Com. v. Rodriguez

• Decision Date: 15 July 1976
• Citation: 352 N.E.2d 203,370 Mass. 684
• Parties: COMMONWEALTH v. Ismael Benitez RODRIGUEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 203

352 N.E.2d 203

370 Mass. 684

COMMONWEALTH

v. Ismael Benitez RODRIGUEZ.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1976.

Decided July 15, 1976.

Owen Gallagher, Roslindale, for defendant.

Louis M. Nordlinger, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and BRAUCHER, KAPLAN and WILKINS, JJ.

HENNESSEY, Chief Justice.

The defendant, Ismael Benitez Rodriguez was indicted for murder in the second degree for the killing of Ismael Melendez (victim). At trial, Rodriguez admitted that he had killed the victim, but claimed that he had acted in self-defense. The jury found Rodriguez guilty of manslaughter and the judge sentenced him to a term of imprisonment of three to six years. The case is before us pursuant to the provisions of G.L. c. 278, §§ 33A--33G.

Rodriguez's sole assignment of error on appeal is the judge's refusal to instruct the jury that the Commonwealth bore the burden of showing beyond a reasonable doubt that the defendant did not act in self-defense. We conclude that the judge erred, ¹ in the circumstances of this case, by refusing to give the requested instruction. Accordingly, we reverse.

The killing occurred during the afternoon of July 6, 1973. The victim was the brother of one Tulita Garcia, who had had an affair with Rodriguez some months before the shooting. On the afternoon in question the victim was driving Tulita, three other adults and two children to a record store. As they approached Rodriguez's home on Centre Street in Jamaica Plain, they saw Rodriguez in the street in front of his home and they stopped. At this point there are essentially two different versions of what happened.

Tulita and two of the others in the victim's car testified that Tulita or the victim asked Rodriguez for his key to Tulita's apartment. Rodriguez, according to this version, started swearing, insulted Tulita and then went into his house. About the same time, Rodriguez's wife started screaming and swearing at Tulita from the window. Shortly thereafter Rodriguez's wife, sister-in-law and mother-in-law came out of the house and attacked Tulita. The victim then went to the brunk of his car and removed something (although none of these witnesses saw what it was). Rodriguez reappeared from his house with a shotgun and, after having words with the victim, shot him. According to this version, Rodriguez also threatened to shoot Tulita.

On the other hand four witnesses, including Rodriguez, his wife, and two neighbors of Rodriguez, all testified that a fight occurred, but they indicated that Tulita was the aggressor. They stated that she came after Rodriguez's wife and cut her hand with a knife. ² They testified that Rodriguez went upstairs after the fight started and that, when he returned with his shotgun, the victim pulled a gun (removed from the trunk) on Rodriguez. Both men apparently then lowered their guns, but shortly thereafter the victim raised his gun and at that point Rodriguez shot him.

Much of the contradictory testimony ends after the shooting. It appears that Rodriguez then went back to his house, handed his gun to a neighbor and waited for the police to arrive. After they arrived Rodriguez was arrested, and the victim, Tulita, and Mrs. Rodriguez were taken to a hospital. The victim was dead, having been killed by the shot from Rodriguez's gun. A hospital report showed that Mrs. Rodriguez's hand had been cut and that there were toothmarks on her arm and breast. Tulita appears not to have been injured, but an examination of her revealed a small knife in her brassiere. ³

The only other testimony of importance involved the victim's gun. Although it was a 'starter's pistol' and therefore incapable of being fired at the time of the killing, a ballistician testified that in all other respects, including appearance, it was similar to an operational gun and that it could have been made operational.

As previously indicated, Rodriguez's sole contention at trial was that he acted in self-defense. Because there was sufficient evidence to raise the issue, see Commonwealth v. Edmonds, 365 Mass. 496, 498--499, 313 N.E.2d 429 (1974), the judge instructed the jury on self-defense. He declined, however, to instruct them explicitly that the Commonwealth had the burden of showing beyond a reasonable doubt that the defendant did not act in self-defense. In order to determine whether this was error, we must first decide whether the Commonwealth in fact bears such a burden.

1. It appears that we have not previously been asked to decide which party bears the burden of persuasion on the issue of self-defense. ⁴ Although there may have been a period during which such a choice could be made solely on grounds of policy, we have recently acknowledged that the Supreme Court's decision in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), establishes the constitutional parameters on allocation of the burden of persuasion in criminal cases. See Commonwealth v. Kostka, --- Mass. ---, --- ^a, 350 N.E.2d 444 (1976). We thus recognize at the outset that 'the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, supra 397 U.S. at 364, 90 S.Ct. at 1073.

