Com. v. Souza

• Decision Date: 01 July 1983
• Parties: COMMONWEALTH v. Francis M. SOUZA.
• Court: Appeals Court of Massachusetts

Page 1137

448 N.E.2d 1137

15 Mass.App.Ct. 740

COMMONWEALTH v. Francis M. SOUZA.

Appeals Court of Massachusetts Bristol.

Argued Feb. 11, 1983.

Decided May 9, 1983.

Further Appellate Review Granted July 1, 1983.

J. Russell Hodgdon, Boston, for defendant.

Patricia O. Ellis, Asst. Dist. Atty. (Kerry Shortle, Asst. Dist. Atty., with her), for the Commonwealth.

Before BROWN, KAPLAN and GREANEY, JJ.

BROWN, Justice.

The defendant was found guilty, after a jury trial in the Superior Court, of rape, kidnapping, and assault and battery. In 1977, the defendant filed a claim of appeal pursuant to G.L. c. 278, §§ 33A-33G. A motion for new trial was filed on October 3, 1980, and was denied. The defendant now appeals from the rape conviction, the others having been placed on file, and the denial of his motion for a new trial.

The factual circumstances of this case have little practical significance on appeal. The defendant's principal claims of error go to alleged legal defects in certain portions of the judge's instructions to the jury and to the judge's considering and using, on disposition, the defendant's allegedly perjured trial testimony and a dismissed prior criminal charge. The defendant also claims that he received a more severe sentence because he exercised his right to a trial by jury.

1. The defendant claims that the judge's charge to the jury undermined the reasonable doubt standard and improperly shifted the burden of proof. Where, as here, none of the defendant's claims of error rests on a valid objection or relates to a suggested instruction submitted before or after the charge, we will reverse only if we find that the instructions given created "a substantial risk of a miscarriage of justice." Commonwealth v. Wood, 380 Mass. 545, 547, 404 N.E.2d 1223 (1980), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). Considering the charge as a whole, and not by bits and pieces, nor by fragments lifted from context and then subjected to scrutiny as though each fragment had to stand or fall on its own without the aid of the remainder of the charge, Commonwealth v. McInerney, 373 Mass. 136, 149, 365 N.E.2d 815 (1977), we conclude that there was no prejudicial error. See Commonwealth v. Spann, 383 Mass. 142, --- - ---, Mass.Adv.Sh. (1981) 681, 689-690, 418 N.E.2d 328. See also Commonwealth v. Tavares, 385 Mass. 140, 147-149, 430 N.E.2d 1198 (1982). "Once the trial judge gave an adequate and accurate charge on the Commonwealth's burden of proof, 'he was not required to repeat the same instruction with each of the other subjects discussed in the remainder of his charge.' " Commonwealth v. Gibson, 368 Mass. 518, 528, 333 N.E.2d 400 (1975), quoting from Commonwealth v. Redmond, 357 Mass. 333, 342, 258 N.E.2d 287 (1970).

The judge instructed at the outset on the presumption of innocence and told the jury that "the government has the burden of proof: it never shifts." The judge also instructed the jury that "the burden of proof is always on the prosecution to prove each and every item and element." See Commonwealth v. Fitzgerald, 380 Mass. 840, 842-843, 406 N.E.2d 389 (1980). The trial judge gave the required definition of reasonable doubt. See Commonwealth v. Webster, 5 Cush. 295, 320 (1850). Furthermore, the judge properly equated the requirement of proof beyond a reasonable doubt with proof of guilt to a moral certainty by repeatedly emphasizing that "you [must be] satisfied to a moral certainty in your minds, in your consciences, to an abiding conviction." See Commonwealth v. Williams, 378 Mass. 217, 232-233, 391 N.E.2d 1202 (1979).

(a) The defendant complains of the judge's instruction that "if we ... require absolute certainty, proof beyond all doubt, well it would exclude conviction in many cases." That language, although ill-advised, did not communicate to the jury that the prosecutor's burden was something less than proof beyond a reasonable doubt (compare Commonwealth v. Williams, supra at 234-235, 391 N.E.2d 1202), as immediately before the judge gave the challenged language, he gave the definition of reasonable doubt, relying on the approved language of Commonwealth v. Webster, supra. See Commonwealth v. Tavares, 385 Mass. at 148-149, 430 N.E.2d 1198.

