Opinion
No. 15–P–919.
07-13-2016
COMMONWEALTH v. Kareem DerrelL BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1998, a jury in Superior Court convicted the defendant of murder in the second degree. The defendant appeals from the denial of his fourth motion for new trial, which alleged error in the jury instructions. Finding no error, we affirm.
As we find no error in the instructions, the defendant's additional claim of ineffective assistance of counsel necessarily fails.
Background. The victim drove the defendant and two friends into the parking lot of a Burger King restaurant on the night of March 15, 1994. Following some “bickering” between the defendant and one of the friends, the defendant seized a knife and began playing with it. After the victim rebuked the defendant for his handling of the knife, the victim and the defendant got out of the car. Once the defendant was standing in front of the victim, the defendant stabbed the victim in his chest and in his back, causing the victim's eventual death.
Our factual recitation is culled from the memorandum and order issued pursuant to our rule 1:28 affirming the judgment. See Commonwealth v. Brown, 48 Mass.App.Ct. 1116 (1998).
Instructions on malice. The Commonwealth may satisfy the element of malice for murder in the second degree by proving one of three prongs:
“(1) the defendant intended to kill the victim ..., or (2) the defendant intended to do the victim grievous bodily harm ..., or (3) in the circumstances known to the defendant, a reasonably prudent person would have known that, according to common experience, there was a plain and strong likelihood that death would follow the [defendant's] act.”
Commonwealth v. Sneed, 413 Mass. 387, 388 n. 1 (1992), citing Commonwealth v. Grey, 399 Mass. 469, 470 n. 1 (1987). The defendant argues that the judge's instruction on the third prong of malice erroneously permitted the jurors to convict the defendant of murder with “mere proof of a plain and strong likelihood of grievous bodily harm.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002). There was no such error. Indeed, the trial judge's instructions recited the three prongs of malice from Sneed with near precision. The trial judge's instruction that malice could be proven if “the defendant intended to cause [the victim] grievous bodily harm and that as a result of the wound inflicted, [the victim] did die” is not to the contrary. Rather, this portion of the instruction clarified the second prong of malice because—unlike the first prong—it does not require “that the defendant intended to cause [the victim's] death.”
The judge's instructions that malice has a “technical ... definition, not what you may usually think malice is” and that “it doesn't necessarily mean ill will or revenge, hatred, anger” were also proper. The trial judge did not want the jury to be misled by their colloquial understanding of the word “malice” when weighing the evidence.
In summarizing the elements for murder in the second degree, the trial judge then stated, “[I]f the Commonwealth has proved those [elements] beyond a reasonable doubt, then you are warranted in finding the defendant guilty of the crime of murder in the second degree.” We discern no merit in the defendant's argument that the use of the word “warranted” amounted to an expression of the judge's belief that the defendant was guilty, especially in light of the fact that the instructions emphasized the Commonwealth's burden of proof and correctly detailed the elements of murder in the second degree. See Commonwealth v. Rogers, 459 Mass. 249, 262 (2011) (jury instructions must be read “as a whole”).
Instructions on manslaughter. The defendant argues that the judge's instructions on manslaughter did not clearly indicate the Commonwealth's burden of proof, did not use the correct language in defining manslaughter, and erroneously included the elements of murder. These arguments are without merit. The trial judge explained that the Commonwealth's burden to prove murder included its burden to prove the absence of mitigating circumstances, and repeated this burden for the instruction on manslaughter regarding both reasonable provocation and sudden combat.
The defendant is incorrect that the judge's failure to include self-defense as a mitigating circumstance was error. A different panel of this court, in a memorandum and order issued pursuant to our rule 1:28, has already concluded that the facts did not warrant such an instruction. See Commonwealth v. Brown, 63 Mass.App.Ct. 1108 (2005).
At the outset of the instruction, the judge stated, “Unless the Commonwealth can prove the absence of these mitigating circumstances beyond a reasonable doubt, murder has not been proven and the defendant may not be found guilty of murder.”
The defendant also takes issue with the fact that the judge did not use the words “heat of passion” when instructing on reasonable provocation as a mitigating circumstance. The judge used the phrase “[s]udden agitation upon reasonable provocation” instead, and then defined this state of mind as “passion, anger, fear, fright or nervous excitement.” This definition—along with the definitions for the rest of the manslaughter charge—was accurate. The failure to use any specific language otherwise is of no moment. See Commonwealth v. Rollins, 470 Mass. 66, 82 (2014), quoting from Commonwealth v. Sinnott, 399 Mass. 863, 878 (1987) (“[J]udges are not required to deliver their instructions in any particular form of words”).
Finally, the defendant maintains that the judge's reiteration of the elements of murder within the manslaughter instruction was error. This assertion, again, fails to recognize the context of such an instruction. The trial judge was instructing the jury that they need only reach the lesser included offense of manslaughter if they first found that the Commonwealth had proven the elements of murder. Even if this one aspect of the instruction could be taken as confusing if viewed out of context, the judge then immediately instructed the jury that if the Commonwealth failed to prove beyond a reasonable doubt the absence of reasonable provocation or sudden combat, then the jury could not find the defendant guilty of murder. In sum, because the judge properly delivered instructions on manslaughter, and its relationship to the murder charge, there was no error.
The judge stated, “So the crime of manslaughter essentially recognizes the frailty of human nature and applies where the Commonwealth has proven that the defendant committed an intentional, unlawful killing.”
The judge's exact words were:
“If the Commonwealth proves those elements [of murder] beyond a reasonable doubt but the Commonwealth fails to prove beyond a reasonable doubt the defendant was not acting upon sudden provocation and was not acting upon sudden combat, then you, the jury, are warranted in finding the defendant guilty of manslaughter but shall not find the defendant guilty of murder.”
The defendant did not object to any of the alleged errors in the jury instructions. Even if any of the instructions were error, none created a substantial risk of a miscarriage of justice, given the strength of the Commonwealth's case against the defendant, and given that the defense at trial was that someone else had stabbed the victim. See Commonwealth v. Russell, 439 Mass. 340, 344–351 (2003) (discussing substantial risk of miscarriage of justice in context of jury instructions on malice).
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Order dated May 27, 2015, denying motion for new trial affirmed .