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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Fernette, 398
Supreme Judicial Court of Massachusetts,
Argued
Decided
[398
Mary Ellen O'Sullivan, Asst. Dist. Atty., for Com.
Before [398
[398
The
defendant, Kirk Fernette, appeals from his
convictions of murder in the first degree, armed robbery, assault with intent
to rob a victim over sixty‑five years old, G.L.
c. 265, § 18(a) (1984 ed.); assault and
battery by means of a dangerous weapon on a victim over sixty‑five, G.L. c. 265, § 15A (1984 ed.); and three convictions of assault, while
armed with a dangerous weapon, with intent to murder, G.L.
c. 265, § 18(b) (1984 ed.). On appeal
the defendant argues that it was error to deny his motion to suppress his
statement to the police, which was tape recorded, because it was not voluntary
and because the police stopped the tape recorder at times during the making of
the statement. The defendant also argues
that he was unfairly prejudiced by remarks made by the prosecutor during
closing argument; he was prejudiced by
the jury's unrestricted access to his tape recorded statement during deliberationss [398
Mass. 660] the jury instructions concerning proximate
cause did not permit the jury to consider the medical care given the
victim; the instructions defining murder
in the first degree were erroneous; the
instructions pursuant to Commonwealth v.
Dickerson, 372 Mass. 783, 364 N.E.2d 1052 (1977), were faulty; and the instructions on the intent
requirement for the assault, while armed with a dangerous weapon, with
intent to murder were erroneous. The
defendant also asks us to grant him relief pursuant to G.L.
c. 278, § 33E. We conclude that the
defendant is entitled to relief under
Commonwealth v. Freeman, 352
We
summarize the facts. (FN1) On
As they
headed to the bus station, the defendant and Bourgeois passed the home and barn
of the victim. The victim kept his car
in the barn. The two men went into the
barn and saw the victim's automobile.
The victim entered shortly thereafter and offered the two men a ride
part of the way to the bus [398
Mass. 661] station, which the men
accepted. When the victim let the men
out of his car, they decided to return to the victim's home and wait for him so
that they could take his money and his automobile. On the victim's return, he was blindfolded,
gagged and tied to his bed, after having his pockets emptied of money and his
automobile keys. According to the
defendant, he remained with the victim while his codefendant went to the store
to get sodas. The defendant claims that
during this period of time he loosened the ties on the victim. As soon as his codefendant returned from the
store, the men prepared to leave, taking with them the victim's cash, his
shotgun, some supplies, and the keys to his automobile.
As the men
were departing from the victim's home, the victim freed himself from his ties
and attempted to defend himself and his property. One of the two men (FN4) responded by
shooting the victim once in the mouth and once in the back. (FN5)
The two men then ran to the victim's automobile.
The victim
went to a neighbor's house for aid. The
police and an ambulance were summoned.
The police pursued the two men, who were fleeing in the victim's
car. During the pursuit, the defendant
leaned out of his car and fired the shotgun taken from the victim. (FN6)
Eventually, the automobile occupied by the men was driven off the road
into a field. The defendant fled on
foot. The next morning the police
apprehended him.
The
defendant was transported to the Middleborough State
police barracks. After being warned pursuant to Miranda v. [398 Mass. 662] Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant made a
statement which was tape recorded. (FN7)
1. Pretrial motion to suppress. The defendant challenges the admission of
his taped statement on two grounds.
First, the defendant asserts that the statement was not voluntarily
given due to his lack of food and sleep.
Second, the defendant asserts that the police action in stopping and
starting the tape recorder violated his due process rights. After an evidentiary hearing, (FN8) the judge
denied the defendant's motion to suppress the statement. There is no error.
[1]
"A conviction founded in whole or in part on statements which are the
product of physical or psychological coercion deprives the defendant of his
right to due process of law under the Fourteenth Amendment and, as a
consequence, is invalid." Commonwealth v. Mahnke,
368 Mass. 662, 679, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). If the voluntariness
of a confession is raised, the Commonwealth bears the burden of proving voluntariness beyond a reasonable doubt.
Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198, cert.
denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d
1356 (1982). Evidence of voluntariness must affirmatively appear in the record.
