Com. v. Stokes

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; HENNESSEY
Citation374 Mass. 583,374 N.E.2d 87
Decision Date09 March 1978

Page 87

374 N.E.2d 87
374 Mass. 583

Frank P. STOKES.
Supreme Judicial Court of Massachusetts, Suffolk.
Argued Oct. 4, 1977.
Decided March 9, 1978.

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[374 Mass. 584] Catherine Clement, Boston, for defendant.

Kathleen M. Curry, Asst. Dist. Atty., for the Com.


[374 Mass. 584] HENNESSEY, Chief Justice.

The defendant Frank P. Stokes was indicted for the murder in the second degree of Joseph Baskerville. At trial, Stokes admitted that he had killed the victim but claimed that he had acted in self-defense. The jury found the defendant guilty of murder in the second degree and the judge imposed the statutory sentence of life imprisonment. The defendant appealed under G.L. c. 278, §§ 33A-33G, challenging the admission of photographs and the propriety of the judge's charge. The Appeals Court affirmed the judgment on June 25, 1976. Commonwealth v. Stokes, --- Mass.App. --- a, 349 N.E.2d 894 (1976). On April 27, 1977, we allowed the defendant's application for further appellate review.

The defendant argues that the trial judge's instructions on burden of proof were constitutionally inadequate under both Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), which was made retroactive in its effect by Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), and Commonwealth v. Rodriguez, --- Mass. --- b, 352 N.E.2d 203 (1976). Additionally, he argues several errors of State law, namely, that (1) the trial judge erred in allowing the defendant's wife to testify against him; that (2) the judge incorrectly instructed the jury on the distinction between murder and manslaughter; and that (3) the defendant's representation at trial was so lacking as to deprive him of the effective assistance of counsel required [374 Mass. 585] by the Sixth and Fourteenth Amendments to the United States Constitution.

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We agree with the defendant's claims that the judge's instructions were constitutionally inadequate under Mullaney, Hankerson, and Rodriguez, supra, as to the burden of proof on the issues of self-defense, reasonable provocation, and excessive force. Accordingly, we reverse.

In the early morning hours of December 23, 1973, Joseph Baskerville was found stabbed to death on the sidewalk of Radcliffe Street, Dorchester. Testimony from several witnesses produced the following facts.

During the evening of December 22, 1973, the defendant stopped at the Radcliffe Street home of a neighbor, Clementine Scott, to wish her a merry Christmas. He was carrying a hunting knife and a tear gas gun on his person. There was evidence that he had used the knife earlier that day to do household repairs, and that he had obtained the gun as partial payment for previous repair work he had done for a friend. Ms. Scott told the defendant that it would be a sad Christmas for her as her father had died recently. She invited him in for a visit. A short time later the victim's wife came in, followed by the victim's cousin and, soon after, by the victim, Joseph Baskerville.

There was testimony that Baskerville was between six feet and six feet two inches tall and weighed between 160 and 180 pounds. There was also testimony that Baskerville had been drinking.

About 11:30 P.M. Ms. Scott went to answer the door and spoke briefly with a family friend. During this time, the men sat at the dining room table and discussed their experiences in military service. When Ms. Scott returned to the dining room, the defendant's tear gas gun was on the table.

Baskerville, stating that Stokes should not have a gun in the house, took the gun from the table and refused to return it. After Ms. Scott requested that the weapon be returned to the defendant, Baskerville agreed that he would return it outside. Then, without provocation, Baskerville got up and [374 Mass. 586] either struck the defendant or rubbed his hand or the gun against the defendant's face. The defendant winced but had no other reaction. Subsequently, both men went outside.

Mrs. Bohannon, a neighbor, testified that from her window she observed the defendant and the victim standing on Ms. Scott's porch. The defendant's arm was on the victim's shoulder. Minutes later, after hearing more conversation, she observed the men standing on a grassy area in front of the house. Soon after, Mrs. Bohannon heard a man run through her yard and heard Mrs. Baskerville scream.

Another neighbor, James Moses, also observed the defendant through his window. He testified that the defendant was standing over a man in the middle of the street. He saw the defendant try to drag the man toward the sidewalk. When Stokes discovered Moses at the window, he immediately abandoned the body and went up the street.

The defendant's wife testified that as she was returning from work about midnight she too saw her husband in the middle of Radcliffe Street. She observed him pull a knife out of another man's stomach. Soon after she entered her house, her husband came in carrying a man's coat and a knife and wearing a raincoat covered with blood. Mrs. Stokes testified to a conversation in which her husband said, "I think I killed a man. . . . I think I'll go out and hide the coat and knife and the other man's coat."

Within a few minutes the police arrived and arrested Stokes. After being advised of his Miranda rights, the defendant made a statement admitting that he had stabbed the victim after being threatened by him.

The defendant's testimony substantially corroborated that of the other witnesses. He testified, however, that after Baskerville hit him he attempted to leave the Scott house. According to the defendant, Baskerville stopped him as he tried to leave, and then threatened to kill him. When the defendant again attempted to leave, Baskerville followed and blocked his way. The defendant stated that, when the two men were outside, Baskerville again threatened

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to kill him and, in fact, struck him. He testified that he asked [374 Mass. 587] Baskerville several times to leave him alone, that Baskerville grabbed him and pinned him, that there was a struggle, and that he then struck the victim with his knife.

Although the defendant's trial counsel did not take exception to the judge's charge, the defendant argues on appeal 1 that the instructions were inadequate in two respects. First, the defendant contends that, since issues of provocation and self-defense were clearly raised by the evidence, under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Commonwealth v. Rodriguez, --- Mass. --- c, 352 N.E.2d 203 (1976) he is entitled to an instruction which places on the Commonwealth the burden of disproving those factors beyond a reasonable doubt. Second, the defendant argues that the judge erred in failing to instruct the jury adequately that the element of self-defense may mitigate the crime of murder to manslaughter, even though excessive force was used.

