434 Mass. 9 | Mass. | 2001
A jury convicted the defendant, Paul Lashawn Pickling, of murder in the first degree of both his infant daughter and her mother, by reason of extreme atrocity or cruelty. On appeal, the defendant claims that the judge erred in denying his motion for a required finding of not guilty on the indictment charging him with the murder of his daughter when only a
1. Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997). On July 11, 1996, the police found the bodies of Amy Smith (victim) and her twenty-two month old daughter (hereinafter child or daughter) in their apartment on Dwight Street Extension in Springfield. The defendant was the child’s father, but was not residing at that address. The victim’s nude body was discovered in a closet, with her legs protruding. Her hands were bound to her chest, her face was covered by clothing and a stroller, and a sock was stuffed inside her mouth. An autopsy revealed that she died from asphyxia which could have been caused by strangulation due to a choke hold around her neck or suffocation due to the sock found in her mouth. The child’s fully clothed body was found lying on a mattress near her mother. An autopsy determined that she had died from the combined effects of dehydration and starvation due to lack of water and food.
Sergeant Larry Brown and Detective Anthony Pioggia of the Springfield police department examined the crime scene. They found no sign of forced entry or robbery. All of the kitchen windows, which bordered the rear porch (the customary entrance to the dwelling), were locked with the shades drawn. The door
Soon after the police arrived, a local television station broadcast the names of the victims and the location of the murder scene. Responding to this broadcast, Brown dispatched officers to locate the defendant, who arrived at the scene while the search was underway. The defendant approached the rear porch door, where two officers were stationed, and angrily demanded to be admitted to the apartment to see his baby. The defendant, who was with two other young men, became aggressive and pushed one of the officers guarding the porch. He was then arrested on an unrelated outstanding warrant.
Detectives Pioggia and Raymond Muise began interviewing the defendant at the Springfield police department at approximately 7 p.m., following the defendant’s signed waiver of his Miranda rights. He signed the waiver as “Shawn Fielding.” When asked about the protective order, the defendant claimed it was directed at his twin brother Paul, who had “problems” with the victim. He also told them that the outstanding warrant on which he had been arrested was really against his twin brother, who was currently in jail.
Detective Pioggia left briefly to make inquiries about the alleged twin brother. When Pioggia returned and confronted the defendant with the fact that no such twin brother existed, the defendant admitted he did not have a twin brother, and then told the detectives that the protective order was issued against him after an incident that occurred when he and the victim lived together on Pearl Street in Springfield, prior to and shortly following their child’s birth. The defendant stated that he struck the victim and that it was the only time that had happened. When asked if he could think of anyone who could have committed these crimes, the defendant mentioned a local street person. The defendant then proceeded to tell the detectives that he had last seen the victim one month before her death. When the police informed him that they had spoken to a person who could place him near the apartment a few days before her death, the defendant remembered that on July 6 he had been paged by
The police subsequently established that the pager did not exist, and confronted the defendant with this and other inconsistencies in his story. Detective Muise testified that at approximately 10:25 p.m., the defendant “lowered his head, looked up at us, and said he did it; ‘Excuse me, all right, I did it.’ He said he hit her a couple of times, and then he choked her.” The defendant then expressed surprise that he would be spending the rest of his life in jail for murder. Following this admission, a first written statement was taken.
The defendant provided the details of his relationship with the victim and stated that she had obtained a protective order because “a couple of times I slapped her.” In addition, the defendant described his visit to her apartment on July 5, 1996, where he last saw her at about 6 p.m. According to the defendant, he was accompanied by a man named “Broadway.”
The detectives confronted the defendant with evidence of inconsistencies in his first statement and, after being informed again of his Miranda rights, the defendant gave a second statement. In the second statement, he added that he remained in the apartment and saw “ ‘Broadway’ hitting [the victim] after I let her go and stopped choking her.” Broadway punched her in the face and head and “just went crazy.”
2. Motion for a required finding of not guilty with respect to
The evidence at trial was sufficient to permit a jury to find the defendant guilty of murder in the first degree. The defendant concedes that he left his twenty-two month old child alone with her dead or dying mother in an apartment in the July heat without care, and that he took no steps to alert anyone to the child’s plight. The evidence supports a finding that the apartment door and accessible windows were locked. “The jury could have found on the . . . evidence that the baby died of starvation and dehydration resulting from the intentional conduct of the defendant in placing it [in isolation] and withholding food and liquids from it.” Commonwealth v. Hall, 322 Mass. 523, 527-528 (1948).
