Com. v. Skinner

• Decision Date: 18 July 1990
• Citation: 556 N.E.2d 1014,408 Mass. 88
• Parties: COMMONWEALTH v. Michael F. SKINNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1014

556 N.E.2d 1014

408 Mass. 88

COMMONWEALTH v. Michael F. SKINNER.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 3, 1990.

Decided July 18, 1990.

James L. Sultan, Boston, for defendant.

Margaret C. Parks, Asst. Dist. Atty., for Com.

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

LYNCH, Justice.

On February 4, 1986, the defendant, Michael F. Skinner, was found guilty by a jury of both murder in the first degree and unlawfully carrying a firearm. He timely appealed from the murder conviction, citing as error the trial judge's supplemental instruction in response to a jury question regarding deliberate premeditation.

Represented by new counsel, Skinner filed a motion for a new trial in this court, raising the same error as that noted in his appeal, as well as claiming that he had been denied effective assistance of counsel at trial. We remanded that motion and stayed the appeal pending a ruling on the motion by the trial judge. After a hearing, the judge denied the motion for a new trial and issued a memorandum addressing the merits of both arguments. The defendant appealed from that decision, and this appeal was consolidated with the appeal from his conviction. Because we believe the judge's supplemental instruction was erroneous, we remand for a new trial. ¹

The jury could have found the following facts. At the time of their fateful encounter Skinner and the victim, Robert Cahill, worked together at Webb Converting Company in Framingham. Skinner began placing bets on baseball games, through Cahill, with a "bookie" whom the victim knew, but the defendant did not. As a result of a losing wager on a June 27, 1985, game, the defendant owed $480, and Cahill was pressing him for payment by Friday, July 5.

In the intervening week Skinner appeared nervous and agitated over the gambling debt and its looming deadline. Two fellow employees testified that he told them on separate occasions that he had a "very large problem," was in "some kind of trouble," and that they would be reading about him in the newspapers soon, because he "would either be in jail or dead." One coworker, a trainee of the defendant, testified that, when he learned Skinner's problem was a gambling debt of some $500, he offered to loan Skinner the money, but that the defendant declined, saying he would handle the problem himself. Two days later, according to the trainee, when Skinner again brought up the subject of his problem, the defendant said a meeting had been set and the problem would be resolved then, because he "had his gun scoped."

By prior agreement Skinner and Cahill had arranged to meet on Friday, July 5. According to the defendant, the victim had reminded him that he should have all the money because the "bookie" would not wait. Before going to bed the night of July 4, Skinner testified that he removed his father's .22 caliber rifle from its rack, loaded it with seven bullets, wrapped it in a towel, and placed it next to the driver's seat in his automobile. He stated that he was fearful of what might happen at his meeting with Cahill when he finally told him that he could not pay the $480, and thus took the gun to protect himself, and to scare or threaten Cahill, if necessary, to make sure no one harmed him or his family.

At noon on July 5, 1985, Skinner and the victim met at a restaurant in Framingham. After some discussion the defendant suggested that Cahill drive to Webb Converting, which was operating with a "skeleton crew" that day, to continue their conversation, and the victim agreed. ²

On arriving at the Webb Converting parking lot the two automobiles were parked so that the men could converse without leaving their vehicles. In the course of disputing the debt the defendant heard what he perceived as threats, picked up the rifle, and shot Cahill in the head, killing him instantly.

1. The supplemental instruction. After deliberating for approximately two hours and forty-five minutes the jury sent the judge the following question: "Are there any circumstances under which a person can aim a gun with the intention of killing without premeditating, not including self-defense or authorized killing; in other words, does the process of cocking and aiming a gun constitute premeditation?" After informing both counsel, in the presence of the defendant, of the gist of his intended response to this question, the judge answered the jury question thus:

"The answer to your question is the process of cocking and aiming a gun can constitute premeditation if it is followed by an act which is performed with the intent to kill, or to create a plain and strong likelihood that death or grievous bodily harm would follow, or to do grievous bodily harm. Put another way, the cocking and aiming in a vacuum, as it were, does not constitute anything, but if the cocking and aiming is followed by a firing of the gun with the intent to kill, or to create a plain and strong likelihood that death or grievous bodily harm would result, or to do grievous bodily harm, then the set of facts found by the jury beyond a reasonable doubt would constitute first-degree murder " (emphasis added).

