Commonwealth v. Medina

• Decision Date: 09 December 1999
• Citation: 430 Mass. 800,723 NE 2d 986
• Parties: COMMONWEALTH v. ROBERTO MEDINA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 800

723 NE 2d 986

COMMONWEALTH v. ROBERTO MEDINA.

Supreme Judicial Court of Massachusetts, Suffolk.

December 9, 1999.

February 17, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Jeffrey L. Baler for the defendant.

Dean A. Mazzone, Assistant District Attorney (John P. Zanini, Assistant District Attorney, with him) for the Commonwealth.

LYNCH, J.

Convicted of murder in the first degree, the defendant, Roberto Medina, appeals from the denial of his motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979). We affirm.

1. Prior proceedings. On October 4, 1975, after being tried jointly in the Superior Court with Erasmo Soto, the defendant was convicted of murder in the first degree. On May 5, 1980, this court affirmed the defendant's conviction.¹ See Commonwealth v. Medina, 380 Mass. 565, 566, 580-581 (1980) (Medina I). In Medina I, supra at 567-570, 573, this court concluded, among other things, that the evidence — portions of which we shall discuss more fully below in connection with the specific issue raised by this present appeal — warranted the jury in finding that the defendant hit the victim numerous times around the head and neck with a baseball bat as she lay on the ground; that the beating was administered with such force that the bat broke into two pieces; and that the primary cause of death was dislocation of the victim's cervical vertebrae resulting from blunt force trauma to her head or neck.² This court further decided that the judge's instruction to the jury on the malice element of the crime of murder, in which he referred to a "`presumption' of malice," was not erroneous when read in the context of his charge as a whole. Id. at 577-578.

On July 10, 1996, the defendant moved for a new trial pursuant to rule 30 (b), arguing that subsequent decisions of the United States Supreme Court with respect to burden-shifting presumptions in jury instructions, see Yates v. Evatt, 500 U.S. 391 (1991); Francis v. Franklin, 471 U.S. 307 (1985), rendered the judge's instruction on malice at his trial erroneous and prejudicial. A judge in the Superior Court denied the defendant's motion, ruling that Francis v. Franklin, supra,

did not apply because the killer's intent was not a pivotal and contested issue at trial and, alternatively, that any error in the instruction was harmless beyond a reasonable doubt in light of the overwhelming evidence that the assailant intended to kill the victim. The defendant timely filed notice of appeal in the Superior Court and, pursuant to G. L. c. 278, § 33E, sought leave of a single justice of this court to bring his appeal before the full court. The single justice denied this motion, ruling that, although Francis v. Franklin, supra, did apply and that, in light of its principles, the malice instruction was erroneous, nevertheless the overwhelming evidence of the killer's malice rendered the error harmless beyond a reasonable doubt under Yates v. Evatt, supra, and, therefore, that this issue, while "new," was not "substantial." See G. L. c. 278, § 33E. The defendant, pro se, moved for reconsideration, urging a closer reading of the harmless error analysis mandated by Yates v. Evatt, supra. The single justice allowed this motion and, on reconsideration, granted the defendant leave to appeal to the full court from the denial of his motion for a new trial on the issue of the malice instruction.

2. Discussion. The decision to deny a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error. See Commonwealth v. Nieves, 429 Mass. 763, 770 (1999), citing Commonwealth v. Hung Tan Vo, 427 Mass. 464, 467 (1998). We conclude that neither ground for reversal is present here.

It is well established that language in jury instructions of any presumption, whether conclusive or rebuttable, that has the effect of shifting from the prosecution to a defendant the burden of proof on an essential element of the crime charged offends the defendant's Federal constitutional right to due process. See Sandstrom v. Montana, 442 U.S. 510, 519-520, 523-524 (1979), citing In re Winship, 397 U.S. 358, 364 (1970); Commonwealth v. Moreira, 385 Mass. 792, 794 (1982). Inclusion in the jury charge of other language "`that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity' because `[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.'" Commonwealth v. Repoza, 400 Mass. 516, 519, cert. denied, 484 U.S. 935 (1987), quoting Francis v. Franklin, supra at 322.³ However, it is also established that, where an instruction is held erroneous on these grounds, a reviewing court may still inquire whether that error was harmless beyond a reasonable doubt. See Yates v. Evatt, supra at 402-403; Rose v. Clark, 478 U.S. 570, 578-580 (1986), citing Chapman v. California, 386 U.S. 18, 23 (1967); Commonwealth v. Doherty, 411 Mass. 95, 102-103 (1991), cert. denied, 502 U.S. 1094 (1992).

