Com. v. Sires

• Decision Date: 17 August 1989
• Citation: 405 Mass. 598,542 N.E.2d 580
• Parties: COMMONWEALTH v. William S. SIRES, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 580

542 N.E.2d 580

405 Mass. 598

COMMONWEALTH v. William S. SIRES, Jr.

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued May 2, 1989.

Decided Aug. 17, 1989.

Thomas T. Merrigan, Greenfield, for defendant.

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

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

LIACOS, Chief Justice.

Convicted of murder in the first degree, see Commonwealth v. Sires, 370 Mass. 541, 350 N.E.2d 460 (1976), the defendant appeals from the denial of his motion for a new trial pursuant to Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979). On appeal, the defendant alleges various deficiencies in the judge's instructions to the jury. We focus on that aspect of the charge which the judge conceded to be now constitutionally deficient. We conclude that the judge's charge shifted the burden of proof to the defendant, contrary to the principles of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), and that the error was not harmless beyond a reasonable doubt. ¹ Accordingly, a new trial is required.

We supplement the facts as described in Commonwealth v. Sires, supra 370 Mass. at 542-543, 350 N.E.2d 460, with additional evidence pertinent to the question of the defendant's intent. The defendant disputed the issue of criminal intent at trial. The defendant testified that he was so intoxicated at the time he entered his mother's room that he did not know whether the gun was loaded. The defendant testified that while he was about to hand the gun to his mother, who was lying on her bed, she asked him to pull the trigger. According to the defendant, he fired the gun, intending to miss her. A bullet struck his mother, who began rolling on the bed and she asked him to fire again. When asked on cross-examination as to why he shot her the second time, the defendant stated: "Because she asked me." The defendant fired a third shot. The reason for this shot was that, "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."

The judge, when charging the jury on general intent, made the following statement: "Everybody is presumed to intend what they did in fact do, and the intent, when we do things many times, is present unconsciously." The judge, in his charge on malice aforethought, stated that "where the fact of killing is shown and there are no circumstances disclosed tending to show justification or excuse, then there is nothing to rebut the natural presumption of malice. This is the legal definition of malice." (Emphasis supplied.)

The jury submitted a question to the judge fifteen minutes after they began their deliberations, which read: "Could we have a copy of your charge which includes definitions of terms? We are particularly interested in the difference between malice, premeditated, etcetera." The judge did not give the jury a copy of the charge, but he reinstructed the jury on malice aforethought and premeditation. The judge repeated verbatim his statement regarding "the natural presumption of malice." Almost five hours later, the jury returned with another question: "We would like to hear again how the law differentiates between first and second degree murder. Further, we would like to hear again how the law views intoxication with regard to murder." The judge complied with the jury's request, again repeating word-for-word his instruction concerning "the natural presumption of malice."

"[I]t is constitutionally impermissible to shift to a defendant the burden of disproving an element of a crime charged." Commonwealth v. Moreira, 385 Mass. 792, 794, 434 N.E.2d 196 (1982). Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). ² There is no question that when viewing the judge's statements concerning the presumption in isolation "a reasonable juror could have understood the ... sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent." Francis v. Franklin, supra 471 U.S. at 316, 105 S.Ct. at 1972. See Commonwealth v. Repoza, 400 Mass. 516, 510 N.E.2d 755 (1987); Commonwealth v. Moreira, 385 Mass. 792, 794, 434 N.E.2d 196 (1982); DeJoinville v. Commonwealth, 381 Mass. 246, 252, 408 N.E.2d 1353 (1980).

The Commonwealth concedes that the judge's statements were not correct, but argues that in the context of the charge as a whole, "a reasonable juror could not have considered the charge to have created an unconstitutional presumption." Francis v. Franklin, supra 471 U.S. at 315, 105 S.Ct. at 1971. We reject the Commonwealth's contention. Although the judge included in his charge instructions on malice which arguably did not shift the burden of proof to the defendant, these statements did not explain the "impermissible instructions sufficiently to ensure that a juror did not misunderstand the instructions or could not view them as burden-shifting." Commonwealth v. Repoza, supra 400 Mass. at 521, 510 N.E.2d 755. Contrast Commonwealth v. Adrey, 397 Mass. 751, 755, 493 N.E.2d 875 (1986). "Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict" (footnote omitted). Francis v. Franklin, supra 471 U.S. at 322, 105 S.Ct. at 1975.

We do not consider the Sandstrom error to have been harmless beyond a reasonable doubt. See Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d...