Commonwealth v. Lapage

Cordy, J.

(dissenting). Because I believe that the instructions given in this case, evaluated as a whole, do not create a substantial likelihood of a miscarriage of justice, I respectfully dissent.

In Commonwealth v. Acevedo, 427 Mass. 714 (1998) (Acevedo), we found that a jury instruction on voluntary manslaughter that repeatedly misstated the burden of proof on provocation was prejudicial error,1 and reversed the defendant’s conviction of murder in the second degree.2 We did not, however, abandon or alter our long-standing practice of evaluating jury instructions as a whole, when individual portions of those instructions are challenged on appeal.

“We evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge’s words.” Commonwealth v. Trapp, 423 Mass. 356, 361, cert, denied, 519 U.S. 1045 (1996). We do not “scrutiniz[e] bits and pieces removed from their context,” Commonwealth v. Niemic, 427 Mass. 718, 720 (1998) (Niemic), quoting Commonwealth v. *490Perez, 390 Mass. 308, 313 (1983), but “rather in the context of the charge as a whole.” Commonwealth v. Repoza, 400 Mass. 516, 519, cert, denied, 484 U.S. 935 (1987). While the defendant may wish to parse the charge and attack it piecemeal, we view it in its entirety because “the adequacy of instructions must be determined in light of their over-all impact on the jury.” Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980).

The question here is whether, viewing the charge as a whole, we believe that there is a substantial likelihood that the jury misunderstood the elements of the offenses or concluded that the Commonwealth did not have the burden of proving beyond a reasonable doubt every element of the crime charged, including the burden of disproving adequate provocation in order to sustain a verdict of murder as opposed to manslaughter. Having reviewed the charge, including those portions most troubling to the court, I do not believe that the jury could have so concluded. The jury instructions, while not perfect, fully conveyed the elements of the crime charged and the proper burdens of proof. Any misstatements were inconsequential in the context of the charge as a whole, and did not create a substantial likelihood of a miscarriage of justice.

The Acevedo error. After instructing the jury on the elements of murder in the first and second degrees, the judge turned to the crime of voluntary manslaughter, properly describing it as “an unlawful intentional killing resulting from a sudden transport of the passions of fear, anger, fright, nervous excitement or heat of blood when there is no time to deliberate [when] such passion or heat of blood is produced by adequate or reasonable provocation.” He also properly explained: “If a person kills another in the heat of passion, which is occasioned by adequate and reasonable provocation . . . then even though that person had an intent to kill, the killing is designated manslaughter, not murder, because of the mitigating circumstances. Again the factor that distinguishes voluntary manslaughter from murder is not the absence of intent but rather the absence of malice aforethought.”

The judge then proceeded to list the three elements of the crime of voluntary manslaughter that the Commonwealth was required to prove beyond a reasonable doubt, in language which *491we disapproved in Acevedo. “First, the defendant inflicted an injury upon [the victim] from which she died. Second, that the defendant injured [the victim] as a result of sudden combat or in the heat of passion or using excessive force in self-defense, and third, that the homicide was committed unlawfully without legal excuse or justification.”

This introductory instruction was immediately followed by a specific instruction as to how the jury were to consider evidence of provocation and conduct arising in the heat of passion, the presence of which would reduce an unlawful killing from murder to manslaughter. In this context, he specifically and correctly instructed the jury that, “[i]f there is evidence of provocation, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in the heat of passion.”3 Hence, the general instruction on the Commonwealth’s burden of proving the three listed elements, which as we suggested in Acevedo could be interpreted to place the burden on the Commonwealth to prove provocation or heat of passion rather than to disprove it beyond a reasonable doubt, was immediately corrected in the specific instruction about how the jury were to consider evidence of provocation. That the Commonwealth had the burden of disproving provocation beyond a reasonable doubt in order to prove murder rather than voluntary manslaughter was unequivocal. The jury could not have interpreted this instruction to place any burden on the defendant, or to improperly relieve the Commonwealth of its burden. The charge contained no further incorrect instructions on the issue of provocation. In contrast, the charge in Acevedo included two further incorrect instructions following an incorrect and a correct instruction on the subject. We applied the “prejudicial error standard” and concluded that “the center of gravity of the provocation instructions was strongly on the side of misstatement.” Id. at 717.