The harmless error analysis mandated by Yates v. Evatt, supra at 404, entails two distinct steps. First, the reviewing court must determine what evidence the jury actually considered in reaching their verdict — a determination made by analyzing the language of the instructions given to the jury and applying the customary assumption "that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so." Id. Second, the court must "weigh the probative force of that evidence as against the probative force of the presumption standing alone." Id. See Commonwealth v. Doherty, supra at 103. To conclude that the burden-shifting presumption in the instruction was harmless and did not contribute to the jury's verdict, the evidence considered by the jury in accordance with the instructions must be "so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption." Yates v. Evatt, supra at 405, citing Chapman v. California, supra at 24.

Importantly, in performing this analysis, the court must avoid assuming that the jury actually considered all the evidence in the record that bears on the ultimate fact presumed. For if "the terms of [a] presumption[] so narrow the jury's focus as to leave it questionable that a reasonable juror would look to anything but the evidence establishing the predicate fact in order to infer the fact presumed," then it would be improper for the court's harmless error review to encompass the entire evidentiary record; instead, this review should be limited to evidence bearing on the predicating fact from which, according to the terms of the erroneous instruction, the ultimate fact was to be conclusively presumed. Yates v. Evatt, supra at 405-406. In such a case, a burden-shifting presumption in the instruction would nevertheless be harmless if the facts to be relied on in the presumption "are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact." Id. at 406 n.10, quoting Carella v. California, 491 U.S. 263, 271 (1989) (Scalia, J., concurring). See Sullivan v. Louisiana, 508 U.S. 275, 280-281 (1993). This is so because, in these circumstances, making the findings would be "functionally equivalent to finding the element to be presumed," and it would thus be "`beyond a reasonable doubt'... that the jury found the facts necessary to support the conviction." Carella v. California, supra at 271 (Scalia, J., concurring), quoting Chapman v. California, supra at 24.

At the defendant's trial, the judge instructed the jury, in relevant part, as follows:

"The word, `malice,' has been used and it has repeatedly been held by this Court that malice in this connection means every unlawful motive that may be inferred from unlawful killing, and when there are no circumstances disclosed tending to show justification or excuse, there is nothing to rebut the presumption of malice. Malice as here used does not necessarily imply ill will toward the person killed, but has the more comprehensive meaning, including any intent to inflict injury upon another without legal excuse or palliation."

A reasonable juror⁴ could have understood the instruction to mean the following: if you find that the defendant committed an unlawful killing, that is, a killing without legal excuse or justification, then malice, the intent to kill or to inflict injury without palliation, is to be conclusively presumed. By thus requiring the jury to conclude that the killing was committed with malice if they found the fact of a killing coupled with the absence of a legally cognizable excuse or justification, this instruction relieved the Commonwealth of its burden to prove beyond a reasonable doubt that the killer acted with malice, and could have precluded the jury from considering any evidence, if such existed, that might have mitigated malice. The effect of this presumption was, therefore, to shift to the defendant the burden of disproving malice, an essential element of the crime of murder, in violation of Sandstrom v. Montana, supra,

and Commonwealth v. Moreira, 385 Mass. 792, 796-797 (1982).⁵ See, e.g., Commonwealth v. Sires, 405 Mass. 598, 599-600 (1989) (statement in jury instruction that "where the fact of killing is shown and there are no circumstances disclosed tending to show justification or excuse, then there is nothing to rebut the natural presumption of malice" held Sandstrom-type error). Although other language in the judge's charge contradicted this presumption, instructing the jury, correctly, that malice "may be inferred from unlawful killing" and that the...