430 Mass. 673 | Mass. | 2000
The defendant, Ernest N. Benjamin, appeals from his conviction of murder in the first degree on the theory of extreme atrocity or cruelty. He challenges the jury selection process and contends that the standard for determining extreme atrocity or cruelty is unconstitutionally vague. He also claims that the judge erred by prohibiting him from questioning a witness as to the victim’s reputation for violence. He argues error in the jury instructions because the judge (a) failed to instruct the jury that words could convey information constituting adequate provocation to mitigate an unlawful homicide to manslaughter and (b) informed the jury that they could infer malice from the intentional use of a deadly weapon. Finally, he requests relief pursuant to G. L. c. 278, § 33E. We conclude that the conviction should be affirmed and that there is no reason to grant the defendant a new trial or to enter a verdict of a lesser degree of guilt pursuant to G. L. c. 278, § 33E.
We recite the evidence in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). On July 30, 1995, the victim died after being struck by four bullets and grazed by two others at approximately 8:30 p.m. in Brockton.
The victim lived in Boston, but regularly traveled to Brock-ton to visit his girl friend, Natasha Nelson. The victim and the defendant both sold cocaine. The defendant had purchased cocaine from the victim twice. The first time the defendant purchased cocaine from the victim, the defendant did not pay full price. At trial, the defendant indicated that the victim pressured him to pay him the amount owed. He also testified that he paid the victim in full when he made his second purchase, a few days before the victim was killed.
On the afternoon of July 30, 1995, Nelson went to a cookout in Brockton. The defendant attended the cookout, but the victim did not. The victim met Nelson across the street from the cookout. The defendant then confronted the victim and, according to Nelson’s testimony, said, “You and your girl can’t be out here [selling drugs] on my block.” The victim denied selling drugs and began to walk away. The defendant testified that the victim then said that he was going to come back and kill the defendant. Nelson testified that she never heard the victim threaten the defendant.
After shooting the victim, the defendant saw the victim fall to the ground and ran to him. Then the defendant got into a friend’s vehicle. In the vehicle, the defendant put the gun to his own head and pulled the trigger, but the gun did not fire. According to the defendant’s brief, the next day the defendant learned that the victim died. The defendant then went to Puerto Rico. He returned several weeks later, turned himself into the Brockton police, and gave a statement to them.
1. The defendant raises two claims regarding the jury selection process. Before reviewing each of these claims, we note that “[w]e afford a trial judge a large degree of discretion in the jury selection process.” Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995). See Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978).
a. The defendant alleges that the judge failed to follow the statutory requirements of G. L. c. 234, §§ 17 and 25. According to the defendant, jurors were called “in a predictable numerical sequence.”
The defendant’s allegation that the judge (or clerk) violated G. L. c. 234 must be considered in light of the applicability of G. L. c. 234A. Both G. L. c. 234 and G. L. c. 234A provide procedures for selecting jurors. See Commonwealth v. Ptomey, 26 Mass. App. Ct. 491, 495 (1988) (by order of Supreme Judicial Court dated December 12, 1984, G. L. c. 234A controlled jury selection of trials in Plymouth County). Section 1 of G. L. c. 234A provides that, “[wjhenever any section of this chapter shall become applicable within a participating county, all provisions of law which are inconsistent with such
General Laws c. 234, § 17, and G. L. c. 234A, § 16, address the process to be used for summoning jurors. General Laws c. 234, § 17, requires that jurors be selected from a box containing prospective jurors’ names. Section 16 of G. L. c. 234A requires the office of jury commissioner to shuffle the master juror list randomly, store the final list electronically, and summon jurors in sequence from the shuffled list. Because G. L. c. 234, § 17, is inconsistent with provisions of G. L. c. 234A, it is not effective in any county in which G. L. c. 234A is applicable, including Plymouth County. Thus, the defendant’s allegation that the judge violated G. L. c. 234, § 17, has no merit.
