Com. v. Sneed

• Decision Date: 13 August 1992
• Citation: 597 N.E.2d 1346,413 Mass. 387
• Parties: COMMONWEALTH v. Damon SNEED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1346

597 N.E.2d 1346

413 Mass. 387

COMMONWEALTH v. Damon SNEED.

Supreme Judicial Court of Massachusetts Plymouth.

Argued May 7, 1992.

Decided Aug. 13, 1992.

Bruce Ferg, Brockton, for defendant.

Robert C. Thompson, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

WILKINS, Justice.

A jury found the defendant guilty of murder in the second degree on an indictment charging him with murder in the second degree of Robert St. Clair, the seventeen month old son of the defendant's girl friend. We grant a new trial because the judge's ambivalent instruction concerning the second prong of malice would have permitted a reasonable juror to find malice on a lesser level of proof than the law requires. See Commonwealth v. Moreira, 385 Mass. 792, 796, 434 N.E.2d 196 (1982). ¹

In May, 1988, the defendant was living in the Brockton apartment of Barbara St. Clair with her and her three children, the youngest of whom was the victim. On May 20, St. Clair took her daughter to her school bus stop and her older son to a dentist, while the defendant remained with Robert. When St. Clair returned to the apartment approximately two hours later, paramedics were carrying the unconscious victim to an ambulance. At the Brockton Hospital, the victim's symptoms suggested some kind of intracranial event. Robert was transferred to the Children's Hospital in Boston where the attending physician diagnosed Robert as having "suffered profound neurologic injury secondary to massive blunt trauma to the head." The victim's condition deteriorated during the next several days. On May 27, 1988, he died.

There was medical testimony that the very severe tissue damage to the victim's brain was not consistent with a short fall, such as from a high chair. The physician who conducted the autopsy testified that the victim's death was caused by blunt trauma to the head. He said that the force necessary to cause the victim's injuries would have been severe, such as would be caused by a fall from a multiple-story building.

The defendant first told the police who came to the apartment that Robert had been in his crib. He told St. Clair and an ambulance attendant that he did not know what had happened. Later he told a social worker that Robert must have fallen out of the crib. Still later he told another social worker that he had put the victim in a high chair and that the child must have tried to climb out of it. The defendant made other inconsistent statements.

The case against the defendant was entirely circumstantial. There was no eyewitness testimony concerning the circumstances under which Robert sustained his traumatic brain injuries. The defendant's position was that the victim's injuries could have been caused by an accidental fall and that, at most, the defendant was negligent. Implicit in such a contention is the alternative, but unspoken, defense position that at least the victim's injuries would not warrant a finding of malice, and hence the defendant could be guilty of no more than manslaughter.

1. The judge instructed the jury that malice "is the attempt to inflict injury without legal justification" (emphasis supplied). He then told the jury that malice includes "a killing done with the intent to inflict serious injury without legal justification or mitigating circumstances" (emphasis supplied). Next, the judge said that "[i]f there was an intention on the part of the defendant to inflict injury upon the deceased which was not justified [or excused] ... by existence of any mitigating circumstances, that intention was malicious within the meaning of the law" (emphasis supplied). The judge also instructed the jury on involuntary manslaughter on the basis of wanton or reckless conduct. See Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944).

At the conclusion of the charge, defense counsel said that, in defining malice, the judge had used intent to inflict serious injury or serious bodily harm on some occasions and that on others the judge had referred to an intent simply to inflict injury. Defense counsel accurately said that an intent to commit grievous injury was the proper element. After this discussion, the judge correctly said that "it's clear that it should be grievous bodily harm, that's the language in the cases." He said that he would give the defendant's requested instruction number 16, which, in defining the second prong of malice, referred to an unexcused intent to do grievous bodily harm. The prosecutor then led the judge to error, arguing that an intent to inflict any injury without justification would be malice, citing Commonwealth v. Davis, 364 Mass. 555, 307 N.E.2d 6 (1974), and Commonwealth v. McCauley, 355 Mass. 554, 246 N.E.2d 425 (1969). She said that "there is no magic language about what type of injury." The judge then said that he thought the cases refer to it both ways and that both counsel were correct. ²

Shortly after the jury retired to deliberate, the foreman of the jury sent a note to the judge stating that the jury were "having a difficult time distinguishing the difference between second degree murder and manslaughter. The difference appears subtle and the word 'malice' appears to be the key. Please provide the legal definition of malice and any other clarification that I may have overlooked." The judge then gave the same instruction that he had given previously on murder and malice. We cannot know, of course, whether the jury were confused by the ambiguity in the charge between "bodily injury" and "serious bodily injury." The possibility of such confusion is, however, apparent. If the judge was wrong to refer simply to bodily injury, rather than to grievous bodily injury, the jury may have been misled, and an order for a new trial is the only proper disposition of this case.

