Com. v. Sullivan

• Decision Date: 23 September 1985
• Citation: 20 Mass.App.Ct. 802,482 N.E.2d 1198
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Kevin P. SULLIVAN.

Page 1198

482 N.E.2d 1198

20 Mass.App.Ct. 802

COMMONWEALTH v. Kevin P. SULLIVAN.

Appeals Court of Massachusetts,

Middlesex.

Argued June 6, 1985.

Decided Sept. 23, 1985.

Patricia A. O'Neill, Committee for Public Counsel Services, Boston, for defendant.

Margot Botsford, Asst. Dist. Atty. (Patricia A. McEvoy, Asst. Dist. Atty., with her), for the Commonwealth.

Before PERRETTA, KASS and WARNER, JJ.

KASS, Justice.

On the fourth day of deliberations, a jury returned verdicts of guilty against the defendant, Kevin P. Sullivan, of murder in the second degree, of assault and battery by means of a dangerous weapon upon John Grimes (who was killed) and upon Paul Kelly, and of assault and battery upon Deborah Sullivan, the defendant's wife. We reverse the conviction of murder and the conviction of assault and battery by means of a dangerous weapon upon John Grimes because a supplementary charge erroneously undertook to quantify the concept of reasonable doubt. ¹

Among the patrons who had been ushering in the new year, 1983, at the Stephen James House in Porter Square, Cambridge, were the victims and the defendant Sullivan. Their celebration had been characterized by ample drinking, particularly on the part of Sullivan. At about 1:45 A.M., Sullivan and his wife emerged from the restaurant arguing, Sullivan resorting to blows and shoves. Grimes and Kelly, who did not know the Sullivans, intervened in what they perceived as a wife-beating episode. ² There was a fight. Sullivan pulled a knife with which he stabbed Grimes fatally and Kelly much less severely. At trial, Sullivan did not deny having stabbed Grimes and Kelly but claimed he acted in defense of himself and his wife. On appeal Sullivan urges: (1) several occasions of error in the judge's charge; and (2) that the concurrent sentences imposed for murder and assault and battery by means of a dangerous weapon on Grimes constitute multiple punishment for the same act. An additional issue which the appellant argues need not, in view of our disposition of the case, detain us.

1. Reasonable doubt. During the main part of his charge the judge, in explaining the idea of reasonable doubt, wisely hewed to the text of Commonwealth v. Webster, 5 Cush. 295, 320 (1850). In so doing he followed the admonition in Commonwealth v. Therrien, 371 Mass. 203, 209, 355 N.E.2d 913 (1976), and Commonwealth v. Ferreira, 373 Mass. 116, 130 n. 12, 364 N.E.2d 1264 (1977). See also Commonwealth v. Little, 384 Mass. 262, 266-267, 424 N.E.2d 504 (1981). On the third day of deliberations the jury put several questions, one of which asked for reinstruction about reasonable doubt. Again the judge used the language from the Webster case. Among the other questions of the jury was one which asked for instruction on how to come to a verdict.

Perhaps a lecture about listening to one another, along the lines of Commonwealth v. Rodriquez, 364 Mass. 87, 98-102, 300 N.E.2d 192 (1973), was in order. Rather, the judge undertook to assist the jury by discussing burden of proof, aspects of reasonable doubt, and comparisons with the burden of persuasion in civil cases. It was in the course of that discussion that things unraveled. "If you try to equate it by a scale in a civil case," the judge explained, "... anything over [fifty percent] might be a preponderance of the evidence. As I have defined a reasonable doubt, [there] is more or less a greater degree of proof[ ] required, so you don't have a reasonable doubt. Where is that if you put it in a one to hundred scale? I don't know. It's above fifty percent." Several lines in the transcript later the judge said: "In your own mind, if something is equal, then the Commonwealth has not proved it beyond a reasonable doubt. If, in your mind, using the reasonable doubt [standard] as the Court has given it to you, if in your mind they have proved it beyond a reasonable doubt, then that element of the crime has been proven." ³

No objection was made by defense counsel, and the point on appeal is lost unless the error is such as produces a substantial risk of miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). Commonwealth v. Pickles, 393 Mass. 775, 776, 473 N.E.2d 694 (1985). No part of the usual instructions to juries, however, is of more significance than the discussion of reasonable doubt, Commonwealth v. Ferreira, 373 Mass. at 128, 364 N.E.2d 1264, and serious misdirection about reasonable doubt, therefore, can scarcely avoid creating a substantial risk of miscarriage of justice. Such, certainly, was the case here.