The Commonwealth relies on our Niemic decision to support its contention that the voluntary manslaughter instruction, read as a whole, adequately conveys the proper burden of proof on *492the issue of provocation. The court finds Niemic not to be helpful to the Commonwealth. I disagree. Niemic is directly on point and ought to be dispositive of the issue in this case. In Ni-emic, the trial judge first instructed the jury in the language we rejected in Acevedo, and then instructed them (in virtually identical language to that used in the present case), that “[wjhere there is evidence of provocation, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in the heat of passion” and that “for any killing to be either first- or second-degree murder, it must be an unlawful killing committed with malice aforethought.” Id. at 721. There was in Niemic, as here, no further elaboration on the point and no objection to the instruction. The defendant was similarly convicted of murder in the first degree. In applying the substantial likelihood of a miscarriage of'justice standard, we held the charge adequate in Niemic, and I would so hold here.4

Intentional killing. The court identifies what it contends is a further error with regard to the voluntary manslaughter instructions bolstering its view that the defendant was deprived of his mitigating defense. Specifically, the opinion concludes that the instructions “improperly suggest that the Commonwealth does not have to prove an essential element of voluntary manslaughter, namely, an intentional killing.” Ante at 487. To support this conclusion, the court points to two portions of the charge. The first is: “[T]he factor that distinguishes voluntary manslaughter from murder is not the absence of intent but rather the absence of malice aforethought. That is the absence of a specific intent to kill or the absence of a specific intent to do great bodily harm.” Ante at 486. The court finds this portion of the charge to be erroneous or misleading on whether voluntary manslaughter involves an intentional killing. It is neither when viewed in the context of the charge as a whole.

First, the judge’s instructions on voluntary manslaughter *493repeatedly emphasized that it is an intentional killing. The judge begins his instruction on voluntary manslaughter by describing it as “an unlawful intentional killing,” and later in the instruction distinguishes involuntary manslaughter from voluntary manslaughter by reminding the jury that “[ijnvoluntary manslaughter is distinguished from voluntary manslaughter in that involuntary manslaughter does not contain an intent to kill. Voluntary manslaughter does involve an intent to kill. In involuntary manslaughter what is involved is . . . conduct rather than an intent to kill. An intent to do something but not to kill.” (Emphases added.)

Second, the “misleading” or “erroneous” language noted by the court is neither when viewed in the flow of the instructions as given. The full text of the first two paragraphs of the judge’s charge discussing voluntary manslaughter, which contain the complained of language, is as follows:

“Now, there are two other possible verdicts in this case, and they are the crime of voluntary manslaughter or the crime of involuntary manslaughter. What distinguishes murder from manslaughter is the element of malice. There must be malice in order for there to be murder. If there is no malice, then the jury may consider manslaughter as an alternative verdict. We have two types of manslaughter, voluntary manslaughter and involuntary manslaughter. Voluntary manslaughter is an unlawful intentional killing resulting from a sudden transport of the passions of fear, anger, fright, nervous excitement or heat of blood when there is no time to deliberate with such passion or heat of blood is produced by adequate or reasonable provocation and without malice or upon sudden combat it would have been likely to produce in an ordinary person, an abnormal state of mind and actually did produce such a state of mind in the defendant.
“The law provides for the crime of manslaughter in recognition of the frailty of human nature. If a person kills another in the heat of passion, which is occasioned by adequate and reasonable provocation, or in sudden combat, then even though that person had an intent to kill, the killing is designated manslaughter, not murder, because of the *494mitigating circumstances. Again, the factor that distinguishes voluntary manslaughter from murder is not the absence of intent but rather the absence of malice aforethought. That is the absence of a specific intent to kill or the absence of a specific intent to do great bodily harm,, (emphasis added).

The italicized language, which the court suggests is misleading or erroneous on whether an essential element of voluntary manslaughter is an intentional killing, merely refers the jurors back to the definition of “malice aforethought” in the context of murder in the second degree that the judge had just provided, i.e., that malice aforethought is a “specific unexcused intent to kill or a specific unexcused intent to do great bodily harm.” A reasonable jury would have understood the judge’s reference back to that concept, and would not have concluded that voluntary manslaughter was an unintentional killing. I would find that there was no error.

The court, ante at 486-487, next points to a statement the judge makes near the end of his instructions as he describes how the jurors should proceed through the various possible verdicts, telling them to look first to murder in the first degree, and, if the elements are not proved, to murder in the second degree, and then to voluntary manslaughter, and involuntary manslaughter. In this context, the judge said:

“If the Commonwealth has failed to prove an unlawful killing, an intentional killing, if [it has], not proven malice aforethought, you will then consider whether the Commonwealth has proven voluntary manslaughter.”

This is clearly an unintended slip of the tongue by the judge. While it is hard to know precisely how the jury would understand this slip in light of the detailed instructions that the judge gave on the crime of voluntary manslaughter — including repeatedly telling them that voluntary manslaughter is an intentional killing done without malice — there are two indications that suggest that it was not likely misunderstood. Right after the judge makes the above slip, he again correctly distinguishes voluntary manslaughter from involuntary manslaughter by telling the jury that, “[i]f the Commonwealth has *495failed to prove an intentional killing but [has] proven an assault and battery and an unlawful killing as a result of that, without the intention to kill, then you would be warranted in returning a verdict of guilty of involuntary manslaughter.”

