Com. v. Johnson

• Decision Date: 05 February 1998
• Citation: 426 Mass. 617,689 N.E.2d 1327
• Parties: COMMONWEALTH v. George JOHNSON, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1327

689 N.E.2d 1327

426 Mass. 617

COMMONWEALTH v. George JOHNSON, Jr.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Dec. 1, 1997.

Decided Feb. 5, 1998.

Steven J. Rappaport, Boston, for defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

FRIED, Justice.

The defendant was convicted of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty. ¹ He sought to persuade the jury that he acted either in self-defense or at least out of fear of the victim, and he complains that, among other errors at trial, errors in the trial judge's charge prevented the jury from properly considering those claims. We affirm the conviction and decline to exercise our authority under G.L. c. 278, § 33E, to order a new trial or reduce the degree of guilt.

I

The defendant, Johnson, and the victim, Charles Malone, had been friends until some five months prior to the killing. The rupture came about in October, 1992, when Malone accused Johnson of cheating him in a drug transaction and beat Johnson severely with a baseball bat. Johnson initially reported the assault to the police but eventually told Malone he would not press charges or testify if Malone paid him $3,000. It appears that Malone did give Johnson $1,000, and on the night of the killing they may have had discussions about payment of the balance. A Springfield police officer, Philip Tarpey, testified that prior to the killing Johnson had told him about this arrangement, that he had said he wanted revenge against Malone, that he had said that he should kill Malone but did not want to go to jail, and that he gave the officer information about Malone's drug organization in order to send Malone to jail.

The killing occurred in the early morning hours of March 13, 1993. Two witnesses who were with Malone just before the killing testified that as they walked toward a bar, Johnson emerged from between two parked cars. The witnesses testified that, when Johnson first confronted Malone as he approached the bar, Johnson said, "Hey, Chuckie" (Malone's nickname), and "What's up?" Johnson then raised and pointed a handgun at Malone and pulled the trigger, but the gun did not fire. Malone started backing up, with his hands up. Johnson apparently adjusted the gun and attempted to fire it again. When it failed to fire the second time, Malone turned and ran. Johnson shot him in the back and Malone fell some twenty-five or thirty feet from where the initial encounter had taken place. Johnson went up to him as he lay face up in the street and Malone said, "All right, George. You got me. Stop. That ... hurts." Johnson then stood over him and shot him two more times. Malone kept repeating the words "J.R." (Johnson's nickname) as he lay dying.

A correction officer testified that he was just arriving at the bar when he heard shots. Before the first shot he heard the assailant say, "Remember me," and "Remember me, Chuckie." Then, after the first shot, he saw a man standing over Malone shoot him twice and heard the man say, "You can't run. You can't run now." The locations of three spent shell casings from a .38 caliber semi-automatic weapon were consistent with this version of the events: one was found near the bar where the defendant fired the first shot and two were found farther up the street near where the victim fell.

Johnson testified to the beating he had received from Malone, that Malone continued to threaten and harass him, and that he was afraid that Malone would kill him. Officer Tarpey testified that Johnson had sought to obtain a protective order against Malone, and several witnesses testified that after the beating Johnson was terrified and preoccupied with the menace he felt from Malone. Dr. Alan Brown, a psychologist testifying on Johnson's behalf, gave his opinion that Johnson was suffering from posttraumatic stress disorder as a result of the beating. The defendant testified that he went to the bar outside which the encounter took place to attend a family party, even though he knew that Malone and his friends often went there. In the defendant's version of the events, Malone was outside the bar with some friends as Johnson arrived. He heard Malone say to his friends, "There go that nigger." The defendant tried to hide, heard one of Malone's friends say, "Let's get him," and he ran. One of Malone's friends was behind him and Malone was in front of him. This caused him to panic as he remembered the beating. "I just panicked. That's when everything happened." On cross-examination Johnson testified that he shot Malone, who was in front of him but coming toward him. His testimony was that he panicked and shot wildly. He denied remembering speaking any of the words the witnesses attributed to him, nor did he recall walking up to Malone and shooting him as he lay on the ground.

