Com. v. Sires

• Decision Date: 29 July 1992
• Citation: 596 N.E.2d 1018,413 Mass. 292
• Parties: COMMONWEALTH v. William S. SIRES, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1018

596 N.E.2d 1018

413 Mass. 292

COMMONWEALTH v. William S. SIRES, Jr.

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued April 8, 1992.

Decided July 29, 1992.

Wendy Sibbison, Greenfield, for defendant.

Joel S. Fishman, Sp. Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

On September 5, 1973, the defendant fatally shot his mother while she was lying in bed. This court affirmed his conviction of murder in the first degree. Commonwealth v. Sires, 370 Mass. 541, 350 N.E.2d 460 (1976). Among other things, we rejected the defendant's argument that, because the trial judge did not suppress statements that the defendant had made to police officers, he was denied his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Commonwealth v. Sires, supra at 543-545, 350 N.E.2d 460. In 1989, this court ordered a new trial because we concluded that, based on intervening opinions of the Supreme Court of the United States, the judge's instruction impermissibly and prejudicially shifted the burden of proof to the defendant on the issue of criminal intent. Commonwealth v. Sires, 405 Mass. 598, 542 N.E.2d 580 (1989).

The defendant was tried again in 1990, and once more a jury found him guilty of murder in the first degree. We affirm the defendant's conviction.

At the second trial, defense counsel made an opening statement in which he admitted that the defendant had killed his mother and urged the jury to return a verdict of guilty of manslaughter. One issue in this case concerns the absence of a jury instruction on involuntary manslaughter. At the second trial, the prosecution's evidence in most respects was the same as that offered at the first trial. At the second trial, however, the defendant did not testify. As part of its case, the prosecution offered portions of the defendant's first trial testimony as admissions. Another issue on appeal concerns the judge's exclusion of portions of the defendant's first trial testimony that the defendant sought to introduce.

The thrust of the defense was that the defendant was under the influence of alcohol at the time of the killing and, therefore, could not have acted with deliberate premeditation or with a specific intent to kill or to cause grievous bodily harm. The defense did not focus on the absence of the third definition of malice (sometimes called the third prong of malice), which involves knowledge of such circumstances that, according to common experience, there is a plain and strong likelihood that death will follow the contemplated act. See Commonwealth v. Catalina, 407 Mass. 779, 788, 556 N.E.2d 973 (1990); Commonwealth v. Grey, 399 Mass. 469, 470 n. 1, 505 N.E.2d 171 (1987); Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551 (1899). ¹

The defendant did not request a specific instruction defining the crime of manslaughter of which the jury could find the defendant guilty. We conclude that an instruction on manslaughter was not warranted by the evidence. We have not, as the defendant argues, redefined the crime of involuntary manslaughter in recent opinions.

The evidence against the defendant was overwhelming. In addition to his admissions at his first trial, there was incriminating testimony of his sister who was in the family home at the time of the killing. She testified that the defendant said, "I told her I'd fix her, and, if you don't shut the hell up, I will fix you, too." The defendant's testimony, given at the first trial and read at the second, included his description of the shooting. He arrived at his family's home and discovered that his mother was in bed. He knocked on his mother's bedroom door. He offered the loaded gun to his mother, although he did not know it was loaded because he was drunk. She looked at the pistol and, according to the defendant, said, "Go ahead and pull the trigger." He pointed the gun intending to shoot above her, fired, and hit her. She said, "Again," and he fired again and hit her. He shot her a third time "[b]ecause if she wanted me to shoot her, then she must have wanted to be dead, and I didn't want her to live and be crippled or anything." He testified that he killed his mother because she asked him to pull the trigger. A medical examiner testified that each of the shots alone would have been fatal.

