Com. v. Giguere

• Decision Date: 03 May 1995
• Citation: 420 Mass. 226,648 N.E.2d 1279
• Parties: COMMONWEALTH v. Lee A. GIGUERE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1279

648 N.E.2d 1279

420 Mass. 226

COMMONWEALTH v. Lee A. GIGUERE.

Supreme Judicial Court of Massachusetts,

Essex.

Argued March 6, 1995.

Decided May 3, 1995.

Willie J. Davis, Boston, for defendant.

Elin H. Graydon, Asst. Dist. Atty., for Com.

Before WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

ABRAMS, Justice.

Convicted of murder in the first degree, Lee A. Giguere appeals. ¹ On appeal, he argues that: (1) the judge, in his instructions to the jury, improperly shifted the burden of proof to the defendant; (2) the judge improperly failed to give an adequate instruction on the effect of intoxication on premeditation; and (3) based on the facts of the case and trial errors we should enter a lesser degree of guilt. See G.L. c. 278, § 33E (1992 ed.). We affirm the judgment. We conclude that we should not exercise our power under G.L. c. 278, § 33E, to order a new trial or to enter a lesser degree of guilt on the conviction of murder in the first degree.

1. Facts. We set forth the facts in the light most favorable to the Commonwealth. See Commonwealth v. Burnett, 417 Mass. 740, 741, 632 N.E.2d 1206 (1994); Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). The defendant suspected that the victim, Robert Luz, was having an affair with Diane Young, a woman in whom the defendant was romantically interested and with whom he was sexually involved. In confronting the victim about this alleged affair, the defendant shot the victim in the chest, killing him. Young and Luz's wife, Linda, were present at the killing.

The victim and his wife knew the defendant and Young for many years. The victim and his wife were not particularly close with either of them. Young never had a romantic or sexual relationship with the victim. ² Nonetheless, the defendant believed that they were sexually involved.

Young and the defendant met during the summer of 1989. The defendant did some work for Young and eventually moved into a storage warehouse which she owned. ³ Young and the defendant became close friends and had sexual intercourse on several occasions. The defendant wanted to pursue a "romantic relationship" with Young, but she was not interested.

On March 4, 1991, six days prior to the murder, the victim telephoned Young about renting storage space for one of his daughters. Young went to the victim's apartment to discuss the matter. At that time, the defendant was at the warehouse working on his automobile. After meeting with the victim and his wife, Young ran some errands and attended a dance class. The victim tried to call Young at the warehouse after she left, but the defendant answered and said that she was not there.

When Young returned to the warehouse and saw the defendant, he was angry and upset. He claimed that he had damaged his automobile by accidentally putting degreaser in it instead of oil. He blamed Young and the victim for the error. The defendant asserted that he had asked her to get some oil, but she went to the victim's apartment instead. He told Young that she had not run errands, but, instead, had gone to the victim's apartment to "get laid."

The defendant remained angry throughout the week. He repeated his accusations that Young and the victim were to blame for his automobile's damage and that they were having an affair. When Young denied this, the defendant said she was a liar. The defendant repeatedly expressed anger toward the victim. On one occasion, the defendant said that he wanted to get even by making the victim pay for repairing his car or by giving the victim a good beating. On another occasion, the defendant said that he might break the victim's legs or shoot and kill him.

From Thursday evening through the morning of the murder, Young and the defendant were together. The defendant continued to express his anger toward the victim. At one point, the defendant produced a gun and played with it for about twenty minutes. He told Young that the bullets were hollow points. He said that he was going to take the gun with him and that he wanted to settle a score with the victim.

Throughout the day and a half prior to the murder, the defendant ingested alcohol, marihuana, Valium, and a substance which he called "speed," but which was, in fact, nonnarcotic. Despite ingesting these substances, the defendant appeared sober. He walked, talked, and drove normally.

At about one o'clock on Saturday morning, the defendant and Young went to the house of a friend of the defendant. The defendant took the gun with him after checking that it fit into his pocket comfortably and could be removed easily. At about 6:30 a.m., they drove to a restaurant. The defendant told Young that he was angry at the victim and that, if he killed the victim, he also would have to kill the victim's wife. After eating, the defendant and Young left the restaurant and headed for the warehouse. The defendant, however, passed the turn to the warehouse and told Young that they were going to the victim's apartment "to settle this right now."

