431 Mass. 326 | Mass. | 2000
Jermaine Berry was indicted on a charge of murder
We granted Berry’s application for further appellate review. Although Berry was charged with murder in the second degree, the judge sua sponte charged on voluntary manslaughter and the defendant was convicted of this lesser included offense. Berry seeks reversal of his conviction claiming (1) that he was entitled to a required finding of not guilty on the theory of joint venture liability because there was insufficient evidence at the close of the Commonwealth’s case-in-chief for a conviction based on such liability; (2) that the evidence was inadequate to support a manslaughter conviction and therefore the judge should not have submitted that issue to the jury; (3) that the judge erred in giving a manslaughter instruction over the defendant’s objection when the Commonwealth did not request the instruction; (4) that the manslaughter instruction given was erroneous; and (5) that prejudicial testimony was improperly admitted.
The Commonwealth’s case. A medical examiner testified that the victim died as a result of a stab wound to the chest. According to the Commonwealth’s witnesses, the events leading up to the stabbing were as follows. On the night of August 27, 1994, at approximately 10 p.m. the victim and his brother, Sean Mack (Sean), went to a social club in the Mattapan section of Boston. Inside the club, the victim argued with someone. At 1:45 a.m., security personnel escorted the victim from the club and refused to allow him to return. The victim waited outside the club until the 2 a.m. closing and gave his blazer, shirt, and cellular telephone to his friend, Renée Bailey. The victim was extremely angry and was preparing to fight with the person with whom he had argued. However, that other person never emerged from the club.
As the victim waited in front of the club, a group of people, including the defendant, approached from the opposite side of
Bailey observed the defendant fighting with the victim and heard Warren “tell him [the man fighting with the victim] to put the knife away, that he didn’t need it.” Bailey then noticed “a shiny object” in the defendant’s hand. About one minute later, Bailey saw the defendant throw his shirt and spit on the victim, who was on the ground bleeding. Sean saw the victim on the ground with blood on his shirt.
Both Sean and Bailey saw only the defendant fighting with the victim. When police arrived, Sean directed them to the defendant. After his arrest, the defendant told the officers that his name was “Barry” rather than Berry. Blood consistent with the victim’s blood type and inconsistent with the defendant’s blood type was found on the defendant’s shorts and sun visor and on a knife found at the scene.
Sean testified that he did not see a knife or any other weapon during the altercation and did not immediately realize that his brother had been stabbed. However, a police officer recalled that Sean was hysterical and had identified the defendant as having a knife and as “one of the two that were involved in the stabbing.” Another officer stated that Sean pointed to the defendant as “one of the ones who stabbed my brother.”
The defendant’s case. Four defense witnesses testified that after the fight Isaac Wilkerson, the defendant’s cousin, admitted stabbing the victim. Nevertheless, the defendant stated on the stand that he never saw Wilkerson with a knife and that he (the defendant) had told the police that Wilkerson had not stabbed anyone. The defendant testified that, accompanied by his friend Kenneth McFadden and Wilkerson, he went to the club seeking the location of an “after hours party.” The defendant testified
The defendant admitted that he was the last person to have contact with the victim and that he threw his shirt at the victim after the victim was on the ground because he was angry that his shirt was torn, but the defendant denied spitting on the victim. The defendant also denied stabbing the victim, having a weapon, knowing that anyone in the area had a knife, or hearing Warren say, “put the knife away.”
Wilkerson admitted involvement in the altercation, but denied stabbing the victim. Rather, he claimed that he had tried to break up the fight and that the defendant had been the last person to fight with the victim before the victim fell to the ground. McFadden also admitted that he was involved in the fighting but denied that he was the stabber. McFadden said that the victim swung at the defendant first and that then he, McFadden, swung at the victim. McFadden next tried to get the defendant and Wilkerson to leave but someone lunged at McFadden with a beer bottle. That person handed the bottle to another person who used it to hit the defendant in the chest.
