Com. v. Greene

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation362 N.E.2d 910,372 Mass. 517
Decision Date06 May 1977

Stephen M. Winnick, Boston, for defendant.

Roberta Thomas Brown, Legal Asst. to the Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

The defendant challenges his conviction of murder in the second degree on the ground that the judge should have granted his motion for a directed verdict on so much of the indictment as charged him with murder. The defendant presented his motion at the conclusion of the prosecution's case in chief, arguing that the Commonwealth had failed to present evidence which would warrant the jury in finding beyond a reasonable doubt that he acted with malice aforethought when he shot the victim.

We have reviewed the evidence presented in the Commonwealth's case in chief and conclude that the evidence warranted a finding of malice. There was no abuse of discretion in denying the defendant's motion for a new trial which, as argued to us, was founded on the same contention. We conclude that this is not a case in which we should exercise our power and duty under G.L. c. 278, § 33E, to direct that a verdict of guilty of manslaughter be entered in lieu of the verdict of guilty of murder in the second degree which was found by the jury.

Before analyzing the evidence which warranted a finding of malice on the defendant's part, we discuss the defendant's contention concerning the law which is applicable to the proof which is required in this Commonwealth to establish malice. The defendant argues that the constitutional requirements imposed by Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), have altered the permissible limits of State law concerning the proof of malice. The Mullaney case held that a State may not shift the burden of persuasion to a criminal defendant to show that he acted in the heat of passion on sudden provocation and thereby reduce murder to manslaughter. Id. at 703, 95 S.Ct. 1881. The Mullaney case thus was concerned with the question of the placing of the burden of persuasion; it had nothing to do with the question of what proof must be made in order to overcome a motion for a directed verdict. See Commonwealth v. Gagne, --- Mass. ---, --- n. 2 a, 326 N.E.2d 907 (1975). We have accepted the premise that, when there is some evidence of provocation, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in the heat of passion. Commonwealth v. Johnson, --- Mass. ---, --- - --- b, 361 N.E.2d 212 (1977). 1 Cf. Commonwealth v. Rodriguez, --- Mass. ---, --- c, 352 N.E.2d 203 (1976).

The defendant argues that malice may not be proven beyond a reasonable doubt solely by reason of the fact that a defendant used a gun, if there is some evidence which would warrant a finding that the defendant acted on provocation. As will be seen, there was in fact evidence in addition to the defendant's use of a gun which warranted an inference of malice. In such a case 'the jury . . . (could) view the use of the weapon as giving rise to an inference of malice to be weighed with inferences, negative or positive, on the same topic derived from other evidence; all this leaving the Commonwealth with the burden of establishing beyond a reasonable doubt the essential elements of a murder.' Commonwealth v. Johnson, supra, --- MASS. AT --- , 361 N.E.2D AT 216D.

Even if there is no evidence of malice apart from the use of a gun, the right to infer malice which is permissible from the use of a gun does not disappear simply because there is some evidence of mitigating circumstances. Commonwealth v. Gagne, --- Mass. ---, --- e, 326 N.E.2d 907 (1975). When dealing with the subjective question whether a defendant acted with malice, proof of actual malice, as opposed to proof of facts from which malice may be inferred, is not required to sustain a conviction of murder. It has never been the law of the Commonwealth (see id. at ---, 326 N.E.2d 907) f that an inference of malice is unwarranted where there is also evidence which would warrant a finding that the defendant acted ". . . from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat." Commonwealth v. Soaris, 275 Mass. 291, 299, 175 N.E. 491, 494 (1931), quoted in Commonwealth v. Vanderpool, --- Mass. ---, --- g, 328 N.E.2d 833 (1975). In the context of a motion for a directed verdict, one must remember that the jury may disbelieve the evidence that the defendant acted with such provocation as would reduce the crime from murder to manslaughter. Certainly, there is no constitutional principle which bars a conviction of a defendant of murder where there is evidence warranting an inference of malice, such as the use of a gun, and also evidence warranting (but not requiring) a finding that the defendant acted with provocation. We turn then to a recitation of the evidence introduced in the Commonwealth's case in chief which warranted the jury in finding that the defendant acted with malice. 2

The defendant shot the victim in a road in the Jefferson Park housing project in Cambridge in the early morning of January 31, 1972. The defendant and the victim's wife were close friends and had been seeing each other 'socially.' On the night in question they had met at an apartment in the housing project occupied by a friend of the victim's wife. The defendant and the victim's wife left the apartment shortly after midnight. The defendant, who worked as a security guard, was carrying a gun. There was a substantial disagreement in the evidence as to what happened next. There was evidence from witnesses in apartments overlooking the scene which justified a finding that there was an argument among the defendant, the victim, and the victim's wife. The defendant then walked away some twenty-five feet, turned, and fired three shots at spaced intervals. The victim's wife drove the defendant away in her car. The defendant told her that he shot when the victim came after him with a gun. The victim died of a gunshot wound to his abdomen. In September of 1972, the victim's wife, who received insurance proceeds on the death of her husband, told the defendant that she was going to marry someone else. The defendant became angry and said, 'I did the dirt and now someone else gets everything.' 3

There is little evidence in the Commonwealth's case which shows that the defendant acted in the heat of passion. The victim obviously precipitated the...

To continue reading

Request your trial
29 cases
  • Com. v. Robinson
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 6 Enero 1981
    ...the State assumes the burden of disproof of each of them, where malice is an ingredient of the crime. See Commonwealth v. Greene, 372 Mass. 517, 518-519, 362 N.E.2d 910 (1977) (provocation); Connolly v. Commonwealth, 377 Mass. ---, --- i, 387 N.E.2d 519 (1980) (self-defense), Commonwealth v......
  • Com. v. Stokes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 9 Marzo 1978
    ...Commonwealth v. Johnson, --- Mass. ---, --- - --- g, 361 N.E.2d 212 (1977), or Commonwealth v. Greene, --- Mass. ---, --- - --- h, 362 N.E.2d 910 (1977) (Commonwealth has burden of disproving "provocation"). Additionally, subsequent to the Appeals Court's consideration of this case, the Sup......
  • DeJoinville v. Com.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 4 Agosto 1980
    ...corpus denied sub nom. McInerney v. Berman, 473 F.Supp. 187 (D. Mass. 1979), aff'd 621 F.2d 20 (1st Cir. 1980); Commonwealth v. Greene, 372 Mass. 517, 362 N.E.2d 910 (1977); Commonwealth v. Johnson, 372 Mass. 185, 361 N.E.2d 212 (1977).d. Mass. Adv. Sh. (1980) at 1185 n.1.e. Mass. Adv. Sh. ......
  • Com. v. Fitzgerald
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 10 Junio 1980
    ...could also view the defendant's intentional use of a deadly weapon as giving rise to an inference of malice. Commonwealth v. Greene, 372 Mass. 517, 519, 362 N.E.2d 910 (1977). Commonwealth v. Johnson, 372 Mass. 185, 192, 361 N.E.2d 212 (1977). Certainly, this inference taken together with t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT