Com. v. Boucher

• Decision Date: 03 January 1989
• Citation: 532 N.E.2d 37,403 Mass. 659
• Parties: COMMONWEALTH v. Shawn BOUCHER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 37

532 N.E.2d 37

403 Mass. 659

COMMONWEALTH v. Shawn BOUCHER.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Oct. 6, 1988.

Decided Jan. 3, 1989.

Robert L. Sheketoff, Boston, for defendant.

Edward D. Rapacki, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

The defendant, convicted of murder in the first degree and represented by new counsel on appeal, correctly points to two substantial errors in the judge's charge concerning manslaughter. The Commonwealth grants that the judge erred but argues that, because the jury found the defendant guilty of deliberately premeditated murder, those errors, not raised adequately before the trial judge, do not create a substantial likelihood that a miscarriage of justice has occurred (Commonwealth v. Stewart, 398 Mass. 535, 544, 499 N.E.2d 822 [1986] ), thus calling for relief under G.L. c. 278, § 33E (1986 ed.). ¹ Although we regret that this case must be retried, we conclude that the judge's errors require us to reverse the conviction of this young man, who was seventeen years old at the time of the victim's death and was sentenced to life imprisonment without the possibility of parole.

On April 21, 1985, the defendant stabbed the victim on a street in Arlington. The victim, who was nineteen years old, died three days later. The victim was one of a group of young friends who, after consuming alcoholic beverages in a home in Framingham on the night of April 20, decided to drive to Somerville. They used three motor vehicles; the victim was alone in his. The group became separated, but subsequently, they all gathered at a restaurant on Massachusetts Avenue in Arlington. Around midnight they decided to go to Woburn. All the vehicles turned into Academy Street to reverse direction. The victim drove farther down the street than the others and encountered four young men, one of whom was the defendant, standing in the road blocking his way.

The defendant, a seventeen-year-old Arlington high school student who was interested in weight lifting, was carrying in his pocket a knife with a four-inch blade. Earlier in the night, the defendant and others had been drinking alcoholic beverages at a restaurant in Cambridge and, later, in the vicinity of Spy Pond in Arlington. Shortly before midnight, the four young men started walking along Massachusetts Avenue in Arlington, eventually going down a side street, through the grounds of a library, and down Maple Street to its intersection with Academy Street. It was near that spot that the victim by chance met the four young men who, on seeing the victim's car coming down Academy Street, decided at the defendant's suggestion to "be a pain in the ass" and block the road. The defendant and his friends exchanged insults with the victim who, after a short time, drove off.

After going out of sight, the victim turned his vehicle around and headed back toward the four young men. He stopped his vehicle three or four houses from where the defendant and the three other young men were standing, got out of his vehicle, and ran toward the four. The victim and the defendant fought. There was evidence that the victim, who was a student of karate, delivered a kick to the defendant's head and continued to attack the defendant. There was also evidence that the defendant had his knife in his right hand and that he stabbed the victim. After several seconds, the victim, who had been stabbed five times and fatally wounded by a deep stab wound to the heart, ran back to his vehicle and drove off. At Massachusetts Avenue the victim drove past his friends who had been waiting for him. Shortly thereafter he collapsed, and his vehicle went off the road.

Although the defendant and his friends tried to conceal their involvement in the events on Academy Street, investigation led the police to them. The district attorney advised each of the three friends that they would not be prosecuted in connection with the victim's death if they testified honestly at trial. All three did testify at trial, as did the defendant. The defendant admitted that he had swung the knife at the victim but could not remember where he might have stabbed him. He testified that, because he could not escape and feared for his life, he had pulled out his knife and had swung out "a whole bunch of times."

The defendant's trial strategy was to argue that he had acted reasonably in self-defense. His counsel also argued to the jury that the defendant's intoxication made any finding of deliberate premeditation and malice inappropriate. We need only discuss the defendant's challenges to the judge's charge on manslaughter and on self-defense. A new trial is required.

1. The judge's first error was that he failed to tell the jury that, if the Commonwealth had not proved the absence of provocation beyond a reasonable doubt, there could be no finding of malice and hence no conviction of murder. Malice and adequate provocation are mutually exclusive. See Commonwealth v. Doucette, 391 Mass. 443, 452-453, 462 N.E.2d1084 (1984); Commonwealth v. Fitzgerald, 380 Mass. 840, 846, 406 N.E.2d 389 (1980); Lannon v. Commonwealth, 379 Mass. 786, 790, 400 N.E.2d 862 (1980); Commonwealth v. Peters, 372 Mass. 319, 325, 361 N.E.2d 1277 (1977). On the judge's charge the jury could have found both provocation and malice. In the absence of a further instruction that a finding of malice could not be made if a killing arises "from a sudden transport of passion or heat of blood upon a reasonable provocation" or "upon sudden combat" (Commonwealth v. Soaris, 275 Mass. 291, 299, 175 N.E. 491 [1931] ), the jury could have found the defendant guilty of murder, even though they held a reasonable doubt whether the defendant acted without provocation. ²

The Commonwealth's argument that all this is of no consequence because the jury found deliberate premeditation, and thus any error in the charge could not have hurt the defendant, is not persuasive. If the jury concluded, as they could have on the instructions, that the defendant may have reacted to reasonable provocation but also acted with malice, the jury readily could have concluded that the defendant also acted with deliberate premeditation. In the view of a lay person, one who acts on reasonable provocation could still deliberately premeditate his intention to kill or do grievous bodily harm. The law says, however, that...