Com. v. Zezima

Citation443 N.E.2d 1282,387 Mass. 748
PartiesCOMMONWEALTH v. Carmen Santino ZEZIMA.
Decision Date20 December 1982
CourtUnited States State Supreme Judicial Court of Massachusetts

John P. Osler, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Chief Justice.

On June 15, 1973, the defendant, Carmen Santino Zezima, was convicted of murder in the second degree, on an indictment charging him with murder in the first degree, of one Chester Miller, and of assault while armed with intent to murder one Robert Silvia. 1 After review under G.L. c. 278, § 33E, we upheld the convictions. Commonwealth v. Zezima, 365 Mass. 238, 310 N.E.2d 590 (1974). 2

In 1979, the defendant moved for a new trial, based on alleged constitutional errors in the jury instructions at his trial. The motion was denied. The Appeals Court dismissed the defendant's appeal because he had not obtained leave to appeal from a single justice of this court. Commonwealth v. Zezima, 10 Mass.App. 919, ---, Mass.App.Ct.Adv.Sh. (1980) 1981, 1982, 412 N.E.2d 359. The defendant then sought leave to appeal from a single justice of this court, and filed a petition for further appellate review. The single justice dismissed the application on the grounds that leave was not required to appeal a conviction of murder in the second degree, and that we had already granted the defendant's petition for further appellate review.

We agree that one convicted of murder in the second degree need not seek leave from a single justice to appeal the denial of a motion for a new trial. Greene v. Commonwealth, 385 Mass. 1008, 1009, 432 N.E.2d 706 (1982). See Leaster v. Commonwealth, 385 Mass. 547, 549, 432 N.E.2d 708 (1982). This is true even if the defendant was convicted of a crime committed before July 1, 1979, on an indictment charging murder in the first degree, and therefore has received full review under G.L. c. 278, § 33E, as mandated by Commonwealth v. Davis, 380 Mass. 1, --- - ---, Mass.Adv.Sh. (1980) 555, 568-570, 401 N.E.2d 811, 818-20. Greene v. Commonwealth, supra.

We conclude that the judge's instructions to the jury unconstitutionally relieved the Commonwealth of its burden of proving malice and intent, and of disproving accident. Consequently, we reverse.

The facts are briefly summarized as follows. The defendant and Miller were acquainted, and spent the evening of the murder socializing together with their wives. Their children remained at Miller's house, with a babysitter. At a bar, they met Silvia and one Victor Russo, and Miller invited everyone to return to his house.

The defendant left the bar with his wife and Mrs. Miller, arriving at Miller's house shortly before Silvia, Russo, and Miller. The defendant admitted that shortly after the three men arrived, he pointed a gun at Silvia and ordered him to remove his coat and lay it on the floor. He claimed he thought that Silvia was armed, and that the men were preparing to take drugs, which he wanted to avoid witnessing, for the sake of himself and his family. Miller stepped between the two men. According to the defendant, as Miller attempted to take the gun from him, it discharged several times, killing Miller and wounding Silvia. There was conflicting testimony as to whether the gun was in the possession of the defendant or some other person prior to the shooting.

1. Introduction.

The defendant, on constitutional grounds, attacks the judge's charge in several respects, viz: that the judge erred in charging the jury on the burden of proof of malice, intent, and self-defense, and in failing to charge the jury on accident. Because the law on which the defendant relies was not developed until after his trial and § 33E review, and has been applied retroactively, his failure to object below does not preclude him from raising his claims here. Commonwealth v. Lee, 383 Mass. 507, --- Mass.Adv.Sh. (1981) 1084, 1088, 419 N.E.2d 1378. DeJoinville v. Commonwealth, 381 Mass. 246, --- - ---, Mass.Adv.Sh. (1980) 1797, 1801-1802, 408 N.E.2d 1353. The defendant was tried in 1973, before Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976). While we "will bring greater expectations, and consequently more careful scrutiny" to a judge's charge in a trial which occurs after the date of those decisions, we conclude that the challenged instructions contained serious errors, mandating a new trial. Commonwealth v. Stokes, 374 Mass. 583, 591, 374 N.E.2d 87 (1978). See Commonwealth v. Callahan, 380 Mass. 821, --- - ---, Mass.Adv.Sh. (1980) 1411, 1415-1416, 406 N.E.2d 385; Connolly v. Commonwealth, 377 Mass. 527, 537, 387 N.E.2d 519 (1979).

