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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Puleio, 394
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Bernard Grossberg,
Dyanne Klein Polatin, Asst. Dist. Atty., for
Commonwealth.
Before [394
O'CONNOR, Justice.
After a
jury trial, the defendant was convicted of murder in the first degree and was
sentenced to life imprisonment. The
defendant alleges five errors. He argues
that the trial judge (1) impermissibly restricted his efforts to impeach a key
Commonwealth witness; (2) admitted in
evidence inadmissible hearsay; (3)
erroneously failed to define for the jury the word "malice" during
his charge; (4) incorrectly instructed
the jury on transferred intent; and (5)
should have instructed the jury on voluntary manslaughter. Finally, the defendant requests that this
court use its power under G.L. c. 278, § 33E, to order a new trial or to direct
the entry of a verdict of a lesser degree of guilt. We affirm the judgment.
We
summarize the Commonwealth's evidence.
On the evening of
The
defendant and his witnesses testified, among other things, that Subatch‑‑not
the defendant‑‑fired the fatal shot.
[394 Mass. 103] 1. Impeachment of Wayne
Subatch. After a conference between
the judge and both counsel in which the prosecutor declined to agree to the
defendant's introduction of evidence of Subatch's criminal convictions through
a probation department form known as a "blue sheet," the judge, with
the agreement of counsel, conducted a voir dire examination of Subatch. The purpose of the examination was to
determine whether Subatch had been convicted as shown by the blue sheet, and,
if so, whether he had been represented by counsel when he had been
convicted. Subatch testified that he was
the person who had been convicted of several of the offenses listed on the blue
sheet. Furthermore, he testified that he
had been represented by counsel in connection with some but not all of those
convictions. The defendant requested that
the judge inquire whether Subatch had waived counsel on the occasions when he
was unrepresented, but the judge refused to so inquire.
On the day
following that voir dire, during defense counsel's cross‑examination of
Subatch before the jury, defense counsel requested that the judge suspend the
proceedings so that counsel's assistant might obtain certified copies of
Subatch's convictions. Counsel had not
subpoenaed court personnel with the appropriate records, nor had he procured
certified copies of those records. The
prosecutor objected that defense counsel had known for several months that the
Commonwealth would call Subatch as a witness, and that counsel had had
sufficient information to have obtained certified copies of the records prior
to trial. The judge refused to suspend
the trial, but he expressed his understanding that the prosecutor had agreed
the day before that, without offering official records or certified copies,
defense counsel could prove those convictions shown on the blue sheet with
respect to which Subatch had admitted having representation. Defense counsel proved those convictions but
no others.
[1][2] The
defendant argues that by excluding evidence of Subatch's convictions while
unrepresented the judge violated the defendant's right to confront the adverse
witness and his right to due process of law, rights guaranteed to him by the
Sixth and Fourteenth Amendments to the United States Constitution, [394 Mass. 104] by art. 12 of the Declaration of Rights of the Massachusetts
Constitution, and by G.L. c. 263, § 5.
He argues that the law of the Commonwealth clearly permits him to
impeach Subatch with counsel‑waived convictions. Furthermore, he argues that because Subatch
is a witness‑‑not a defendant‑‑he can impeach Subatch
with any convictions, even those
obtained when Subatch had no counsel and did not waive counsel. The defendant did not present the latter
argument below. In any event, we need
not consider whether a nonparty witness at a criminal trial may be impeached by
convictions obtained when that witness had no counsel, regardless of whether
the witness had waived counsel. In order
to impeach a witness by a criminal conviction, the conviction must be proved by
a court record or a certified copy. Commonwealth v. Atkins, 386 Mass.
593, 600, 436 N.E.2d 1203 (1982). Commonwealth v. Clifford, 374 Mass. 293,
305, 372 N.E.2d 1267 (1978). Commonwealth v. Walsh, 196 Mass. 369, 369‑370,
82 N.E. 19 (1907). See G.L. c. 233, §
21. The defendant did not do that, and
the judge was not obliged to suspend the trial to allow the defendant to do
then what he could have done earlier.
2. Admission of hearsay evidence. Jacqueline LaMothe, the bartender, testified
that while in the bar she heard a shot and then a scream, and that then someone
ran into the bar and told her to telephone for an ambulance. She testified that after making the telephone
call she went outside and "asked who had shot the gun once, and nobody
answered me." Over the defendant's
objection, LaMothe testified that Bonnie Eaton then "yelled out" a
response to her inquiry. The defendant
again objected, and counsel approached the bench. Defense counsel stated that he based his
objection on the rule against hearsay.
The prosecutor indicated that she relied on the "spontaneous
utterance" exception to that rule.
