Com. v. Slonka

Decision Date30 May 1997
Docket NumberNo. 95-P-99,95-P-99
Citation42 Mass.App.Ct. 760,680 N.E.2d 103
PartiesCOMMONWEALTH v. Stanley SLONKA.
CourtAppeals Court of Massachusetts

Peter M. Onek, Boston, for defendant.

Jane Davidson Montori, Assistant District Attorney, Springfield, for the Commonwealth.

Before DREBEN, KASS and FLANNERY, JJ.

FLANNERY, Justice.

A Superior Court jury found the defendant guilty of armed assault with intent to murder, G.L. c. 265, § 18(b ), and assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A(b ). The defendant appeals, claiming that: 1) the judge inadequately defined the "beyond a reasonable doubt" standard of proof; 2) the judge erroneously excluded testimony of a witness; 3) the judge erroneously excluded an entry in a medical record and that trial counsel's failure to offer in evidence other similar records was ineffective assistance of counsel; and 4) the introduction of other bad acts evidence created a substantial risk of a miscarriage of justice, or alternatively, trial counsel's failure to object was ineffective assistance of counsel. We reverse. 1

We summarize the facts based on the evidence presented at trial: About 4:30 P.M. on April 28, 1991, the defendant approached the victim, a prostitute addicted to cocaine, in his pickup truck and requested her services for a fee. She agreed and entered the truck. The defendant drove to a secluded location, told the victim to get out of the truck, and then said, "You know I am going to kill you, right?" Having trapped the victim between the truck on one side, a river embankment on the other, and the passenger-side door to her rear, the defendant stabbed the victim in the abdomen with what appeared to be hedge shears. Around 5 P.M., a passerby found the victim.

She was taken to a nearby hospital, where she was treated for extensive internal injuries. During her recovery in the hospital, the victim gave the police several descriptions of her attacker and his truck. Based on this information, the police created a composite picture. On May 21, 1991, while showing this picture to people in the area where the victim had been approached by her attacker, the police saw the defendant driving a truck. Police stopped the defendant and photographed him. Using this photograph, police created an array of photographs which were shown to the victim. She viewed the array twice between May 21, 1991, and June 4, 1991. Both times, she identified the defendant as the person who attacked her. Police arrested the defendant on June 5, 1991.

At trial, the defendant asserted that he was not the attacker. Through the testimony of family members and friends, he insisted that he was with his family, at the hospital with his brother, or playing basketball during the time of the attack.

1. The supplemental reasonable doubt instruction. In his initial instructions to the jury, the judge defined reasonable doubt in accordance with Commonwealth v. Webster, 5 Cush. 295, 320 (1850). 2 The jury began deliberating that day. During their deliberations the next morning, the jury notified the judge that they "would like to hear the explanation of reasonable doubt again." Responding to the jury's request, the judge instructed in part that "[r]easonable doubt is defined as a fair doubt. It's not an imaginary or possible doubt but a fair doubt based upon reason and common sense" (emphasis supplied). 3 The defendant did not object to this supplemental instruction. The jury thereafter resumed deliberating only to notify the judge later that "[w]e have taken four (4) votes over the course of this morning and we now feel we can go no further. 7 Guilty, 5 Not Guilty." Thereupon, the judge, at around 1 P.M., gave a Tuey-Rodriquez charge. See Commonwealth v. Rodriquez, 364 Mass. 87, 101-102, 300 N.E.2d 192 (1973). At approximately 3:30 P.M., the jury returned their verdict.

The defendant argues that the judge's supplemental instruction, equating reasonable doubt with a "fair doubt" and omitting Webster 's language regarding strong probability and the doctrine of chances, inadequately defined the "beyond a reasonable doubt" standard of proof. Thus, the defendant submits, the instruction violated his due process rights.

The Commonwealth must prove a defendant's guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). Determining the adequacy of a jury instruction on reasonable doubt requires us to consider the charge as a whole and decide whether "a reasonable juror could have used the instruction incorrectly." Commonwealth v. Rosa, 422 Mass. 18, 27-28 & n. 10, 661 N.E.2d 56 (1996), citing Commonwealth v. Torres, 420 Mass. 479, 490-491 & n. 10, 651 N.E.2d 360 (1995), and Commonwealth v. Sellon, 380 Mass. 220, 233-234, 402 N.E.2d 1329 (1980) (stating that a supplemental instruction must be read in context of the entire charge). 4 "A constitutionally deficient reasonable doubt instruction amounts to a structural error which defies analysis by harmless error standards." Commonwealth v. Pinckney, 419 Mass. 341, 342, 644 N.E.2d 973 (1995).