When the defendant and Young arrived, the victim let them into his apartment. The defendant accused the victim of "trying to put the make on" Young. Luz's wife told the defendant that she had been home during the visit and subsequent telephone call on Monday. The defendant was not satisfied. He was angry, aggressive, and confrontational. He pointed the gun at the victim. The victim told the defendant to put the gun down. As the victim raised his foot to take a step toward a doorway, the defendant shot him. The victim collapsed and later died.

The defendant told Luz's wife that he did not know that the safety was off or that there was a bullet in the chamber. Luz's wife tried to call for help, but the defendant refused to let her, saying he feared she would call the police. He pointed the gun at her and told her that he had to finish the job. When Luz's wife promised that she would not identify him, the defendant left, but first warned that, if anything happened, he would get a contract on her.

2. Burden shifting. In the course of instructing the jury on malice aforethought, the judge stated that "[a]ny intentional killing of a human being without legal justification or excuse, with no extenuating circumstances sufficient in law to reduce the crime to manslaughter, is malicious within the meaning of 'malice aforethought.' " The defendant objected to the "reduce murder to manslaughter" language and moved for a mistrial. The judge did not grant a mistrial or give a curative instruction. Later, while recharging the jury, the judge repeated the language at issue. The defendant argues that this language shifted the burden of proof to him to prove extenuating circumstances in order to reduce the crime from murder to manslaughter and that a new trial should therefore be granted.

"[I]t is constitutionally impermissible to shift to a defendant the burden of disproving an element of a crime charged." Commonwealth v. Moreira, 385 Mass. 792, 794, 434 N.E.2d 196 (1982), and cases cited. "We view the instructions, in their entirety, to determine the 'probable impact, appraised realistically ... upon the jury's factfinding function.' " Commonwealth v. Richards, 384 Mass. 396, 399-400, 425 N.E.2d 305 (1981), quoting United States v. Wharton, 433 F.2d 451, 457 (D.C.Cir.1970). We uphold jury instructions that clearly place the burden of proof on the Commonwealth and which, while not referring to the burden of proof, adequately define mitigating factors and establish them as negating a determination of malice. See Commonwealth v. Nieves, 394 Mass. 355, 360, 476 N.E.2d 179 (1985); Commonwealth v. Stokes, 374 Mass. 583, 591, 374 N.E.2d 87 (1978). Viewed as a whole, the instructions do not shift the burden of proof.

There is no prohibition against the phrase "reduce murder to manslaughter." Commonwealth v. Richards, supra, 384 Mass. at 402, 425 N.E.2d 305. See Commonwealth v. Webster, 5 Cush. 295, 305, 59 Mass. 295 (1850). Such language is acceptable where, as here, the instructions make it clear there is no mandatory presumption of malice and the rest of the instructions effectively negates any burden shifting by squarely placing the burden on the Commonwealth. Commonwealth v. Richards, supra, 384 Mass. at 403, 425 N.E.2d 305, and cases cited. The judge repeatedly stressed the Commonwealth's burden of proving all elements, including malice, and repeated throughout the instructions that the defendant bore no burden whatsoever. Cf. Commonwealth v. Mejia, 407 Mass. 493, 495, 554 N.E.2d 1186 (1990). The instructions properly allocated the burden of proof. See Commonwealth v. Koonce, 418 Mass. 367, 374, 636 N.E.2d 1305 (1994).

The defendant also asserts that a slip of the tongue in the judge's supplemental instructions requires reversal. The judge told the jurors that the defendant had the burden of proving the elements of murder in the first degree. ⁴ The prosecutor and defense counsel brought this misstatement to the judge's attention. The judge promptly gave curative instructions. ⁵ The judge emphasized the error and the proper burden of proof and adequately ensured that the jury was aware that the defendant bore no burden whatsoever. In this context, the judge's error "would not cause a reasonable jury to shift the burden ... to the defendant." Commonwealth v. Koonce, supra at 374, 636 N.E.2d 1305. "Viewed as a whole, the charge to the jury indicated that it was the jury's duty to [determine if] the Commonwealth has met its burden of proving every element of the crime beyond a reasonable doubt before they could convict." Commonwealth v. Sellon, 380 Mass. 220, 234, 402 N.E.2d 1329 (1980).

3. Effect of intoxication on premeditation. The defendant claims that the judge did not adequately instruct the jury on the effect of intoxication on premeditation. Because no objection was made, we review the matter only to determine whether there is a substantial likelihood of a miscarriage of justice....