Com. v. Williams

• Decision Date: 18 November 1998
• Citation: 428 Mass. 383,701 N.E.2d 945
• Parties: COMMONWEALTH v. Willie WILLIAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 945

701 N.E.2d 945

428 Mass. 383

COMMONWEALTH v. Willie WILLIAMS.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 9, 1998.

Decided Nov. 18, 1998.

James L. Sultan, Boston (Catherine J. Hinton, with him), for defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, GREANEY, FRIED and MARSHALL, JJ.

FRIED, Justice.

The defendant, Willie Williams, was convicted of murder in the first degree for the beating death of Joseph Celestin. He appeals from the jury verdict and from the denial of his motion for a new trial. The jury charge regarding third prong malice was erroneous. Because this error created a substantial likelihood of a miscarriage of justice, we reverse the judgment of conviction and remand for a new trial.

I

In January, 1992, the defendant's younger sister disappeared from home. After three days had passed, she called their mother, crying hysterically, and reported that she had been kidnapped by a cab driver, held at his residence, and raped. She described her assailant to the defendant in some detail at that time. During a police investigation that failed to apprehend the alleged rapist, she made photographic identifications of him and accompanied police on at least two occasions to view houses that she identified as the house in which she had been held; the defendant accompanied her on one of these occasions. None of the identifications turned out to be correct. Independently, over the course of six weeks after the alleged rape, the defendant observed at least one cab which he believed to be the same as that driven by the rapist and called his mother or the police to report what he had seen.

On March 13, 1992, the defendant stopped at a gasoline station in the Dorchester section of Boston to talk with a friend. Shortly afterward, at the gasoline pump he saw a cab driver, Joseph Celestin, who fit his sister's description of the rapist. He called his sister from a public telephone and asked her to come to the station. When she arrived and was asked whether Celestin was the one who had raped her, she began to cry and told the defendant, "That's him." The defendant then sent her home to tell their mother to telephone the police.

As Celestin prepared to leave the gasoline station, the defendant grabbed him by the collar, saying, "So you like to rape people?" When Celestin responded, "I'm sorry," the defendant took this to be an admission and flew into a "blind rage." He stated, "I'm going to kill you," and began to strike Celestin with his fists, knocking him to the ground and beating him for several minutes. The defendant then backed away from Celestin and raised his hands in the air; he testified at trial that he had begun to have an asthma attack and was raising his arms to help himself breathe, but others testified that he raised his arms and shouted, as if in victory. Around this time, the defendant's girl friend and another of his sisters arrived at the gasoline station and tried to convince the defendant to stop the beating. He said, "This is the man who raped our sister." After a brief rest, he again began to beat Celestin, and his sister joined in the attack. The defendant and his sister each testified that they struck Celestin only with their fists, but others testified that the defendant kicked Celestin and that his sister sat on the ground with Celestin's head in a "scissors hold" between her legs while the defendant beat him. After a period of several more minutes, the defendant, according to his testimony, suffered another asthma attack, once again halting the beating and raising his arms in the air. He and his sister left the scene at that point, walking to a nearby park.

At the end of the beating, Celestin was on the ground; the defendant and his sister testified that Celestin was on his knees and moving, but other witnesses testified that he was prone and barely conscious. Celestin was bleeding profusely from the mouth and had sustained bruises on his head, hands, and neck, internal bleeding in his head, and a crushed throat. He died twenty-four hours later as a result of blunt head and neck trauma.

II

The defendant raises numerous objections to the jury instructions provided by the judge. Because he failed to preserve these issues for appeal, we review his claims under G.L. c. 278, § 33E, and consider whether any errors in the charge created a substantial likelihood of a miscarriage of justice. ¹ See Commonwealth v. Murphy, 426 Mass. 395, 401, 688 N.E.2d 966 (1998); Commonwealth v. Eagles, 419 Mass. 825, 834, 648 N.E.2d 410 (1995); Commonwealth v. Burke, 414 Mass. 252, 265, 607 N.E.2d 991 (1993); Commonwealth v. Sires, 413 Mass. 292, 297, 596 N.E.2d 1018 (1992).

Malice aforethought, one of the essential elements of murder, "may be inferred if, in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow the contemplated act." Commonwealth v. Grey, 399 Mass. 469, 470 n. 1, 505 N.E.2d 171 (1987). Malice proved in this way is referred to as "third prong malice."