The defendant argües that the judge did not comply with G. L. c. 234, § 25. General Laws c. 234, § 25, does not apply to capital cases. General Laws c. 234, § 26, does.
b. Next, the defendant notes that trial counsel suggested that the racial imbalance be remedied by empanelling the only person of the defendant’s race who was in the jury pool. The prosecutor did not oppose this suggestion, but the judge did not allow it. The defendant argues that the judge’s refusal constituted an abuse of discretion because it deprived the defendant of the opportunity to remedy the racial imbalance.
The defendant’s complaint has no merit. A judge cannot ignore procedural requirements governing the jury selection
3. The defendant challenges the constitutionality of G. L. c. 265, § 1, claiming that the phrase “extreme atrocity or cruelty” is vague and thus violates the due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution and arts. 10 and 12 of the Massachusetts Declaration of Rights. We repeatedly have upheld this concept in the face of constitutional challenges for vagueness. See, e.g., Commonwealth v. Blake, 409 Mass. 146, 163 (1991); Commonwealth v. Freiberg, 405 Mass. 282, 288-290, cert. denied, 493 U.S. 940 (1989). For reasons we discussed fully in Commonwealth v. Freiberg, supra, G. L. c. 265, § 1, is not unconstitutionally vague. See Commonwealth v. Blake, supra at 163.
The defendant also contends that jurors must unanimously decide which Cunneen factors
4. The defendant argues that evidence of the victim’s reputation was improperly excluded. The kernel of the defendant’s argument is that the defendant’s state of mind is a key trial issue because it is determinative whether the defendant could have committed murder in the first degree by reason of extreme atrocity or cruelty. The defendant contends that evidence of the
According to the defendant, his state of mind must be considered in light of his mental impairment.
The judge did not err in excluding evidence of the victim’s reputation.
The defendant suggests that evidence of the victim’s reputation should be admissible under a new theory, one which was not raised at trial. Essentially, the defendant asks that, when the Commonwealth is prosecuting a defendant charged with murder in the first degree based on a theory of extreme atrocity or cruelty and the defense is mental impairment, evidence of the victim’s reputation be admissible to show its effect on the defendant’s state of mind and to corroborate the defendant’s testimony or that of the expert.
5. The defendant alleges that the judge made two errors in instructing the jury.
a. The defendant contends that the judge committed error by refusing his requested instruction on voluntary manslaughter. The judge instructed the jury: “Ordinarily words are not sufficient to provide adequate provocation to reduce a homicide from murder to manslaughter. The provocation is deemed adequate in law if it is of such a nature that is likely to produce in an ordinary person an abnormal state of mind resulting from the transport of the passions, such as fear, anger, or flight.” The
The judge’s instruction, without more, was not erroneous. The instruction, as given, was similar to the language set forth in the Model Jury Instructions on Homicide.
The defendant knew the victim did not have a gun. A threat to inflict serious bodily injury or to kill in the future is not an immediate offense to a person’s sensitivities. Id. The defendant knew that the victim would have to go to Boston to get a gun. There was, therefore, no immediate threat. The limited exception does not apply to the facts of this case.
The defendant also claims that the victim’s words had an exaggerated effect because of the defendant’s alleged mental impairment. The defendant’s expert testified that the defendant had the capacity to appreciate that what he had done was wrong on the night that he shot the victim. According to the expert, the defendant had the capacity to make choices, but might be quicker than people who are not hypervigilant to react to a threat. The expert also testified that the defendant was not psychotic, hallucinating, or delusional when he shot the victim. We decline to extend the limited exception to our general rule that words alone are not adequate provocation to those cases in which a defendant claims he or she was mentally impaired or impaired by drugs or alcohol and therefore words alone are suf
b. The defendant argues that the judge’s instruction allowing an inference of malice from the defendant’s intentional use of a dangerous weapon was unfair.
The defendant did not object to the instruction. Although the • absence of any objection is relevant, Commonwealth v. Fluker, 377 Mass. 123, 131 (1979), we review the instructions to determine whether there is a substantial likelihood that a miscarriage of justice has occurred. Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998). See Commonwealth v. Perry, 385 Mass. 639, 647 (1982).