Warren
For a conviction of manslaughter by joint venture, the Commonwealth must prove beyond a reasonable doubt that the defendant was (1) present at the scene of the crime; (2) with knowledge that another intended to commit the crime or with intent to commit a crime; and (3) by agreement was willing and available to help the other if necessary. Commonwealth v. Green, 420 Mass. 771, 779 (1995). Commonwealth v. Longo, 402 Mass. 482, 486 (1988). Here, the Commonwealth must prove that the defendant shared the mental state required for the crime of manslaughter, and that he satisfied the other elements of the test for joint venturer. Commonwealth v. Cunningham, 405 Mass. 646, 659 (1989), citing Commonwealth v. Longo, supra at 486-487.
For purposes of a motion for a required finding, filed at the close of the Commonwealth’s case, whether the Commonwealth has sustained its burden of presenting sufficient evidence to support a verdict based upon joint venture is determined by an examination of the evidence at the close of the Commonwealth’s case-in-chief. See Commonwealth v. Lydon, 413 Mass. 309, 312 (1992) (in considering decision to deny motion for required finding filed at close of Commonwealth’s case, only evidence presented by Commonwealth during case-in-chief considered). See also Commonwealth v. Kelley, 370 Mass. 147, 150 n.1 (1976) (defendant’s rights became fixed when Commonwealth rested and defendant’s motions for directed verdicts had been denied, even though defendant presented evidence thereafter).
Commonwealth v. Podlaski, 377 Mass. 339 (1979), on which the Appeals Court relied, Commonwealth v. Berry, 47 Mass. App. Ct. 24, 31 n.10 (1999), is not to the contrary. In Podlaski, the defendant claimed that his case should not have been submitted to the jury on either the theory of deliberately premeditated
The judge’s action on a motion for a required finding based on a specific theory must be measured by the state of the evidence when the Commonwealth rests, and if such evidence is lacking, the defendant is entitled to a required finding as to that theory. The prerequisite for the application of this rule, however, is that the defendant specify the basis for his motion to the judge, i.e., that he is not seeking a required finding in general, but only as to a specific theory which is not supported by the Commonwealth’s evidence. On appeal, the reviewing court will then examine the Commonwealth’s evidence on that particular issue at the. close of the Commonwealth’s case. See Commonwealth v. Lydon, supra at 312; Commonwealth v. Kelley, supra at 150.
Here the defendant’s motion was not a generally expressed motion for a required finding of not guilty. He specifically
Accordingly, we must consider only the evidence presented during the Commonwealth’s case-in-chief in deciding the propriety of the denial of the defendant’s motion for a required finding as to joint venture liability.
The Commonwealth failed to offer sufficient evidence for a rational jury to find beyond a reasonable doubt that the defendant was a joint venturer. The Commonwealth needed to present evidence that a principal other than the defendant committed the stabbing. The only evidence of such liability introduced during the Commonwealth’s case-in-chief was hearsay evidence from a witness to the incident, Renée Bailey, and from two police officers. Bailey testified that she heard Anton Warren tell “him” (the defendant) to put away the knife while the defendant was apparently within earshot. Bailey further testified that at about the same time that she heard Warren, she saw a shiny object (never identified as a knife) in the defendant’s hand.
Viewing the evidence in the light most favorable to the Commonwealth, a reasonable inference can be drawn that the shiny
The only other testimony supporting joint venture liability presented during the Commonwealth’s case were statements of two police officers that, shortly after the fight, Sean, the victim’s brother, identified the defendant to these officers as one of the “two . . . involved in the stabbing.”
Because that motion should have been allowed and the jury did not differentiate in their verdict form between individual and joint venture liability, the possibility that the verdict was based on a theory for which the Commonwealth failed to offer sufficient evidence during its case-in-chief (where this objection was raised by motion for required finding) requires that we set aside the verdict.
2. Voluntary manslaughter instruction. The defendant claims that the judge erred in instructing the jury on voluntary manslaughter based on the mitigating circumstances of heat of passion on reasonable provocation and excessive use of force in self-defense. He claims that there was no evidence that Berry acted in response to adequate provocation and there was no evidence that he acted in self-defense with excessive force. The defendant preserved these issues by objecting to the submission of the case to the jury on a theory of voluntary manslaughter, and we consider them because they are relevant to any retrial of this case. Thus, we focus here on the judge’s decision to instruct the jury on the lesser included offense of manslaughter.