We believe that, when the issue of self-defense is properly before the trier of fact, ⁵ the Commonwealth must, as matter of due process, prove beyond a reasonable doubt that the defendant did not act in self-defense. We reach this conclusion as the result of two approaches to the question of what constitutes a 'fact' necessary to prove the crime charged within the meaning of Winship.

Under the first approach, we note that, although Winship is not 'limited to a State's definition of the elements of a crime,' Mullaney v. Wilbur, 421 U.S. 684, 699 n. 24, 95 S.Ct. 1881, 1890, 44 L.Ed.2d 508 (1975), it is 'clear that all of the elements necessary to prove commission of the offense charged are 'facts' within the meaning of Winship.' Commonwealth v. Kostka, supra at n. 16. ^b We have consistently defined manslaughter and murder as 'unlawful' killings (see Commonwealth v. McCauley, 355 Mass. 554, 559, 246 N.E.2d 425 (1969); Commonwealth v. Webster, 5 Cush. 295, 304 (1850)), and we have long recognized that self-defense negates the element of 'unlawfulness.' Homicide 'may be lawful or unlawful . . .. It may also be justifiable, and of course lawful, in necessary self-defence.' Commonwealth v. Webster, supra at 303.

If a defendant raises a reasonable doubt in the minds of the jurors whether he acted in self-defense, a reasonable doubt also necessarily arises as to whether the killing was unlawful. In such a case, acquittal is appropriate. Thus, in order to establish unlawfulness and thereby prove its case, the Commonwealth must show the absence of self-defense (lawfulness) beyond a reasonable doubt. Cf. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

This result may also be reached by an alternate approach to the definition of the term 'fact.' We have recently held that, after the issue of insanity has been raised by sufficient evidence, the defendant's sanity becomes a 'fact' of the crime charged which the Commonwealth must prove beyond a reasonable doubt. Commonwealth v. Kostka, --- Mass. ---, --- - --- ^c, 350 N.E.2d 444 (1976). And, in Commonwealth v. Leaster, 362 Mass. 407, 416--417, 287 N.E.2d 122 (1972), although our holding was not couched in constitutional terms, we recognized that the Commonwealth must disprove a defendant's proffered alibi beyond a reasonable doubt. See also Stump v. Bennett, 398 F.2d 111 (8th Cir.), cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968). Finally, the Supreme Court has recently indicated that the absence of heat of passion is a Winship 'fact' which the prosecution must prove beyond a reasonable doubt. Mullaney v. Wilbur, supra. We see no distinction between, on the one hand, sanity, disproof of alibi and the absence of passion as 'facts' of a crime charged subject to the reasonable doubt standard, and, on the other hand, the absence of self-defense as such a 'fact.' Accordingly, on such an analysis, we reach the same result: the Commonwealth must bear the constitutional burden of proving that the defendant did not act in self-defense. ⁶ The question we must now consider is whether the judge's charge to the jury in this case, which did not expressly state that the Commonwealth bore the burden of proving that the defendant did not act in self-defense, satisfied the dictates of Winship by conveying that burden in general terms. See generally Commonwealth v. Walker, --- Mass. ---, --- n. 23 ^d, 350 N.E.2d 678 (1976); Commonwealth v. Leaster, 362 Mass. 407, 416--417, 287 N.E.2d 122 (1972).

2. In his charge, the trial judge explained the presumption of innocence to the jury, informed them several times that the Commonwealth had to prove the crime charged beyond a reasonable doubt, and instructed them on the elements of self-defense. The judge never explicitly stated that the defendant had the burden of persuasion on that issue. However, as we have already indicated, the judge also declined to instruct the jury explicitly that the Commonwealth had to show the absence of self-defense beyond a reasonable doubt.

In arguing that the charge in the instant case was constitutionally insufficient, Rodriguez points to a number of statements which, he argues, had the effect of instructing the jury that the defendant has the burden of persuasion on the issue of self-defense. The first such statement appears at the beginning of the charge on self-defense. The judge stated that Rodriguez sought 'to justify his action ⁷ on the ground of self-defense.' The judge continued: 'Now, if on the facts you were to find that the shooting of the deceased was done in self-defense, the defendant would be entitled to an acquittal . ....