Com. v. Richards

• Citation: 384 Mass. 396,425 N.E.2d 305
• Parties: COMMONWEALTH v. Ralph P. RICHARDS.
• Decision Date: 20 August 1981
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 305

425 N.E.2d 305

384 Mass. 396

COMMONWEALTH v. Ralph P. RICHARDS.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 2, 1981.

Decided Aug. 20, 1981.

Daniel E. Callahan, Lynn, for defendant.

Robert M. Payton, Asst. Dist. Atty., for the Commonwealth.

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

ABRAMS, Justice.

In 1970, the defendant was convicted of murder in the second degree on an indictment charging him with murder in the first degree in the death of Robert Nute. ¹ The case is here on the defendant's appeal pursuant to G.L. c. 278, §§ 33A-33G. ² Richards alleges that (1) the judge's instructions to the jury effectively precluded a reasonable juror from returning a verdict of manslaughter or acquittal by reason of self-defense rather than murder, and (2) the judge's failure to direct a finding of not guilty on so much of the indictment as charged murder in the second degree was error since there was insufficient evidence of malice aforethought. ³ We conclude that there was no error with respect to the denial of the defendant's motion for a directed finding, but we believe that the jury instructions read as a whole, created a danger of grave prejudice or a substantial likelihood that a miscarriage of justice had occurred, and therefore, pursuant to our § 33E power, we reverse and order a new trial.

We summarize only the facts relevant to the issues before us on appeal. The government produced evidence that on the night of February 14, 1970, the defendant was present with his wife, her brother, and his wife, at Frankie Lane's bar in Hanson. Robert Nute was also present at the bar. With him were his brother, Jimmy Nute, and two friends. After the bar closed, the defendant and his companions left the bar and entered their automobile, which was parked in the bar's parking lot. As Robert Nute and a companion entered the parking lot, the defendant got out of the automobile and shot at the men, fatally wounding Nute.

The defense indicated that Robert Nute and his companion were approaching the defendant's automobile when the defendant got out of the automobile. A fight broke out between the men, and, in the course of the fight, Nute was shot. There was some evidence that the defendant was heard telling Nute and his companion to "(l)eave us alone, we're not doing anything." On the basis of the evidence, the judge instructed the jury on the crimes of murder in the first degree, murder in the second degree, and voluntary manslaughter, ⁴ as well as on self-defense.

Instructions to the jury. The defendant asks us to use our power pursuant to § 33E, to grant him a new trial because he claims the instructions may well have precluded a reasonable juror from considering manslaughter or acquittal by reason of self-defense as possible verdicts. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Commonwealth v. McInerney, 373 Mass. 136, 365 N.E.2d 8115 (1977); Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976).

Although the defendant did not take exception to any of the instructions at trial, "G.L. c. 278, § 33E ... operates as a type of 'safety valve' by ensuring review as to all aspects of the cases regardless of the absence of claim of error." Commonwealth v. Brown, 376 Mass. 156, 168, 380 N.E.2d 113 (1978). "The broad scope of the review which this court is required to make under G.L. c. 278, § 33E, in a capital case is not limited to questions based on exceptions saved during the course of the trial." Commonwealth v. Hall, 369 Mass. 715, 736, 343 N.E.2d 388 (1976). "It is also settled that, in any case tried before our decision in Commonwealth v. Rodriguez, supra, 'this court will review the constitutional adequacy of the instructions to the jury as to the burden of proof ... where the evidence adequately raises the issues of self-defense or provocation, even though the defendant addressed no objections or exceptions to that issue.' " Commonwealth v. Fitzgerald, --- Mass. ---, --- - ---, ^a 406 N.E.2d 389 (1980), quoting from Commonwealth v. Collins, 374 Mass. 596, 599, 373 N.E.2d 969 (1978). ⁵

The defendant does not dispute the fact that the judge instructed the jury that the Commonwealth has the burden of proving each element of the crime charged beyond a reasonable doubt. Rather, he claims that this instruction was, in effect, negated by the judge's instructions on malice, the main disputed issue at trial. Richards claims that the malice instructions raise "serious questions about the accuracy of (the) guilty verdicts." Commonwealth v. Stokes, 374 Mass. 583, 589, 374 N.E.2d 87 (1978), quoting from Hankerson v. North Carolina, 432 U.S. 233, 241, 97 S.Ct. 2339, 2344, 53 L.Ed.2d 306 (1977). See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); DEJOINVILLE V. COMMONWEALTH, --- MASS. ---, 408 N.E.2D 1353 (1980)^B; Connolly v. Commonwealth, 377 Mass. 527, 387 N.E.2d 519 (1979). We view the instructions, in their entirety, to determine the "probable impact, appraised realistically ... upon the jury's factfinding function." United States v. Wharton, 433 F.2d 451, 457 (D.C.Cir.1970).

