Com. v. White

• Decision Date: 25 June 1984
• Citation: 467 N.E.2d 79,392 Mass. 282
• Parties: COMMONWEALTH v. Roy W. WHITE, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 79

467 N.E.2d 79

392 Mass. 282

COMMONWEALTH v. Roy W. WHITE, Jr.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Jan. 9, 1984.

Decided June 25, 1984.

Laurence Hardoon, Asst. Dist. Atty., for the Commonwealth.

Elliot D. Lobel, Boston, for defendant.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The defendant was convicted by a jury of murder in the second degree. We affirmed on appeal. See Commonwealth v. White, 363 Mass. 682, 296 N.E.2d 822 (1973). The question presented in this case is whether a motion judge in the Superior Court was correct in allowing the defendant's motion for a new trial. That judge allowed the defendant's motion on the ground that the jury instructions given by a different judge in the Superior Court (trial judge) at the defendant's trial in 1971 violated the constitutional principle set forth in Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979). See DeJoinville v. Commonwealth, 381 Mass. 246, 253-254, 408 N.E.2d 1353 (1980). He allowed the defendant's motion on this basis even though the defendant raised no challenge to the instructions at the trial or on his earlier appeal to this court. See Commonwealth v. White, supra. The Commonwealth appealed. We transferred the case to this court on our own motion. We reverse. ¹

The motion judge began by making the following factual findings as required by Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). They are for the most part identical to those we summarized in our earlier review of the defendant's conviction: "On the evidence presented at White's trial, the jury could have found the following facts. The victim, the defendant, one Pisa (who had already been convicted of murder of the victim before defendant's trial), and three other men had been drinking together for several hours one night and driving around in search of more liquor. The victim, who worked as a security guard, was noticed to have a gun and Pisa took it away from him. The defendant removed the bullets. Sometime later, the victim was knocked unconscious and was dragged to the side of the road by Pisa and the defendant and left there. The defendant drove the car a short distance, said 'He can recognize us,' stopped the car and backed up. The defendant and Pisa got out of the car. The victim was shot three times by either Pisa or the defendant. Defendant and Pisa were seen to have a wallet, ring and a watch when they got back in the car, which inferentially had been property of the victim. See Commonwealth v. White, 363 Mass. 682, 683, 296 N.E.2d 822 (1973). There was additional evidence that Pisa had struck the victim with the gun several times, ultimately rendering him unconscious ... and testimony from one witness that Pisa told him that he had shot the victim and enjoyed it.... See Commonwealth v. Pisa, 372 Mass. 590, 592, 363 N.E.2d 245 (1977)."

After summarizing this factual background, the motion judge addressed the jury instructions of the trial judge. The motion judge focused first on the instructions regarding the element of malice aforethought necessary for murder in the second degree. These instructions included the following language: "In its broadest legal sense malice means the state of mind of a person, irrespective of his motive whenever he consciously violates the law. Under this concept every person of full legal capacity, who, without justification or excuse, willfully does an act which is prohibited and made punishable by law as a crime, acts maliciously. Thus, the rule of responsibility is founded on the plain and obvious principle that a person must be presumed to intend to do that which he voluntarily and willfully does, and that he must intend all the natural, probable and usual consequences of his acts." The motion judge observed that this portion of the instruction contained language found to shift unconstitutionally the burden of proof on the element of intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). ² He also observed, however, that the trial judge emphasized that the Commonwealth had the burden of proving intent and that a finding of intent may be based on "reasonable inferences drawn from certain acts performed by the individual" (emphasis in original). The motion judge next summarized the instructions regarding joint criminal venture as follows: "In explaining accomplice liability or joint venture ... the judge's definition was limited to liability in a felony murder context. Furthermore, when the jury, after several hours of deliberation, questioned the court on the distinction between 'noninterfering witness to a crime, partner in concert for first degree murder, and a second degree murder,' the court again confused joint venture and felony murder. The judge also misstated the intent element in the joint venture setting, using the same Sandstrom language earlier employed in the ordinary murder context: He said 'In other words, he assumes the natural, probable consequences of the actions of the other party, he having associated with him in the intended perpetration of the offense'."

