Com. v. Torres

• Decision Date: 12 June 1995
• Docket Number: No. SJC-06385,SJC-06385
• Parties: COMMONWEALTH v. Pedro F. TORRES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 360

651 N.E.2d 360

420 Mass. 479

COMMONWEALTH v. Pedro F. TORRES.

No. SJC-06385.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued Jan. 10, 1995.

Decided June 12, 1995.

Brownlow M. Speer, Boston, for defendant.

Mary O'Neil, Asst. Dist. Atty., for Com.

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

LIACOS, Chief Justice.

On November 21, 1991, a jury convicted the defendant of deliberately premeditated murder in the first degree. The trial judge sentenced the defendant to life imprisonment. ¹ On appeal, the defendant asserts that the conviction must be reversed because of several alleged errors in the judge's instructions to the jury. He also requests that we exercise our power under G.L. c. 278, § 33E (1992 ed.), to reduce the verdict from murder in the first degree to manslaughter. We affirm the conviction. We see no reason to utilize our extraordinary power to reduce the conviction to that of manslaughter.

The jury heard evidence which would have warranted finding the following facts. During the evening of December 14, 1990, the defendant and his sister went to visit an individual who resided in a second-floor apartment over the Harborview Cafe, a bar located at 82 Potomska Street in New Bedford. Shortly after midnight, the defendant's sister and another woman went downstairs to purchase beer at the bar. When the sister returned, she told the defendant that the victim, Jose Fernandes, had bothered her while she was in the bar. The defendant then entered the bar and confronted the victim. The two men stepped outside and began to argue about improper remarks the victim allegedly had made to the defendant's sister. After the defendant pushed him, Fernandes pulled a knife from his rear pocket, placed it on the ground, and challenged the defendant to fight "man to man." The defendant indicated that he did not want to fight. Fernandes, the defendant, and his sister then returned to the bar.

Shortly thereafter, Fernandes displayed the knife again and started to threaten the defendant's sister. The bartender yelled at Fernandes to stop, and Fernandes put away the knife. The defendant then pulled out a gun and fired three shots at Fernandes. The first shot, fired from a range of six to eighteen inches, hit the victim in the face. The other two shots entered the victim's back. ² When the defendant realized that the bartender had telephoned the police, he ran out of the bar. He and his sister telephoned a taxi and returned home, where the defendant ate dinner and went to sleep.

Later that morning, an officer with the New Bedford police department arrested the defendant and transported him to the police station. On route to the station, the defendant asked the officer whether the victim had died. When the officer did not respond, the defendant asked whether the victim had "died right away, or did he talk to you cops." The officer advised the defendant of his Miranda rights and told him that if he wished to speak with the officer, he could do so at the police station. The defendant then stated that he wished to speak with the officer about the incident, and the victim "had no respect and deserved what he got." At the station, the officer booked the defendant and again advised him of his Miranda rights. The defendant then gave a statement. He claimed that the victim had a knife when the two men had been standing outside the bar. Once inside the bar, the defendant heard Fernandes threaten his sister. The sister shoved the victim, and the victim responded by pushing her in the face with his hand. At this point, the defendant walked over to Fernandes and shot him in the face. When Fernandes tried to run away, the defendant pursued him and shot him twice in the back. The defendant agreed to repeat this statement and have it videotaped. The videotape was admitted in evidence and viewed by the jury. ³

The defense offered no evidence, conceding the homicide and defending solely on a theory of manslaughter, rather than murder in the first degree by deliberate premeditation, as the prosecution claimed.

I. Jury instructions. At the close of the evidence, defense counsel submitted a written request for jury instructions. During a charge conference, the judge, defense counsel, and the prosecutor discussed extensively the defendant's requested instructions, including instructions about malice, intent, mitigating circumstances, self-defense, and defense of another. At one point during the conference, the judge told defense counsel, "I'm not going to give the rest of that [requested instruction] under intention. So, you can note your exception to it." Before he finished instructing the jury, the judge asked the prosecutor and defense counsel if either party had any suggestions. Defense counsel asked the judge to give the jury two additional instructions that the defendant's conduct after the killing was not relevant to either premeditation or malice aforethought. The judge did so. Defense counsel made no other objection to the jury instructions.