The defendant correctly complains that the judge erred in instructing the jury that malice may be inferred from an act creating a plain and strong likelihood that death or grievous bodily harm would follow. ² It is well settled that third prong malice "can only be satisfied by proof that 'there was a plain and strong likelihood of death ' " (emphasis added). Commonwealth v. Fuller, 421 Mass. 400, 412, 657 N.E.2d 1251 (1995), quoting Commonwealth v. Sires, supra at 303 n. 14, 596 N.E.2d 1018. See Commonwealth v. Brooks, 422 Mass. 574, 580, 664 N.E.2d 801 (1996).

The first two prongs of malice are intent to kill and intent to cause grievous bodily injury. See Grey, supra at 470 n. 1, 505 N.E.2d 171. The jury's failure to specify third prong malice would have been nonprejudicial if they had found malice on either of these grounds. But the basis for the malice finding is unknown because the judge failed to instruct the jury to specify whether their first degree murder verdict was based on deliberate premeditation--which would have required a finding of first prong malice--or on extreme atrocity or cruelty, which is often based on third prong malice. In such a circumstance, where it is "impossible to discern which of the two grounds for conviction the jury selected" in convicting the defendant of murder in the first degree, the verdict must be supportable on both grounds and is vitiated by an erroneous instruction on any of the three prongs of malice. Commonwealth v. Morgan, 422 Mass. 373, 384, 663 N.E.2d 247 (1996). ³ In this case, where the jury might have based their decision on a theory of extreme atrocity or cruelty, an erroneous third prong malice instruction cannot be deemed nonprejudicial.

At trial, the defendant not only failed to object to the judge's erroneous use of the bodily injury language, but actually requested the language used by the trial judge. Nevertheless, this error created a substantial likelihood of a miscarriage of justice warranting reversal under § 33E. See Commonwealth v. Wright, 411 Mass. 678, 681, 584 N.E.2d 621 (1992).

Where the defendant's attack is inherently deadly, the lowering of the third prong malice standard to include grievous bodily injury may be nonprejudicial. See Commonwealth v. Vizcarrondo, 427 Mass. 392, 397-398, 693 N.E.2d 677 (1998); Commonwealth v. Mello, 420 Mass. 375, 390, 649 N.E.2d 1106 (1995) (defendant had set fire to an apartment building in the middle of the night, which, under the circumstances known to the defendant, caused a plain and strong likelihood of death). In this case, however, there is a substantial likelihood, based on the evidence presented at trial, that a reasonable jury might have found that the defendant's acts created a plain and strong likelihood of grievous bodily injury, but not a plain and strong likelihood of death. If the jury grounded their finding of malice on the likelihood of injury, as the charge improperly allowed them to do, the defendant was convicted without the prosecution's having proved each element of murder.

In addressing whether a particular defendant's conduct was inherently deadly, this court has held, at one end of the spectrum, that "a simple blow with the hand administered to a healthy adult" creates no "plain and strong likelihood that death will follow." Commonwealth v. Mahnke, 368 Mass. 662, 702-703, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). An attack by means of a deadly weapon, on the other hand, has often been held to be inherently deadly. See, e.g., Mello, supra. The facts of this case fall somewhere between the two. The beating was prolonged--certainly more severe than a "simple blow with the hand"--and the victim was visibly and severely injured, yet the attack was not carried out by means of a deadly weapon. The length of the attack is in dispute; estimates provided at trial ranged from six minutes to twenty-five minutes. Evidence presented at trial is also in conflict regarding whether the defendant kicked the victim. A kick with a shod foot may be inherently deadly in some circumstances. See Commonwealth v. Hicks, 356 Mass. 442, 445, 252 N.E.2d 880 (1969); Commonwealth v. Gordon, 307 Mass. 155, 158, 29 N.E.2d 719 (1940). We must take the view of the evidence most favorable to the defendant, however, and here, where it is unclear whether the defendant kicked the victim, we must assume he did not. Finally, the condition of the victim apparent during and after the attack is contested; some witnesses testified that the victim was prostrate and barely conscious when the defendant left the scene, whereas others testified that he was on his knees and moving.

Given the state of the evidence, a reasonable jury might have come to the conclusion that, in the...