468 Mass. 204 | Mass. | 2014
On the evening of January 31, 2008, the defendant walked into a Lawrence restaurant and shot and killed Luis Alex Alcantara (victim), with whom he had been feuding. A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation, in violation of G. L. c. 265, § 1. On appeal, the defendant raises five claims: (1) that a motion judge erred in denying the defendant’s motion to suppress evidence seized during warrantless entries into two apartments; (2) that a different motion judge erred in denying a motion to suppress a showup identification of the defendant; (3) that the trial judge’s instruction on proof beyond a reasonable
Background. Defense counsel in his opening statement said that the issue at trial was not whether the defendant shot and killed the victim (the defendant would testify that he did) but whether he was so intoxicated that he could not have formed the intent to kill or to deliberately premeditate the killing. Therefore, we summarize the evidence at trial, focusing on the evidence regarding the defendant’s intent and reserving certain details for our discussion of the circumstances surrounding the two searches and the showup identification.
The victim owed the defendant $1,300 for marijuana that the defendant had sold him, and the defendant owed the victim $1,050 because another buyer that the defendant had referred to the victim had failed to pay the full purchase price.
Approximately four days before the shooting, Engels Baez visited the defendant and noticed that the defendant’s face was bruised. The defendant showed Baez a gun and a box with ammunition inside. Baez encouraged the defendant to “throw [the box of ammunition] away,” and tried to take the gun away from him, but the defendant told him to “leave it alone.”
On the evening of the killing, a taxicab driver was dispatched to a restaurant in Lawrence, where the defendant entered the taxicab, said he was drunk, and asked to be taken to a Lawrence bar. As he was being dropped off, the defendant told the driver that he was going to call back for a ride in a few minutes.
The defendant did not enter the bar where he was dropped off but instead, at approximately 9:30 p.m., entered a nearby restaurant, said either “look” or “look what I got for you,” and with a .357 caliber revolver fired two or three shots at the victim. The bullets struck the victim, who was seated at a table, in the leg and chest, killing him. The defendant then fled the restaurant.
The defendant testified that he was a “cocaine addict,” and, on the day of the killing, “did [cocaine] twice in the house before leaving” at around noon. Later that afternoon, he drank a bottle of rum, mixed with an energy drink, at an upholstery store while waiting for a friend.
Discussion. 1. Motion to suppress evidence seized at 59-61 Salem Street. On the night of the killing, the police entered the upstairs apartment at 59 Salem Street without a warrant, where they arrested the defendant in a third-floor bedroom and seized ammunition from a blue duffel bag in that bedroom. The next morning, the police entered the first-floor apartment at 61 Salem Street without a warrant and seized a gun. Before trial, the defendant moved to suppress the evidence seized as a result of these two warrantless entries. The judge denied the motion. The judge concluded that the warrantless entry into the upstairs apartment was constitutionally reasonable because of exigent circumstances and that the search of the blue duffel bag was a
“In reviewing a motion to suppress, ‘we accept the judge’s subsidiary findings of fact absent clear error’ . . . .” Commonwealth v. Pacheco, 464 Mass. 768, 769 (2013), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004). We may supplement those findings “if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness’s testimony.” Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008), and cases cited. We “independently determine the correctness of the judge’s application of constitutional principles to the facts as found.” Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).
a. Subsidiary finding of facts. After an evidentiary hearing, the motion judge made the following findings of fact, which were not clearly erroneous. The Lawrence police department responded to the shooting at the restaurant at approximately 9:30 p.m., and found a man who had been shot being treated by paramedics. Witnesses at the restaurant provided a general description of the shooter. The police learned that a taxicab driver had driven a man who matched the general description of the shooter from a bar to a location approximately one-half block from the restaurant where the shooting occurred. This man told the driver that he would call back in a few minutes to be picked up again. After the driver made a loop around the block, the same man flagged him down and asked to be driven to 59 Salem Street. The man was picked up “around the time of the shooting.” The taxicab stopped almost immediately at a red light, and the man told the driver to run it. When the driver refused to do so, the man spat on the floor of the taxicab several times in protest. The driver dropped the man off at 59 Salem
Approximately ninety minutes after the shooting, a group of eight to eleven officers assembled near 59-61 Salem Street to locate and arrest the shooter. The house was a two-family home with two front doors that was owned by Alon. The door numbered 59 led upstairs to an apartment spanning the second and third floors; the other door, numbered 61, led to a first-floor apartment. The police first knocked on the door to the first-floor apartment. A man known as “Viejo” answered the door and let the officers inside. Viejo was occupying the first-floor apartment while he did renovation work before a new tenant moved in. The police conducted a protective sweep of the first-floor apartment and found no one else inside. They described the suspected shooter and asked Viejo if he had seen anyone who matched that description. He said that he had not, but noted that a person who matched that description stayed with the woman who lived in the upstairs apartment (Alon). The police then entered the basement and conducted a protective search, but did not find anyone. That left the upstairs apartment as the only part of the building that had not been searched.