1. Propriety of Review.

Preliminarily we must determine whether our review of the judge's charge is appropriate where defense counsel neither requested instructions concerning burden of proof nor objected to the charge as given. We conclude that, in the circumstances of this case, neither of trial counsel's omissions is fatal to the defendant's constitutional claims.

As to the defendant's failure to request instructions on burden of proof, we held in Commonwealth v. Rodriguez, --- Mass. --- d, 352 N.E.2d 203 (1976), that, where the issue of self-defense has been fairly raised by the evidence, a trial judge is required to charge that the Commonwealth bears the burden of disproving self-defense "when a timely request is made in any trial or retrial after the date of this decision" (footnote omitted). Id. at --- e, 352 N.E.2d at 208. We expressly declined at that time "to comment on other circumstances which might require a judge to give such a charge even in the absence of such a request." ID. AT --- N. 9 , 352 N.E.2D AT 208 N. 9F.

[374 Mass. 588] Here, sufficient evidence was presented to raise the issue of self-defense. 2 Because the trial occurred in 1974, neither trial counsel nor the judge had the benefit of the Supreme Court's holding in Mullaney v. Wilbur, supra, or of our rulings in Commonwealth v. Rodriguez, supra (Commonwealth has burden of disproving self-defense), Commonwealth v. Johnson, --- Mass. ---, --- - --- g, 361 N.E.2d 212 (1977), or Commonwealth v. Greene, --- Mass. ---, --- - --- h, 362 N.E.2d 910 (1977) (Commonwealth has burden of disproving "provocation"). Additionally, subsequent to the Appeals Court's consideration of this case, the Supreme Court in Hankerson v. North Carolina gave Mullaney v. Wilbur "complete retroactive effect." 432 U.S. 233, 241, 243, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). In light of these circumstances we conclude that it is appropriate to review the constitutional sufficiency of the judge's charge notwithstanding the fact that the defendant's trial counsel failed to request an instruction on burden of proof. Indeed, to hold otherwise would be tantamount to requiring

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clairvoyance on the part of defense counsel in requests for instructions filed prior to Mullaney. We insist on no such standard. Cf. Commonwealth v. Cook, --- Mass. ---, --- i, 359 N.E.2d 949 (1977).

Similar principles govern our conclusions concerning trial counsel's failure to object and take exception to the judge's charge. We are aware of the suggestion in Hankerson that, with respect to pre-Mullaney cases, "(t)he States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error." 432 U.S. at 244 n. 8, 97 S.Ct. at 2346 n. 8. For two reasons, we decline to apply Massachusetts law in this manner.

[374 Mass. 589] First, it is true that...

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118 practice notes
  • Com. v. McLeod
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 8, 1985
    ...the provocation, the passion, and the acts committed by the defendant. Otherwise, the crime is manslaughter. Commonwealth v. Stokes, 374 Mass. 583, 592, 374 N.E.2d 87 (1978). See Perkins, Criminal Law 54 (2d ed. 1969). An instruction on manslaughter is warranted if there is some evidence, c......
  • Com. v. Garcia
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 8, 1980
    ...N.E.2d 203 (1976); Commonwealth v. Collins, --- Mass. ---, --- y, 373 N.E.2d 969 (1978); Commonwealth v. Stokes, --- Mass. ---, --- z, 374 N.E.2d 87 We must next consider whether the error in the present case, while of constitutional dimension, was harmless. Chapman v. California, 386 U.S. ......
  • Com. v. Robinson
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 6, 1981
    ...cases implementing Mullaney, for example, Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976), and Commonwealth v. Stokes, 374 Mass. 583, 374 N.E.2d 87 (1978), that the parties and the trial judge have discussed the adequacy of the charge in casting the burden regarding duress, ......
  • Commonwealth v. Harris, 20-P-755
    • United States
    • Appeals Court of Massachusetts
    • June 29, 2022
    ...beyond a reasonable doubt in order to prove murder.20 See Nieves, 394 Mass. at 362, 476 N.E.2d 179, quoting Commonwealth v. Stokes, 374 Mass. 583, 591, 374 N.E.2d 87 (1978) (language suggesting presumption of malice was not negated, where "the judge's instructions ‘treated the issue of burd......
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118 cases
  • Love v. Johns-Manville Canada, Inc., Civ. A. No. 82-2541.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • May 29, 1985
    ...six-member jury verdicts; hence, 5-1 verdict returned against defendant in a pre-Burch trial must be reversed); Commonwealth v. Stokes, 374 Mass. 583, 374 N.E.2d 87, 91-92 (1978) (decision in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), applying retroacti......
  • Com. v. Fitzgerald
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 10, 1980 issue in this case. Commonwealth v. Rodriguez, 370 Mass. 684, 691-692, 352 N.E.2d 203 (1976) (self-defense). Commonwealth v. Stokes, 374 Mass. 583, --- - ---, a 374 N.E.2d 87 (1978) (excessive force). Commonwealth v. Medina, --- Mass. ---, ---, b 404 N.E.2d 1228 (1980) (malice). Commonwe......
  • Com. v. Zezima
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    • December 20, 1982
    ...of those decisions, we conclude that the challenged instructions contained serious errors, mandating a new trial. Commonwealth v. Stokes, 374 Mass. 583, 591, 374 N.E.2d 87 (1978). See Commonwealth v. Callahan, 380 Mass. 821, --- - ---, Mass.Adv.Sh. (1980) 1411, 1415-1416, 406 N.E.2d 385; Co......
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