The judge’s charge to the jury on involuntary manslaughter included a careful explanation of “[t]he difference between th[e] third form of malice [that a plain and strong likelihood of death would follow] and wanton and reckless conduct which would amount to involuntary manslaughter.” The jury were made well aware that “[a] fine fine distinguishes murder based on the third prong of malice from the lesser included offense of involuntary manslaughter.” Commonwealth v. Woodward, 427 Mass. 659, 669 (1998). We conclude that the evidence presented was sufficient to permit a rational jury to find beyond a reasonable doubt that the defendant had, as to his child, committed murder in the first degree with extreme atrocity or cruelty.
3. Use of prior bad acts evidence. At trial, over the defendant’s objection, the judge admitted evidence of prior incidents of violent conduct by the defendant toward the victim, all of which had occurred within fifteen months of the murder.
The evidence was properly admitted to show the defendant’s state of mind, motive, intent, and relationship with the victim, all live issues at trial. See Commonwealth v. Leonardi, 413 Mass. 757, 762-764 (1992) (admitting defendant’s prior bad acts against girl friend for relevant probative purposes). The judge correctly exercised her discretion in weighing the probative value of this evidence against its prejudicial effect. See Commonwealth v. Fordham, 417 Mass. 10, 22 (1994), and cases cited (“Evidence that has relevance to issues other than bad character or criminal propensity is admissible if not outweighed by its unfair prejudice, which is a determination for the judge to make and one which we do not disturb unless, in our judgment, it is palpably wrong”); Commonwealth v. Robertson, 408 Mass. 747, 751 (1990) (“The evidence of prior violence by the defendant toward the victim)] also further demonstrated to the jury the full nature of the relationship between the defendant and the victim)]”); Commonwealth v. Gil, 393 Mass. 204, 216
While “[t]here is no bright-line test for determining temporal remoteness of evidence of prior misconduct,” Commonwealth v. Helfant, 398 Mass. 214, 228 n.13 (1986), the time period at issue here falls well within a range we have found acceptable. See, e.g., Commonwealth v. Jordan (No. 1), 397 Mass. 489, 492 (1986) (judge did not err in admitting evidence of beatings and mistreatment of victim by defendant from five to seven months prior to events on which indictments were based); Commonwealth v. Little, 376 Mass. 233, 238 (1978) (judge did not err in allowing evidence that defendant, two years earlier, had pistol-whipped another man as “lesson” to victim).
Finally, the judge correctly gave limiting instructions both when the evidence was presented at trial and in her charge, stating that the evidence was admitted only on the issue of the defendant’s state of mind and intent toward the victim, and not for its full probative value.
4. Jury instructions. The judge instructed the jury on murder in the first degree with extreme atrocity or cruelty as to both the victim and her child, and on murder in the first degree based on deliberate premeditation as to the victim alone.
a. Instruction on provocation with regard to the mother’s death. At trial, the judge correctly determined that the evidence here required an instruction on provocation as to the mother’s death. Commonwealth v. Carlino, 429 Mass. 692, 694 (1999). Commonwealth v. Acevedo, 427 Mass. 714, 715 (1998). The defendant argues correctly that because there was evidence of provocation here, the burden was on the Commonwealth to prove the absence of provocation beyond a reasonable doubt. Commonwealth v. Whitman, 430 Mass. 746, 751 (2000). The judge in the instant case correctly defined voluntary manslaughter. She then erred in assigning the burden of proof:
“For voluntary manslaughter, the prosecution must have proved the following three elements beyond a reasonable doubt: First, that Mr. Pickling inflicted an injury upon [the victim] from which she died. Second, that he injured [the victim] as a result of sudden combat or in the heat of passion . . . Third, that he committed the homicide or he committed the killing unlawfully, without legal justification or excuse.” (Emphasis supplied.)
This language closely matches that which we found erroneous in Commonwealth v. Acevedo, supra at 716.
Here, the judge went on to instruct correctly that “[wjhere there is evidence of provocation, the prosecution has the burden of proving beyond a reasonable doubt that [the defendant] did not act in the heat of passion.” Following further discussion of the required elements of voluntary manslaughter, the judge then made a point of emphasizing the correct instruction: “Again, the prosecution has the burden of proving beyond a reasonable doubt that [the defendant] did not act in the heat of passion or sudden provocation. You may not return a verdict of guilty unless the prosecution has met this burden” (emphasis supplied). This is followed by a final instruction on voluntary manslaughter that repeats the original error.