Further, defense counsel makes no note of the misstatement just a few moments later when the judge concludes his charge and asks counsel whether they were satisfied. While defense counsel had a number of requests and comments which the judge considered, incorporating at least one suggestion into further instructions to the jury, there was no complaint regarding this slip of the tongue. The failure of counsel to bring this matter to the judge’s attention strongly suggests that it was not of consequence to those who heard it and had a very real interest in its correctness. It also underscores the need to restrain ourselves from reading too much into excerpts pointed out and complained of much later in the process by lawyers who were not present when the charge was given, and were not in a position to assess the impact of the over-all charge on the jurors. On review for a substantial likelihood of a miscarriage of justice, I do not see this slip of the tongue coming close to meeting that standard.

Finally, the court points to the judge’s response to a jury question asking “what the law states regarding mfurder in the second degree, and ... the definition of malice.”5 The judge’s response to the jury, while possibly confusing on a subject not asked about (i.e., excessive use of force in self-defense), otherwise clearly, directly, and correctly restates the law on murder in the second degree and malice in the context of murder in the second degree.

The judge instructed that for murder in the second degree, the Commonwealth must prove two elements beyond a reason*496able doubt: that the defendant “unlawfully” killed the victim, and that the killing was “committed with malice aforethought.” The judge noted that the case raised the issue whether the killing was excused, or lawful, because the defendant acted in self-defense. On this point, the judge was clear: “The defendant does not bear the burden of proving justification or excuse. Rather, the Commonwealth must prove to you beyond a reasonable doubt that the killing was not the result of the defendant’s act of self-defense.”6

The judge went on to tell the jury that malice for purposes of murder in the second degree is a specific unexcused intent either to kill or to do grievous bodily harm. That “intent” means a person’s purpose or objective, and specific intent involves the “act of concentrating or focusing the mind ... a conscious act with the determination of the mind to do [it] . . . contemplation rather than reflex . . . preceding] the act.”

I cannot say that these instructions were erroneous, overly confusing, or conveyed the wrong burden of proof on the key elements of any of the possible verdicts. The lack of specific objection from counsel, who. by all appearances seemed attentive to his client’s interests, again belies any obvious misapprehension of the correctness of the gravamen of the judge’s instructions."

The Appeals Court had affirmed the conviction, Commonwealth v. Acevedo, 43 Mass. App. Ct. 1109 (1997), applying the substantial risk of a miscarriage of justice standard. On further appellate review, we reversed the denial of the defendant’s motion for a new trial, finding that the error in the instruction had been resurrected because the trial judge had addressed it in denying the motion, and therefore the standard should have been prejudicial error. In applying that standard, we reversed the conviction. Commonwealth v. Acevedo, 427 Mass. 714, 715 (1998).

Our Acevedo decision was presaged by Commonwealth v. Boucher, 403 Mass. 659, 663 (1989), in which we reversed a conviction of murder in the first degree because the judge’s instruction on voluntary manslaughter completely failed to tell the jury that, where evidence of provocation was present, the Commonwealth had the burden of proving the absence of adequate provocation beyond a reasonable doubt in order to sustain its burden of proving murder rather than manslaughter.

In Commonwealth v. Niemic, 427 Mass. 718, 721 (1998), we held this language adequate to convey the Commonwealth’s burden of proving the absence of provocation.

As noted by the court, the principal defense in this case was self-defense. Consistent with his instruction on provocation, the judge also clearly instructed the jury that once evidence of self-defense is before them, the Commonwealth must disprove self-defense beyond a reasonable doubt in order to sustain its burden of proving murder.

The question, when viewed in the context of the ultimate verdict of guilty of murder in the first degree on theories of premeditation and extreme atrocity and cruelty, strongly suggests that the jury was struggling with the difference between the degrees of murder and the element of malice as applied to each. We can fairly conclude that the jury were not struggling with a verdict of manslaughter versus murder in the second degree when they asked this question. It seems that making such commonsense inferences is particularly within our province when we review the record for a substantial likelihood of a miscarriage of justice.

The judge also instructed that, in addition to proving that the defendant did not act in self-defense, the Commonwealth bore the burden of proving that the defendant did not use excessive force in self-defense, where the excessive use of force in self-defense would “drop the case to manslaughter.” Admittedly, the judge’s language on the interplay between self-defense and the “excessive use of self-defense” was inartful, tire over-all message, however, was clear. The Commonwealth had the burden of disproving both self-defense and the excessive use of self-defense to sustain a verdict of murder.