Opinion
15-P-710
04-29-2016
COMMONWEALTH v. MALEIN MEAS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Malein Meas, appeals from his convictions of murder in the second degree, see G. L. c. 265, § 1, and unlawful possession of a firearm, see G. L. c. 269, § 10(a). On appeal, he contends that the judge erred by deferring a ruling on his motion for a required finding of not guilty at the close of the Commonwealth's case, and by denying his request for certain jury instructions. We conclude that the judge did not defer his ruling and that the instructions were correct. Accordingly, we affirm.
The indictment charged the defendant with murder in the first degree. He was found guilty of the lesser-included offense.
Motion for required finding. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty on the charge of murder in the first degree and the lesser-included charge of murder in the second degree. The defendant argued to the judge that there was insufficient evidence of deliberate premeditation to sustain a conviction for murder in the first degree, and insufficient evidence of malice to sustain a conviction for murder in the second degree. The judge first denied the defendant's motion as to the charge of murder in the first degree.
"This is what my decision is at this juncture. I know I'm supposed to, under [Mass.R.Crim.P.] 25, make a decision at this juncture. Although I still, I believe, I'm given the latitude of the judge to be able to rule on this type of a motion at two or three different points in the trial. What I'm going to do is deny it without prejudice.Defense counsel objected on the basis that the defendant could not make an informed decision whether to testify without a final ruling. The judge restated his denial of the motion. The defendant then argued his motion for a required finding of not guilty with respect to the offense of murder in the second degree, which the judge also denied. The judge denied the motions again at the close of the defendant's case and after the verdict.
"And I think, clearly, this is not a strong Commonwealth's case on first degree murder. But what I'm willing to do is to deny the motion without prejudice at this point. I'll keep an open mind. I've taken notes.
"Certainly this case is one in which I've been studying it along with the jury as we go along and I've been informed of it as we go along. But I think procedurally, the appropriate thing for me to do, at least in my conscience, is to deny it without prejudice; keep a totally open mind and just simply tell you that I will listen to you again, de novo -- essentially de novo on this matter."
DEFENSE COUNSEL: "[T]he defense is still contemplating whether or not to call the defendant to testify, we feel prejudiced by the judge's -- by your decision to defer this."
JUDGE: "You mean the difference between whether [the defendant] would take the stand or not is contingent upon whether or notwhich way the judge rules?"
DEFENSE COUNSEL: "It could be. It could be, because it's a close call. It's a very close call whether or not to put him on."
JUDGE: "And I think it's a close call for me at a directed verdict stage in a case of this nature for me to make a definitive decision. I'm willing to do this without prejudice; give you full opportunity to reargue this.
"Well, that's what I'm going to do. I'm going to deny it without prejudice."
The judge stated:
"And I will deny that. If you'd like, I'll deny it without prejudice, but I'm much more confident in that ruling than I am with the first degree murder ruling. I'm going to deny it."
On appeal, the defendant argues that the remarks made when denying the first motion indicate that the judge "ignored his constitutional and statutory duty to ensure sufficiency of the evidence," where "the judge's language suggests that he denied the motions simply because he would 'be able to rule on this type of a motion at two or three different points in the trial.'" The defendant's argument challenges the judge's ruling on two grounds: (1) under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), which "impos[es] a prohibition . . . against reserving decision on the motion when filed at the conclusion of the [Commonwealth's] case," see Commonwealth v. Cote, 15 Mass. App. Ct. 229, 241 (1983), and (2) the sufficiency of the evidence of deliberate premeditation at the close of the Commonwealth's case, see Commonwealth v. Latimore, 378 Mass. 671, 678-679 (1979). We address each in turn.
"The language of rule 25(a) is unequivocal. It provides, in relevant part: 'If a defendant's motion for a required finding of not guilty is made at the close of the Commonwealth's evidence, it shall be ruled upon at that time.'" Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 548 (1996), quoting from rule 25(a). The requirement of a prompt ruling "protects a defendant's right to insist that the Commonwealth present proof of every element of the crime with which he is charged before he decides whether to rest or to introduce proof in a contradiction or exoneration." Cote, supra at 240.
The judge did not reserve decision. On the record, the judge explicitly denied the defendant's motion at the time the first motion was made. The judge's comments at the time of his denial, taken in context, were descriptive of his role in ruling on such motions. The judge's explanation accurately reflected that, under rule 25, a defendant may file a motion for a required finding of not guilty on three occasions -- "at the close of the Commonwealth's evidence" and "at the close of all the evidence," and may renew the latter motion "within five days after the jury is discharged." Mass.R.Crim.P. 25(a) & (b). The judge's denial of the motion "without prejudice" described his responsibility to rule on the motion each time it is made, see Smithson, supra, understanding that "the Commonwealth's position as to proof [could] deteriorate after the defense offered its evidence." Commonwealth v. Harris, 468 Mass. 429, 440 (2014). There was no error under rule 25(a).
Furthermore, "[i]f the evidence was sufficient to sustain the denial of the defendant's motion at the time the [Commonwealth] rested, any error in failing promptly to rule on the motion would be considered harmless." Smithson, supra. The defendant challenges the sufficiency of the evidence of premeditation as to murder in the first degree, claiming that he would not have testified had the judge entered a required finding of not guilty to murder in the first degree, and that he was therefore deprived of the ability to make an intelligent and voluntary decision whether to testify. The legal theory is novel, but one we need not reach if the evidence were sufficient. "Because the defendant challenges the sufficiency of the evidence as to one element only -- deliberate premeditation -- we examine the sufficiency of evidence relevant to that element alone." Commonwealth v. Gambora, 457 Mass. 715, 732 (2010), quoting from Commonwealth v. Coleman, 434 Mass. 165, 167 (2001).
