Com. v. Coleman

• Decision Date: 13 July 1983
• Citation: 389 Mass. 667,452 N.E.2d 202
• Parties: COMMONWEALTH v. Ronald COLEMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 202

452 N.E.2d 202

389 Mass. 667

COMMONWEALTH v. Ronald COLEMAN.

Supreme Judicial Court of Massachusetts Barnstable.

Argued March 7, 1983.

Decided July 13, 1983.

Evan T. Lawson, Boston (Paul M. Osborne, Boston, with him) for defendant.

Gary A. Nickerson, Asst. Dist. Atty., for the Commonwealth.

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

LIACOS, Justice.

The defendant was convicted by a jury on December 10, 1981, of murder in the first degree for the fatal stabbing of Janice M. Leary. ¹ The defendant allegedly stabbed the victim twenty-six times on April 22, 1981, at the Sand Castle condominium in Provincetown. He was sentenced to a term of life imprisonment, and now appeals his conviction. G.L. c. 278, § 33E.

The defendant claims that the trial judge erred in failing (1) to instruct the jury that they were entitled to consider the defendant's intoxication in determining whether the murder was committed with extreme atrocity or cruelty and (2) to question the jury to determine whether any prejudice accrued to the defendant as a consequence of the empanelling of a juror who was excused during trial. He also asks us to exercise our power, under G.L. c. 278, § 33E, to order a new trial or otherwise to mitigate punishment. We affirm.

There was evidence of the following facts. The defendant worked in a local establishment as a cook; Leary worked at the Sand Castle condominium and was involved in selling "time sharing" condominium units. The defendant and Leary had lived together in Provincetown for various periods between 1979 and 1981. During the period prior to April 22, 1981, their relationship had deteriorated.

On April 21, 1981, Leary had dinner with two coworkers, Barry D. Richardson and Robert F. Ditacchio. After dinner, they proceeded to the condominium unit occupied by Richardson at the Sand Castle. Ditacchio shared a unit, located several doors away, with Kathleen Bailey, a coworker. The defendant appeared at Richardson's door and demanded that Leary leave with him. She refused, and he left. The defendant testified that he had been armed with a knife that evening.

The next afternoon, April 22, 1981, the defendant removed his belongings from the apartment which he shared with Leary. A Provincetown police officer and Leary were present at 5 P.M. as the defendant was completing the task. Later, the defendant went to several bars and drank alcoholic beverages. He asked Francisco J. Montero, an acquaintance, if he could stay at Montero's cottage. Montero agreed. The defendant proceeded to the cottage, obtained a knife, and walked the short distance to Richardson's condominium unit.

Richardson and Leary were together inside; Ditacchio and Bailey were inside their condominium unit several doors away. Richardson testified that the defendant knocked on the door, and Leary allowed him to enter. The defendant placed his arm around her and told her, "Come on." She refused, saying, "No, it's all over." The defendant then said, "You are the first one that's ever done this to me," and stabbed her. The defendant and Richardson began to struggle. Leary managed to escape, and she ran toward the unit shared by Ditacchio and Bailey. Richardson retreated to an adjoining room and closed the door. The defendant banged on the door and then went after the victim.

Bailey and Ditacchio testified that they heard Leary knocking on their door, calling for help. Ditacchio opened the door and saw the defendant and Leary on the ground outside. The defendant was stabbing Leary in the head repeatedly. Ditacchio helped the screaming victim to her feet and attempted to pull her into the condominium unit. The defendant pursued and repeatedly stabbed the victim in the chest. She died there on the floor. The defendant got up from the floor, tangled briefly with Bailey, and ran off.

The police found the defendant a short time later at Montero's cottage with blood stains on his clothing and alcohol on his breath. Two police officers testified that he appeared to be sober.

The defendant testified in his own defense as follows. He testified that he had an intense relationship with Leary, which had deteriorated in April, 1981. He believed that Richardson and the victim were having an affair. He spent the evening of April 22 drinking and then went to the Sand Castle to speak with the victim about a postdated check she had given him. He took the knife for protection, as he felt threatened by Richardson. He testified that, while he was speaking with the victim, Richardson threw a glass at him. A struggle ensued, during which he stabbed Richardson and the victim. An interlude followed, and then he was attacked from behind by Ditacchio and Bailey. A second struggle ensued, with the victim being stabbed a second time.