The motion judge then concluded that "[h]aving closely examined the trial judge's instructions on malice, joint criminal venture, and felony murder, I conclude that the jury was erroneously instructed regarding the malice portion of the charge under the Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) standard. The Sandstrom holding is retroactive in Massachusetts and since the joint venture instruction was also inaccurate, there is prejudice to the defendant."

1. In relying on Sandstrom, supra, and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and in recognizing that he offered no objections to the trial judge's charge, the defendant rests his motion on an alleged violation of constitutional principle to which we have given retroactive application, and to which the defendant asserts he had no genuine opportunity to object at trial or on prior appeal because the principle was not established until after the defendant's trial and prior appeal. DeJoinville v. Commonwealth, supra at 248, 408 N.E.2d 1353. Commonwealth v. Stokes, 374 Mass. 583, 588-590, 374 N.E.2d 87 (1978). The motion judge's treatment of such issues in the first instance, and our review on appeal, concerns whether the constitutional error has been proved, and, if so, whether it may be deemed harmless beyond a reasonable doubt. Commonwealth v. Rembiszewski, 391 Mass. 123, 126, 461 N.E.2d 201 (1984). Applying this standard, we conclude, as to the trial judge's instructions on malice, that the issue was waived by the defendant. As to the judge's charge on felony-murder and joint venture, we conclude that it was a correct statement of the law.

2. The defendant first challenges the trial judge's instructions on malice. He argues the judge impermissibly shifted the burden of proof on the element of malice to him in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We have found in the past that jury instructions which violate Sandstrom constitute error. See Commonwealth v. Zezima, 387 Mass. 748, 751-755, 443 N.E.2d 1282 (1982); Commonwealth v. Stillwell, 387 Mass. 730, 732-734, 443 N.E.2d 1272 (1982). We have so found in cases where no objection based on Sandstrom was raised at trial or upon an earlier appeal on the theory that a defendant should not be penalized where his failure to object was due to a lack of guidance in the case law regarding an evolving constitutional standard. Commonwealth v. Rembiszewski, supra at 126, 461 N.E.2d 201. DeJoinville v. Commonwealth, supra at 250-251, 408 N.E.2d 1353.

The Commonwealth urges that, read as a whole, the judge's charge as to malice was not in conflict with Sandstrom. We need not examine that argument, however, because the defendant's argument fails on another ground. An alleged violation of Sandstrom not raised at trial does not present prejudicial error warranting our consideration in a case which was tried and argued on the theory that a murder was committed. Rather, the issue may be considered waived by the defendant. See Commonwealth v. Pisa, 384 Mass. 362, 363, 425 N.E.2d 290 (1981); Commonwealth v. Lee, 383 Mass. 507, 512-513, 419 N.E.2d 1378 (1981).

This principle is applicable here. In this case, as in that of the codefendant Pisa, whether a murder had been committed was not at issue. See Commonwealth v. Pisa, supra at 363, 425 N.E.2d 290. In his closing argument, the defendant's counsel stated to the jury that "may I say that in my mind there is no question but that Mr. Deane was the victim of a murder, and that it was a tragic, tragic thing.... That fact can't be argued." Instead, White's case "was tried and argued by both parties on the theory that a murder had been committed." Id. If there was a Sandstrom type error, it clearly was not prejudicial to the defendant.

3. We cannot say that the defendant did not contest the issue of joint criminal liability. In his closing, counsel for the defendant stressed that the defendant was party to neither a murder nor a robbery: "All White was doing was drinking and driving. When he got the gun for the first time he took the bullets out ...." The defendant argues in his brief that "the court should have instructed that prior to being held responsible for the consequences of another's acts, the jury must be convinced first of the joint venture, then, its objectives, and that if those objectives include murder, that each shared the requisite intent." According to the defendant, the trial judge erroneously confused liability for felony-murder with liability for criminal joint venture. In so doing, the defendant argues, the trial judge shifted the burden of proof on the element of intent to participate in a criminal joint venture to murder on to the defendant.

We...