Commonwealth v. Parham, 390 Mass. 833, 460 N.E.2d 589 (1984). Because there is no "acid test" of voluntariness, this court must look to the totality of
circumstances to ensure that the confession is a voluntary act and not the
"product of inquisitorial activity which had overborne [the defendant's]
will." Mahnke, supra,
368 Mass. at 680, 335 N.E.2d 660.
[2][3] In
reviewing a judge's determination of voluntariness,
we accept the judge's subsidiary findings absent clear error.
Commonwealth v. Monteiro, 396 Mass. 123,
131, 484 N.E.2d 999 (1985). While we
give substantial deference to a judge's ultimate findings and [398 Mass. 663] conclusions of law, we must make an independent review of the
correctness of the judge's application of constitutional principles to the
facts found. Commonwealth v. Corriveau,
396 Mass. 319, 486 N.E.2d 29 (1985). Mahnke, supra,
368 Mass. at 667, 335 N.E.2d 660. If
the judge finds that the defendant's statement is voluntary beyond a reasonable
doubt, "that conclusion 'must appear from the record with unmistakable
clarity.' " Commonwealth v. Tavares, supra, 385 Mass.
at 152, 430 N.E.2d 1198, quoting Sims v.
Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17
L.Ed.2d 593 (1967).
The judge
made the following findings relevant to the voluntariness
of the defendant's confession. The
police arrested the defendant in the morning of September 20, 1983. The police chase occurred during the
afternoon of September 19, 1983. During
these hours prior to arrest, the defendant eluded capture by remaining under a
piece of plastic for eight hours. After
leaving that hiding place, the defendant fled into some woods, where he spent
the night in a tree. The next morning
the police caught the defendant standing near a shed and arrested him.
The judge
found that the defendant's last full meal before his arrest was breakfast on
September 19. During the rest of that
day, the defendant consumed two cookies and part of a raw zucchini. (FN9)
After arrest, the defendant was given water, soda, and
a doughnut. (FN10) During the questioning, several breaks were
taken, allowing the defendant to smoke a cigarette and collect himself.
The judge
found that even if the defendant were tired and hungry on the morning of his
arrest due to a lack of sleep or [398
Mass. 664] food, that did not
necessarily make the statement involuntary.
Based on an assessment of the manner of the defendant's speech on the
tape, the defendant's responses to questions and his demeanor on the witness
stand, the judge concluded that the statement was voluntary. The judge also found that the defendant was
not under the influence of alcohol or drugs at the time of questioning, and
that the defendant was not threatened or harmed by police during the
questioning. (FN11)
[4] The
judge concluded that the defendant's mental process was unimpaired and his will
was not overridden in the questioning.
The judge found "beyond a reasonable doubt, that the statements ...
were given voluntarily and were the product of a rational intellect...."
(FN12) After review, we conclude that
the totality of circumstances supports the judge's conclusion that the
statement was voluntary.
We turn to
the defendant's arguments concerning the manner in which his statement was
taped. The defendant contends that the
admission of a tape recorded statement which has been stopped and started
during the course of the questioning violates the due process clause of the
Fourteenth Amendment to the United States Constitution. It is undisputed that the tape recorder was
stopped on several occasions. The judge
found that the tape was stopped six or seven times. Because the interview lasted for approximately
two hours, the tape had to be turned over or changed at various times. On another occasion, the tape was stopped due
to construction noise in the hallway near the interview room. The tape recorder was stopped while the [398 Mass. 665] defendant was given food and water. The tape recorder also was turned off while thedefendant smoked a cigarette. Finally, the judge found that, on at least
one occasion, the tape recorder was shut off because the defendant began to
cry.
[5] The
judge found that the interview lasted approximately 127 minutes, with only 100
minutes taped. He determined that the
police action in stopping the recorder was motivated by the needs of the
defendant, allowing him to eat, smoke and regain composure after emotional
displays. The defendant does not claim
that any of his statement was omitted.
He simply asserts that his silences and emotional displays should have
been preserved on tape for the fact finder.
The judge ruled that, despite the stops in the tape, the statement was
admissible. We agree. There is no evidence that the tape recording
is an unfair representation of the contents of the defendant's statement. Nor is there any evidence that the police
were trying to obtain an unfair advantage by the stopping of the tape recorder.