Although the Commonwealth's case was strong, the jurors were obviously having some difficulty in its resolution. The jurors were on the third day of deliberation when the instruction in question was given, and the jury had twice sent questions to the judge. There could be no doubt about the killing, but the jury had the self-defense and voluntary manslaughter possibilities to ponder. Given their state of indecision, it may surely have been influential for the jury to hear that "beyond a reasonable doubt" was something "above fifty percent" and that the Commonwealth would have failed of its burden if, in the minds of the jurors, the facts on an element of an offense lay equal.

The idea of reasonable doubt is not susceptible to quantification; it is inherently qualitative. See, e.g., United States v. Anglada, 524 F.2d 296, 300 (2d Cir.1975); People v. Collins, 68 Cal.2d 319, 330-332, 66 Cal.Rptr. 497, 438 P.2d 33 (1968); People v. Harbold, 124 Ill.App.3d 363, 383, 79 Ill.Dec. 830, 464 N.E.2d 734 (1984); State v. Boyd, 331 N.W.2d 480, 482-483 (Minn.1983); McCullough v. State, 99 Nev. 72, 75, 657 P.2d 1157 (1983); Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv.L.Rev. 1187, 1196-1199 (1979). The Supreme Court has described the finding of guilt beyond a reasonable doubt as requiring a subjective state of near certitude. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979). Attempts to express the idea in terms of a scale can easily confuse the jury about the burden the prosecution must sustain and may have the effect of lowering that burden. McCullough v. State, supra, 99 Nev. at 75-76, 657 P.2d 1157. ⁴ State v. Smith, 183 Conn. 17, 24-29, 438 A.2d 1165 (1981). ⁵ Compare Petrocelli v. State, 692 P.2d 503, 506-507 (Nev.1985).

Of course flaws in a jury charge must be viewed in the context of the overall charge. Commonwealth v. Beverly, 389 Mass. 866, 870-871, 452 N.E.2d 1112 (1983). Compare Commonwealth v. Gerald, 356 Mass. 386, 389-390, 252 N.E.2d 344 (1969), in which the judge's supplement to the Webster charge was consistent and nonprejudicial. In that vein one might reason that the judge's supplementary charge did not embrace a quantitative measure of doubt but, rather, set that standard up as a contrast to the correct Webster definition he had twice given and which he was incorporating by reference. While it is possible the jury so understood the supplementary charge, it is much more likely that they understood it as explication. At the least we do not know what the jurors understood. See Commonwealth v. Wood, 380 Mass. 545, 548, 404 N.E.2d 1223 (1980), a case in which the charge might have led the jury to believe the "degree of certainty required to convict was far lower than that properly demanded in a criminal case." Ibid.

Much depends on the "end game" timing of the supplementary charge. While the next day's deliberations brought further questions about definitions of the crimes and still further additional instruction, the supplementary instruction we have been discussing was among the last impressions left on the minds of the jurors. We cannot expect the jury to have disregarded a literal and graphic rule of thumb as to how to arrive at a decision and to have intuitively understood that it was an erroneous elaboration upon the reasonable doubt standard that had been presented as a self-contained instruction at an earlier point in the answers to their questions. Commonwealth v. Pickles, 393 Mass. at 778-779, 473 N.E.2d 694. United States v. Link, 202 F.2d 592, 594 (3d Cir.1953). Contrast Commonwealth v. Beverly, 389 Mass. at 871-872, 452 N.E.2d 1112; United States v. Baratta, 397 F.2d 215, 227 (2d Cir.), cert. denied, 393 U.S. 939, 89 S.Ct. 293, 21 L.Ed.2d 276 (1968). Compare Commonwealth v. Sheline, 391 Mass. 279, 291-297 & n. 4, 461 N.E.2d 1197 (1984).

To the extent it requires mention, we do not think, reading the words fairly and in context, that the judge by employing the phrase "we're playing games with words" or referring to the ingredients of a cake either trivialized or distorted the Commonwealth's burden to prove each element of the crimes charged. Particularly the references to playing games, however, would far better have been left unsaid.

We discuss--briefly--other points which might recur at a new trial. Three involve the jury instructions, and a fourth bears on duplicitous sentences.

2. Definition of malice aforethought. In instructing on the elements of murder, the judge defined malice aforethought. On appeal, no objection having been made below, the defendant attacks the instruction as incomplete in the following regard: it did not include the idea of knowledge by the defendant (or by a reasonably prudent person in the circumstances known to the defendant) that there was a strong likelihood that death would follow the contemplated act. Such is certainly an element of a complete charge on malice aforethought. See Commonwealth v. Starling, 382 Mass. 423, 427-428, 416 N.E.2d 929 (1981); Commonwealth v. Griffin, 19 Mass.App. 174, 189, 472 N.E.2d 1354 (1985). Its omission here was far from a defect creating a substantial risk of miscarriage of justice. Commonwealth v. Bent, 19 Mass.App. 950, 473 N.E.2d 212 (1985). As in Bent, the nature of the assault left little for the jury to brood about so far as likelihood...