“If any view of the evidence . . . would permit a verdict of manslaughter rather than murder, a manslaughter charge should be given.” Commonwealth v. Brooks, 422 Mass. 574, 578 (1996). One of the mitigating circumstances that would render the crime a voluntary “manslaughter . . . [is] a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat.” Commonwealth v. Walden, 380 Mass. 724, 727 (1980), quoting Commonwealth v. Soaris, 275 Mass. 291, 299 (1931). “In order for a jury to find that a ‘defendant formed an intent to kill in a transport of passion or in the heat of blood, . . . [t]here must be evidence that would warrant a reasonable doubt that something happened [i.e., provocation] which would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint, and that what happened actually did produce such a state of mind in the defendant. ’ ” Commonwealth v. Amaral, 389 Mass. 184, 188 (1983), quoting Commonwealth v. Walden, supra at 727-728. Commonwealth v. Pitts, 403 Mass. 665, 667 (1989).
The provocation must induce in the defendant a “heat of passion” and then the unlawful act (the killing) must be caused by the provocation. There was evidence that would have warranted
The defendant contends further that the judge erred in instructing the jury on the mitigating circumstance of excessive force in self-defense because there was no evidence of excessive force in self-defense. Before a judge may instruct on this theory, the defendant must be entitled to act in self-defense. Commonwealth v. Curtis, 417 Mass. 619, 632 n.11 (1994). The right to self-defense does not arise unless (1) the defendant took every opportunity to avoid combat, Commonwealth v. Niemic, 427 Mass. 718, 722 (1998), and (2) the defendant had “reasonable ground to believe, and actuálly did believe that he was in imminent danger of death or serious bodily harm.” Commonwealth v. Carrion, 407 Mass. 263, 268 (1990), quoting Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). Here the evidence was clear that the defendant did not take advantage of every opportunity to avoid combat. Commonwealth v. Bertrand, 385 Mass. 356, 362 (1982), and cases cited. By his own testimony, the defendant did not even try to avoid the fight with the victim. The defendant said that he could have walked away from the fighting at any time and this testimony was unrebutted. Even if the defendant’s own testimony is disbelieved, the fight was on a public street and at least at some point he had adequate means of escape.
As the defendant was convicted of voluntary manslaughter and a basis for such a verdict is found only in the mitigating circumstance of heat of passion on reasonable provocation, the defendant may be retried only on that theory.
3. Instructions on manslaughter on the judge’s own initiative. We have determined that, based on the evidence, a manslaughter instruction was warranted on the mitigating circumstance of heat of passion induced by reasonable provocation. The defendant contends that the judge erred in giving the manslaughter instruction over his objection and in the absence of a Commonwealth request for such an instruction. We start with the proposition that, “[e]ven when evidence is introduced that would justify conviction for a lesser included offense, the defendant is not entitled to an instruction thereupon unless the
Concerning the specific circumstances on which a lesser included offense instruction is to be given, our cases have stated repeatedly that, “[wjhen the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime” (emphasis supplied). Commonwealth v. Woodward, 427 Mass. 659, 662-663 (1998), quoting Commonwealth v. Gould, 413 Mass. 707, 715 (1992). See Commonwealth v. Pitts, supra at 667 n.2, quoting Commonwealth v. Walden, supra at 726 (“we note that the fact that a defendant denies committing the homicide ‘does not relieve the judge from giving a manslaughter charge, on request, where the evidence would warrant conviction of that lesser crime’ ”). “We have never limited this rule to requests made by the defendant, nor have we ever held that the Commonwealth is not entitled, evidence permitting, to such an instruction on request.” Commonwealth v. Woodward, supra at 663.
The present case presents a slightly different factual situation: the judge, concerned that the evidence might warrant a manslaughter instruction, thoughtfully raised the issue sua sponte, despite the fact that neither side requested such an instruction.
