Com. v. Woodward

• Decision Date: 16 June 1998
• Citation: 427 Mass. 659,694 N.E.2d 1277
• Parties: COMMONWEALTH v. Louise WOODWARD (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1277

694 N.E.2d 1277

427 Mass. 659

COMMONWEALTH v.Louise WOODWARD (and a companion case).

Supreme Judicial Court of Massachusetts Middlesex.

Argued March 9, 1998.

Decided June 16, 1998.

Harvey A. Silverglate and Andrew Good(Barry C. Scheck, New York City, and Elaine Whitfield Sharp, with them), Boston, for defendant.

Sabita Singh, Assistant District Attorney(Gerard T. Leone, Assistant District Attorney, with her), for the Commonwealth.

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

MARSHALL, Justice.

On the afternoon of February 4, 1997, an eight month old child, Matthew Eappen, was rushed to Children's Hospital in Boston with a severe head injury.Despite emergency treatment, Matthew's condition deteriorated, and he died on February 9, 1997.On March 5, 1997, a Middlesex County grand jury returned an indictment against the defendant, Louise Woodward, for the murder of Matthew.She subsequently was ordered held without bail.Woodward had worked as an au pair for the Eappen family since November, 1996.Matthew was in Woodward's sole care from the morning of February 4, on the departure of Matthew's mother for work, until he was taken to the hospital.

Trial on the murder charge against Woodward commenced on October 6, 1997.After a three-week trial, the judge gave the jury instructions on murder in the first and second degrees.At Woodward's request and over the Commonwealth's objection, the judge did not instruct the jury on manslaughter.¹ On October 30, 1997, the jury returned a guilty verdict of murder in the second degree.On the following day, the judge imposed the statutorily mandated term of life in prison.

On November 10, 1997, after hearing argument on Woodward's motion for postjudgment relief, the judge reduced the jury's verdict from murder to involuntary manslaughter, acting pursuant to Mass. R.Crim. P. 25(b)(2), 378 Mass. 896(1979), and vacated the life sentence.He denied Woodward's request for a required finding of not guilty or for a new trial.In a hearing that same afternoon after release of his memorandum and order reducing the verdict and vacating Woodward's sentence, the judge imposed a sentence of 279 days for Woodward's manslaughter conviction, that sentence being deemed served by Woodward while incarcerated awaiting trial and while awaiting action on her postconviction motion.

The Commonwealth and Woodward filed cross appeals.The Commonwealth then sought relief before a single justice, pursuant to G.L. c. 211, § 3.² The single justice reserved and reported the case without decision to the full court, and ordered the parties' respective cross appeals be consolidated with that reservation and report and entered in this court.The Commonwealth here seeks reinstatement of the jury's verdict of murder in the second degree.In the alternative, the Commonwealth asks that we exercise our general superintendence power, G.L. c. 211, § 3, and resentence Woodward ourselves or remand the case to the Superior Court for reconsideration of Woodward's rule 25(b)(2) motion or for resentencing by another judge.Woodward appeals from the judge's refusal to dismiss the indictment and his denial of her motion for a required finding of not guilty.She also raises a number of other claimed trial errors, but waives them if we should uphold the judge's reduction of the verdict from murder to involuntary manslaughter, and the sentence he imposed.

I.THE COMMONWEALTH'S APPEAL

The Commonwealth argues that the judge abused his discretion in reducing the jury's verdict from murder to a manslaughter conviction.It points out that he should not have declined the Commonwealth's request for a manslaughter instruction.It argues that these errors, ³ in combination, impaired the integrity of the justice system and require that, pursuant to our extraordinary power of superintendence over the lower courts, we vacate the judge's postverdict order and restore the jury's verdict of murder in the second degree and the resulting mandated life sentence.

1.The jury instructions.The Commonwealth presented evidence that the cause of Matthew's death was severe head trauma inflicted on February 4, 1997, while he was in the sole custody of Woodward.⁴The Commonwealth sought jury instructions on murder in the first degree on a theory of extreme atrocity or cruelty, ⁵ murder in the second degree, and on the lesser included offense of involuntary manslaughter.Woodward objected to the last request, and asked that the jury be limited to considering the offense of murder.The judge acceded to her request.⁶This was error.We have stated repeatedly that, "[w]hen the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime."Commonwealth v. Gould, 413 Mass. 707, 715, 603 N.E.2d 201(1992).SeeCommonwealth v. Hobbs, 385 Mass. 863, 871, 434 N.E.2d 633(1982);Commonwealth v. Richmond, 379 Mass. 557, 562, 399 N.E.2d 1069(1980);Commonwealth v. Campbell, 352 Mass. 387, 392, 226 N.E.2d 211(1967).We have never limited this rule to requests made by the defendant, nor have we ever held that the Commonwealth is not entitled, evidence permitting, to such an instruction on request.⁷

