Com. v. Judge

Citation420 Mass. 433,650 N.E.2d 1242
PartiesCOMMONWEALTH v. James M. JUDGE.
Decision Date01 June 1995
CourtUnited States State Supreme Judicial Court of Massachusetts

Murray A. Kohn, Brighton, for defendant.

Lincoln S. Jalelian, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

The defendant appeals from a conviction of murder in the first degree by reason of deliberate premeditation, of extreme atrocity or cruelty, and of felony-murder. He also was convicted of breaking and entering while armed in the nighttime with intent to commit a felony, and of armed robbery while masked. The defendant claims that the trial judge improperly instructed the jury on the third prong of the malice requirement for murder in the first degree and improperly admitted his written confession in evidence. The defendant also asks that we exercise our power under G.L. c. 278, § 33E (1992 ed.), and enter a lesser degree of guilt or order a new trial. We affirm the conviction for murder in the first degree and decline to exercise our power under § 33E in favor of the defendant.

I. Facts. We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Nichypor, 419 Mass. 209, 643 N.E.2d 452 (1994). During the early morning hours of June 5, 1986, the defendant and James MacKenzie 1 decided to enter the victim's dwelling wearing masks and rubber gloves in order to steal two or three thousand dollars which MacKenzie believed the victim had in her home. In the past, MacKenzie had done work for the victim, an elderly neighbor. The two men had spent part of the evening in a nearby house, where they had consumed alcohol and drugs.

The two men entered the victim's unlocked house between 2 and 3 A.M., and found her watching television. The defendant sat with her, while MacKenzie ransacked the house in search of cash. The defendant meanwhile offered the victim a drink. MacKenzie was only able to locate $20. Frustrated, he reentered the living room and knocked the victim to the floor where he kicked her repeatedly. MacKenzie then attempted to smother her with a pillow. As the two men were leaving the apartment, the victim moaned. The defendant then stabbed the victim, who was still on the living room floor, two times in the back with a kitchen knife. The defendant next opened the victim's shirt and lifted her undergarment, discussing with MacKenzie whether to rape her. The men decided against raping the victim for fear of being identified by their sperm.

After leaving the victim's home, the defendant removed his shirt, pants, gloves, mask, and boots, and threw the clothing, along with the murder weapon, into a nearby pond. The defendant then returned to MacKenzie's house where he had left a change of clothing.

Later that morning, the defendant spoke with Thomas McEwen, a longtime friend, and relayed the series of events that had happened. The defendant explained to McEwen that, although he knew he had injured the victim, he was not certain that he had killed her.

The same day, a "Meals on Wheels" volunteer arrived at the victim's house to deliver lunch and found the victim on her living room floor. The woman then telephoned the police. A medical examiner pronounced the victim dead. An autopsy revealed that the victim had seventeen fractured ribs, two knife wounds (one of which punctured her left lung), and broken vessels in her eyes (indicating suffocation).

The murder was subsequently reported in the newspaper. When McEwen read the report in the newspaper, he communicated with the police. As a result, MacKenzie and the defendant were arrested. At the station, the defendant gave an oral confession without an attorney and then repeated the confession in the presence of a stenographer and signed the written statement. Both the oral and written confessions, as well as the defendant's representations to McEwen, were admitted at trial.

II. The instructions on the third prong of malice. The defendant primarily argues that the judge's instruction on the third prong of malice regarding intoxication negated all other instructions on the effect of intoxication on the defendant's ability to form the requisite intent. The defendant concludes that therefore he is entitled to a new trial. We do not agree.

Under Commonwealth v. Sama, 411 Mass. 293, 298, 582 N.E.2d 498 (1991) (reversing conviction of murder in the first degree based on extreme atrocity or cruelty), decided after the defendant's 1987 trial, 2 the defendant asserts that the jury should have been instructed that under the third prong of malice, "the Commonwealth had the burden of demonstrating that the defendant knew that he was stabbing the victim with a knife and that a reasonably prudent person, although not necessarily the defendant, would recognize that such conduct carried with it the risk of death or serious bodily injury."