The defendant argues that the potential confusion caused by these instructions entitles him to a new trial as to his conviction in the victim’s death. He asserts that the United States Supreme Court decision in Francis v. Franklin, 471 U.S. 307, 322 (1985), is controlling here:
“ ‘Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity’ because ‘[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.’ ”
Commonwealth v. Repoza, 400 Mass. 516, 519, cert. denied, 484 U.S. 935 (1987), quoting Francis v. Franklin, supra. The defendant reads the Francis decision too selectively. The passage relied on by the defendant is immediately preceded and qualified by the United States Supreme Court’s prefatory observation that “[n]othing ... in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other.” Id. at 322. In the instant case, in contrast, the judge emphasized that “[y]ou may not return a verdict of guilty of murder unless the prosecution has met this burden,” that is, “of proving beyond a reasonable doubt that [the defendant] did not act in the heat of passion or sudden provocation.” Here we have two correct instructions on the
b. Instruction on malice aforethought with respect to both victims. The defendant also alleges error in the judge’s instructions on malice aforethought, focusing in particular on the following section:
“Malice aforethought does not necessarily imply ill will towards the person killed. Any intentional killing of a human being without legal justification or excuse and with no extenuating circumstances sufficient in law to reduce the crime, for instance, to manslaughter, is malicious*21 within the meaning of malice aforethought” (emphasis supplied).
The defendant claims that this instruction was incorrect because it was “overbroad,” and “could have led the jury to conclude that any intentional act resulting in the death of another person was malicious unless extenuating circumstances were present.” We are not persuaded. Immediately following the challenged portion of the instructions, the judge properly defined malice aforethought as including “a specific intent to kill the victim or a specific intent to do her grievous bodily harm” (emphasis supplied). The judge then goes on to define carefully “specific intent” for the jurors, and uses that term no fewer than five times.
As for the use of “ill will” language in the judge’s instruction, the defendant correctly notes that we have disapproved such language since our decision in Commonwealth v. Eagles, 419 Mass. 825, 836 (1995), where we declared that such phrasing “is not helpful and ought in the future to be omitted.”
5. G. L. c. 278, § 33E. We have reviewed the entire record of the defendant’s trial pursuant to G. L. c. 278, § 33E, and we see no basis for exercising our authority to reduce the jury’s verdicts or to order a new trial.
Judgments affirmed.
Two expert witnesses testified for the Commonwealth that the child would have remained conscious for two to three days prior to death, during which time she would have experienced worsening symptoms associated with this condition, including: thirst, weakness, irritability, delirium, lethargy, stupor, and impending coma.
“Broadway” was later identified by the defendant as John Belton. The police investigation uncovered evidence that provided Belton with an alibi from the evening of July 4 until the evening of July 6.
As noted above, the baby’s body was fully clothed' when she was found.
Three knives were seized from the kitchen by the detectives, and testing revealed no blood on the knives. The only blood found in the apartment was reported by expert testimony to be the product of decomposition.
A forensic chemist testified that, if the victim had been beaten in the manner described by the defendant, he would have expected to find evidence of blood, but did not find any. Moreover, the medical examiner had found no evidence of blunt force trauma. o
As noted above, when the bodies were first discovered, the detectives noted that the door to the back (porch door) was locked by a deadbolt from the inside.
The two statements signed by the defendant and the addendum were admitted at trial.
There was evidence tending to show that the defendant remained within the city of Springfield from July 4 until the time of his arrest. He admitted that he never told anyone, even anonymously, that his child was alone in the apartment.
“The only theory of murder in the first degree to which the third prong of malice applies is extreme atrocity or cruelty.” Commonwealth v. Judge, 420 Mass. 433, 442 (1995).
The defendant asserts that Commonwealth v. Hall, 322 Mass. 523 (1948), in which we upheld a conviction of murder in the second degree in a child abandonment case, does not apply to the case at bar because “the circumstances were wholly dissimilar from those here at issue.” We do not
Witnesses testified that in April, 1995, there was an incident in which the
The judge stated in the final charge to the jury: “Let me start by saying you heard evidence during the trial that [the defendant] may have struck or committed an assault and battery upon [the victim] some months before July 1996. You’ve also heard some testimony that [the defendant] asked or encouraged other persons, other women, to beat. . . [the victim]. Bear in mind, [the defendant] is not on trial for any act or conduct other than the two charges which are before you. It’s very important that you not consider this evidence, the prior beatings or the evidence respecting any request he may have made of other persons. You may not consider this evidence as proof that [the defendant] has a criminal personality or a bad character. You absolutely must not use this evidence as any proof that [the defendant] committed the offense of which he stands accused. As I instructed you earlier during this trial, and it’s important that I reemphasize and that you note this point, you may consider this evidence only on the issue of [the defendant’s] intent toward [the victim].”
