On December 10, 1975, a Suffolk County jury convicted the defendant, Robert Anderson, of murder in the first degree (by reason of deliberate premeditation or felony-murder), armed robbery, and the unlawful carrying of a firearm.
The defendant argues that the trial judge’s instructions on reasonable doubt impermissibly reduced the Commonwealth’s burden of proof, and that his armed robbery conviction is duplicative of his murder conviction. The defendant also asks that, pursuant to G. L. c. 278, § 33E, we order a new trial or reduce the verdict. We conclude that the trial judge properly instructed the jury on proof beyond a reasonable doubt, and that there is no basis to exercise our power under G. L. c. 278, § 33E. We also conclude that the defendant’s armed robbery conviction may have been duplicative of his conviction of murder in the first degree, and we vacate his conviction of armed robbery.
We summarize the facts as the jurors could have found them, in the light most favorable to the Commonwealth. Commonwealth v. Sanna,
An apartment at the housing project was used as a “shooting gallery” where customers could pay a fee to use heroin. The three men arrived there out of breath, some time after 4 p.m. Both the defendant and Funderberg were carrying pistols. The three men argued over the amount of money they had taken, “Pabst” purchased some heroin from a seller in a different apartment in the building, and all three men then retreated into a back room of the apartment. The police arrived while the men were still there, but left without searching the apartment when the proprietor of the “shooting gallery” asked them for a search warrant. Several days later, Funderberg boasted to the proprietor that he had shot the victim.
On the evening of the robbery, the defendant returned a .32 caliber revolver to Wilbur Billings that he had borrowed earlier that same day. Three of the chambers were empty. The defendant explained to Billings that he had used the bullets when “a dude was coming at him with a piece and he wasn’t about to let the dude hurt him so he had to cap him.”
On March 2, 1975, the police arrested the defendant. That same day, and again on March 3, the defendant made statements to the police that were recorded, in which he confessed to his involvement in the robbery and the shooting of the victim. Although he admitted to firing three shots at the victim, he said that he had intentionally aimed his weapon to miss the victim.
1. Jury instructions on reasonable doubt. The defendant argues that errors in the judge’s instruction, quoted in the margin,
When we review a jury instruction to determine whether the charge unconstitutionally diminishes the Commonwealth’s burden of proof, we consider “whether a reasonable juror could have used the instruction incorrectly.” Commonwealth v. Rosa,
First, we do not agree that the trial judge impermissibly failed to instruct the jury that a “near certitude” was required for conviction. See Jackson v. Virginia,
The reasonable doubt standard defies easy explication, and no precise formulation is required to advise the jury of the Commonwealth’s burden of proof. See Commonwealth v. Pinckney, supra at 342, quoting Victor v. Nebraska, supra at 5 (Federal Constitution “does not require that any particular form of words be used in advising the jury of the government’s burden of proof . . .”). And we have never held that the omission of the Webster charge or its equivalent constitutes a violation of a defendant’s due process rights. Commonwealth v. Randolph,
Second, the defendant argues that the phrases “doubt based on reason” and “doubt founded upon reason” impermissibly shifted the burden of proof to the defendant; this language, he says, erroneously required him to demonstrate the existence of a reason leading to doubt. We do not agree. The Supreme Court has stated: “A ‘reasonable doubt,’ at a minimum, is one based upon ‘reason’,” Jackson v. Virginia,
Last, relying on Commonwealth v. Watkins,
2. Relief under G. L. c. 278, § 33E. In accordance with our statutory obligations, we review the record as a whole and consider whether there is reason to conclude that the affirmance of the conviction would give rise to a substantial likelihood of a miscarriage of justice. We find no reason to conclude there is any such likelihood.
We do comment on one aspect of the trial that has been raised by the Commonwealth, the omission of an instruction to the jury to consider the voluntariness of the defendant’s statements to the police in accordance with our “humane practice” doctrine. The defendant never raised the issue at trial and has not done so on appeal. We nevertheless review the record to determine whether this omission was error and whether it gave rise to a substantial likelihood of a miscarriage of justice. See Commonwealth v. Parham,
Under our “humane practice” doctrine, where, as here, a trial judge has made an initial determination concerning the voluntariness of a confession, he “must instruct the jury to pass on the voluntariness of the confession if voluntariness is a live issue at trial.” Id:, Commonwealth v. Alicea,
3. Duplicative conviction. The defendant argues that his conviction for armed robbery must be vacated because it is duplicative of the conviction for murder in the first degree. This issue is not contested by the Commonwealth. When the possibility exists that a jury may have reached a verdict of murder on the basis of a felony-murder theory, a separate conviction and sentence for the underlying felony cannot stand. See Commonwealth v. Raymond,
We affirm the conviction of murder in the first degree. We order that the judgment of conviction of armed robbery and the sentence imposed thereon be vacated and remand the matter to the Superior Court for entry of judgment consistent with this opinion.
So ordered.
Notes
The defendant was sentenced to the mandatory life sentence for murder in the first degree, with concurrent sentences for the armed robbery conviction (from twenty to thirty years) and for unlawfully carrying a firearm (from four to five years).
Funderberg and “Pabst” (Raymond Gaines) were tried together in a separate trial arising out of the robbery. They both were convicted of murder in the first degree and armed robbery. Funderberg also was convicted of unlawful possession of a handgun. We upheld their convictions in Commonwealth v. Funderberg,
It was later determined that the victim died from a gunshot wound to his head. The bullet recovered from the victim’s head was a .22 caliber bullet from Funderberg’s pistol.
Billings testified that by “cap him,” he understood the defendant to mean fire a pistol or shoot.
The judge instructed the jury as follows:
“Now, I have said that it is the burden of the Commonwealth to proceed, as indeed it is, and it must satisfy you, the jury, beyond a reasonable doubt as to every essential element of the indictments returned against him, proof beyond a reasonable doubt. Now, the word, ‘doubt,’ of course, connotes uncertainty, and our law requires proof*688 beyond a reasonable doubt. Now, that does not mean proof beyond all doubt. It does not mean proof beyond a capricious or a whimsical doubt. It does not mean proof to a mathematical certainty, but you will consider the evidence that has been adduced before you in a careful, thoughtful, and thorough manner, and if then, after having done that there remains a doubt based upon reason, that, of course, is a reasonable doubt, and if there remains such a reasonable doubt, then it follows that the Commonwealth has not proved the essential elements of the cases against this man, and, therefore, in such a situation, you would be required to acquit him, but if after having given the evidence a careful, thoughtful, logical consideration and gone over in a thorough manner, and if you are satisfied that there is no doubt founded upon reason On any essential element of the charges against him, then, likewise, it would be your duty as jurors to find the defendant guilty.”
The defendant argues summarily that his counsel rendered him ineffective assistance when he failed to object to the portion of the jury charge on reasonable doubt. Because the statutory standard under G. L. c. 278, § 33E, is more favorable to the defendant than is the constitutional standard for determining ineffective assistance of counsel, we decide this claim under G. L. c. 278, § 33E, and do not focus exclusively on the adequacy of trial counsel’s performance. Commonwealth v. Leitzsey,
“Federal law finds error in jury instructions only with a ‘reasonable likelihood’ that the jury did use an inappropriate standard.” Commonwealth v. Rosa,
The first part of the procedure is required by the United States Constitution, and the second part, although not constitutionally required, is a matter of long-standing practice in the Commonwealth. Commonwealth v. Parham,