Com. v. Glass

• Decision Date: 09 March 1988
• Citation: 519 N.E.2d 1311,401 Mass. 799
• Parties: COMMONWEALTH v. Robert E. GLASS, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1311

519 N.E.2d 1311

401 Mass. 799

COMMONWEALTH v. Robert E. GLASS, Jr.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 7, 1987.

Decided March 9, 1988.

Myles Jacobson, Boston (John M. Thompson, Springfield, with him), for defendant.

Margaret Steen Melville, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

Shortly after midnight on July 24, 1983, the defendant, a United States Marine who had just completed basic training, stabbed four recent immigrants from Vietnam in front of or in their three-decker house at 35 Coleman Street in the Dorchester section of Boston. This much is not in serious dispute before us. The defendant was tried and convicted of murder in the first degree of the one victim who died. As to the surviving victims, he was convicted on three indictments charging assault with intent to murder while armed and on three indictments charging assault and battery by means of a dangerous weapon.

The contest at trial concerned the circumstances under which the defendant stabbed the victims. The defendant testified that he was threatened by four men acting together and argued that he acted reasonably in self-defense. The Commonwealth's evidence tended to show that the defendant could have easily fled the scene after one of the men had pushed him off the front steps of the house. Instead the defendant drew a knife and successively stabbed the four men, chasing the last two into their house in order to do so.

Represented by new counsel on appeal, the defendant argues that (1) the judge should not have submitted the case to the jury on the theory of murder in the first degree by reason of extreme atrocity or cruelty, ¹ (2) the prosecutor's closing argument was prejudicially improper, (3) the jury instructions on self-defense and provocation were defective, (4) the judge improperly denied his motion for a new trial, and (5) he is entitled to relief under G.L. c. 278, § 33E (1986 ed.). We affirm the convictions.

Before we discuss the issues, we set forth in fuller detail evidence that the jury could have believed. On the evening of July 23, 1983, some residents of 35 Coleman Street, all of whom were immigrants from Vietnam, gave a birthday party for a friend and invited young people from the neighborhood. They offered beer and marihuana to their guests. The defendant attended the party. Later that night, hours after the party ended, residents of the house were awakened by yelling and other noise outside the house. One of them, Cuong Chi Huynh (Cuong), opened the front door and saw two men, one of whom was the defendant. The defendant was bending the fence in front of the house and yelling at Cuong. Cuong could not understand him and awakened Loi Phouc Chau (Loi) who spoke English. Loi went outside. Another resident, Anh Van Mai (Anh Mai), who was shortly to be stabbed fatally, also went outside. Hung A. Sum (Hung) came downstairs to the first floor where he saw Cuong and Anh Mai on the stairs in front of the house. Loi told the defendant to go home. The defendant continued breaking the fence. Loi and the defendant swore at each other, and the defendant was beginning to walk up the steps when Loi pushed him. The defendant fell backward off the steps, reached into a pocket, and pulled out a knife. He attacked Loi and stabbed him under his left armpit. Loi ran away (only to return to be stabbed again in the house). The defendant then attacked Anh Mai, who had stayed on the front steps eating noodles. Anh Mai also ran away. He came back about one-half hour later and was taken to a hospital where he died. The defendant, continuing his attack, pushed his way inside the house, stabbed Hung several times, and then chased and stabbed another resident, Tao Dinh.

After some effort, two friends of the defendant were able to get him out of the house. Boston police officers arrested the defendant at his home shortly after 2 A.M.

The defendant testified that, when he bent the railing at 35 Coleman Street, four men came out of the house. One pushed him. Another jumped into the air and kicked him. The others attacked, kicking and punching. One tried to stab him with a knife, but he was able to get possession of the knife. He was knocked on his back and stabbed a man who was straddling him whom he thought was the one who later died. He then charged up the stairs pursuing a man who had kicked at him. He was attacked and fought in the house.

The defendant said he drank three beers that night. There was testimony that the defendant was not intoxicated at any time that night.

1. The defendant argues that the evidence did not warrant submitting the case to the jury on the charge of murder in the first degree based on extreme atrocity or cruelty. Because the evidence warranted submission of the case to the jury on deliberately premeditated murder, the defendant's generally expressed motion for a required finding of not guilty was properly denied. See Commonwealth v. Podlaski, 377 Mass. 339, 344, 385 N.E.2d 1379 (1979). The defendant did object, however, to the giving of any charge on extreme atrocity or cruelty. The issue was thus preserved for our consideration.

