Com. v. Pickles

• Decision Date: 28 January 1985
• Citation: 473 N.E.2d 694,393 Mass. 775
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. George PICKLES.

Page 694

473 N.E.2d 694

393 Mass. 775

COMMONWEALTH v. George PICKLES.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Oct. 1, 1984.

Decided Jan. 28, 1985.

David R. DiCicco, Brockton (Kenneth J. Gould, Boston, with him), for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

LIACOS, Justice.

The defendant, George Pickles, was found guilty of motor vehicle homicide by a jury of six in the Haverhill District Court. ¹ G.L. c. 90, § 24G. He appealed his conviction to the Appeals Court, which summarily affirmed the judgment. ² 17 Mass.App. 1108, 458 N.E.2d 795 (1983). We granted the defendant's application for further appellate review. We reverse.

The defendant argues that the judge's instructions to the jury shifted the burden of proof to the defendant, depriving him of his constitutional right to due process. He also argues that the jury instructions were so confusing that they misled the jury.

The proper standard for reviewing the jury charge in this case is whether it was so erroneous that it created a "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967); Cf. Commonwealth v. Conroy, 333 Mass. 751, 756-757, 133 N.E.2d 246 (1956). We apply this standard because trial counsel did not make a timely objection to the jury charge as required by Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979) ("No party may assign as error the giving ... [of] an instruction unless he objects thereto before the jury retires to consider its verdict, specifying the matter to which he objects and the grounds of his objection"). ³ See Commonwealth v. Loretta, 386 Mass. 794, 799, 438 N.E.2d 56 (1982) (applying "substantial risk of miscarriage of justice" standard to review of jury charge when the defendant had not objected below). In reviewing the charge to determine whether it created a substantial risk of a miscarriage of justice, we examine the charge as a whole. See Commonwealth v. Albert, 391 Mass. 853, 858-859, 466 N.E.2d 78 (1984); Commonwealth v. Loretta, supra, 386 Mass. at 798-799, 438 N.E.2d 56.

The charge spans eight and one-half pages of transcript. At the outset the judge described the relative roles of judge and jury and emphasized the jury's fact-finding role. He then described the two complaints. In his discussion of the complaints, he referred to three stipulations made by the parties. He indicated that the parties had stipulated that the defendant had been driving on a public way, and that the defendant had operated the automobile. He then stated:

"And it's been stipulated that--the--uh--no, that, that the car--the charge is that the car was being operated negligently upon a public way so that the safety of the public might be in danger.

"And the other charge is that he operated his car recklessly or negligently so that the lives or the safety of the public might be in danger, and by such operation, did cause the death of another person, to wit: Thomas Wood. And there, again, you don't have to concern yourself with that aspect of the case, because it has been stipulated in this case that the accident did, in fact, cause the death of Thomas Wood.

"So, actually, when you come right down to this case, it comes down to one very simple narrow issue, and that is the negligence of the defendant."

The judge then proceeded to define negligence, to discuss some of the evidence, and to illustrate the concept of a reasonable inference. He then stated, "Now, the burden of proof is upon the Commonwealth, to prove to you, beyond a reasonable doubt, that the defendant was negligent." In a few sentences he defined "reasonable doubt," concluding with, "And if you come to the conclusion, in this particular case, that Mr. Pickles was negligent, beyond a reasonable doubt, you must find the defendant guilty." His next statement was, "If you find that he was not negligent, beyond a reasonable doubt, of course you will find him not guilty." ⁴ The judge concluded the charge by briefly discussing the seriousness of the case and the jury's responsibility to decide the case fairly, and by reminding the jury that they were under oath.

"[T]he duty of the Government to establish ... guilt beyond a reasonable doubt ... is a requirement and a safeguard of due process of law...." In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970), quoting Leland v. Oregon, 343 U.S. 790, 802-803, 72 S.Ct. 1002, 1009-1010, 96 L.Ed. 1302 (1952) (Frankfurter, J., dissenting). Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The defendant argues that the trial judge undermined the government's constitutional duty to establish guilt beyond a reasonable doubt when he instructed the jury, "If you find that he was not negligent, beyond a reasonable doubt, of course you will find him not guilty." This statement expressly put the burden on the defendant to prove his innocence beyond a reasonable doubt. Jury instructions which relieve the government of its burden of proof "beyond a reasonable doubt of every fact necessary to constitute the crime" violate due process requirements. In re Winship, supra, 397 U.S. at 364, 90 S.Ct. at 1072. See Sandstrom v. Montana, supra; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). We have reversed judgments when jury instructions shift the burden of proof to the defendant on any fact necessary to constitute the crime. See Commonwealth v. Zezima, 387 Mass. 748, 443 N.E.2d 1282 (1982) (malice, intent, and disproving accident); Commonwealth v. Moreira, 385 Mass. 792, 794, 434 N.E.2d 196 (1982) (whether defendant under the influence of intoxicating liquor); Commonwealth v. Collins, 374 Mass. 596, 600-601, 373 N.E.2d 969 (1978) (disproving reasonable provocation and self-defense).

In the present case, the instruction shifted the entire burden of proof to the defendant. It came after a discussion of the strictness of the reasonable doubt standard. There was no corrective language later in the charge. Cf. Commonwealth v. Loretta, 386 Mass. 794, 799, 438 N.E.2d 56 (1982); Commonwealth v. Tavares, 385 Mass. 140, 147-148, 430 N.E.2d 1198 cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). While the instruction in question was directly preceded by a statement that the jury must believe beyond a reasonable doubt that the defendant was negligent in order to convict, the jury could have thought that they had to convict or acquit, based on proof beyond a reasonable doubt. Despite the illogic of this position, the test is how "a reasonable juror could have interpreted the instruction." Sandstrom v. Montana, supra, 442 U.S. at 514, 99 S.Ct. at 2454. The judge stated twice that the burden of proof beyond a reasonable doubt was on the Commonwealth, and once that it was on the defendant. The latter statement came last and was likely to be fresh in the jurors' minds. See Commonwealth v. Albert, 391 Mass. 853, 859, 466 N.E.2d 78 (1984). We conclude that a reasonable juror could have interpreted these jury instructions to mean that the defendant was to shoulder the burden of proof of his innocence. ⁵

Our conclusion that the jury may have been misled on the issue of the proper allocation of the burden of proof is reinforced by examination of that part of the instructions where the judge discussed the complaints and the stipulations of the parties. The judge began to discuss the complaints, veered off into a discussion of the stipulations, and then returned to a discussion of the complaints. ⁶

Neither statement as to the...