Com. v. Gibson

• Decision Date: 11 February 1997
• Citation: 424 Mass. 242,675 N.E.2d 776
• Parties: COMMONWEALTH v. Warren A. GIBSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 776

675 N.E.2d 776

424 Mass. 242

COMMONWEALTH v. Warren A. GIBSON.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 6, 1997.

Decided Feb. 11, 1997.

Robert C. Cosgrove, Assistant District Attorney, for Commonwealth.

Bruce R. Taub, Boston, for defendant.

Before WILKINS, C.J., and O'CONNOR, GREANEY, FRIED, and MARSHALL, JJ.

GREANEY, Justice.

The defendant, Warren A. Gibson, was convicted of murder in the first degree by reason of deliberate premeditation on April 17, 1974, and we affirmed the conviction on August 22, 1975. We concluded that there was no error and, after plenary review pursuant to G.L. c. 278, § 33E, that "the evidence amply supported the verdict, that there was no miscarriage of justice, and this is not an appropriate case in which to order a new trial or direct the entry of a verdict of a lesser degree of guilt." Commonwealth v. Gibson, 368 Mass. 518, 528, 333 N.E.2d 400 (1975) (Gibson I ). On March 16, 1979, we rejected the defendant's "writ of error" which alleged that the trial judge's instructions to the jury on self-defense and manslaughter by excessive force improperly shifted the burden of proof to him. Gibson v. Commonwealth, 377 Mass. 539, 539, 387 N.E.2d 123 (1979) (Gibson II ). The defendant thereafter filed a second motion for a new trial claiming that one part of the trial judge's instructions on malice improperly shifted the burden of proof to him. By a memorandum of decision entered on September 25, 1995, a judge in the Superior Court granted the defendant's motion and ordered a new trial. The Commonwealth has appealed. We vacate the order granting a new trial.

The evidence at the defendant's trial is set forth at length in the opinion deciding his direct appeal, Gibson I, supra at 519-522, 333 N.E.2d 400, and we need not repeat it here. It is sufficient to point out the following as background. The Commonwealth presented evidence that, on the night of May 28, 1973, the defendant and the victim had a confrontation at a cafe, during which the defendant made statements about "going to jail" and shooting people. ¹ Both men had been drinking, and by the time the cafe closed at 1 A.M., the victim was quite drunk. The defendant, who had armed himself with a gun, challenged the victim to meet him at Kramer's Dairy Bar. The victim and the defendant were last seen together about 1:15 A.M. outside the dairy bar. The victim was found dead the next morning. He had been shot twice. ² The defendant testified that there had been no confrontation in the cafe and that he was on his way home when he heard an automobile horn blow. The defendant pulled into the Dairy Bar and got out of his automobile. The victim and an unidentified man approached the defendant, and the victim called the defendant a vile name. The victim continued to approach the defendant until the unknown third person stated, "Let's." The defendant pulled out his gun, which he testified he had placed in his belt so as not to forget it, and thinking that the victim had a knife, fired the gun without aiming it. According to the defendant, the victim and the unknown third person walked away. Later the defendant realized that the victim had been seriously injured and reported the incident to the police. The evidence at trial was sufficient to warrant the defendant's conviction of murder in the first degree by reason of deliberate premeditation and to raise an issue as to self-defense.

The trial judge instructed the jury on all the issues in the case, including murder in the first degree by reason of deliberate premeditation, murder in the second degree, voluntary and involuntary manslaughter, and self-defense, including the use of excessive force. The instructions cover fifty-seven pages of transcript and, in the explanation of malice in connection with murder in the second degree, contained the following statement on inferred malice:

"Now, let's see if I can give you an example of [inferred malice]. Let's assume here that I take out a revolver and I point it at the Foreman and I know the gun is loaded and I know that if I pull the trigger the hammer will go down and the bullet will hit the Foreman, if I aim it at him.

Now, in doing that, although I never saw the Foreman before, never spoke to him, had no reason to hate him, the law says that the act on my part shows malice, implied malice. Malice in murder means knowledge of such circumstances that according to common experience has a plain and strong likelihood that death will follow the contemplated act, coupled with an implied negation of any excuse or justification for that act."

The jury convicted the defendant of murder in the first degree by reason of deliberate premeditation. The judge who allowed the motion for a new trial now before us concluded that the instruction improperly shifted the burden of proof to the defendant by "inform[ing] the jury in the factual context of the case they were deciding that if they found that the defendant ... knowingly shot the gun at the deceased, they were to presume malice whether or not the Commonwealth proved the element of malice beyond a reasonable doubt." The motion judge also concluded that nothing else in the trial judge's instructions adequately explained the flawed instruction so, in his view, a new trial was required.

1. We agree with the motion judge that the challenged instruction was defective. There was no question that the defendant shot the victim twice, once in the neck and once in the heart. See note 2, supra. The critical issue in the case was the defendant's intent--did he shoot the victim with a specific intent to kill, or did he shoot the victim without such an intent, as an act of self-defense that could justify the shooting, or (if the means of defense was found to be excessive) permit a finding of voluntary manslaughter and not murder? Although the Commonwealth argues that the challenged instruction is generally accurate because it did not use the word "presume," and was designed to focus the jury's attention on the purposeful aiming of a gun by a hypothetical shooter (where the defendant had testified that he had fired the gun at the victim without aiming), the instruction omits any reference to the pivotal issue of the shooter's intent. At the very least, standing alone, the instruction could have confused a reasonable juror into thinking that malice on the part of the defendant had been proved if the juror found, without regard to the defendant's actual intent, that the defendant had aimed the gun and fired at the victim. Thus, if considered in isolation, the faulty language might be perceived, because of the fact of the killing alone, as tending to relieve the Commonwealth of its burden of proving malice beyond a reasonable doubt. The instruction, therefore, was in violation of the principles expressed in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).

2. This is not the end of the inquiry, however, because we must decide whether the error was harmless. That question is a constitutional one. It is settled that "the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), applies to jury instructions that violate the principles of [Sandstrom ] and [Francis ]." Rose v. Clark, 478 U.S. 570, 572, 582, 106 S.Ct. 3101, 3103, 3108, 92 L.Ed.2d 460 (1986). If it can be said with reasonable confidence that the error did not contribute to the verdict, then it was harmless. Yates v. Evatt, 500 U.S. 391, 402-403, 111 S.Ct. 1884, 1892-1893, 114 L.Ed.2d 432 (1991). "To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that an instruction to apply an unconstitutional presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence [and instructions] considered by those jurors independently of the presumption." Id. at 403-404, 111 S.Ct. at 1893.

3. We conclude that the error was harmless. The jury knew that they had to resolve the conflict in the evidence concerning the defendant's intent at the time of the shooting. They were told that it was the Commonwealth's burden to establish the defendant's guilt beyond a reasonable doubt, and they were given proper instructions explaining the concept of reasonable doubt. In particular, they were told that "any reasonable doubt of the existence of any fact which is essential to the guilt of the defendant" would require an acquittal. The jury appear to have rejected the possibility of murder in the second degree (which was the subject of the faulty instruction), and they found the defendant guilty of murder in the first degree by reason of deliberate premeditation. ³ The judge's instructions on the element of premeditation, were comprehensive and correct. The instructions extensively explained (to the...