Opinion
16-P-1194
06-26-2017
COMMONWEALTH v. Richard WHITE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals the denial of his motion for a new trial, brought more than forty-six years after a jury returned a verdict of guilty of murder in the first degree on a theory of felony murder. On appeal, he claims error in various aspects of the jury charge. We affirm.
The conviction was later reduced by the Supreme Judicial Court to murder in the second degree. See Commonwealth v. White, 353 Mass. 409, 421-426 (1967).
The charge is the only portion of the trial transcript included in the appellate record.
Background. In affirming his conviction on direct appeal, the Supreme Judicial Court set forth the facts elicited at the defendant's trial for the killing of Clifford Crawford, and we need not repeat them. See Commonwealth v. White, 353 Mass. 409, 411-412 (1967). As relevant here, the defense raised the issue of self-defense and the jury were instructed as follows (with emphasis added):
"Now, there has been a suggestion, also, which I will review briefly, which may or may not raise in your mind the question of whether or not the defendant ... if [he] fired the shot which killed [the victim], whether or not he was acting in self[-]defense.
"Self[-]defense is a position which a defendant may assert when he is pressed with an aggressive attack upon him which puts him in fear of personal danger or arouses heat and excitement of passion so that he acts impetuously or impulsively to what is occurring. In order to give the defendant the advantage of the position of self[-]defense which in a given case, of course, is a defense against a criminal charge, if it is legally done and not in excess of what is required by the facts presented to a person such as the defendant, you must come to the conclusion that the deceased ... was the aggressor and that he created the provocation and aroused [the defendant's] excitement and passion so that he acted impulsively and took this step to defend himself against an unlawful assault against him.
"The point of this discussion to you is that if you find that the defendant ... [was] involved in an attempted robbery or an attempted breaking and entry, this defense is not available to him, because the law says that if a defendant is involved in the commission of a crime such as I have indicated above and a killing occurs, it is murder.
"[I]f you come to the conclusion, however, that the defendant, if he ever had in your judgment the purpose, the intent to rob or to break and enter and he discontinued this procedure, on his own part, and thereafter the deceased came out, and you come to the conclusion that he attacked or was the aggressor and presented the defendant with this fear of physical safety when he was just sitting around or hanging around, or whatever you find, then you may consider this question of self[-]defense with reference to the defendant."
The defendant is correct that the trial judge's instructions were inadequate in light of subsequent case law, in particular Commonwealth v. Rodriguez, 370 Mass. 684, 689-691 (1976) (applying and holding retroactive Mullaney v. Wilbur, 421 U.S. 684 [1975] ). However, we examine pre-Mullaney/Rodriguez instructions with "more relaxed scrutiny" than we use to examine instructions postdating those decisions. Connolly v. Commonwealth, 377 Mass. 527, 537 (1979). See Commonwealth v. Stokes, 374 Mass. 583, 591 (1978). In evaluating whether the instructions met minimum due process requirements, we "consider the charge to the jury as a whole ... and consider how a reasonable juror would have understood [it.]" Commonwealth v. Beauchamp, 424 Mass. 682, 686 (1997).
We are persuaded that the instructions as a whole outweighed the improper portions of the charge and adequately conveyed to the jury the Commonwealth's burden of proof with respect to self-defense. Although his references to "finding" or "concluding" that the defendant was entitled to self-defense were better left unsaid, see Commonwealth v. Richards, 384 Mass. 396, 405 (1981), these comments were preceded by the judge's instruction that the presumption of innocence is a "basic principle" of a criminal trial, and his repeated statements that the defendant was not required to prove his innocence or "any fact whatsoever." The judge further told the jury that the defendant "has a right to sit in this courtroom and, as he has done, expect the government to prove his guilt beyond a reasonable doubt, without uttering one word." The judge's characterization of self-defense as something to be "suggested" or "asserted" by the defendant, or that it is "available" to him, can be understood as simply indicating that evidence of self-defense was raised at trial; any misimpression left by these remarks was sufficiently outweighed by the remainder of the instructions. Cf. Beauchamp, supra at 689.
Furthermore, the judge was within his discretion to deny the defendant's motion for a new trial because he failed to present a "credible reason [that] outweighs the risk of prejudice to the Commonwealth." Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 636 (2001). That risk of prejudice is substantial, as the defendant concedes that it would be impossible to retry this case after nearly fifty years.
The defendant, despite his release on parole three separate times in 2002, 2005, and 2008, apparently has not obtained transcripts of the trial. The motion judge found implausible the defendant's claim that he never had the trial transcripts, since he filed a direct appeal, and did not credit his assertion that his trial counsel never gave him the transcripts. In any event, we need not resolve the question of the status of the search for transcripts, because we do not rest our decision upon the lengthy delay in filing.
Remaining issues. The defendant also asserts error in the judge's instructions on (1) third-prong malice; and (2) proof beyond a reasonable doubt. Neither issue was raised in the defendant's direct appeal, and both were therefore waived. See Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). In any event, the alleged errors created no substantial risk of a miscarriage of justice. Although the third-prong malice instruction, which included "grievous bodily harm" language, was indeed erroneous, see Commonwealth v. Azar, 435 Mass. 675, 682 (2002), the jury were doubtless required by the facts of this case to find that the defendant's conduct—shooting the victim in the chest—posed a plain and strong likelihood of death, not merely grievous bodily harm. See Commonwealth v. Mack, 423 Mass. 288, 290 (1996) (deliberately discharging firearm in direction of another poses plain and strong likelihood of death).
The defendant's failure to raise the issue on direct appeal was not excusable, because the law was clear at the time this case was tried. See Commonwealth v. Gricus, 317 Mass. 403, 411 (1944) ("malice in murder means knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act, coupled perhaps with an implied negation of any excuse or justification").
As to the so-called Madeiros charge, although it is now disfavored, the inclusion of such language is not reversible error in and of itself. See Commonwealth v. Sheline, 391 Mass. 279, 295-296 (1984) (collecting cases). The defective language (utilized with approval at the time of the defendant's trial) was balanced by the judge's instructions on the presumption of innocence, his instruction that it is the Commonwealth's responsibility to prove the defendant's guilt, and his emphasis that "beyond a reasonable doubt" is a standard of proof requiring more than a "mere preponderance of the evidence."
Commonwealth v. Madeiros, 255 Mass. 304, 307 (1926) (negative definition of reasonable doubt instruction given to jury; reasonable doubt requiring proof to a moral certainty).
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Finally, the defendant presses on appeal an issue not addressed by the motion judge, namely, whether his conviction should be reduced to manslaughter because the charge failed to define for the jury the elements of the predicate felony offenses required to convict of felony murder. That issue was squarely confronted by the Supreme Judicial Court in the defendant's direct appeal, and we need not address it further. See White, 353 Mass. at 424-426. In reducing his conviction to murder in the second degree, the defendant received all the relief to which he is entitled.
Order denying motion for new trial affirmed.