“The defendant claims that the judge’s charge, with its emphasis on the [defendant’s use of a dangerous weapon], stated a one-sided view of the case and gave the jurors a distorted picture of what was at issue. In making his argument, he selects those portions of the instructions which support his claim. However, ‘[e]rror in a charge is determined by reading the charge as a whole, and not by scrutinizing bits and pieces removed from their context.’ ” Id., quoting Commonwealth v. Cundriff, 382 Mass. 137, 153 (1980), cert. denied, 451 U.S. 973 (1981).
The instructions, when read as a whole, were neutral and unbiased. The judge twice instructed the jury that they could infer malice from the use of a dangerous weapon. Immediately after giving this instruction, the judge instructed the jury to consider the defendant’s mental condition on the day of the murder. He instructed the jury that the defendant’s mental condition could affect his ability or capacity to form the specific intent to kill the victim.
“Considering the charge in its entirety, and in relation to the
6. We have reviewed the entire record under our obligation under G. L. c. 278, § 33E, and conclude that the defendant is not entitled to a new trial or entry of a lesser degree of guilt.
Judgment affirmed.
Neither party explains the process actually used to seat jurors.
General Laws c. 234, § 26, states in part: “If a jury is to be empanelled for the trial of a capital case, the clerk of the court shall cause the name of each juror summoned therein to be written on a separate ballot and each ballot to be folded uniformly in such manner that the name written thereon shall not be visible, and shall cause such ballots to be placed in a box provided therefor. He [or she] shall then in open court draw the ballots in succession from said box. . . .”
“Factors the jurors are to consider in determining whether a murder was committed with extreme atrocity or cruelty are: the defendant’s indifference to or taking pleasure in the victim’s suffering, consciousness and degree of suffering of the victim, extent of physical injuries, number of blows, manner and force with which they were delivered, instrument employed, and disproportion between the means needed to cause death and those employed.” Commonwealth v. Hunter, ATI Mass. 651, 656 n.8 (1998), citing Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983).
The defendant, in his brief, insists that he suffers from posttraumatic stress disorder (PTSD). However, as the Commonwealth notes, nothing in the record indicates that the defendant suffers from PTSD. The doctor who testified stated that the defendant had “a heightened level of vigilance” and analogized to PTSD, but never said that the defendant suffered from PTSD.
On appeal, the defendant also alleges that the victim had threatened him a few days prior to the victim’s death and that this threat caused the defendant to be more sensitive to the victim’s second threat. However, the record indicates that someone with the same street name as the victim threatened the defendant on Newbury Street in Boston a few days before the victim’s death, and the defendant clearly testified at trial that the person who threatened him in Boston was not the victim.
The judge also excluded the evidence because the question was not proper. Character, if properly an issue, may be “shown only through evidence of general reputation .... Personal opinions and isolated acts are not evidence of general reputation.” Commonwealth v. Roberts, 378 Mass. 116, 129 (1979).
Rule 404 (a) (2) of the Federal Rules of Evidence and rule 404 (a) (2) of the Proposed Massachusetts Rules of Evidence do not impose a requirement of knowledge on the part of the defendant. See Commonwealth v. Dilone, 385 Mass. 281, 286 n.l (1982).
The defendant also asserts that he is entitled to this evidence because it corroborates a police officer’s testimony as to the victim’s reputation. The police officer, however, did not testify as to the victim’s reputation. He testified as to what the defendant said to the police after turning himself in. In effect, the defendant seeks to corroborate himself.
The record does not contain a copy of this proposed instruction.
The Model Jury Instructions on Homicide (1999) provide that “[m]ere words, no matter how insulting or abusive, standing alone do not constitute reasonable provocation.” Id. at 28.
The judge provided the instruction twice: “Malice may be inferred — it does not have to be — from the intentional use of a dangerous weapon,” and “malice may be inferred — it need not have to be — from the intentional use of a dangerous weapon.”