Because the third prong of malice can support only a conviction of murder in the first degree that is based on the theory of extreme atrocity or cruelty, any error in the instructions on the third prong of malice is irrelevant to conviction of murder in the first degree on theories of felony-murder and deliberate premeditation.

III. Instructions on malice aforethought. Under G.L. c. 265, § 1 (1992 ed.), murder in the first degree is a murder committed (1) with deliberate premeditation, (2) with extreme atrocity or cruelty, or (3) in the commission or attempted commission of a crime punishable with imprisonment for life. It is well established that to convict a defendant of murder in the first or second degree, a jury must find that the defendant formed the mens rea of malice aforethought. Commonwealth v. Sires, 413 Mass. 292, 296, 596 N.E.2d 1018 (1992) ("The presence of malice is what makes an unlawful killing murder"). Without malice, an unlawful killing can be no more than manslaughter. Id. ("There is no distinction between murder in the first degree and murder in the second degree based on a difference in the element of malice"). See Commonwealth v. Demboski, 283 Mass. 315, 322, 186 N.E. 589 (1933) ("manslaughter imports the taking of human life by an act not justified in law, but without malice aforethought which is necessary to constitute murder" [citations omitted] ). See also Commonwealth v. Kane, 388 Mass. 128, 133-134, 445 N.E.2d 598 (1983).

The definition of malice aforethought, as set forth in Commonwealth v. Grey, 399 Mass. 469, 470 n. 1, 505 N.E.2d 171 (1987), and its progeny, has three "prongs:" (1) specific intent to cause death; (2) specific intent to cause grievous bodily harm; or (3) knowledge of a reasonably prudent person that in the circumstances known to the defendant, the defendant's act was very likely to cause death. 3 See generally McMahon, Murder, Malice and Mental State: A Review of Recent Precedent Recognizing Diminished Capacity, from Commonwealth v. Grey to Commonwealth v. Sama, 78 Mass.L.Rev. 40 (1993).

A. Felony-murder. "[T]he felony-murder rule in the Commonwealth imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise. Commonwealth v. Watkins, 375 Mass. 472, 486 (1978)." Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982). The felony-murder rule substitutes the intent to commit a felony punishable by life imprisonment and inherently dangerous to human life, Commonwealth v. Moran, 387 Mass. 644, 651, 442 N.E.2d 399 (1982), for malice aforethought. See Commonwealth v. Matchett, supra at 502, 436 N.E.2d 400 ("The effect of the felony-murder rule is to substitute the intent to commit the underlying felony for the malice aforethought required for murder. Thus, the rule is one of 'constructive malice' "). See also Commonwealth v. Nichypor, supra at 213-216, 643 N.E.2d 452, and authorities cited.

The judge instructed the jury that, "[i]n order to convict the defendant of murder in the first degree under the felony murder rule, the Commonwealth must prove each of the following three elements beyond a reasonable doubt: First, that there was an unlawful killing. Second, that the unlawful killing was committed in the course of a felony or attempted felony punishable by life imprisonment. And third, that [in] the circumstances of this case, the defendant committed or attempted to commit the felony or felonies with conscious disregard for human life." The defendant does not challenge the instructions on the elements of felony-murder. The felonies underlying the jury's verdict of guilty of murder in the first degree by reason of felony-murder were (1) breaking and entering while armed in the nighttime with intent to commit a felony and (2) armed robbery while masked.

The defendant seeks reversal of his conviction based on felony-murder on the ground that the trial judge's instruction regarding intoxication and the third prong of malice negated all other instructions on intent, including the instruction on mens rea under the felony-murder rule. 4 The trial judge instructed the jurors that "malice aforethought may be inferred if, in the circumstances known to the defendant, a reasonably prudent person would have known that there was a plain and strong likelihood that death would follow the contemplated act"; and that "[i]n such a circumstance, ingestion of drugs or alcohol would be irrelevant." The instruction that "the ingestion of drugs or alcohol would be irrelevant" was error. The defendant's assertion, however, that the erroneous instruction on the third prong of malice tainted the instruction on the requisite intent for felony-murder is untenable. The judge specifically instructed the jury that the mens rea for the felony substitutes for malice aforethought required for the other two theories of murder in the first degree: "The intention to commit some other requisite felony amounts to malice aforethought making the...

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