The critical inquiry here is whether a reasonable juror could have understood and used "fair doubt" to lower the Commonwealth's burden of proof. Pointing to dictionary definitions of the word "fair," the defendant submits that the phrase "fair doubt" was misleading and could have been interpreted by reasonable jurors to overstate the amount of doubt necessary to acquit. See Commonwealth v. Pinckney, supra at 344, 644 N.E.2d 973. The defendant also argues that use of the word "fair" improperly injected concepts of equity and elements of subjectivity into determining whether the Commonwealth had met its burden of proof beyond a reasonable doubt. We agree on both points. Use of the phrase "fair doubt" does not clarify or give meaningful content to the concept of reasonable doubt. Nor can it be said that when used as it was here, in the context of a reinstruction on reasonable doubt, it is merely a neutral phrase having no impact on a jury's understanding of reasonable doubt. The word "fair" can be understood to be synonymous with words like "just" and "equitable," which are commonly understood to invoke notions of rough justice and fundamental fairness not necessarily in accord with the evidence. See Webster's Third New Intl. Dictionary 815 (1993). We conclude, therefore, that the phrase "fair doubt" as it was used here could be understood by a reasonable juror to lower erroneously the Commonwealth's burden of proof. 5

The Commonwealth argues that--notwithstanding the judge's ill-advised use of the phrase "fair doubt"--the main charge and the remainder of the supplemental charge clearly "impressed upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused." Commonwealth v. Pinckney, 419 Mass. at 344, 644 N.E.2d 973, citing Victor v. Nebraska, 511 U.S. 1, 15, 114 S.Ct. 1239, 1247-48, 127 L.Ed.2d 583 (1994). Although we agree that the charge must be reviewed as a whole, Commonwealth v. Keniston, 423 Mass. 304, 316, 667 N.E.2d 1127 (1996), that precept does not change our conclusion here.

First, as a practical matter, the sufficiency of the main charge on reasonable doubt is irrelevant where, as here, the jury asked to be reinstructed on reasonable doubt and the judge gave a supplemental instruction capable of being understood to lower the Commonwealth's burden of proof. "Correct language in the main charge 'does not explain a constitutionally infirm [supplemental] instruction [and] will not suffice to absolve the infirmity.' " Commonwealth v. Skinner, 408 Mass. 88, 96, 556 N.E.2d 1014 (1990), quoting from Commonwealth v. Sires, 405 Mass. 598, 600, 542 N.E.2d 580 (1989).

Second, contrary to the Commonwealth's assertion, we do not think that the remainder of the supplemental instruction in any way cured the improper instruction. See Commonwealth v. Wood, 380 Mass. 545, 548, 404 N.E.2d 1223 (1980). In fact, as the defendant contends, the judge compounded the error by subsequently omitting Webster 's "strong probability" language. 6 Although we do not decide that omission of this language alone is reversible error, its omission here exacerbated an already flawed instruction. Compare Commonwealth v. Williams, 378 Mass. 217, 235, 391 N.E.2d 1202 (1979); Commonwealth v. Sheline, 391 Mass. 279, 296, 461 N.E.2d 1197 (1984).

Moreover, this case is distinguishable from Commonwealth v. Keniston, supra at 315-317, 667 N.E.2d 1127, in which the court concluded that the unintelligible garbling of Webster 's "strong probability" language was not enough, viewed in light of the whole instruction, to create a substantial risk of a miscarriage of justice. The instruction at issue in Keniston unlike the instruction here, did not contain other language "suggest[ing] any diminution of the Commonwealth's burden of proof." Id. at 317, 667 N.E.2d 1127. Also Keniston did not address the complete omission of this language; rather, it only dealt with the garbling of a portion of the "strong probability" language. Thus, Keniston cannot salvage the erroneous instruction here.

Nor can we, given the standard we apply in determining the sufficiency of a jury instruction, safely conclude that the judge's reference to a "fair doubt based upon reason and common sense" sufficed to clarify the meaning of the phrase "fair doubt." Once the supplemental instruction was given, "we do not know what the jurors understood" to be the proper definition of reasonable doubt. Commonwealth v. Sullivan, 20 Mass.App.Ct. 802, 807, 482 N.E.2d 1198 (1985). "At worst, the charge could well have led the jury to believe that the [amount of doubt] required to convict was far lower than that properly demanded in a criminal case. At a minimum, these instructions must have left the jury ... confused." Commonwealth v. Wood, 380 Mass. at 548, 404 N.E.2d 1223. Commonwealth...

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