(b) The defendant further complains that the judge lessened the standard of proof by referring analogically to decisions the jurors might make in their personal and business affairs. See cases collected at Commonwealth v. Ferreira, 373 Mass. 116, 129, 364 N.E.2d 1264 (1977), criticizing the use of this type of analogy. The judge here stated that the reasonable doubt doctrine is "not a different standard to be applied here than you apply at home, or in your business." He did not, however, "call[ ] forth ... specific images." Commonwealth v. Williams, supra 378 Mass. at 232, 391 N.E.2d 1202. Taking into account the complete set of instructions given, we do not think that the defendant was harmed. See Commonwealth v. Coleman, 366 Mass. 705, 712, 322 N.E.2d 407 (1975).

(c) The defendant also asserts that the use of "finding" language shifted the burden onto him. We do not agree. In addition to the burden "never shifts" language cited earlier, the judge informed the jury that in order to convict, the jury had to find the facts to support the elements of the offenses which the Commonwealth was required to prove. See Commonwealth v. Medina, 380 Mass. 565, 578-579, 404 N.E.2d 1228 (1980). Contrary to the defendant's argument, there was no implication that the jury had to find the absence of these elements in order to acquit. See Commonwealth v. Fitzgerald, 380 Mass. at 845, 406 N.E.2d 389.

(d) The defendant's final argument is that another comment by the judge ("if you find that he didn't assault and batter her, didn't use a chain, then he is not guilty") improperly led the jury to believe the defendant carried the burden of proving his innocence. As already mentioned, on appeal, we "view the charge in its entirety since the adequacy of instructions must be determined in light of their over-all impact on the jury." Commonwealth v. Sellon, 380 Mass. 220, 231-232, 402 N.E.2d 1329 (1980). When this comment is viewed in that context, the defendant's argument is shown similarly to be without merit. The entire charge "makes clear the Commonwealth's burden." Commonwealth v. Medina, 380 Mass. at 578, 404 N.E.2d 1228. Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). See also Commonwealth v. Repoza, 382 Mass. 119, ---, Mass.Adv.Sh. (1980) 2499, 2514, 414 N.E.2d 591.

2. The trial judge instructed the jury that "if you find that [fellatio] to be unnatural, that again is an offense against this statute if it is done by force and against the will." The defendant argues that this was error, as it allowed the jurors to define unnatural sexual intercourse in such a manner as to include anything that they might find personally distasteful. Unnatural sexual intercourse is defined as including "fellatio, cunnilingus, and other intrusions of a part of a person's body or other object into the genital or anal opening of another person's body." Commonwealth v. Gallant, 373 Mass. 577, 584, 369 N.E.2d 707 (1977). As there can be no doubt that fellatio is an offense under the statute, the language could not have disadvantaged the defendant, and may very well have been of some benefit.

The defendant's contention that the jury may have found that the alleged use of the chain or table leg constituted unnatural intercourse is unavailing for several reasons. The trial judge gave a very narrow instruction to the effect that unnatural sexual intercourse requires insertion of the penis into the mouth. Commonwealth v. Manning, 6 Mass.App. 430, 435, 376 N.E.2d 885 (1978). In any event, consideration by the jury of the use of the table leg would not have been error, in light of the testimony that the defendant had inserted a table leg into the victim's anal cavity. Commonwealth v. Gallant, supra.

3. After the jury had returned the verdicts, the judge reviewed the defendant's criminal record and the probation report, and heard argument of counsel. Defense counsel requested that the court defer sentencing and commit the defendant to Bridgewater State Hospital for a sixty-day evaluation to determine whether he was sexually dangerous.

The judge expressed an inclination to sentence the defendant and to leave the determination of whether there should be an evaluation of the defendant to the prison administrators.

Defense counsel noted that the Commonwealth would have recommended seventeen years in Concord if the defendant had pleaded guilty, and the fact that the defendant went to trial, he implied, should not be held against him.

The judge responded that the defendant "shouldn't be punished for going to trial. But I certainly am going to take into consideration the bold lie that apparently he chose to make about having nothing to do with this woman." The judge deferred sentencing on the kidnapping and assault and battery convictions. Concerning the conviction for rape, the defendant was ordered committed to Bridgewater State Hospital for observation pursuant to G.L. c. 123A, § 4. The judge indicated at that juncture that if the defendant were to be found sexually dangerous, he would be sentenced to the State facility for the sexually dangerous at Bridgewater. We presume from the record that the defendant was not so found because when the evaluation process was concluded, the judge imposed a sentence to State prison.

Citing Commonwealth v. Murray, 4 Mass.App. 493, 351 N.E.2d 555 (1976), the defendant contends that the judge's remark reflects that the sentencing proceedings were tainted with improper considerations. The Commonwealth, on the other hand, relying principally on United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), argues that the judge acted properly.

The question whether a judge can,...