Com. v. Niemic

• Decision Date: 06 July 1998
• Citation: 696 N.E.2d 117,427 Mass. 718
• Parties: COMMONWEALTH v. Keith NIEMIC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 117

696 N.E.2d 117

427 Mass. 718

COMMONWEALTH v. Keith NIEMIC.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued April 7, 1998.

Decided July 6, 1998.

David Hayes Erickson, Concord, for defendant.

Shaun S. McLean, Special Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, FRIED and MARSHALL, JJ.

ABRAMS, Justice.

The defendant, Keith Niemic, was convicted of murder in the first degree by reason of extreme atrocity or cruelty. At his trial, Niemic admitted that he stabbed the victim. His defense was self-defense. He also claimed that his conduct did not cause the victim's death. Represented by new counsel on appeal, Niemic asserts errors in (1) the judge's instructions; (2) the admission of certain evidence; (3) his trial counsel's performance, which he claims was ineffective; and (4) the prosecutor's presentation to the grand jury. We affirm the conviction and see no reason to exercise our power under G.L. c. 278, § 33E, to reduce the degree of guilt or order a new trial.

We summarize the facts attending the killing and reserve certain facts for later discussion. On the night of September 25, 1995, the victim was involved in an argument with Stephanie St. Amour, who was an acquaintance of both the victim and the defendant, outside St. Amour's home in Fall River. The victim had been drinking and was obviously intoxicated. A group of young men had gathered. The victim reached into his pants and threatened to shoot them, but never produced a gun. Several of the young men testified that they were taunting the victim, urging him to go ahead and shoot, and saying that he did not really have a gun. The defendant, apparently attempting to defuse the situation, approached the victim. Threatening to shoot the defendant, the victim shoved him against the house and turned back to St. Amour. The defendant then stabbed the victim in the back of the shoulder several times. The victim turned around, and the defendant stabbed him once more, this time in the heart. A Fall River police officer found the victim collapsed on a median strip of the street, still alive but bleeding profusely. The victim was taken to a hospital where he died within hours. The defendant had fled the scene and was located in Vermont several days later. He was using an assumed name.

1. The instructions. "We evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words." Commonwealth v. Trapp, 423 Mass. 356, 361, 668 N.E.2d 327, cert. denied, --- U.S. ----, 117 S.Ct. 618, 136 L.Ed.2d 542 (1996). We "[do] not ... scrutiniz[e] bits and pieces removed from their context." Commonwealth v. Perez, 390 Mass. 308, 313, 455 N.E.2d 632 (1983), quoting Commonwealth v. Hill, 387 Mass. 619 624-625, 442 N.E.2d 24 (1982). "[T]he adequacy of instructions must be determined in light of their over-all impact on the jury." Commonwealth v. Galford, 413 Mass. 364, 371-372, 597 N.E.2d 410 (1992), cert. denied, 506 U.S. 1065, 113 S.Ct. 1010, 122 L.Ed.2d 158 (1993), quoting Commonwealth v. Sellon, 380 Mass. 220, 231-232, 402 N.E.2d 1329 (1980).

The defendant argues that there were several errors in the instructions to the jury. Because he did not object to the instructions at trial, we review for a substantial likelihood of a miscarriage of justice. See Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992) (standard under G.L. c. 278, § 33E, is more favorable to defendant than standard for ineffective assistance of counsel).

(a) The defendant argues that the judge failed to explain clearly the Commonwealth's burdens with respect to provocation, malice, and sudden combat. In support of his argument, the defendant "parses the charge and attacks it piecemeal. We, however, view the charge in its entirety since the adequacy of instructions must be determined in light of their over-all impact on the jury." Commonwealth v. Sellon, supra at 231-232, 402 N.E.2d 1329.

The defendant bases his argument primarily on our decision in Commonwealth v. Boucher, 403 Mass. 659, 532 N.E.2d 37 (1989), in which we stated that "[m]alice and adequate provocation are mutually exclusive." Id. at 661-662, 532 N.E.2d 37. The judge did not use the language from Boucher or otherwise emphasize the " 'malice'--'no malice' fork in the road." Id. at 663, 532 N.E.2d 37. The judge did, however, instruct the jury that if they had a reasonable doubt whether malice existed, they had to acquit the defendant of murder. The judge clearly, articulately, and repeatedly emphasized the Commonwealth's burden to prove each and every element of the crime, including malice, beyond a reasonable doubt.