[6] We
recognize that there is the potential for abuse if the tape recorder is started
and stopped during an interview. The
purpose of taping confessions is to preserve reliable evidence of the
defendant's statement or confession. The
periodic stopping of the tape recorder for reasons other than changing the tape
does not further this goal. In the
future, the better practice is to leave the tape recorder on during the entire
interview, including silences of the defendant, emotional displays by the
defendant, or casual conversation among the participants in the interview, so
that the fact finders, whether judge or jury, are better able to assess the
totality of circumstances.
2. The prosecutor's closing argument. The defendant challenges the prosecutor's
closing argument on the basis that it was inflammatory and misstated the
evidence. (FN13) We conclude [398 Mass. 666] that
the one misstatement of the prosecutor is insignificant in viewing the
summation as a whole.
The
prosecutor stated that the victim "drowned, literally drowned, in his own
blood." The medical evidence
revealed, however, that the victim bled to death. The judge promptly corrected the
misstatement. (FN14) In addition, in his general charge to the
jury, the judge reminded the jurors to rely on their memory and not any
statements made by counsel. (FN15)
[7][8] In
analyzing whether an improper statement has a prejudicial effect, we consider
the prosecutor's entire argument, as well as the judge's instructions to the
jury and the evidence presented at trial.
Based on all these factors, the single misstatement at issue does not
require reversal. See, e.g., Commonwealth v. Campbell, 394 Mass. 77,
88, 474 N.E.2d 1062 (1985); Commonwealth v. Bourgeois, 391 Mass. 869,
465 N.E.2d 1180 (1984); Commonwealth v. DeChristoforo,
360 Mass. 531, 277 N.E.2d 100 (1971), habeas corpus denied sub nom. Donnelly v. DeChristoforo,
416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d
431 (1974); Commonwealth v. Hogan, 12 Mass.App.Ct. 646, 651, 428 N.E.2d 314 (1981). Cf.
Commonwealth v. Redmond, 370 Mass. 591, 594, 351 N.E.2d 501 (1976);
Commonwealth v. Graziano, 368 Mass. 325,
332, 331 N.E.2d 808 (1975).
[9] 3. The jury's unrestricted access to the
defendant's taped statement. At
trial, the prosecutor and the defendant agreed to allow the jury unrestricted
access to the defendant's taped [398
Mass. 667] statement during the
deliberations. On appeal, the defendant
objects to the jury's unrestricted access to the taped statement. However, "[t]he theory of law on which
by assent a case is tried cannot be disregarded when the case comes before an
appellate court for review...." Santa Maria v. Trotto,
297 Mass. 442, 447, 9 N.E.2d 540 (1937).
See Commonwealth v. Thompson,
382 Mass. 379, 382, 416 N.E.2d 497 (1981).
Pursuant to G.L. c. 278, § 33E, we have
reviewed the claim and conclude that the jury's access to the taped statement
during its deliberations did not create a substantial likelihood of a
miscarriage of justice.
4. The jury instructions. The defendant contends that the jury
instructions were flawed in numerous respects.
The defendant claims error in the proximate cause instruction. In addition, the defendant asserts that the
instructions concerning murder and felony‑murder were improper. The defendant also contends that the charge
pursuant to Commonwealth v. Dickerson,
372 Mass. 783, 364 N.E.2d 1052 (1977), was faulty, and as a result, the judge
usurped the function of the jury.
Finally, the defendant claims error in the instruction on the offense of
assault, while armed with a dangerous weapon, with intent to murder. After examining each of these claims, we
conclude that the judge erred in his instructions only on the issue of the
intent which must be proved on a charge of assault with intent to murder.
[10] (a) The proximate cause instruction. The defendant argues that the judge erred in
refusing to give his proposed instruction concerning the victim's medical
treatment. In substance, the defendant
requested an instruction stating that the defendant is relieved of liability if
the jury finds that poor medical treatment intervened between the shooting of
the victim and his death. (FN16)
[398 Mass. 668] The longstanding rule in this Commonwealth is that "[i]f a person inflicts a wound with a deadly weapon in such
manner as to put life in jeopardy, and death follows as a consequence of this
felonious and wicked act, it does not alter its nature or diminish its
criminality to prove that other causes cooperated in producing the fatal
result." Commonwealth v. Hackett, 2 Allen 136, 142
(1861). In Hackett, we recognized that even if the jury finds that the wounds
of the victim were improperly treated, which treatment contributed to the death
of the victim, the defendant is not relieved of criminal responsibility for his
actions.