Defense counsel did not object to this instruction. The jury retired to resume deliberations, and returned some fifteen minutes later with a verdict of guilty of murder in the first degree.

In his June 9, 1989, memorandum of law denying the defendant's motion for a new trial, the judge stated: "Logically, and mechanically, cocking and aiming precede firing. If the firing then takes place with the requisite criminal intent, the sequence (particularly the act of aiming) permits the inference of some amount of deliberation .... Thus, the Court's answer to the jury's question was fair and accurate and no ground for a new trial." (Emphasis added and citation omitted.)

The defendant argues that the judge's supplemental instruction (a) unconstitutionally collapsed the element of premeditation into that of malice, thus allowing reasonable jurors to have understood that, on their finding that certain subsidiary facts were committed with malice, the element of premeditation was presumed, and (b) denied the jury their option of concluding that there was no premeditation and returning a verdict of murder in the second degree.

2. Standard of review. Although the defendant did not object at trial to the judge's supplemental instruction, there are several factors which have impact upon the standard of review. We are required to review the defendant's conviction under G.L. c. 278, § 33E (1988 ed.). The record is considered in light of the verdict. The applicable standard is whether, on review of the entire record as considered in light of the verdict returned by the jury, a substantial likelihood exists that a miscarriage of justice has occurred. Commonwealth v. Dickinson, 394 Mass. 702, 707, 477 N.E.2d 381 (1985).

Furthermore, since the new trial motion, the review of which is also before us, raises the same issue in regard to the adequacy of the supplemental instruction, that issue has been "restored to the appellate agenda," and may be reviewed as fully as if the defendant timely objected. Commonwealth v. Buckley, 17 Mass.App.Ct. 373, 374, 458 N.E.2d 781 (1984). See Commonwealth v. Gagne, 367 Mass. 519, 526, 326 N.E.2d 907 (1975); Commonwealth v. McGrath, 361 Mass. 431, 435 n. 5, 280 N.E.2d 681 (1972); Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 18, 490 N.E.2d 1195 (1986).

With that, we turn to an examination of the error asserted in the judge's supplemental instruction.

3. Analysis of instruction's discussion of deliberate premeditation. With sophisticated precision, the jury's query focused on the distinction between the elements of malice and premeditation involved in murder in the first degree.

The due process clause of the Fourteenth Amendment to the United States Constitution protects defendants from conviction and deprivation of liberty "unless the prosecution proves beyond a reasonable doubt every element of the charged offense." Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218 (1989). In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Commonwealth v. Munoz, 384 Mass. 503, 509, 426 N.E.2d 1161 (1981). Deliberate premeditation is a distinct element of the crime of murder in the first degree. Commonwealth v. Lennon, 399 Mass. 443, 447 n. 5, 504 N.E.2d 1051 (1987). Commonwealth v. Blaikie, 375 Mass. 601, 605, 378 N.E.2d 1361 (1978). It is true, of course, that we have recognized that "evidence permitting a finding of deliberate premediation involves little, if anything, more than evidence supporting a finding of malice based on an intent to kill," Commonwealth v. Lennon, supra, and that many cases have "blurred the distinction" between deliberate premeditation and malice aforethought. See J.R. Nolan & B.R. Henry, Criminal Law § 176, at 129 (2d ed. 1988). Nonetheless there is a difference, id., and it has been defined as follows:

"[W]hile it must be shown that a plan to murder was formed after the matter had been made a subject of deliberation and reflection, yet in view of the quickness with which the mind may act, the law cannot set any limit to the time. It may be a matter of days, hours, or even seconds. It is not so much a matter of time as of logical sequence. First the deliberation and premeditation, then the resolution to kill [malice], and lastly the killing in pursuance of the resolution; and all of this may occur in a few seconds." Commonwealth v. Tucker, 189 Mass. 457, 494-495, 76 N.E. 127 (1905).

The distinction between the two elements not only exists, but is a very crucial one: While malice is a required element of murder in the second degree, as well as murder in the first degree, and is what distinguishes murder from manslaughter, see Lannon v. Commonwealth, 379 Mass. 786, 790, 400 N.E.2d 862 (1980); Commonwealth v. Greene, 372 Mass. 517, 362...