See Commonwealth v. Hampton, 351
Mass. 447, 221 N.E.2d 766 (1966). The
judge allowed the prosecutor to ask LaMothe, "What did Bonnie Eaton
say?" LaMothe responded, "Joe
Puleio."
[3]
"With respect to spontaneous utterances the guiding principles have been
stated‑‑and in our view correctly‑‑by Prof.
Wigmore: 'The utterance must have been
before there has been time to contrive and misrepresent .... It is to be observed [394 Mass. 105] that
the statements need not be strictly contemporaneous with the exciting
cause; they may be subsequent to it,
provided there has not been time for the exciting influence to lose its sway
and to be dissipated.... [T]here can be
no definite and fixed limit of time.
Each case must depend upon its own circumstances.' Wigmore on Evidence (3d ed.) [1940]§ 1750.... The trial judge in determining whether an
utterance meets the tests of admissibility ought to be given broad
discretion.... [A]nd only in clear cases
... of an improper exercise of discretion should his ruling be revised."
Rocco v. Boston‑Leader, Inc., 340 Mass. 195, 196‑197,
163 N.E.2d 157 (1960). Those principles
apply to criminal, as well as civil, cases.
See Commonwealth v. Hampton,
supra, 351 Mass. at 449, 221 N.E.2d 766.
[4] The
defendant argues that LaMothe's testimony that no one initially answered her
inquiry about who had fired the gun indicated "that a substantial period
of time had elapsed" between LaMothe's question and Eaton's
utterance. However, the record does not
demonstrate how much time elapsed between the inquiry and the response. We cannot say that the utterance lacked the
spontaneity required to meet the test of admissibility. In allowing LaMothe's testimony, the judge
did not abuse his discretion.
[5] The
defendant also argues that the judge should have excluded the hearsay statement
because the Commonwealth presented no evidence that Eaton had observed the
shooting. LaMothe testified that just
minutes before the shooting Eaton left the bar with Subatch and the two other
men. That testimony sufficiently placed
Eaton at the scene of the shooting.
3. Definition of "malice." In his instructions, the judge defined for
the jury murder in the first degree, murder in the second degree, and
involuntary manslaughter: "[I]f a
defendant has an unexcused intent to injure somebody, not necessarily to kill,
but to injure somebody, under such circumstances known to the defendant that
common experience shows to present a plain and strong likelihood that death
will follow the defendant's contemplated act, and death does result, then that
person, that defendant would be guilty of murder in the second degree. That is to say, if there is an intent to
injure, under [394 Mass. 106] circumstances when in human
experience there is a plain and strong likelihood that that injury will result
in death, and death does result, then that is murder in the second degree. If instead of merely intending to injure the
person, the defendant intended to kill the person, and death does result, that
is the next highest step, that is, murder in the first degree. The difference between murder in the first
degree and murder in the second degree is that, with respect to murder in the
first degree, there is an intent to kill, whereas with respect to murder in the
second degree there is an intent only to injure.
"Now,
to deal with the step down from murder in the second degree, namely,
involuntarily manslaughter. If there is
no intent to injure but the defendant's conduct involves a high degree of
likelihood that substantial harm will result to some person; that is, if the defendant disregards the
probable harmful consequences to some person and death results, then that is
involuntary manslaughter. It is not
necessary that the defendant have a given individual in mind."
After
giving that general explanation, the judge "[brought] the principles that
[he had] been discussing a little closer to this case." He told the jury: "If you are not convinced beyond a
reasonable doubt that the defendant fired the pistol, you will return a verdict
of not guilty. If you are convinced
beyond a reasonable doubt that the defendant fired the pistolintending to kill Wayne Subatch, you
will return a verdict of guilty of murder
in the first degree. If you are
convinced beyond a reasonable doubt that the defendant fired the pistol intending to injure Mr. Subatch, in
such circumstances known to the defendant that, according to common experience,
there was a plain and strong likelihood that death would follow the firing,
then even though you are not convinced
beyond a reasonable doubt that the defendant intended to kill Wayne Subatch,
you will return a verdict of guilty of murder in the second degree. Finally, if you are convinced beyond a
reasonable doubt that the defendant fired the pistol not intending to injure Mr.
Subatch, but for any other purpose, and you find beyond a reasonable doubt that
a reasonable person in the defendant's position would have realized that the
firing of the pistol would involve [394
Mass. 107] a high degree of
likelihood that the bullet would strike somebody, then you would return a
verdict of guilty of manslaughter."
The judge also instructed the jury that self‑defense was not an
issue in the case. The defendant does
not contest that instruction.
When the
judge finished his charge, the prosecutor requested that the judge further
instruct the jury that in order to convict the defendant of murder in the first
degree they must find deliberate premeditation.