It is established that jury instructions creating either burden-shifting (mandatory) or conclusive presumptions violate a defendant's right, under the due process clause of the Fourteenth Amendment to the United States Constitution, to have the State prove beyond a reasonable doubt every fact necessary to constitute the crime with which he is charged. Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979). Mullaney v. Wilbur, supra 421 U.S. at 691-704, 95 S.Ct. at 1886-1892. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). "The threshold inquiry ... is to determine the nature of the presumption [the jury instruction] describes.... That ... depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom v. Montana, supra 442 U.S. at 514, 99 S.Ct. at 2454. See Commonwealth v. Moreira, 385 Mass. 792, 794, 434 N.E.2d 196 (1982). In applying this test, we consider the impact of the charge as a whole. Commonwealth v. Chasson, 383 Mass. 183, ---, Mass.Adv.Sh. (1981) 724, 732, 423 N.E.2d 306. Reddick v. Commonwealth, 381 Mass. 398, ---, Mass.Adv.Sh. (1980) 1959, 1966, 409 N.E.2d 764. Commonwealth v. Sellon, 380 Mass. 220, ---, Mass.Adv.Sh. (1980) 789, 800, 402 N.E.2d 1329. Commonwealth v. Stokes, supra 374 Mass. at 590-591, 374 N.E.2d 87.

2. Instructions on Malice.

The judge repeatedly instructed the jury that "when [a] killing is caused by the intentional use of a deadly weapon, such as a gun, there arises a presumption that the killing was with malice aforethought." 3 In Commonwealth v. Callahan, supra, 380 Mass. at --- - ---, Mass.Adv.Sh. (1980) at 1412-1415, 406 N.E.2d 385, we held that such a charge raises an impermissible mandatory presumption, unless the rest of the charge makes clear to the jury that they are permitted, not obliged, to infer malice from the intentional use of a deadly weapon. See Commonwealth v. Palmer, 386 Mass. 35, 35-36, 434 N.E.2d 983 (1982).

Here, the presumption instruction was delivered twice during the regular charge to the jury, and repeated twice in supplemental instructions, given after the jury requested clarification of the law regarding murder in the second degree, involuntary manslaughter, and malice aforethought. In each instance, the context made likely that the presumption instruction had a significant impact on the jury. It followed instructions on malice, and was clearly offered as a presumption which would suffice as proof of malice. The word "inference" was never used. Moreover, in the regular charge, the instruction was coupled with the equally objectionable instruction that a person is presumed to intend the natural consequences of his acts. See Commonwealth v. Callahan, supra 380 Mass. at ---, Mass.Adv.Sh. (1980) at 1413-1415, 406 N.E.2d 385.

The instant charge was not, therefore, like those charges in which the judge used the words "presumption" and "inference" interchangeably, or referred incidentally to a presumption of malice in a charge otherwise clear as to the Commonwealth's burden of proof, so that the jury would have understood that they were allowed, but not required, to infer malice from the intentional use of a deadly weapon. See, e.g., Commonwealth v. Fitzgerald, 380 Mass. 840, --- - ---, Mass.Adv.Sh. (1980) 1433, 1438-1439, 406 N.E.2d 389 (one charge on presumption of malice from intentional use of a deadly weapon, and interchangeable use of words "presumption" and "permissible inference"); Commonwealth v. Hughes, 380 Mass. 596, --- - ---, Mass.Adv.Sh. (1980) 1175, 1181-1182, 404 N.E.2d 1246 (judge used words "presumption" and "inference" interchangeably); Commonwealth v. Medina, 380 Mass. 565, --- - ---, Mass.Adv.Sh. (1980) 1143, 1155-1156, 404 N.E.2d 1228 (one reference to presumption of malice, and repeated instructions on Commonwealth's burden of proof); Gibson v. Commonwealth, 377 Mass. 539, 542, 387 N.E.2d 123 (1979) (interchangeable use of "presumption" and "inference"); Commonwealth v. McInerney, 373 Mass. 136, 149-150, 365 N.E.2d 815 (1977) (use of "presumption" and "inference" as if synonymous, and repeated, clear, accurate instructions on the Commonwealth's burden of proof). Nor was the charge saved by comprehensive instructions on the Commonwealth's burden of proof. The judge instructed the jury only briefly and generally, at the beginning of the charge, on the presumption of innocence, the Commonwealth's burden of proof, and the defendant's right to the benefit of any reasonable doubt. 4 Immediately thereafter, discussing the indictment for unlawfully carrying a firearm, he stated: "While in most instances the burden of proving every essential fact is upon the Commonwealth [here] the defendant has the burden of proving he had a permit." There was no further mention of the burden of proof in either the first or second set of instructions. "To the extent that the judge told the jurors that the Commonwealth had the burden of proof ... in one part of the instructions, and in another part of the instructions implied that malice had to be disproved or rebutted, the instructions do not clearly place on the Commonwealth the duty to...

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