On appeal, the defendant advances four claims of error relating to the jury instructions. The defendant first asserts that the judge erred in refusing to give the defendant's requested malice instruction, which defined malice by linking it to the mitigating circumstances raised by the evidence. The defendant next objects to the malice instruction actually given by the judge. The defendant's third and fourth claims involve the judge's instructions about reasonable provocation and excessive force in self-defense or defense of another.

We first consider whether the defendant adequately preserved his rights for appellate review. "It is a fundamental rule of practice that where a party alleges error in a charge he must bring the alleged error to the attention of the judge in specific terms in order to give the judge an opportunity to rectify the error, if any." Commonwealth v. Keevan, 400 Mass. 557, 564, 511 N.E.2d 534 (1987), quoting Commonwealth v. McDuffee, 379 Mass. 353, 357, 398 N.E.2d 463 (1979). Rule 24(b) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 895 (1979), provides that "[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, specifying the matter to which he objects and the grounds of his objection." In the absence of a proper objection, we review a challenged instruction to determine whether it created a "substantial likelihood of a miscarriage of justice." Commonwealth v. Eagles, 419 Mass. 825, 834, 648 N.E.2d 410 (1995). Commonwealth v. Ferreira, 417 Mass. 592, 595, 632 N.E.2d 392 (1994). Commonwealth v. Burke, 414 Mass. 252, 265, 607 N.E.2d 991 (1993). See G.L. c. 278, § 33E.

The defendant did not object specifically to the challenged instructions. He asserts nevertheless that the judge's declaration that defense counsel could note his exception to the judge's refusal to give the requested instruction on intention preserved for "normal appellate review" the defendant's claim that the judge erred in refusing to give the requested instruction on malice. ⁴ In making this argument, the defendant relies on Commonwealth v. Grenier, 415 Mass. 680, 615 N.E.2d 922 (1993). In that case, we concluded that a defendant had saved his appellate rights where he submitted a written instruction about a specific issue and the judge denied the written request during a charge conference and stated that the defendant's exception was saved. Id. at 686 n. 8, 615 N.E.2d 922. We noted that the defendant was not obliged to repeat his objection after the charge in order to preserve the issue for appeal. Id. In this case, as in the Grenier case, the judge denied the defendant's written instruction concerning a specific issue-- intention--and noted the defendant's exception to that denial. The defendant therefore preserved for appeal his objection to the judge's refusal to give the requested instruction about intention. However, the defendant did not save his appellate rights as to the judge's denial of the requested malice instruction or any of the three other claims of error. Thus, we evaluate each of the defendant's claims to determine whether the challenged instructions created a "substantial likelihood of a miscarriage of justice."

a. The trial judge's refusal to give requested malice instruction. Defense counsel submitted a written request for jury instructions that defined malice by linking it to the absence of mitigating factors. The judge did not give the requested instruction. On appeal, the defendant asserts that the judge's failure to give the requested malice instruction amounted to prejudicial error and violated the defendant's right to constitutional due process. We disagree.

We do not require that any specific words be spoken in a jury instruction. Commonwealth v. Burke, supra at 267, 607 N.E.2d 991. Commonwealth v. Chasson, 383 Mass. 183, 188, 423 N.E.2d 306 (1981). Judges need not deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words. Commonwealth v. Sinnott, 399 Mass. 863, 878, 507 N.E.2d 699 (1987), citing Commonwealth v. Martorano, 355 Mass. 790, 244 N.E.2d 725 (1969). Although the judge may not have used the particular words requested by the defendant, he adequately explained the concept of malice aforethought. ⁵ Indeed, a review of the entire charge, including the portions concerning voluntary manslaughter and self-defense, clearly demonstrates that the charge conveyed that the Commonwealth had the burden of proving malice aforethought and the absence of any mitigating circumstances. The judge's charge contained the substance of what the defendant had requested, even though the judge did not use the defendant's exact wording. The judge properly acted within his discretion in denying the defendant's requested instruction and in choosing to explain...