The defendant was convicted on June 27, 1994, and sentenced to life in prison. After the defendant's appeal was docketed in this court, the defendant filed a petition for relief pursuant to G.L. c. 278, § 33E, requesting a stay of proceedings and a remand to the Superior Court for postconviction interviews of certain jurors. A single justice remanded for a hearing on the defendant's allegations of extraneous influence on the jurors, and a hearing was held on July 23, 1996. Thereafter, the Superior Court judge issued a memorandum of decision on the order of remand, finding that the jurors were impartial and not subject to extraneous influence. The defendant then pursued his appeal here.

II

A

Given Johnson's version of the shooting it was important to his defense that the jury receive a favorable instruction on self-defense or at least that they receive an instruction that allowed them to relieve him of full responsibility for the killing, reducing his culpability to that for voluntary manslaughter, on the ground that he was acting in a state of panic induced by the fear that he would again be attacked as he had been some months before.

Johnson complains that the charge regarding self-defense was defective in that it failed to make clear that the prosecution has the burden of showing that the defendant did not act in self-defense. It is undoubtedly true that "when the issue of self-defense is properly before the trier of fact, the Commonwealth must, as a matter of due process, prove beyond a reasonable doubt that the defendant did not act in self-defense" (footnote omitted). Commonwealth v. Rodriguez, 370 Mass. 684, 687-688, 352 N.E.2d 203 (1976). The charge defined self-defense correctly, but in defining it the judge did not there state the Commonwealth's burden of proof. It would have been better if he had, but the defendant, although he requested an instruction that made this clear, did not object to the charge as given. What the judge did do is explain, in connection with the charge on voluntary manslaughter, that the Commonwealth had the burden of proving that the force used by the defendant in the circumstances was excessive, so that if "the defendant uses excessive force ... or the defendant himself becomes the attacker or the aggressor ... then that would constitute manslaughter." It was precisely the Commonwealth's contention that Johnson was the attacker or aggressor, and the charge made clear that it was the Commonwealth's burden to prove that. Similarly, in defining the elements of murder the judge made clear that the Commonwealth had the burden of proving that the killing was unlawful, and that that meant without lawful excuse or justification "as in the case of self-defense." Reading the instructions as a whole, as we are bound to do, Commonwealth v. Beauchamp, 424 Mass. 682, 686, 677 N.E.2d 1135 (1997), we conclude that there was no substantial likelihood of a miscarriage of justice in this regard. We take into consideration that several witnesses testified that after the initial shot they saw Johnson stand over the victim and fire two more bullets into him, and that the only testimony that supports self-defense in this encounter was the defendant's own. He does not deny the killing, but only stated that he could not recall committing it.

A somewhat more plausible claim is that the defendant acted in the heat of passion and thus that he was guilty of no more than voluntary manslaughter. The judge explained that this lesser charge was an accommodation by the law to "the frailty of human nature." The defendant now complains that the charge did not adequately make clear that the Commonwealth has the burden of disproving that the defendant killed in the heat of passion on reasonable provocation. See Commonwealth v. Richards, 384 Mass. 396, 405, 425 N.E.2d 305 (1981). But the judge twice stated in his charge that the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in the heat of passion or on sudden provocation. Once again, the defendant did not object to these instructions, and viewing them as a whole we see nothing approaching a substantial likelihood of a miscarriage of justice. See Commonwealth v. McLeod, 394 Mass. 727, 739-740, 477 N.E.2d 972, cert. denied sub nom. Aiello v. Massachusetts, 474 U.S. 919, 106 S.Ct. 248, 88 L.Ed.2d 256 (1985).

B

The jury convicted the defendant of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty. The defendant raises several challenges to the judge's charge on malice.

The defendant first complains that the charge defining malice was defective in that it contained the "frame of mind" language we disapproved of in Commonwealth v. Eagles, 419 Mass. 825, 836, 648 N.E.2d 410 (1995). As we explained in Eagles, this language is unhelpful because it "may lead the jury to believe that anger, hatred, revenge or a selfish, wrongful mood is enough to show malice." Id. As in Eagles, however, here the...