Com. v. Koonce

• Decision Date: 15 July 1994
• Citation: 418 Mass. 367,636 N.E.2d 1305
• Parties: COMMONWEALTH v. Thomas KOONCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1305

636 N.E.2d 1305

418 Mass. 367

COMMONWEALTH v. Thomas KOONCE.

Supreme Judicial Court of Massachusetts Bristol.

Argued May 2, 1994.

Decided July 15, 1994.

Stephen Hrones, Boston, for defendant.

David B. Mark, Sp. Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LYNCH, Justice.

This appeal arises out of the defendant's retrial on an indictment charging murder in the first degree. A mistrial was declared after the jury were "unable to reach a unanimous decision" on the issue of self-defense, and we affirmed the decision of a single justice denying the defendant's petition under G.L. c. 211, § 3 (1992 ed.), that the indictment be dismissed based on common law double jeopardy grounds. Koonce v. Commonwealth, 412 Mass. 71, 71-72, 76, 587 N.E.2d 220 (1992). ¹ On June 23, 1992, a jury convicted the defendant of murder in the first degree. The defendant appeals from this conviction and the denial of his motion for a new trial. He argues that the judge's instructions erroneously placed the burden on the defendant to prove the crime of manslaughter, that he received ineffective assistance of counsel, that the judge erred in allowing a defense witness to exercise his privilege against self-incrimination during his testimony, and that this court should exercise its power under G.L. c. 278, § 33E (1992 ed.), and order a new trial. We affirm the conviction and conclude that there is no basis for the exercise of our power under G.L. c. 278, § 33E.

We briefly summarize the evidence presented at the second trial. On July 20, 1987, the defendant, James Reace, Kevin Hamilton, and Andy Webb were driving in Reace's 1981 Chevrolet Monte Carlo automobile. The group traveled to a nightclub in Westport. Near closing time, a fight between groups from New Bedford and Brockton occurred, but the defendant and his friends were not involved in the fight. The defendant and his friends then went to a Burger King restaurant in Dartmouth where another encounter between New Bedford and Brockton groups occurred. According to Reace, the defendant pulled out a gun at the Burger King and became upset when the gun jammed.

After leaving Burger King, the defendant and his friends, as well as another group from Brockton, proceeded to New Bedford, parked their automobile, and walked to the United Front housing development. Reace had a shotgun and the defendant was also armed. Some young women drove past them and informed the New Bedford people that Brockton people had arrived. A large group from New Bedford, including the victim, then chased the defendant and his friends back to their automobile. There was conflicting testimony whether anyone in the New Bedford crowd was armed. ² During the chase, the New Bedford group beat a member of the other Brockton group. In addition, they smashed his automobile's windows.

When the defendant and his friends entered their automobile, their path was blocked by another automobile. While they were trapped, the crowd from New Bedford continued in its pursuit. Once the path of the defendant and his friends cleared, Reace accelerated. After the automobile accelerated, Reace testified he heard a gunshot from the passenger's side of the automobile where the defendant was sitting. Another passenger stated that he thought someone had been hit and the defendant said he had not aimed at anyone but rather pointed to the sky. The victim was fatally wounded. There was conflicting testimony concerning how close the New Bedford group came to the automobile. The automobile, however, was not touched or damaged. At some point after Reace was arrested, the defendant and his mother arrived at the Brockton police station and stated that he did not want his friend to pay for his mistake and that he "did it." The defendant maintained that "[he] wouldn't have done it if [he] didn't have to." The defendant told the police that he had discarded the gun after the shooting.

The defendant argues that the judge's instructions misstated the Commonwealth's burden of proof on the issues of manslaughter and absence of self-defense, that he received ineffective assistance of counsel because his defense counsel did not request voir dire questions on the issue of racial prejudice, that the judge erred in allowing a witness, who testified at the first trial, to stop his testimony and exercise his privilege against self-incrimination under the Fifth Amendment to the United States Constitution, and that this court should, pursuant to G.L. c. 278, § 33E, order a new trial.