Id. at 137. (FN17) See
Commonwealth v. McLeod, 394 Mass. 727, 477 N.E.2d 972, cert. denied, 474
U.S. 919, 106 S.Ct. 248, 88 L.Ed.2d 256 (1985);
Commonwealth v. Rhoades, 379 Mass. 810, 823‑825, 401 N.E.2d
342 (1980); Commonwealth v. Golston,
373 Mass. 249, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978); Commonwealth v. Vanetzian, 350 Mass. 491, 215 N.E.2d 658 (1966). The judge here correctly refused the
defendant's requested instructions, which were contrary to our law. See Rhoades,
supra, 379 Mass. at 825, 401 N.E.2d 342.
(b) The instructions as to murder in the first
degree. The jury convicted the
defendant of murder in the first degree.
The case was submitted to them on two theories, deliberately
premeditated murder and felony‑murder.
If the conviction is based on deliberate premeditation, the defendant
contends that there was insufficient evidence presented at trial to support a
guilty verdict. (FN18) We do not agree.
[11] The
victim was shot in his home by one of the two armed intruders. Further, the evidence indicates that the
defendant had been seen the prior weekend with the gun which fired the fatal
shot. See supra at 1292. Although, in
his statement, the defendant [398
Mass. 669] blamed his codefendant
for the shooting, the Commonwealth is not bound by the defendant's version of the
facts. The prosecution is free to assert
that the defendant's statement is not credible. Commonwealth v. Cheek, 374
Mass. 613, 618‑619, 373 N.E.2d 1161 (1978). Based on the fair inferences from the
evidence, the jury could have found that the circumstances in which the
defendant shot the victim supported their conclusion of deliberately
premeditated murder. (FN19) Further, even if the defendant were not the
person who fired the fatal shot, there was ample evidence which, if believed,
justified the jurors in convicting the defendant of deliberately premeditated
murder on the basis of joint enterprise.
See Commonwealth v. Watson,
388 Mass. 536, 544, 447 N.E.2d 1182 (1983).
The
defendant next argues that the instructions dealing with felony‑murder
were erroneous. (FN20) The jury convicted the defendant of the armed
robbery, therefore we shall address the felony‑murder conviction as based
on the underlying felony of armed robbery.
(FN21) The defendant argues that
the judge erred in his failure to instruct on constructive malice with respect
to armed robbery.
[12] In Commonwealth v. Currie, 388 Mass. 776,
785, 448 N.E.2d 740 (1983), we said that "the felony of armed robbery,
committed with a [398 Mass. 670] loaded gun, may not 'be committed in
a way not inherently dangerous to human life,' " quoting Commonwealth v. Matchett,
386 Mass. 492, 508, 436 N.E.2d 400 (1982).
"A defendant who kills a victim in the commission or attempted
commission of a robbery, while the defendant is armed with a gun, is guilty of
murder by application of the felony‑murder rule ... [and] [c]onscious disregard of the risk to human life need not be
further shown" (citations omitted). Commonwealth v. Evans, 390 Mass. 144,
151, 454 N.E.2d 458 (1983). The judge's
instructions adequately defined all the elements for conviction of murder in
the first degree based on armed robbery.
There is no error.
[13] (c) The Dickerson charge. The judge instructed the jury that "[i]f the evidence is sufficient to support a verdict of
guilty with respect to more than one offense ..., then you must return a
verdict of guilty of the highest crime which has been proved with regard to
that indictment beyond a reasonable doubt against the defendant." In
Commonwealth v. Dickerson, 372 Mass. 783, 364 N.E.2d 1052 (1977), we said
that a charge should include, "in some appropriate form of words, an
instruction that the jury have a duty, if they conclude that the defendant is guilty,
to return a verdict of guilty of the highest crime which has been proved beyond
a reasonable doubt against the defendant." Id. at 797, 364 N.E.2d
1052. The judge's instruction here
appropriately advised the jury of this duty.
