Com. v. Shelley

• Decision Date: 23 January 1992
• Parties: COMMONWEALTH v. Robert J. SHELLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 629

584 N.E.2d 629

411 Mass. 692

COMMONWEALTH v. Robert J. SHELLEY.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Oct. 9, 1991.

Decided Jan. 23, 1992.

Gail S. Strassfeld, Boston (Harvey A. Silverglate, with her), for defendant.

James F. Lang, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and LYNCH, O'CONNOR and GREANEY, JJ.

LYNCH, Justice.

The defendant appeals from the denial of his amended motion for a new trial, Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979) (which, if granted, would have resulted in a third trial) arguing that trial and appellate counsel deprived him of effective assistance of counsel. ¹ The defendant was twice tried and convicted of murder in the first degree. This court reversed the initial conviction and ordered a new trial, Commonwealth v. Shelley, 374 Mass. 466, 474, 373 N.E.2d 951 (1978), and affirmed the second conviction, Commonwealth v. Shelley, 381 Mass. 340, 355, 409 N.E.2d 732 (1980) (Shelley II ). ² In this appeal, the defendant claims that, because the jury instructions improperly shifted the burden of proof to the defendant, trial counsel was ineffective for failing to object to those instructions and appellate counsel was ineffective for neither claiming ineffective assistance of trial counsel nor challenging the same instructional errors. ³ We conclude that the jury instructions as a whole were proper and therefore that neither counsel was ineffective. Consequently, we affirm.

To prevail on an ineffective assistance claim, the defendant must show that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer." Cepulonis v. Commonwealth, 384 Mass. 495, 502, 427 N.E.2d 17 (1981), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Essential to the defendant's claim of ineffective assistance of both trial and appellate counsel is whether the challenged instructions unconstitutionally shifted the burden of proof to the defendant.

1. The challenged instruction. The defendant claims that the unconstitutional shift occurred on the issues of malice and absence of provocation. The defendant challenges specific portions of the instructions. For example, after defining malice, the judge said: "Whenever a homicide is shown to have been committed without justification and as a result of a deliberate act, it is sufficiently proved to have been done with malice aforethought " (emphasis added). He also said that malice "is not disproved by showing that the accused had no personal ill will against the victim." He further stated that "malice is implied from any deliberate or cruel act against another, however sudden," and that "[i]t is not every provocation exciting sudden and angry passion and creating heat of blood that rebuts malice" (emphasis added). He also lapsed to some degree when he stated:

"[I]n order to find the defendant guilty of the crime of manslaughter and not guilty of murder in the first degree, you must find that there was no premeditated malice aforethought, that there was no premeditation or malice aforethought, and if you find him not guilty of murder in the second degree, as I have defined that, then you must find that he acted under extreme provocation and upon sudden impulse, and that is how you would arrive at a verdict of voluntary manslaughter as distinguished from first- and second-degree murder" (emphasis added).

The defendant's contention is that these instructions allowed the jury to infer malice and then allegedly shifted to the defendant the burden of disproving it. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976). It is true that we have been critical of charges that speak in terms of "finding" the absence of premeditation, malice, or the existence of extreme provocation because, of course, the Commonwealth must prove malice, premeditation, and, in appropriate circumstances, the absence of provocation. See Commonwealth v. Nieves, 394 Mass. 355, 358, 361, 476 N.E.2d 179 (1985); Commonwealth v. Richards, 384 Mass. 396, 401-403, 425 N.E.2d 305 (1981); Connolly v. Commonwealth, 377 Mass. 527, 532-534, 387 N.E.2d 519 (1979); Commonwealth v. Rodriguez, supra, 370 Mass. at 690-691, 352 N.E.2d 203. But see Commonwealth v. Doucette, 391 Mass. 443, 450-452, 462 N.E.2d 1084 (1984); Commonwealth v. Fitzgerald, 380 Mass. 840, 844-846, 406 N.E.2d 389 (1980). However, those decisions do not support the defendant in this instance. " 'A jury charge must be considered as a whole, not by bits and pieces,' ... nor by 'fragments lifted from context and then subjected to scrutiny as though each fragment had to stand or fall on its own without the aid of the remainder of the charge' " (citations omitted). Commonwealth v. McInerney, 373 Mass. 136, 149, 365 N.E.2d 815 (1977). Moreover, "whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom v. Montana, supra, 442 U.S. at 514, 99 S.Ct. at 2454.