1. Jury instructions. During his instructions the trial judge stated:

"Also, you may not return a verdict of guilty of manslaughter unless the defendant proves beyond a reasonable doubt that the defendant used excessive force in defending himself, again in the circumstances as you see them" (emphasis added).

In denying the defendant's motion for a new trial, the judge characterized this error as a "single slip of the tongue during an exhaustive 45-page charge [that] was isolated and discrete." We agree.

The defendant avers that the instructions improperly placed the burden of proving manslaughter and self-defense on him, and thus violated his due process rights under the Fourteenth Amendment to the United States Constitution. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). There is no question that "it 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). Therefore, the Commonwealth is required to bear the burden of proof beyond a reasonable doubt that a defendant did not act in self-defense, see Commonwealth v. Rodriguez, 370 Mass. 684, 691-692, 352 N.E.2d 203 (1976), or that the defendant acted with excessive force, see Commonwealth v. Stokes, 374 Mass. 583, 593, 374 N.E.2d 87 (1978). The statement that a verdict of manslaughter was not permissible unless the defendant proved beyond a reasonable doubt that he had used excessive force was patently incorrect. However, "constitutionally erroneous jury instructions are not to be viewed in isolation but rather in the context of the charge as a whole, so that a reviewing court can assess the possible impact of the error on the deliberations of a reasonable juror." Commonwealth v. Repoza, 400 Mass. 516, 519, 510 N.E.2d 755, cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987), citing Francis v. Franklin, supra 471 U.S. at 315, 105 S.Ct. at 1971-72.

Even taken in isolation the jury would understand that the judge had made an error because there would be no purpose in the defendant proving he used excessive force. This is not like the instruction in Francis v. Franklin, where the flawed instruction created a mandatory presumption that the jury "must infer the presumed fact if the State proves certain predicate facts." Francis, supra at 314 & n. 2, 105 S.Ct. at 1971 n. 2, citing Sandstrom, supra 442 U.S. at 517-518, 99 S.Ct. 2455-56. "If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973)." (Emphasis added.) Francis v. Franklin, supra 471 U.S. at 315, 105 S.Ct. at 1971-72. Here the offending language created no such presumption but rather, taken in its literal sense, placed the burden on the defendant of proving something (excessive force) that any reasonable juror would understand was antithetical to his defense. See Commonwealth v. Grant, 418 Mass. 76, 84-85, 634 N.E.2d 565 (1994).

In conducting our review we are aware that the defendant did not object to the judge's instruction. He did, however, file a motion for a new trial based on the same ground which the judge considered on the merits. It should be noted that this is the first time this conviction has been reviewed on appeal.

In a similar situation we stated:

"[S]everal factors ... impact upon the standard of review. We are required to review the defendant's conviction under G.L. c. 278, § 33E.... The applicable standard is whether, on review of the entire record as considered in light of the verdict returned by the jury, a substantial likelihood exists that a miscarriage of justice has occurred. Commonwealth v. Dickinson, 394 Mass. 702, 707 (1985). Furthermore, since the new trial motion, the review of which is also before us, raises the same issue in regard to the [challenged] instruction, that issue has been 'restored to the appellate agenda,' and may be reviewed as fully as if the defendant timely objected." Commonwealth v. Skinner, 408 Mass. 88, 92, 556 N.E.2d 1014 (1990), quoting Commonwealth v. Buckley, 17 Mass.App.Ct. 373, 374, 458 N.E.2d 781 (1984).

"[W]hether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Commonwealth v. Shelley, 411 Mass. 692, 695, 584 N.E.2d 629 (1992), quoting Sandstrom v. Montana, supra 442 U.S. at 514, 99 S.Ct. at 2454. After discussing murder in the first degree and second degree, the judge instructed the jury:

"If ... the Commonwealth has not proved beyond a reasonable doubt the elements necessary to prove the defendant guilty of second degree murder, then you may consider whether the Commonwealth has proved the lesser included offense of...