(FN22)
[14] The defendant
asserts that the judge should have instructed the jury that they were
"empowered" to return a lesser verdict than that which the
Commonwealth's evidence proves. The
defendant asks this court to approve of an instruction informing the jury of
their power to nullify the law as stated by the court, in effect sanctioning
jury nullification. (FN23) We decline to do so. [398 Mass. 671] In
Commonwealth v. Hebert, 379 Mass. 752, 755, 400 N.E.2d 851 (1980), we
stated that "it is improper for a juror to disregard the law as given by
the judge, [but] it remains within the power of a juror to vote his or her
conscience." See generally Dickerson, supra 372 Mass. at 802‑812,
364 N.E.2d 1052 (Quirico, J., concurring); Note, Jury Nullification in Historical
Perspective: Massachusetts As A Case
Study, 12 Suffolk U.L.Rev. 968 (1978). There was no error, much less a miscarriage
of justice, in not instructing the jurors on their power of nullification.
(d) The instruction as to assault, while armed
with a dangerous weapon, with intent to murder. The judge specifically instructed that the
crime of assault with intent to murder requires a specific intent to
murder. In the course of his
instruction, he incorporated his prior definitions of malice aforethought used
in explaining the elements of first and second degree murder to explain the
specific intent requirement of this crime.
(FN24) The judge did not instruct
the jurors that, in order to convict the defendant of assault with intent to
murder, the Commonwealth must prove that the defendant harbored a specific
intent to kill and that malice "means only absence of justification,
excuse and mitigation." Commonwealth v. Henson, 394 Mass. 584,
591, 476 N.E.2d 947 (1981). Nor did the
judge instruct the jury that the malice which supports a conviction of second
degree murder is insufficient to support a conviction of assault with intent to
murder.
[398 Mass. 672] [15] Based on Commonwealth
v. Henson, 394 Mass. 584, 476 N.E.2d 947 (1985), Commonwealth v. Ennis, 398 Mass. 170, 497 N.E.2d 950 (1986), and Commonwealth v. Shea,
398 Mass. 264, 496 N.E.2d 631 (1986), it is clear that these instructions are
now erroneous. (FN25) Although this case was tried before these
decisions were rendered, in Ennis, supra
398 Mass. at 175, 497 N.E.2d 950, we held that Henson is retroactive as to this issue. Thus, it governs the instant case.
The
Commonwealth argues that, even if the instructions do not fulfil
the requirements of Henson, the
evidence of guilt on these convictions is overwhelming. Therefore, the Commonwealth contends that any
error in the jury instructions on this issue does not create a substantial risk
of a miscarriage of justice. We do not
agree.
[16] The
evidence on the issue of the defendant's intent creates a factual issue for the
jury. The twelve gauge shotgun used by
the defendant was loaded with number 4 "bird shot," capable of
killing large birds, and did not have a sight on it. The defendant's statement indicates that he
did not intend to kill anyone during the chase, only to discourage the
pursuit. The officers' testimony, on the
other hand, indicates that the defendant fired directly at them. See
supra note 6. Where, as here, the
evidence is conflicting, it is for the jurors, not the court, to decide the
factual dispute. Therefore, as to the
three convictions of assault, while armed, with intent to murder, we reverse
the judgments, set aside the verdicts, and remand for a new trial. (FN26)
We have
reviewed the record and conclude that there is no reason to exercise our powers
under G.L. c. 278, § 33E, and order entry of a lesser
degree of guilt or a new trial on the conviction of murder in the first
degree. The convictions of armed
robbery, assault, while armed, with intent to rob a [398 Mass. 673] victim
over sixty‑five years old, (FN27) and assault and battery by means of a
dangerous weapon on a victim over sixty‑five years old are affirmed.
So ordered.
(FN1.) Further facts will be discussed as they
relate to each specific claim of error.
(FN2.)
The codefendant, Glen Bourgeois, was tried separately and is not before us on
this appeal.
(FN3.)
The defendant cleaned and loaded a .22 caliber gun. He also drilled holes in the barrel "so
it wouldn't be as loud."
(FN4.)
It is not entirely clear who shot the victim.
There was sufficient evidence that the jury could have concluded that
the defendant shot the victim or concluded that Bourgeois shot the victim. The victim was shot by the .22 caliber gun
the defendant had cleaned the prior weekend.
(FN5.)