This issue has arisen on appeal most often in cases in which the defendant requested an instruction on a lesser included offense.In the only case of which we are aware concerning the Commonwealth's request for a lesser included instruction, which presented the converse of the question here, we affirmed a judge's allowance of the request over the defendant's objection.Commonwealth v. Thayer, 418 Mass. 130, 132-133, 634 N.E.2d 576(1994).SeeCommonwealth v. Matos, 36 Mass.App.Ct. 958, 962, 634 N.E.2d 138(1994)(defendant does not have absolute right to make tactical decisions that determine which theories of criminal liability are submitted to jury);Commonwealth v. Vasquez, 27 Mass.App.Ct. 655, 660, 542 N.E.2d 296(1989)(test to determine if instruction on lesser included offense required does not depend on whether defendant or Commonwealth objects, but rather whether evidence supports such instruction).Here, a disputed element--malice--distinguishes murder, the greater offense, from manslaughter, the lesser offense, and an instruction should have been given.Consideration of lower court denials of prosecutors' requests for instructions on lesser included offenses would not reach us except in the unlikely procedural circumstances of this case, because the Commonwealth has no reason to appeal from a conviction, and is barred by double jeopardy principles from appealing from an acquittal.SeeCommonwealth v. Therrien, 383 Mass. 529, 532, 420 N.E.2d 897(1981).Authorities elsewhere hold overwhelmingly that the prosecution has a right to jury instructions on lesser included offenses, on request, if the evidence so warrants, in spite of a defendant's objection.⁸As far as we are aware, no jurisdiction that has considered the issue has allowed a defendant to veto a lesser included offense instruction properly requested by the prosecution.

Our conclusion that the Commonwealth was entitled to a manslaughter instruction is fortified by the policy favoring instructing juries on lesser included offenses.The doctrine serves the public purpose of allowing the jury to convict of the offense established by the evidence, rather than forcing them to choose between convicting the defendant of an offense not fully established by the evidence or acquitting, even though the defendant is guilty of some offense.Commonwealth v. Walker, 426 Mass. 301, 305, 687 N.E.2d 1246(1997).⁹Here, it was peculiarly inappropriate for the judge to refuse to charge the jury on manslaughter when, as revealed by his subsequent order reducing the jury's verdict, in his view the evidence was not consonant with a conviction of murder.The jury, in reaching their verdict, surely must have concluded that the Commonwealth had proved beyond a reasonable doubt the element of causation--that Woodward's acts caused Matthew's fatal injury.By refusing to accede to the Commonwealth's request for a manslaughter instruction, the judge impermissibly prevented the jury from considering a lesser degree of culpability for Woodward.

The judge's error, however, did not prejudice the Commonwealth's case against Woodward in the final analysis.The Commonwealth concedes that the jury's verdict rendered the error harmless.SeeCommonwealth v. Matos, 36 Mass.App.Ct. 958, 962, 634 N.E.2d 138(1994)(no prejudice where jury instructed, over defendant's objection, on involuntary manslaughter and defendant convicted of murder in the second degree).If the judge had honored the Commonwealth's request and the jury had received the manslaughter instruction but had declined to choose that option, the judge could still have reduced the jury's murder verdict under rule 25(b)(2).See, e.g., Commonwealth v. Gaulden, 383 Mass. 543, 552, 420 N.E.2d 905(1981).Alternatively, had the jury been given such a choice and returned a manslaughter verdict, the trial's outcome would have yielded the same conviction of Woodward as the judge's postverdict order.

2.Rule 25(b)(2) reduction in verdict.General Laws c. 278, § 11, provides in part that "the judge may on a renewed motion for a directed verdict of not guilty pursuant to the Massachusetts Rules of Criminal Procedure set aside the verdict and order a new trial, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint."Rule 25(b)(2) incorporates this statutory authority.¹⁰The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases--convictions of murder in the first degree--under G.L. c. 278, § 33E.SeeCommonwealth v. Carter, 423 Mass....