The defendant does not press a claim regarding the sufficiency of the evidence of malice with respect to the conviction of murder in the second degree on appeal. "Malice, the 'requisite mental element' for murder [in the second degree], '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. Colantonio, 31 Mass. App. Ct. 299, 311 (1991), quoting from Commonwealth v. Huot, 380 Mass. 403, 408 (1980). "Malice can be inferred from the intentional use of a deadly weapon." Colantonio, supra.
Viewing the evidence in the light most favorable to the Commonwealth, see Latimore, supra at 677-678, the jury could have found the following. The defendant and Jose Villanueva did not know each other. In the early morning hours of January 20, 2008, they both arrived at a 7-Eleven convenience store and gasoline station in separate cars at approximately the same time. The defendant got out of the car in which he arrived. He looked at Villanueva, who was still seated in a different car, and asked, "What the fuck are you looking at?" This upset Villanueva. The defendant then walked into the convenience store. A few minutes later, as the defendant left the store, Villanueva got out of the car and hit or punched the defendant in the face or head. There was evidence of a broken beer bottle. The defendant said, "So you think you're tough", pulled a gun from his waistband, and shot Villanueva three times. The three shots were fired within a matter of seconds, during which time the defendant chased Villanueva and Villanueva attempted to run and duck behind a car. One of Villanueva's wounds was described as a "contact shot," or a shot that was fired while the gun was either touching Villanueva or within one inch of him.
During the Commonwealth's case, there was evidence that a beer bottle broke moments before the shots were fired, and that the defendant was cut behind the ear. After the close of the Commonwealth's case, the defendant testified that Villanueva hit him over the head with a beer bottle. However, because the defendant challenges the sufficiency of the evidence only at the close of the Commonwealth's case, we do not consider his testimony here. See Smithson, 41 Mass. App. Ct. at 548.
"Deliberate premeditation means that 'the defendant's decision to kill was the product of cool reflection.'" Gambora, supra, quoting from Coleman, supra. "[N]o particular period of reflection is required, and . . . a plan to murder may be formed in seconds." Id. at 733, quoting from Coleman, supra at 168. The jury could have found that the defendant intentionally used a deadly weapon with premeditation. First, there was evidence that the defendant had words with Villanueva, including "So you think you're tough," and shot Villanueva three times in a matter of seconds. See Gambora, supra, citing Commonwealth v. Williams, 422 Mass. 111, 123 (1996) ("[U]se of a firearm in the killing is sufficient to support a verdict of murder in the first degree based on deliberately premeditated malice aforethought"). The defendant's statement, "So you think you're tough," is "relevant to the defendant's state of mind prior to the shooting," especially considering the time frame in which this sequence of events occurred. Gambora, 457 Mass. at 732. The defendant chased and shot at Villanueva as Villanueva attempted to run away from him, and one of the fatal shots was fired at close range into Villanueva's torso. "[P]lacement of the fatal wound, fired at close range into the victim's chest would also support a finding of deliberate premeditation." Ibid., quoting from Coleman, 434 Mass. at 169. There was no error in the judge's decision to deny the defendant's motion for a required finding of not guilty at the close of the Commonwealth's evidence.
Jury instructions. The defendant's theory of the case was that he acted in self-defense after being hit in the head with a beer bottle by Villanueva. He also argued that although he shot Villanueva three times, he did not use excessive force to defend himself where the first shot to Villanueva would have been enough to cause his death. There was conflicting evidence as to the order in which the injuries were inflicted, including whether any or all of the shots would have been enough to cause Villanueva's death.
It is undisputed that the jury were properly instructed on murder in the first degree, murder in the second degree, voluntary manslaughter, self-defense, provocation, sudden combat, and excessive force in self-defense. The defendant contends, however, that it was error for the judge to refuse to further instruct the jury that: (1) they were not permitted to "find the defendant guilty of murder or manslaughter unless [they could] find that the deceased was alive or not already fatally wounded at the time when the allegedly excessive shots were fired," and (2) that a beer bottle may be a dangerous weapon.
The judge's instructions were consistent with the Model Jury Instructions on Homicide (1999), as in effect at the time, in all material respects. "In general, when a judge employs the Model Jury Instructions on Homicide (1999), which have been approved by the Supreme Judicial Court, there is no need to instruct further on the concepts contained therein." Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 115-116 (2011). This case is no exception. The jury were fully instructed as to malice, and what constitutes a dangerous weapon. With respect to the beer bottle, the judge also gave a supplemental instruction, emphasizing the jury's obligation to look at all the evidence including any weapon that either party may have brought to the fight.
Furthermore, the defendant was permitted to put his theory of the defense before the jury, arguing that because his first shot fatally wounded Villanueva, and the other two shots could not have killed him, "the question is was he justified in firing that very first shot." He also argued that he "acted as a response to a violent and vicious attack when attacked with a weapon, a deadly weapon, a beer bottle, a weapon -- an attack which easily could have killed him or caused great bodily harm." The theory of the defense was placed squarely in front of the jury, and the judge's instructions adequately and accurately reflected the law on these points. Cf. Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 430-431 (2013). "The judge was not required to instruct the jury in the terms urged by the defendant." Commonwealth v. De Christoforo, 360 Mass. 531, 539 (1971).
Judgments affirmed.
By the Court (Grainger, Sullivan & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 29, 2016.