While initially the victim appeared to be recovering, thirty days after the
shooting, the wound to the tongue worsened and the victim bled to death.
(FN6.)
There was testimony at trial that the defendant fired at Officer Reddy, who was
positioned at a service station. In
addition, the defendant fired at Sergeant Ritz, who was directing oncoming
traffic out of the way. The defendant
also fired at Trooper Doody, an officer in a pursuing
vehicle.
(FN7.)
The defendant does not challenge the validity of his waiver of Miranda
rights. In his findings of fact, the
judge found that the defendant had been advised of his Miranda rights three
times and had "knowingly, intelligently, intentionally, and voluntarily
waived his right to remain silent and his right to be represented by an
attorney." Pursuant to G.L. c. 278, § 33E, we merely note that the record amply
supports the judge's findings and conclusion.
(FN8.)
The suppression hearing, held on September 21, 1984, involved six witnesses, including
the defendant and five police officers.
(FN9.)
While the defendant testified at the hearing that he never ate anything while
in hiding, another witness testified that he had taken squash from a garden
near his hiding place. This was
corroborated by a photograph taken by the police on the day of arrest. We accept the judge's findings of fact, based
on his assessment of the credibility of the witnesses. Commonwealth v. Mahnke, 368 Mass. 662, 666‑667 & n. 4, 335
N.E.2d 660 (1975).
(FN10.) Again, the defendant testified that he
did not eat the doughnut, but there was testimony to the contrary. Again, we accept the facts as found by the
judge. See Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972).
(FN11.) While the defendant claimed that he
had been struck by police during interrogation, the judge did not make any
findings which support the defendant's contention. The inference is clear that the judge
rejected the defendant's assertions.
(FN12.) Because the defendant placed the voluntariness of his statement in issue, the judge properly
instructed the jury that they could consider the statement only if they found
it was not the product of "fear, threats, coercion or force, either
physical or psychological...." See Tavares, supra, 385 Mass. at 152, 430
N.E.2d 1198; Commonwealth v. Cole, 380 Mass. 30, 402
N.E.2d 55 (1980); Commonwealth v. Marshall, 338 Mass. 460,
461‑462, 155 N.E.2d 798 (1959).
The defendant does not claim any error on this ground.
(FN13.) The defendant raises an objection to
portions of the prosecutor's summation which concern the first degree murder
charge based on deliberate premeditation.
The defendant raises a similar issue regarding the first degree murder
jury instructions. Because both
objections focus on the sufficiency of the evidence, they will be addressed
together. See infra at 1296.
(FN14.)
Although the defendant did not request curative instructions, the judge
stated: "Before I commence my
instructions, let me tell you that the way in which the Assistant District
Attorney described how Hollis Jackson met his death was improper. You are instructed to disregard it and not be
influenced by his choice of words."
On
appeal, the defendant states that he did not seek a curative instruction because
he had an "implicit wish not to highlight the argument...." Given the insignificance of the prosecutor's
misstatement, it does not appear that the judge's instruction
"highlighted" anything the jury did not already know. In addition, the defendant did not bring this
concern to the judge's attention in specific enough terms to give the judge an
opportunity to respond. See Commonwealth v. McDuffee,
379 Mass. 353, 357, 398 N.E.2d 463 (1979).
(FN15.) Both the prosecutor and the defense
attorney also commenced their summations by informing the jury that their
"collective memory" was controlling, not the memory of counsel.
(FN16.) The defendant requested the following
instruction: "You must be convinced
beyond a reasonable doubt that, assuming Mr. Jackson received competent medical
care, he would have died anyway. Putting
that another way, you must be convinced beyond a reasonable doubt that there
was no intervening act, including
poor medical care, between the actions of the defendant ... and the occasion of
Mr. Jackson's death which caused Mr. Jackson's death" (emphasis added).
(FN17.) The defendant contends on appeal that
the doctor's "grossly erroneous treatment" of the victim should
relieve the defendant of liability for the death. There is no evidence that the medical
treatment was beneath the standard of "care and skill of the average
qualified practitioner, taking into account the advances in the
profession." Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793
(1968). See Halley v. Birbiglia, 390 Mass. 540, 547,
458 N.E.2d 710 (1983).
(FN18.) The defendant did not file a request
for a required finding of not guilty of murder in the first degree. See Mass.R.Crim.P.
