Com. v. Palmer

• Decision Date: 29 April 1982
• Parties: COMMONWEALTH v. Martin E. PALMER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 983

434 N.E.2d 983

386 Mass. 35

COMMONWEALTH v. Martin E. PALMER.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1982.

Decided April 29, 1982.

Willie J. Davis, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty. (Robin Pearl, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

The judge's charge in this case, in which the jury found the defendant guilty of murder in the first degree and of assault with intent to murder while armed, contained substantially the same errors as those which required the reversal of the defendant's conviction in Commonwealth v. Callahan, 380 Mass. 821, Mass.Adv.Sh. (1980) 1411, 406 N.E.2d 385. In each case, the judge charged the jury that a presumption of malice arises from the intentional use of a deadly weapon and that a person must be presumed to intend all the natural and probable consequences of his own act. ¹ Such jury instructions unconstitutionally shift the burden of proof on the question of malice. See Commonwealth v. Repoza, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1980) 2499, 2512-2513, 414 N.E.2d 591; Commonwealth v. Callahan, supra, 380 Mass. at --- - ---, Mass.Adv.Sh. (1980), at 1413-1416, 406 N.E.2d 385; Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). See also Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). This April, 1977, trial, like that in the Callahan case, was held well after the decisions in Mullaney v. Wilbur, and Commonwealth v. Rodriguez, and the standards applied in the Callahan case are appropriate here.

In the Callahan case, acting pursuant to our duty under G.L. c. 278, § 33E, we took note of the constitutional defects in the charge, even though the defendant neither objected to the charge at trial nor argued the points on appeal. Commonwealth v. Callahan, supra, 380 Mass. at ---, at 1412, Mass.Adv.Sh. (1980), 406 N.E.2d 385. Here appellate counsel, who was not trial counsel, argues the issue of the defects in the charge, although no objection was made to the charge at trial. Pursuant to our duty under G.L. c. 278, § 33E, to review the record independently, we consider the constitutional errors in the charge.

The Commonwealth does not argue that the challenged portions of the charge comported with constitutional mandates. Instead, it contends that the defects in the charge concerning malice were not material to the jury's guilty findings. In other cases in which the malice charge was or may have been constitutionally defective, but in which malice was not a contested issue at trial, we have ruled that the charge did not create a substantial likelihood of a miscarriage of justice. See Commonwealth v. Pisa, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 1927, 1928-1929, 425 N.E.2d 290 (identification the only contested issue); Commonwealth v. Lee, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 1084, 1088-1091, 419 N.E.2d 1378 (same). In the case before us, however, there was considerable evidence that the defendant was at the scene of the crime and shot the victims, and the issues whether the defendant acted in self-defense or recklessly were before the jury. The judge charged the jury on self-defense and recklessness and gave them the option of returning a manslaughter verdict. The victims were strangers to the defendant and were shot in a confrontation that commenced after the victims, in one motor vehicle, followed the defendant and others who were in another vehicle. There was evidence that, after an argument with the defendant in which the defendant showed a gun, one of the victims returned to his car and reached under the front seat. The defendant then ran over to the victims' car and fired the shots that struck the victims. This evidence was sufficient to raise the question whether the defendant acted in self-defense or recklessly. In such a situation, we cannot fairly conclude that the errors in the charge were harmless beyond a reasonable doubt. See DeJoinville v. Commonwealth, --- Mass. ---, ---, Mass.Adv.Sh. (1980) 1797, 1806, 408 N.E.2d 1353; Commonwealth v. Garcia, 379 Mass. 422, --- - ---, Mass.Adv.Sh. (1980) 21, 40-41, 399 N.E.2d 460; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

Nor can we fairly conclude that the errors in the charge were corrected by other language in the charge. In Commonwealth v. Repoza, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1980) 2499, 2512-2515, 414 N.E.2d 591, the charge that a presumption of malice arises from the intentional use of a deadly weapon was cured by other instructions. Such is not the case here. After the erroneous instruction, quoted in note 1 above, and toward the end of his charge, the judge stated that "(i)f there were circumstances proven to show justification or excuse, the jury may find this overcomes the presumption of malice." To be sure, the judge charged repeatedly on the Commonwealth's burden of proving the crimes charged beyond a reasonable doubt and mentioned the presumption of innocence three times. However, the jury could easily have interpreted the instructions to mean that the defendant bore the burden of disproving malice.

Our consideration of...