In particular, the judge stated that, "[w]here there is 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" and that "for any killing to be either first- or second-degree murder, it must be an unlawful killing committed with malice aforethought as I have defined malice aforethought." By contrast, in Commonwealth v. Todd, 408 Mass. 724, 563 N.E.2d 211 (1990), we held that similar instructions were adequate, although the judge failed to state explicitly that the Commonwealth had the burden of proving the absence of provocation. See id. at 727-728, 563 N.E.2d 211. We also note that the judge here instructed the jury at least four times that the Commonwealth bore the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. The instructions here properly placed the burden of proving malice on the Commonwealth. We conclude that the instructions, read as a whole, did not create a substantial likelihood of a miscarriage of justice.

(b) The defendant also argues that the judge incorrectly defined the elements of voluntary manslaughter. The judge stated that the Commonwealth was required to prove beyond a reasonable doubt, among other elements, that "the defendant injured [the victim] as a result of a sudden combat or in the heat of passion or using excessive force in self-defense." In Commonwealth v. Torres, 420 Mass. 479, 488 & n. 8, 651 N.E.2d 360 (1995), decided before this trial, we held that such an instruction misstated the law by misplacing the burden as to sudden combat and heat of passion. Here, after the incorrect instruction, the judge correctly stated that the Commonwealth bore the burden of disproving heat of passion, that the defendant did not have to prove anything, and, at least four times, the judge instructed that the Commonwealth bore the burden of disproving self-defense.

We note that whether the defendant reasonably believed the victim's threat, the force used, and the defendant's failure to retreat, were the focus of the summations. The Commonwealth did not dispute the claim of provocation because its evidence established the victim's threatening, belligerent behavior. The Commonwealth focused on the lack of merit to the defendant's claim of self-defense because the victim was stabbed in the back. The defendant claimed that he reasonably believed the victim was threatening him and that the force used was not excessive in light of the victim's threatening behavior. Provocation was not a "live" issue. ¹ Here, as in Torres, supra at 490-491, 651 N.E.2d 360, the erroneous instruction in the context of the entire charge could not have misled the jurors. We conclude that the error did not create a substantial likelihood of a miscarriage of justice.

(c) The defendant next claims that, by requiring the Commonwealth to prove excessive force, the instructions created a presumption of malice. This argument is without merit. The instructions properly placed the burden of proving malice on the Commonwealth and made it clear that, if the Commonwealth failed to prove that the defendant was not acting in self-defense, but did prove beyond a reasonable doubt that he used excessive force, the defendant would be guilty of manslaughter and not murder. This was a correct statement of the law, see Torres, supra at 491-492, 651 N.E.2d 360.

(d) The defendant next argues that the judge improperly failed to instruct the jury that, if the defendant acted in self-defense, but failed to retreat where he properly should have done so, a verdict of manslaughter would be warranted. We have never held that this is the law, ² and the defendant offers no reason to do so now. Furthermore, "[t]he right of self-defense does not accrue to a person until he has availed all proper means to avoid physical combat." Commonwealth v. Kendrick, 351 Mass. 203, 212, 218 N.E.2d 408 (1966). Thus, if a defendant has an opportunity to retreat but fails to do so, the defendant has no privilege to use force in self-defense. There was no error.

(e) The defendant next argues that the judge improperly failed to instruct the jury that the victim's deadly threats, combined with the menacing act of reaching into his pants, ostensibly for a gun, justified the defendant's use of deadly force in self-defense or defense of others. The judge did, however, instruct the jury that "a person may not lawfully use force to defend himself or a third person because of reproachful words ... if those words are unaccompanied by an actual or menaced assault." ³ The defendant does not argue that a threat alone should be sufficient, but that the judge should have said more about the threatening, rather than reproachful, nature of the victim's words. We think the instructions were adequate. The jury could readily have concluded that the threats combined with the act constituted an "actual or menaced assault ... plac[ing] the defendant in reasonable and actual apprehension of a physical attack."

(f) The defendant's final argument regarding the instructions is that the judge misstated one of the factors from Commonwealth v. Cunneen, 389 Mass. 216, 449 N.E.2d 658 (1983), by instructing the jury to consider "the size and...