25, 378 Mass. 896 (1979).
(FN19.) The defendant raises the victim's conduct,
in trying to defend himself, as a mitigating factor. This contention is without merit. As in
Commonwealth v. Evans, 390 Mass. 144, 151‑152, 454 N.E.2d 458 (1983),
"there is no evidence that the victim's resistance was of such an
unreasonable nature as to permit a conclusion that the resulting struggle ...
was not a natural and probable consequence of the armed robbery." In
Commonwealth v. Maguire, 375 Mass. 768, 773, 378 N.E.2d 445 (1978), we
recognized that "the right to claim self‑defense may be forfeited by
one who commits an armed robbery, even if excessive force is used by the
intended victim."
(FN20.) While the defendant objected to the
felony‑murder instructions in several respects, the particular issue
raised on appeal was not raised by objection at trial.
(FN21.) The defendant raises a number of
issues regarding the instructions of lesser included offenses of armed
robbery. Because the jury found the
defendant guilty of armed robbery, which clearly can support a felony‑murder
conviction, error, if any, would not be prejudicial and we do not discuss these
contentions.
(FN22.) The instructions used by the judge
here resemble the instructions which we approved of in Commonwealth v. Diatchenko, 387 Mass.
718, 443 N.E.2d 397 (1982). In Diatchenko,
the judge charged the jury that "if you are convinced that it was a
murder, ... you are bound by your oath to bring in the highest degree of murder
of which you are convinced he is guilty beyond a reasonable doubt." Id.
at 728‑729, 443 N.E.2d 397. We
concluded that this charge was a proper restatement of the suggested
instructions of Dickerson.
(FN23.) As we read the defendant's brief, he
suggests that "the jurors have the inherent right to set aside the
instructions of the judge, and to reach a verdict of acquittal based upon their
own conscience, and the defendant has the right to have the jury so
instructed." Scheflin,
Jury Nullification, The Right to Say No, 45 S.Cal.L.Rev.
168 (1972). We recognize that jurors may
return verdicts which do not comport with the judge's instructions. We do not accept the premise that jurors have
a right to nullify the law on which they are instructed by the judge, or that
the judge must inform them of their power.
See Commonwealth v. Hebert,
379 Mass. 752, 400 N.E.2d 851 (1980); Commonwealth v. Ferreira, 373 Mass. 116,
364 N.E.2d 1264 (1977).
(FN24.)
In Commonwealth v. Henson, 394 Mass.
584, 591 n. 4, 476 N.E.2d 947 (1985), we cited approvingly Professor Perkins'
discussion of the specific intent element of the crime of assault with intent
to murder. He states that "it is
error to instruct the jury that the same facts and circumstances which would
make the offense murder, if death had ensued, will furnish sufficient evidence
of intention to convict of assault with intent to murder." R. Perkins, Criminal Law 763 (2d ed. 1969).
(FN25.) We recognize that the judge did not
have the benefit of our decisions in
Henson, supra, 394 Mass. at 584, 476 N.E.2d 947, and Ennis, supra, 398 Mass. at 170, 497 N.E.2d 950.
(FN26.) The concurrent sentences on these
convictions are from and after the sentence on the conviction of murder in the
first degree; therefore, we conclude
that the defendant is prejudiced and there is a substantial risk of a
miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556,
227 N.E.2d 3 (1967).
(FN27.) The defendant raises no issue
regarding the instructions on the conviction of assault, while armed, with
intent to rob a victim over sixty‑five.
See Henson, supra, 394 Mass.
at 584, 476 N.E.2d 947. The convictions
of armed robbery and assault with intent to rob a victim over sixty‑five
are so closely related factually that a sentence on both may not be
appropriate. See Commonwealth v. Jones, 382 Mass. 387, 416 N.E.2d 502 (1981); Kuklis v. Commonwealth, 361 Mass. 302, 28 N.E.2d 155
(1972). But the sentence on the
conviction of assault with intent to rob is concurrent with the sentences for
armed robbery, assault and battery by means of a dangerous weapon on a victim
over sixty‑five years old, and murder in the first degree; therefore, under the Freeman standard, we conclude that there is no substantial risk of
a miscarriage of justice.