The necessary corollary of this is that when the evidence would warrant a conviction of the lesser included offense and the element differentiating the offenses is in dispute, the judge may give the instruction despite objection by both the Commonwealth and the defendant. If the defendant alone cannot control which theories of criminal liability are submitted to the jury, both sides should not be able to do so. If, however, in these circumstances (either no request at all or objection by both sides) the judge chooses to give such an instruction, such action will not be reversed on appeal, absent a substantial risk of a miscarriage of justice. On the facts of this case, the judge was entitled to raise with counsel whether to give a manslaughter instruction, in view of her determination that the evidence warranted such an instruction, but she was not required to do so.
4. The judgment is reversed, the verdict is set aside, and the
So ordered.
Given our conclusion, it is unnecessary to address the defendant’s last two contentions.
Testimony from one police officer estimated the crowd at one hundred people; a second officer estimated twenty-five to thirty people.
There was no objection to this testimony.
The implication from the defendant’s testimony is that the person who grabbed the defendant’s shirt was someone other than the victim.
Although Warren was a friend of the victim, he was called as a defense witness.
The Appeals Court, improperly relying on Commonwealth v. Podlaski, 377 Mass. 339 (1996), considered all the evidence in the case and concluded that the motion for required finding was properly denied. Commonwealth v. Berry, 47 Mass. App. Ct. 24, 31 n.10 (1999). However, unlike Podlaski, this is a case in which the focus of appellate review is whether the motion for a required finding was properly denied. The distinction is critical as in this case, unlike most cases, there was additional evidence of joint venture during the defendant’s case.
However, Sean previously testified that he had never said that to the police.
Although it is not essential to our decision, we note that the jury returned a verdict shortly after requesting further instruction on the meaning of joint venture.
This decision was important to the defendant as he apparently was employing an “all-or-nothing” strategy, i.e., that the jury would not convict him of murder in the second degree, and with no other option before them, would return a verdict of not guilty. See Commonwealth v. Woodward, 427 Mass. 659, 662-663 n.6 (1998).
A large number of spectators gathered after the fight had begun.
There was also no evidence the defendant believed he was in imminent danger of death or serious injury. Although there was testimony that someone struck the defendant with a beer bottle, there was no evidence that the bottle was broken or jagged. Further, there was no basis to infer that the victim or anyone else continued to threaten the defendant with it, or that anyone other than the slabber had a weapon. The defendant’s own testimony directly contradicted any suggestion that he believed he was in imminent danger of death or serious bodily harm.
Although it does not aifect our resolution of this case (because of our disposition of the joint venture issue, see Part 1, supra), we reiterate that “in a case where the evidence would warrant a guilty verdict of manslaughter or some other crime on more than one theory, a guilty verdict should state the theory on which guilt was found.” Commonwealth v. Accetta, 422 Mass. 642, 646-647 (1996).
Of course, the defendant may not be retried for murder in the second degree since he was acquitted of that charge by the jury’s manslaughter verdict. Cf. Commonwealth v. Preston, 393 Mass. 318, 325 n.8 (1984).
The defendant did not present a self-defense theory to the jury; he never contended that self-defense played any role in the case. Nor did he claim that he was provoked into attacking the victim. His entire defense was that, although he fought with the victim, he was not the slabber and had been wrongly accused.
The distinguishing factor is that, in Commonwealth v. Roberts, 407 Mass. 731, 737 (1990), the Commonwealth did not request an instruction on the lesser included offense (larceny). We held that a judge is not required to charge on the lesser crime in the absence of a request.
Sua sponte instructions on lesser included offenses are required in some States. See, e.g., People v. Wickersham, 32 Cal. 3d 307, 334-335 (1982); State v. Coward, 54 N.C. App. 488, 489-490 (1981); Barnett v. State, 560 P.2d 997, 1001 (Okla. Crim. App. 1977); Strader v. State, 210 Tenn. 669, 678-679 (1962) (statutory requirement). In other States sua sponte instructions are required in murder or death penalty cases. See, e.g., People v. Stephens, 416 Mich. 252, 261 (1982); State v. Leinweber, 303 Minn. 414, 421 (1975); State v. Miller, 2 Or. App. 353, 358 (1970). In many States, however, judges are not