In the instructions on malice, ⁶ the judge told the jurors that "a person must be presumed to intend to do that which he voluntarily and willfully does, and that he must intend all the natural, probable and usual consequences of his acts," and that "if one assaults another intentionally and knowingly with ... (deadly force), the act is malicious within the meaning of the law." He further instructed the jurors that "(i)f a killing follows from a natural intent to kill, malice aforethought is implied, (and) unless the circumstances are such as to reduce the crime to manslaughter, the crime is murder." The judge also told the jurors that malice could be rebutted by adequate provocation; that to reduce the killing to manslaughter "the killing must be accounted for by actions which ... excited to passion, rather than the cruelty of malice"; that malice "is not disproved by showing that the accused had no personal ill will against the victim"; that if the jurors found there was no malice in the killing and that there was adequate provocation they "would be warranted in finding it (provocation) was sufficient to reduce the crime of murder to the crime of manslaughter."

After four hours of deliberation, the jury came back with questions, asking for "(c)larification of second degree murder," "(c)larification on voluntary manslaughter," and "(l)egal definition of malice." In the supplementary instructions, ⁷ the jurors were told again that "if a killing follows from an actual intent to kill, malice aforethought is implied, and unless the circumstances are such as to reduce the crime to manslaughter then the crime is murder." The jurors were reinstructed that "(t)o constitute manslaughter the killing must be accounted for by actions which manifest the frailties and infirmities of human nature."

The language of the instructions as a whole raises questions about the integrity of the jury's implicit finding of malice aforethought. In context, the only reasonable inference a juror could draw from the instructions as a whole was that it was the defendant who had to disprove malice. None of the instructions indicated to the jurors that the use of the gun did not make the finding of malice aforethought mandatory. We have tolerated the use of the presumption of malice language only in cases where it is clear that, in the context in which it is used, the presumption is not mandatory. See, e. g., COMMONWEALTH V. FITZGERALD, --- MASS. ---, 406 N.E.2D 389 (1980)^C; Gibson v. Commonwealth, 377 Mass. 539, 387 N.E.2d 123 (1979); Commonwealth v. McInerney, 373 Mass. 136, 365 N.E.2d 815 (1977). We have upheld presumption of malice instructions where language in the rest of the charge effectively negates any burden-shifting, see, e. g., COMMONWEALTH V. REPOZA, --- MASS. ---, 414 N.E.2D 591^D (1980); COMMONWEALTH V. HUGHES, --- MASS. ---, 404 N.E.2D 1246 (1980)^E; Commonwealth v. McInerney, supra, and we have upheld instructions employing presumption of malice language in cases in which the issue of malice was not disputed, see COMMONWEALTH V. LEE, --- MASS. ---, 419 N.E.2D 1378 (1981)^F. This case does not fit any of these categories.

Here the jurors focused on the only issue in dispute: the presence or absence of malice. Therefore, the use of the presumption of malice, coupled with expressions such as "unless rebutted," or "accounted for," or "disproved," also used in connection with the malice instruction, "strongly implied, if ... not directly impose(d), a burden of proof (i. e., persuasion) on the defendant." Connolly v. Commonwealth, 377 Mass. 527, 533, 387 N.E.2d 519 (1979). See Commonwealth v. Collins, 374 Mass. 596, 373 N.E.2d 969 (1978).

The only inference a reasonable juror could have drawn from the instructions as a whole, was that, if the jury found the defendant had used a dangerous weapon, it was the defendant's obligation to disprove the presumption of malice. To the extent that the judge told the jurors that the Commonwealth had the burden of proof on every element of the crime in one part of the instructions, and in another part of the instructions implied that malice had to be disproved or rebutted, the instructions do not clearly place on the Commonwealth the duty to prove the presence of malice beyond a reasonable doubt. The fact that some of the instructions were correct is not determinative in this case, since "we cannot know whether the jury were guided by the correct or the incorrect portion of the instructions." United States v. Green, 405 F.2d 1368, 1370 (D.C.Cir.1968), aff'd, 424 F.2d 912 (D.C.Cir.1970), cert. denied, 400 U.S. 997, 91 S.Ct. 473, 27 L.Ed.2d 447 (1971). "Because (Richards) jury may have interpreted the judge's...