We review the evidence and conclude that there was a case for the jury on the theory of extreme atrocity or cruelty. See Commonwealth v. Podlaski, supra at 344-345, 385 N.E.2d 1379. ² Our cases have generally upheld submission of the question of extreme atrocity or cruelty to the jury on the basis of even a single fatal blow. See Commonwealth v. Golston, 373 Mass. 249, 260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978), and cases cited; Commonwealth v. Eisen, 358 Mass. 740, 746, 267 N.E.2d 229 (1971). But see Commonwealth v. Brown, 386 Mass. 17, 28 n. 11, 434 N.E.2d 973 (1982) (single shot to the head and no other signs of injury; judge properly told the jury they could not find the defendant guilty of murder committed with extreme atrocity or cruelty). The jury could have found that, when attacked, the deceased victim was standing on the upper part of the front steps of his residence, eating noodles from a bowl with a spoon. The defendant testified on cross-examination that, using his recently acquired Marine Corps boot camp training, he made a turning, double thrust motion with the knife against the deceased victim (and the others), "because the turning motion creates more injury." ³ The fatal wound on the deceased victim (there were two other wounds) was five inches deep, the full length of the blade. The victim died about seven hours after he was stabbed.

The defendant seeks to make a more sweeping attack on the submission of the question of extreme atrocity or cruelty to the jury. He argues that extreme atrocity or cruelty as a basis for conviction of murder in the first degree (see G.L. c. 265, § 1) is unconstitutional because the elements of the crime are impermissibly vague in a due process sense. This argument is raised here for the first time, and we need not consider it except under G.L. c. 278, § 33E.

The defendant states that no Massachusetts appellate case has ever held that it was error to submit the question of extreme atrocity or cruelty to a jury. But cf. Commonwealth v. Brown, supra. He points out that our opinions have discussed various factors that a jury may appropriately consider, argues that the standard is not explicit, and notes the uncertainty in a situation where "in the final analysis the issue must be left largely to the deliberation of the jury 'who, as the repository of the community's conscience, can best determine when the mode of inflicting death is so shocking as to amount to extreme atrocity or cruelty.' " Commonwealth v. Lacy, 371 Mass. 363, 367-368, 358 N.E.2d 419 (1976), quoting Commonwealth v. Connolly, 356 Mass. 617, 628, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79 (1970).

The error in submitting extreme atrocity or cruelty to the jury, if it was one, did not create a substantial likelihood of a miscarriage of justice. The separately returned verdict of guilty of murder in the first degree on the theory of deliberate premeditation would have been substantially unsullied by any such error. Most of the prosecutor's arguments to the jury concerning the defendant's conduct and his apparent state of mind were appropriate not only to the Commonwealth's extreme atrocity or cruelty claim but also in the main to the intent and malice aspects of the three charges of armed assault with intent to murder. Thus these arguments largely would have been made even if the theory of extreme atrocity or cruelty had been taken away from the jury.

Therefore, we need not, and do not, decide the question whether the concept of murder in the first degree in this Commonwealth based on extreme atrocity or cruelty is unconstitutional due to an intolerable vagueness concerning the nature of the crime.

In order that the issue not be left totally in the air, however, we add these comments. The defendant acknowledges that, in Commonwealth v. Eisen, 358 Mass. 740, 747, 267 N.E.2d 229 (1971), this court held that the words "extreme atrocity or cruelty" in G.L. c. 265, § 1 (1986 ed.), had been applied frequently and for many years and gave definite warning of the nature of the crime. The court thus rejected the defendant's void for vagueness claim. See Commonwealth v. Satterfield, 362 Mass. 78, 82-83, 284 N.E.2d 216 (1972); Palakiko v. Harper, 209 F.2d 75, 100-102 (9th Cir.1953) (Hawaiian statute adopted from predecessor of G.L. c. 265, § 1, not void for uncertainty). The defendant argues, however, that, even if our definition of extreme atrocity or cruelty provides satisfactory warning to potential defendants, it fails to satisfy the second aspect of the void for vagueness principle--the need to avoid arbitrary and discriminatory enforcement of the law by having explicit standards...