Defense counsel objected, saying "I think that you have given a
proper instruction on it." In
response to the judge's inquiry whether defense counsel had any objection to
the charge as given, (FN1) counsel said, "Just about that
deliberation." Counsel then
requested that the judge instruct the jury that "there must be premeditation
and malice aforethought." The
judge then read to the jury from G.L. c. 277, § 39, which defines murder as
"the killing of a human being with malice aforethought," and from
G.L. c. 265, § 1, which defines the degrees of murder. The judge also defined for the jury the term
"deliberate premeditation."
Counsel made no further objections or requests.
The
defendant argues that the judge erred by failing to define for the jury the
word "malice." We agree that
the judge's instructions were erroneous.
It was clearly incorrect to say that, to establish murder in the first
degree, the Commonwealth had to prove that the defendant intended to kill
Subatch. The judge placed too heavy a
burden on the Commonwealth. However, as
basic as the error was, it was harmless to the defendant beyond a reasonable
doubt, and therefore it was not reversible.
[6] Murder
in the first degree includes "[m]urder committed with deliberately
premeditated malice aforethought ...."
G.L. c. 265, § 1. "Murder is
the unlawful killing of a human being with malice aforethought." Commonwealth v. Campbell, [394 Mass. 108] 375 Mass. 308, 312, 376 N.E.2d 872 (1978). "Malice aforethought includes any
unexcused intent to kill, to do grievous bodily harm, or to do an act creating
a plain and strong likelihood that death or grievous harm will follow."
Commonwealth v. Huot, 380 Mass. 403, 408, 403 N.E.2d 411
(1980). So, in order to convict a
defendant of murder in the first degree, other than felony murder, the
Commonwealth must prove that the defendant unjustifiably killed another, and
that he intended to kill or to do grievous bodily harm to the victim, or that
he intended to do an act creating a plain and strong likelihood that the
victim's death or grievous harm would follow.
The Commonwealth must also prove that the defendant acted with
premeditation, or that the defendant acted with extreme atrocity or
cruelty. By using this type of language,
a judge can convey to a jury all the elements of the crime of murder in the
first degree without using the word "malice." That form of instruction obviates the need
to explain to a jury what "malice" does not mean.
[7] Had
the judge properly instructed the jury, they could have found the defendant
guilty of murder in the first degree if they found that the defendant, with
deliberate premeditation, intended to kill Subatch, or intended to injure him
grievously, or intended to do an act creating a plain and strong likelihood
that Subatch would suffer death or grievous bodily harm. But, under the instruction given, the jury
could only find the defendant guilty of murder in the first degree if they
found that he intended, with deliberate premeditation, to kill Subatch. The judge's instruction erroneously deprived
the Commonwealth of the ability to satisfy the mens rea requirement for murder
in the first degree by establishing, in addition to deliberate premeditation,
an intent to grievously injure Subatch or to act in a way that would create a
plain and strong likelihood of his death or grievous bodily harm. The defendant cannot legitimately complain of
an error that only could have benefited him.
The instruction that the judge gave‑‑that an intent to kill,
coupled with deliberate premeditation, could supply the requisite mental
element of murder in the first degree‑‑correctly described one
possible mental state for murder in the first degree, and the jury's verdict
demonstrates that they found that the defendant had that mental state.
[394 Mass. 109] [8][9] Furthermore, as the colloquy between the judge and counsel
following the main part of the charge shows, the defendant, understandably, did
not object to the instructions on malice.
Rather, defense counsel joined the prosecutor in focusing on deliberate
premeditation. Because defense counsel
did not suggest to the judge any dissatisfaction with the judge's further jury
instructions, to obtain a reversal of the conviction on the ground that the
jury charge was inadequate, the defendant must demonstrate that the error
created a substantial likelihood of a miscarriage of justice. G.L. c. 278, § 33E. Commonwealth v. Roberts,
378 Mass. 116, 123, 389 N.E.2d 989 (1979).
He has not done so. The principal
issue at trial was not whether a murder had been committed. Rather, it was whether the murder had been
committed by the defendant, as the Commonwealth contended, or by Subatch, as
the defendant claimed. Thus, the
erroneous instruction on malice did not relate to an actively contested issue,
so it did not create a substantial risk of a miscarriage of justice.
[10] 4. The judge's instruction as to transferred
intent. The judge instructed the
jury as follows: "The theory of the
Commonwealth's case ... is something called transferred intent. It sounds like a complicated concept, but it
is really very simple. If a person
intends to harm Smith and goes about harming Smith, but instead of harming
Smith harms Jones, the law considers that the person started out to harm
Jones. That's all that transferred
intent means. If I aim at a person there
but hit a person in the other direction, the law assumes that I intended to hit
the second person. That is what
transferred intent means. Now, observe that there has to be a proof of
intent to injure the first person before we even get to the question of
the second person. But once there
has been proved beyond a reasonable doubt an intent to injure person No. 1, the
fact that it was person No. 2 who got hurt is immaterial."
