Connolly v. Com.

• Citation: 377 Mass. 527,387 N.E.2d 519
• Parties: Daniel R. CONNOLLY v. COMMONWEALTH.
• Decision Date: 16 March 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 519

387 N.E.2d 519

377 Mass. 527

Daniel R. CONNOLLY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 6, 1978.

Decided March 16, 1979.

Allen Bress, Boston (John Leubsdorf, Boston, with him) for plaintiff.

Barbara A. H. Smith, Asst. Atty. Gen., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

By petition for writ of error, lodged in the Supreme Judicial Court for the county of Suffolk, Daniel Connolly has alleged that the judge's instructions to the jury at his 1968 trial for murder placed on him, illegally, the burden of proving that he acted in self-defense (exception was not taken at the trial; this was before the development of the constitutional law on the subject). By agreement with the Commonwealth, the record on the petition consists essentially of the transcript of the trial as it reached this court on the petitioner's unsuccessful appeal from his conviction of murder in the first degree. Commonwealth v. Connolly, 356 Mass. 617, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79 (1970). The matter is before us on reservation and report, without decision, of a single justice of this court. (Other postconviction applications previously made by the petitioner are noted in the margin.) ¹

To outline as much of the record as may be pertinent: The petitioner Connolly and a codefendant, Richard J. Cote, were charged with the murder on November 30, 1967, of John Chwalek. ² About 11:30 P.M. that day Chwalek was in a Chevrolet automobile on Water Street in Lawrence in the company of Sylvia Haggar, with whom Connolly had recently broken off relations. Connolly was in a Rambler automobile ahead, driven by Cote. There was testimony that the Chwalek car, after a high speed chase, forced the Cote car off the road. Other testimony had Chwalek merely beeping his horn to signal the other car to stop. Both vehicles pulled over and Connolly and Chwalek emerged. According to Haggar (the major prosecution witness), Connolly, without particular provocation, fired a "gun" several times at Chwalek, then went to the car where she, Haggar, was sitting, and shot and wounded her; the Cote car left, then returned, and Connolly fired again at Chwalek who had crawled into the Chevrolet. Chwalek died of the multiple wounds. According to Haggar, only one weapon was involved.

Connolly took the stand to testify that Chwalek had approached with a shotgun and ordered him out of the Cote car. He got out, first grabbing from the back seat a .22 caliber rifle (he and Cote had bought the rifle the day before). Chwalek opened fire but Connolly ducked and retreated. His rifle went off (on cross-examination he said he "shot back"); then he dropped it. Connolly and Chwalek wrestled over the shotgun, during which time it was "going off" (Connolly could not say how many times). The struggle moved to the front seat of the Chevrolet. According to Connolly, Haggar at this time was pulling on his back and neck, and also grappling for the shotgun. At some point the Cote Rambler drove off. Connolly said he had no memory of what happened after the fatal episode or how he got back home.

Supporting Connolly's version to some extent was the fact that the wounds in Chwalek's body came both from the .22 caliber rifle and from a shotgun; and spent shotgun shells were found near the scene. ³ No shotgun was found, however. (The rifle was subsequently located in the basement of Connolly's apartment building.) There was no dispute that Connolly and Chwalek had previously had at least one violent encounter Chwalek, according to Connolly, having pistol-whipped him, knocked him down, and kicked his face.

We do not elaborate on the evidence which we have digested to bring out the nature of the defense. On a previous occasion (see note 1 Supra ) a master found the case against Connolly was "very strong," Connolly v. Commonwealth, 366 Mass. 435, 437, 319 N.E.2d 719 (1974), but it is clear that the state of the proof was such as to require the trial judge to instruct on the issue of self-defense, and he did so. ⁴ The question is whether the instruction given was constitutionally adequate under our decisions beginning with Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976). ⁵

1. The standard. As malice is an essential element of murder, and a proper exercise of self-defense negates malice, it follows from Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), ⁶ that the Commonwealth bears the burden of proving beyond a reasonable doubt, in any case where the issue arises, that there was not a proper exercise of self-defense; and the judge should so charge. ⁷ Rodriguez made this inference from Mullaney ; and it found wanting a charge which suggested, without explicitly stating, that the defendant had to prove that he acted in proper self-defense, and also failed to "impress on the jury the critical nexus between the elements of the crime charged and the absence of self-defense." 370 Mass. at 691, 352 N.E.2d at 208.

