature of her injuries indicated defensive actions on her part. After she was dead, part of her body was burned. At some point before this was over the defendant dragged the victim downstairs to her car, drove thirteen miles down the highway, and then dragged her sixty feet into the woods off the highway.

The defendant recalled driving with the victim in the back seat, and recalled kicking the victim's face when he was in the woods. He told a police officer he had kicked her face "so that no one would recognize her." He also said that when he was walking away, he thought he heard her groan or make another noise. After leaving the victim in the woods, the defendant also recalled driving "all the way down the highway off Cape ... driving and driving, thinking [about] what I should do." He then got a container of gas, drove to a parking lot near his apartment and set the victim's car on fire, with her clothes in it. Blake testified he set the car on fire "[b]ecause I knew I had to pay for what I have done."

The defendant then returned to his apartment, cleaned it, and threw his bloody clothes in a dumpster. Sometime that morning he encountered his neighbor and asked if he had been too loud the night before. The defendant said nothing about the incident to the people he saw that Sunday, December 27.

On Monday morning the defendant told his employer about the incident. The employer contacted the police. ¹ After talking to family members, the defendant turned himself in to the police, and admitted killing the victim and setting her car on fire. He tried to describe the location where he had left the body.

The police found the victim in the woods, her head lying in a crater full of blood, and she was wearing only a bra. In the defendant's apartment, along with blood and hair consistent with the victim's, the police found a knife with blood on it in a dish of soapy water in the kitchen. ²

I. Jury Instructions.

a. Sandstrom error:

The defendant claims the trial judge's charge to the jury on general intent contained the constitutional error prohibited in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). That is, he claims, the instructions " 'reliev[ed] the [Commonwealth] of the burden of proof ... on the critical question of ... state of mind,' ... by creating a mandatory presumption of intent upon proof by the [Commonwealth] of other elements of the offense." Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985), quoting Sandstrom, supra 442 U.S. at 521, 99 S.Ct. at 2458. See Commonwealth v. Nieves, 394 Mass. 355, 359, 476 N.E.2d 179 (1985).

We set out the challenged language in the context in which it appears, and refer to other relevant portions of the charge in our discussion below.

Directly preceding her instructions on intent, the judge gave a lengthy, exemplary charge on circumstantial evidence and the drawing of reasonable inferences. The judge began her instructions on intent by linking that explanation of inferences to the concept of intent, as follows:

"Circumstantial evidence is just as valuable as direct evidence provided that it is based upon a reasonable inference. In most instances in trials, the element of intent is shown in its evidentiary sense usually by reasonable inference, and I'm going to be using the term intent as we get into the elements of the case."

Since intent is in someone else's mind, she continued, it can usually be ascertained only by the external, visible circumstances. Repeating that "the necessary element of intent is usually shown ... by reasonable inference," she added,

"Intent may be inferred from all of the circumstances; what was said, if anything, what was done, what was taking place at that time. By evaluation of the facts and circumstances and weighing the same against your common judgment and experience, an inference can be drawn as to whether or not the requisite intent was present."

The judge then pointed out that the jury must be able to distinguish between two types of intent, general and specific intent. In beginning her description of general intent, the judge used the challenged language, set out below:

"A general intent is a purpose of mind, something that we all exercise when we decide to do a certain thing. But usually it's not the subject of direct contemplation for any appreciable period of time, because it's said that everyone is presumed to intend to do what he in fact did. That type of intent, that general intent, when we do these things, many times, is present only unconsciously, we call it general intent" (emphasis added).

At this point the judge gave a long, accurate explanation of the difference between general and specific intent, centering on the distinction between focused (specific) and unfocused (general) purpose. She described general intent as the state of mind you are in when "[Y]ou go through a host of things in life as having a purpose to do them, you're not focusing and concentrating on that particular purpose " (emphasis added). She gave several clear, proper examples to illustrate this concept.

The defendant claims that, by instructing the jury that one of the forms of malice required only general intent, the judge created a presumption of malice for both the murder and the arson charge. ³ To determine whether a jury charge has created an impermissible presumption, we must apply the following test: "If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole," to see whether "a reasonable juror could ... have considered the charge to have created an unconstitutional presumption." Franklin, supra 471 U.S. at 315, 105 S.Ct. at 1971. We conclude that no reasonable juror could have understood the challenged instructions as creating such a presumption.

It is doubtful that, even in isolation, the challenged language in this case could be understood as creating an impermissible presumption. It is not "cast in the language of command" like the sentences in Franklin, supra at 316, 105 S.Ct. at 1972 ("acts of a person of sound mind and discretion are presumed to be the product of the person's will" and a person "is presumed to intend the natural and probable consequences of his acts" [emphasis in original] ). Nor does it instruct the jury that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts" (emphasis in original), as in Sandstrom, supra 442 U.S. at 515, 99 S.Ct. at 2454. It does not even...