Two psychiatrists testified at trial. Dr. William James, the medical director at Bridgewater State Hospital, testified that, under the standards set out in Commonwealth v. McHoul, 352 Mass. 544, 546-548, 555, 226 N.E.2d 556 (1967), the defendant was criminally responsible for his acts on April 22, 1981. He testified that the defendant was not mentally ill, that his use of alcohol was not a sign of mental illness, and that a single incident of violent behavior did not demonstrate that the defendant was mentally ill. Dr. John MacIver, who had been appointed by the court to conduct a pretrial competency examination, testified for the defense. He testified that the defendant's ability to control his behavior had been substantially impaired on April 22, 1981, by personality traits, his use of alcohol, and the stress of his domestic situation.

1. The defendant argues that our decision in Commonwealth v. Perry, 385 Mass. 639, 649, 433 N.E.2d 446 (1982), which permits the jury to consider evidence of intoxication in determining whether the murder was committed with extreme atrocity or cruelty, should be applied retroactively to his case. In Commonwealth v. Breese, 389 Mass. 540, 541, 451 N.E.2d 413 (1983), we held that the rule of Perry is the law applicable to cases tried after our decision in Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927 (1980) (jury entitled to consider evidence of mental impairment in determining whether murder was committed with extreme atrocity or cruelty). Since the defendant was tried after Gould, Perry was the law at the time of this trial.

We turn to consider whether the failure to deliver an intoxication instruction on extreme atrocity or cruelty was properly raised at trial. "It is a fundamental rule of practice that where a party alleges error in a charge he must bring the alleged error to the attention of the judge in specific terms in order to give the judge an opportunity to rectify the error, if any." Commonwealth v. McDuffee, 379 Mass. 353, 357, 398 N.E.2d 463 (1979). Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). Fed.R.Crim.P. 30 (1982). Further, the objection must be made "before the jury retires to consider its verdict." Mass.R.Crim.P. 24(b).

Measured by these standards, the defendant failed to save his rights below. The judge instructed the jury that they could return a verdict of murder in the first degree if they found that it was committed with deliberately premeditated malice aforethought, or committed with extreme atrocity or cruelty. He instructed the jury that they could consider the evidence of voluntary intoxication and mental impairment in determining whether the defendant acted with deliberate premeditation. The judge further instructed the jury that evidence of mental impairment was relevant to the question whether the murder was committed with either deliberate premeditation or extreme atrocity or cruelty. There was no reference in the jury instructions as to whether the evidence of voluntary intoxication was relevant to the issue of murder in the first degree committed with extreme atrocity or cruelty. The defendant neither submitted a request that a Perry instruction be given nor objected to the absence of such instruction before the jury had retired.

On the second day of their deliberations, the jury submitted several questions to the judge. One question asked was: "Does the influence of voluntary intoxication as applied to this question [extreme atrocity] also justify reduction to second-degree murder as it does when applied to the question of premeditation." In response, the judge repeated the essence of his prior charge concerning extreme atrocity or cruelty and instructed them that "voluntary intoxication is not a mitigating factor in the case of murder with extreme atrocity or cruelty." Defense counsel then made a "general objection" to the charge on extreme atrocity or cruelty, stating that, "as charged, the state of the law is so vague as to render that portion of the crime unconstitutionally vague." Defense counsel further objected that the charge did not define criminal intent as an element of the crime. ²

Defense counsel's objection failed adequately to preserve the issue he now seeks to raise. First, there was never a timely objection to the instructions. An objection to supplementary instructions which merely repeat the instructions which the judge delivered during his main charge is not timely. To the extent that the judge went beyond his prior instructions, defense counsel never specifically objected to the judge's answer to the jury's question. Cf. United States v. Jackson, 569 F.2d 1003, 1009 (7th Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3096, 57 L.Ed.2d 1137 (1978). Where a jury question squarely presents an issue, it is incumbent upon defense counsel to make his objection known in specific terms. The defendant did not save his rights below.

We are not inclined to relieve the defendant of this failure. Our decision in Perry "was clearly foreshadowed" by Gould, and defense counsel need not have been clairvoyant to have anticipated it. See Commonwealth v. Breese, supra 389 Mass. at 550, 451 N.E.2d 413. Had...