1. The judge told the jury that "the malice required to be proved for second degree murder is somewhat different from the malice necessary for first degree murder." He said that only the third prong of malice could support a conviction of murder in the second degree. ² Neither the Commonwealth nor the defendant objected to the instruction at the conclusion of the judge's charge. After the jury had deliberated for less than three hours, they asked the judge to explain again murder in the first degree and murder in the second degree. The judge then repeated his instruction concerning the malice that, he said, was the only form of malice that was an element of murder in the second degree. At this point, defense counsel objected unsuccessfully to the failure to instruct that malice for the purpose of murder in the second degree included an intent to kill and an intent to do grievous bodily harm. ³

The Commonwealth does not undertake to defend as legally correct the judge's instruction concerning malice. The presence of malice is what makes an unlawful killing murder. There is no distinction between murder in the first degree and murder in the second degree based on a difference in the element of malice. ⁴ In this case, the judge instructed the jury only on deliberately premeditated malice aforethought as a basis for a conviction of murder in the first degree. He instructed the jury on all three prongs of malice as elements of murder in the first degree. He said that malice aforethought "includes any unexcused intent to kill, any unexcused intent to do grievous bodily harm, or any unexcused intent to do an act if there is a plain and strong likelihood that death will follow from that act." ⁵

The Commonwealth's reaction to the erroneous charge on malice as an element of murder in the second degree is that the error was harmless beyond a reasonable doubt because, under proper instructions, the jury found the defendant guilty of deliberately premeditated murder in the first degree. The phrase "harmless beyond a reasonable doubt" has Federal constitutional origins. It is not the standard we apply here to an argument not presented as a violation of constitutional rights, and we do not pause to consider whether there is any substantive difference between that Federal standard and the one we apply. Because the judge's error was not the subject of a timely objection, we review the claim of error only pursuant to our obligation under G.L. c. 278, § 33E (1990 ed.), to determine whether there is a substantial likelihood of a miscarriage of justice.

Viewed solely as an instruction on murder in the second degree, the error was not harmful to the defendant. The judge left out two elements on which the jury might have found malice, an omission that, standing alone, did not hurt the defendant. A problem arises, however, when the omission is assessed in the context of the entire charge.

The judge's charge was structured so that, if the jury found beyond a reasonable doubt that the defendant intended to kill the victim or to cause her grievous bodily harm, they could not properly return a verdict of guilty of murder in the second degree, and the only options they had were to find the defendant guilty of murder in the first degree or to find him not guilty. ⁶ The inducement for the jury to return a verdict of not guilty was nonexistent. Defense counsel had admitted in his opening argument to the jury that the defendant had shot his mother and asked only that a verdict of guilty of manslaughter be returned. To return a verdict realistically acceptable to them if they found the killing to have been intentional, the jury had to find the defendant guilty of murder in the first degree. Thus, in the circumstances, they may have been influenced to find that the defendant acted with deliberate premeditation. The judge's erroneous distinction between malice in murder in the first degree and malice in murder in the second degree did not, however, create a substantial likelihood of a miscarriage of justice. The evidence that the defendant intended to kill his mother was overwhelming. He testified at his first trial that he shot his mother the third time in order to be certain that she died. If the jury found the defendant intended to kill his mother, there is no doubt that he did so with deliberate premeditation.

2. The judge instructed the jury that the issue of the defendant's intoxication was not applicable to proof of the malice that he said must be proved for a conviction of murder in the second degree. In instructing on the third prong of malice as a possible element of murder in the first degree, the judge made no statement about the effects of the defendant's intoxication. The defendant objected to the judge's failure to instruct that, in considering the third prong of malice, the jury could consider any effects of the defendant's consumption of alcohol on the state of mind required under the third prong of malice. The judge declined to do so, purporting to rely on Commonwealth v. Grey, 399 Mass. 469, 505 N.E.2d 171 (1987). ⁷

Recently, in Commonwealth v. Sama, 411 Mass. 293, 582 N.E.2d 498 (1991), this court discussed the question whether a jury were entitled to consider evidence of a defendant's intoxication in deciding whether the Commonwealth had proved the knowledge that must be shown under the third prong of malice. Id. at 297-299, 582 N.E.2d 498. We held that it was error not to instruct the jury, on request, that they could consider evidence of the defendant's intoxication in deciding whether the Commonwealth...