The jury did not convict the defendant of murder in the first degree by reason of premeditation.
The case at bar was tried in 1997, prior to our decision in Commonwealth v. Acevedo, 427 Mass. 714 (1998). However, we have noted previously that the holding in Acevedo was stated in substantially similar terms in Commonwealth v. Boucher, 403 Mass. 659, 663 (1989). Commonwealth v. Carlino, 429 Mass. 692, 695 n.1 (1999).
We have reached different outcomes in other cases where the charge taken as a whole was not adequate on this point. See Commonwealth v. Acevedo, supra at 716-717 (incorrect instruction on burden of proof as to provocation in main charge, then correct instruction, followed by incorrect instruction; erroneous instruction then repeated in supplemental charge). Commonwealth v. McLaughlin, 433 Mass. 558, 562 n.3 (2001) (“[h]ere, the pattern is an incorrect instruction, followed by a correct instruction in the main charge, followed by an incorrect instruction in the supplemental charge”); Commonwealth v. Little, 431 Mass. 782, 787-789 (2000) (main charge, oral supplementary instruction, and written supplementary instruction all incorrect); Commonwealth v. Carlino, supra at 694-695 (erroneous instruction accompanied by no correct instruction); Commonwealth v. Grant, 49 Mass. App. Ct. 169, 173 (2000) (“here the one correct instruction on the Commonwealth’s burden of proof on provocation in the judge’s final instructions to the jury at the close of evidence was sandwiched between two incorrect instructions”).
The judge- uses the term “specific intent” once again when charging the jury on the specific elements, including malice aforethought, required to prove the defendant guilty of murder in the first degree with extreme atrocity or cruelty.
We further explained: “The language is not helpful, for example, because it may focus the jury on the need for proof of some special animosity that the defendant harbored toward the victim, when the relevant inquiry is the defendant’s intent to kill or do grievous bodily harm, or the defendant’s knowledge of circumstances which would indicate to a reasonably prudent person that the conduct in question would likely cause death; or because it may lead the jury to believe that anger, hatred, revenge or a selfish, wrongful mood is enough to show malice. The term ‘malice’ should be defined by reference to the three prongs described in Commonwealth v. Grey, supra, with such additional explanation as may be appropriate to the understanding of those concepts.” Commonwealth v. Eagles, 419 Mass. 825, 836 (1995).
While the defendant concedes that the judge “ultimately restated the government’s burden to prove malice and referred again to its three prongs, [he argues that] any remedial effect was undercut when she prefaced those instructions with the equivocal introduction, ‘in this particular case, as I said, malice aforethought may be considered on those three — in those three separate forms’ ” (emphasis in defendant’s brief). We are not persuaded. Heard in context, we believe it would have been clear to the jury that the term “may” as used by the judge here refers to the making of an appropriate choice among the three prongs of malice, and not to a choice as to whether malice aforethought “may” constitute an element of the crime of murder, as the defendant’s argument implies. In fact, the defendant omits the last portion of the challenged sentence of the judge’s instructions, in which she stated that malice, regardless of the form, “must be proved beyond a reasonable doubt.” See Commonwealth v. Niemic, 427 Mass. 718, 720 (1998), quoting Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980) (“In support of his argument, the defendant ‘parses the charge and attacks it piecemeal. We, however, must view the charge in its entirety since the adequacy of instructions must be determined in light of their overall impact on the jury’ ”).
The defendant argues that, even if this court concludes that in the circumstances of this case his abandonment of his daughter could be found to be malicious, we should exercise our authority under G. L. c. 278, § 33E, to reduce the degree of that guilt to manslaughter, because the jury concluded he had not acted with premeditation, and thus his behavior here is “more consistent with the evidence that he acted out of panic, fear, and ignorance than that he harbored malice.” However, “[e]xtreme atrocity or cruelty requires the jury to consider the defendant’s actions and their effect on the victim, but does not require that the defendant be aware of how shocking his actions were or how much suffering his conduct caused the victim” (emphasis added). Commonwealth v. Judge, supra at 442, and cases cited.