The Commonwealth argues that (a) viewed as a whole, the charge informed the jury that to find malice based on an intentional act of the defendant, the jury had to find that the intentional act created a likelihood of death or grievous injury; and (b) because the instruction on the third prong of malice was properly given, the jury could not have been misled into believing that a finding of malice could be based on an intention to inflict any sort of injury. The Commonwealth no longer seriously argues that an intention to inflict any kind of bodily injury meets the standard of the second prong of malice. It does note that the statement that malice involves an intention to inflict injury is supported by language in an opinion of this court twelve years ago. See Commonwealth v. Hodge (No. 2), 380 Mass. 858, 865, 406 N.E.2d 1015 (1980). ³

Our recent cases are not in disarray on the question whether second-prong malice may be proved by an intention to cause less than serious or grievous bodily harm. We have been generally consistent in stating that the intended harm must be grievous bodily harm. See Commonwealth v. Sama, 411 Mass. 293, 296 n. 1, 582 N.E.2d 498 (1991); Commonwealth v. Halbert, 410 Mass. 534, 536 n. 3, 573 N.E.2d 975 (1991); Commonwealth v. Grey, 399 Mass. 469, 470 n. 1, 505 N.E.2d 171 (1987); Commonwealth v. Puleio, 394 Mass. 101, 108, 474 N.E.2d 1078 (1985). In some opinions in the past twenty years (and in only one recently), where deaths were caused by gunshot or by some other dangerous instrument and there was no appellate issue concerning the severity of any intended bodily harm, the court has used a summary definition of the second prong of malice that does not refer to the grievousness of the intended bodily injury. See, e.g., Commonwealth v. Colon-Cruz, 408 Mass. 533, 547, 562 N.E.2d 797 (1990) (gun); Commonwealth v. Hodge (No. 2), supra 380 Mass. at 865, 406 N.E.2d 1015 (gun); Commonwealth v. Campbell, 375 Mass. 308, 312, 376 N.E.2d 872 (1978) (knife); Commonwealth v. Amazeen, 375 Mass. 73, 80, 375 N.E.2d 693 (1978) (hammer, motor vehicle). Cf. Commonwealth v. McGuirk, 376 Mass. 338, 344-346, 380 N.E.2d 662 (1978), cert. denied, 439 U.S. 1120, 99 S.Ct. 1030, 59 L.Ed.2d 80 (1979) (admission during plea bargain colloquy of severe beating of victim showed intention to inflict injury sufficient to show malice; denial of plea withdrawal upheld).

We simply disagree with the Commonwealth's argument that the judge's charge, viewed as a whole, told the jury that they must find an intention to cause serious bodily injury or harm in order to find second-prong malice. The judge gave the jury two different definitions of second-prong malice. One had to be wrong. The jury had the option of finding second-prong malice based on an intent to inflict injury. We reject this option. The intention must be to do grievous bodily injury or harm. The fact that the judge gave a proper instruction on the third prong of malice does nothing to eliminate the possibility that the jury found malice based on an inadequate definition of second-prong malice.

If we were to accept an intention to cause any kind of bodily injury as a proper element of second-prong malice, the distinction between murder and involuntary manslaughter, already a difficult one to draw on particular facts, would be made less clear, and the two crimes, in this respect, would not reflect defendants' relative moral culpabilities. As we shall point out in the second part of this opinion, each type of involuntary manslaughter requires a showing that the defendant knew, or should have known, that his conduct created a high degree of likelihood that substantial harm would result to another. ⁴ If malice could be proved by a showing that the defendant only intended to cause slight bodily injury, murder could involve less threatening and less morally blameworthy conduct than involuntary manslaughter. By requiring proof of grievous bodily injury (and not just bodily injury) in the second prong of malice, we appropriately make criminal liability and punishment for an act proportionate to the actor's moral...