Initially, the trial judge told the jury that "a man is presumed innocent until proven guilty beyond a reasonable doubt and the burden of proof is upon the Commonwealth to prove to you ladies and gentlemen that the defendant is guilty as charged." Next, the judge properly defined malice and manslaughter and charged the jury on malice, manslaughter, and lack of provocation, which included the contested language. The judge twice correctly defined criminal responsibility and then twice correctly instructed on the Commonwealth's burden of proof on this issue. Specifically, the judge stated: "The Commonwealth has the burden of proving beyond a reasonable doubt that the defendant was mentally responsible at the time of the killing.... The defendant has no corresponding burden" (emphasis added). The judge twice correctly defined the term "reasonable doubt" and stressed it several times throughout his instructions.

Finally, the judge, immediately before dismissing the jury, stated:

"Now, the defendant does not have to rebut malice or rebut anything but in order for there to be a verdict of murder, the prosecution must prove criminal responsibility, malice and the lack of provocation beyond a reasonable doubt. It must be remembered that the Commonwealth always has the burden of proof. The defendant does not have to sustain any burden whatsoever.

"On the question of criminal responsibility, once the issue is raised, the burden is upon the Commonwealth to prove to you beyond a reasonable doubt that it has sustained its burden." (Emphasis added).

Again, after the jury submitted questions about the definition of criminal responsibility and how the voluntary use of alcohol had an impact on this definition, the judge correctly instructed them on these issues. Just before dismissing them for a second time he stated:

"And one further thing. I would also have you keep in mind that it is the burden of the Commonwealth to prove to you ladies and gentlemen beyond a reasonable doubt that it has maintained its position in this case" (emphasis added).

Undoubtedly, the challenged language taken in isolation is questionable, but it is neither incorrect when considered in context nor, if incorrect, incapable of correction. It is regrettable that the judge used "finding" language and language that appears to create a burden-shifting presumption of malice. Nonetheless, the language that appears to create a presumption of malice is negated by the charge, taken as a whole. Throughout his instructions, the judge told the jury in very clear language that the Commonwealth had the burden of proof on all issues, once at the very beginning, twice in the middle, twice at the very end, and again when the jury came back with two questions. The judge correctly instructed on reasonable doubt, the presumption of innocence, and criminal responsibility. Moreover, the judge three times emphasized that the defendant had no burden whatsoever.

Likewise, the "finding" language did not impose any burden on the defendant to introduce evidence nor did it create a conclusive presumption of malice. It is clear from the context that the judge was instructing the jury that they had to find those basic facts beyond a reasonable doubt, as proved by the Commonwealth. County Court of Ulster County v. Allen, 442 U.S. 140, 157-160, 99 S.Ct. 2213, 2224-2226, 60 L.Ed.2d 777 (1979). See Commonwealth v. Ely, 388 Mass. 69, 76, 444 N.E.2d 1276 (1983). In light of the judge's emphatic instruction that "the defendant does not have to rebut malice or rebut anything ... [and] does not have to sustain any burden whatsoever," we conclude that the challenged instructions were not in error and did not shift to the defendant any burden of proof. See Commonwealth v. McInerney, supra, 373 Mass. at 151, 365 N.E.2d 815.

Even if the judge's charge had before the final instructions been susceptible to the interpretation argued by the defendant, that final admonition erased any possible doubt that his prior words may have conveyed on the issues of malice, provocation, and burden of proof. We find no Sandstrom burden-shifting violation in these instructions. ⁴ Trial counsel was therefore not ineffective because his failure to object did not "deprive the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Accordingly, appellate counsel could not be deemed ineffective for not raising the issue of trial counsel's failure to object to the instructions.

2. Ineffective assistance of appellate counsel. The defendant also claims that the instructions were, as a whole, conflicting, and that under Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 1975, 85 L.Ed.2d 344 (1985), and Commonwealth v. Repoza, 400 Mass....