The
defendant argues that that instruction relieved the Commonwealth of its burden
of proving every element of the defendant's crime beyond a reasonable doubt,
and therefore violated the principles of
Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39
(1979). We disagree. The judge correctly stated our law of transferred [394 Mass. 110] intent, see Commonwealth v.
Ely, 388 Mass. 69, 76 n. 13, 444 N.E.2d 1276 (1983); Commonwealth v. Hawkins,
157 Mass. 551, 553, 32 N.E. 862 (1893), by emphasizing the Commonwealth's
burden of proving the defendant's intent to injure Subatch, although Snow
became the victim. Our law is consistent
with the principles enunciated in
Sandstrom, supra.
[11] 5. Voluntary manslaughter. The defendant argues that the judge erred by
failing to instruct the jury on the theory of voluntary manslaughter. The defendant's trial counsel did not request
such an instruction. Citing Commonwealth v. Schnopps, 383 Mass.
178, 417 N.E.2d 1213 (1981), the defendant argues in his brief, that
"[t]here was evidence produced at trial upon which the jury could find
voluntary manslaughter,‑‑provocation causing the accused to lose
his self‑control in the heat of passion and a killing which occurred
before time for tempers to cool."
The defendant points to none of that evidence. None appears in the record.
6. General Laws c. 278, § 33E. Finally, the defendant requests that,
pursuant to G.L. c. 278, § 33E, this court order a new trial or reduce the
verdict to a lesser degree of guilt.
"[O]ur power to mitigate verdicts under § 33E is to be used
sparingly." Commonwealth v. Watson, 393 Mass. 297,
301, 471 N.E.2d 88 (1984), quoting
Commonwealth v. Dalton, 385 Mass. 190, 197, 431 N.E.2d 203 (1982). Nothing in the record suggests that the
defendant's conviction of murder in the first degree was inappropriate.
Judgment affirmed.
NOLAN,
Justice (dissenting, with whom LIACOS, Justice, joins).
A
fundamental proposition of our system of criminal justice is that a defendant
cannot be convicted of a crime absent a proper instruction to the jury on the
elements of the crime with which he stands charged. The duty to instruct properly falls on the
trial judge. Commonwealth v. Porter, 10 Met. 263, 285‑286
(1845). An essential element of the
crime of murder is proof of malice aforethought. One who kills another, either with the intent
to kill or with the intent to injure, is not necessarily [394 Mass. 111] guilty
of murder, for there may be factors of excuse, justification, or palliation
present. "Malice, in the definition
of murder, is imputed to an act done wilfully, malo animo, an act wrong in itself, injurious to another, and for
which there is no apparent justification or excuse. Such justification or excuse must depend on
the existence of facts; and such facts
must be proved and found, in order to be the basis of any judicial
decision." (Emphasis in original.)
Commonwealth v. York, 9 Met. 93, 104 (1845). See
Commonwealth v. Mangum, 357 Mass. 76, 85, 256 N.E.2d 297 (1970). The court admits that no valid definition of
malice aforethought was given; yet it affirms
the conviction because it views the erroneous charge as unduly favorable to the
defendant. The court misses the
point. The point is that nowhere in the
charge given was there a valid definition of murder, either in the first or
second degree. The fact that the judge
instructed on premeditation is irrelevant, since such a factor is only a
distinguishing one between the degrees of murder. Commonwealth v. Hicks, 356
Mass. 442, 444, 252 N.E.2d 880 (1969).
Premeditation is not an essential element of the crime of murder; premeditation relates only to the degree of
murder. Hence, the jury were given no
guidelines to determine the first question:
Was there a murder? The question
of the degree of murder cannot be addressed until a murder
is shown. "This failure to define
one of the elements of the offense charged required the jury to speculate in
reaching its decision. The jury could
not determine, without knowing what malice meant in the context of this case,
whether the Commonwealth had carried its burden of establishing the existence
of this element beyond a reasonable doubt." Commonwealth v. Niziolek,
380 Mass. 513, 527, 404 N.E.2d 643 (1980) (malice as a necessary element of the
crime of arson). I cannot agree that
allowing a jury to speculate on the essential elements of a crime charged is
nonprejudicial. Accordingly, I dissent.
(FN1.) The prosecutor had told the judge that
she had no objection to "the charge as given," except for the
omission of an instruction concerning deliberate premeditation. According to the transcript, the judge then
asked defense counsel if he had any objections to "the charges given." It
seems clear that the judge asked, "[D]o you have any objections to the
charge as given?"