Rodriguez did not decide whether instructions would be reviewed in light of this standard in the absence of request or objection at trial, 370 Mass. at 692 n.9, 352 N.E.2d 203, or whether the standard applied retroactively. The case of Commonwealth v. Stokes, --- Mass. ---, --- - --- ^A, 374 N.E.2d 87 (1978), answered both questions in the affirmative; as to the latter point it followed Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). ⁸ We added in Stokes, however, that we would bring "greater expectations" (--- Mass. at --- ^B, 374 N.E.2d 87) to charges in trials that occurred after Mullaney (1975), and especially after our Rodriguez decision (1976), than we would to charges in earlier trials, when Mullaney and Rodriguez could not have been foreseen.

We also said in Stokes (--- Mass. at --- - --- ^C, 374 N.E.2d at 93):

"In adopting the ruling of Mullaney . . . we are not required to apply a narrow and precise test to the instructions given by the judge. If Mullaney imposed such a requirement, reversal would follow with mathematical certainty in all cases where self-defense or reasonable provocation had been raised in the evidence sufficiently and where the burden of proof as to these precise issues had not been placed by specific language on the Commonwealth.

"Rather, we believe that, in any case where the requirements of Mullaney are placed in issue, the charge to the jury must be examined in its entirety to determine whether the constitutional requirements have been met. . . . For example, a jury charge might well be constitutionally sufficient which clearly placed the burden of proving malice beyond a reasonable doubt on the Commonwealth and contained other discussion which, although not referring to the burden of proof as to self-defense and reasonable provocation, adequately defined those factors and established them as negating a finding of malice."

The last requirement in the passage quoted above, that self-defense or provocation be "established . . . as negating a finding of malice," reiterated and clarified what we said in Rodriguez, that the "critical nexus" between the elements of the crime and self-defense must be brought home. ⁹

2. The instant charge. On these lines we analyze the charge in the present case. The jury were told that the Commonwealth had the "burden of proving beyond a reasonable doubt every essential element of the crime charged." In regard to murder, the judge said, "(T)he burden is on the Commonwealth to prove beyond a reasonable doubt that (Connolly) intentionally fired the shots that struck the deceased without legal justification or excuse and without such extenuation as may reduce the crime to manslaughter but with what in the law is called 'malice aforethought.' " Defining malice, the court said, "It not only includes hatred and ill-will or revenge, but every other unjustifiable motive. . . . It is enough if the killing was intentional and was without legal excuse and justification."

Arriving at manslaughter and self-defense, the judge mentioned killing in self-defense as one example of lawful homicide. Then, after outlining the substantive requirements of self-defense without reference to any burden of proof, the judge said:

"The defendant Connolly claims as a ground of defense that the shooting was lawful, and that it was justified because done in defending himself. . . . (I)n order to find the defendant . . . was justified you must find that the deceased . . . assailed the defendant . . . and the defendant was so situated that he could not escape, or that he already had done all that he reasonably could to get away from the deceased.

"Unless you find that to be the situation, you cannot find that the defendant Connolly was justified in killing in self-defense.

"If you find that he could not get away or that he had done all that he reasonably could to get away, but you should also find that there was nothing in the situation which you say caused him to have a reasonable fear of immediate death or great bodily harm and that he did not in fact have such a fear, then he was not justified in killing in self-defense."

The initial instruction regarding burden of proof on all essential elements, and about absence of legal justification or excuse as a condition of a guilty verdict, satisfied part of the Stokes guideline: it "clearly placed the burden of proving malice beyond a reasonable doubt on the Commonwealth." The later instruction that homicide may be justifiable if committed in self-defense, although good as far as it went, did not fully comport with the further Stokes requirement that self-defense be "established . . . as negating a finding of malice." Yet the defect ¹⁰ might be thought not enough in itself, in a pre-Mullaney trial, to hold an instruction bad. The greater difficulty with the charge lies in its repeated use...