Police officers then knocked on the door of the upstairs apartment, and Alon answered. After the police asked her if she had seen or heard anything unusual that evening, she asked them what they were doing there, told them that they had no right to be there, and asked if they had a search warrant. She told the officers that only she and her children were in the apartment and that the children were asleep. After officers heard a door slam and the sound of running coming from inside the upstairs apartment, the officers pushed Alon aside, entered the apartment, and ultimately found the defendant hiding under a bed in a spare bedroom on the third floor. The defendant was arrested, but was unarmed. After he was handcuffed and removed from the bedroom, the officers found a blue duffel bag containing ammunition inside the bedroom closet, approximately five to six feet from where the defendant had been found under the bed.
Alon told the officers that she did not know the defendant. Yet, at the motion to suppress hearing, she testified that the
After the defendant was arrested, a State police lieutenant sought Alon’s permission to search the house. He told her that she did not have to consent to the search, but that, if she did not, they would need to secure the house until a search warrant could be obtained. Alon asked to telephone a lawyer and made the call, but the lawyer did not answer. The State police lieutenant then presented Alon with a written “consent to search” form, which she signed, authorizing the search of her living quarters. The form declared that she had been informed of her constitutional right to refuse to allow a search without a search warrant. The tone of the conversation that preceded her signing of the consent form was “cordial,” and Alon said that she did not care what the officers looked for, provided they did not make a mess. The judge found that Alon was “a highly intelligent, even shrewd woman” who consented to the search because, as she testified, she had nothing to hide. The judge did not credit Alon’s testimony that the police threatened to notify the Department of Social Services (currently known as the Department of Children and Families) if she did not consent to the search.
The police returned the next day to search the first-floor apartment, where they “found a gun and other items.” The defendant did not rent or occupy the first-floor apartment, never actually stayed there, and had not been given a key to the apartment by Alon. Because of his relationship with Viejo, the defendant felt comfortable entering the first-floor apartment without knocking, but he was “at best ... an occasional, temporary visitor to the apartment” and was not visiting when the search was conducted.
b. Warrantless entry into second-floor apartment. “Given the high value that our Federal and Massachusetts Constitutions assign to the warrant requirement, particularly in relation to a dwelling, we impose a heavy burden on the Commonwealth to justify every warrantless search: in the absence of consent, the Commonwealth must prove both probable cause to enter the dwelling and the existence of exigent circumstances” (footnote
We conclude that the police had probable cause to believe that the shooter was present at 59 Salem Street. At the time of the entry, the police knew that a man had walked into a Lawrence restaurant and shot another man, that a man who matched the general description of the shooter provided by eyewitnesses had told a taxicab driver to drop him off near the restaurant shortly before the shooting and said he would call again for a ride in a few minutes, that the same man again had hailed this taxicab near the restaurant shortly after the shooting and told the driver to take him to 59 Salem Street, and that the man had been in such haste that he told the driver to run a red light.
The defendant correctly points out the paucity of evidence at the suppression hearing regarding the physical description of the shooter: all that was offered was that the taxicab driver described his passenger as a “Hispanic male, short hair, average height,. . . with a black and white sweater,” and that his description “generally matched” the description of the shooter given by the eyewitnesses at the restaurant. We recognize that, apart from the sweater, this physical description is far from singular, especially in the city of Lawrence. But our conclusion that there was probable cause to believe that the shooter was the passenger does not rest on the singularity of the physical description but on the circumstances and timing of the passenger’s arrival to and departure from the scene of the crime; on the passenger’s desire to flee the scene, as evidenced by his instruction to run a red light; and on the passenger’s appearance being consistent with that described by the eyewitnesses.
In Tyree, 455 Mass. at 684, we rejected the proposition that “exigent circumstances always justify a warrantless entry and search in the aftermath of a crime involving a firearm where the police have reason to believe (i.e., probable cause) that an armed suspect is in a particular place, even in circumstances where it is not impracticable to obtain a warrant” (emphasis in original). Rather, even where there is probable cause, a warrant-less entry is only justified by exigent circumstances where the police have reasonable grounds to believe that obtaining a warrant would be impracticable under the circumstances because the delay in doing so would pose a significant risk that the suspect may flee, evidence may be destroyed, or the safety of the police or others may be endangered. See id. at 685-692; Commonwealth v. Moran, 370 Mass. 10, 12 (1976). Although these risks need not all be present for there to be exigent circumstances, each was present here.
As to the risk of flight, approximately ninety minutes earlier, the shooter had walked into a restaurant without any mask or disguise, shot a patron, ran outside, hailed a taxicab, and told the driver to take him to 59 Salem Street. Consequently, there were reasonable grounds to believe that the shooter recognized that the police may come to that address looking for him once they located the taxicab driver who drove him there, and that the shooter would soon attempt to flee that address to elude arrest. Contrast Tyree, 455 Mass. at 687 (no evidence of risk of
As to the risk of destruction of evidence, the motion judge correctly noted that the “sophistication of forensics now renders virtually any aspect of a suspect’s person or clothing a potential gold mine of evidence, yet that gold mine could have been negated given sufficient time on the part of the suspect to do so.” Gunshot residue could have been washed from his hands or clothes. The victim’s blood, if it had touched the shooter’s clothing, could be washed away by cleaning the shooter’s clothes. Where the shooter reasonably would have feared that he would be recognized by an eyewitness to the shooting, he had every incentive to eliminate any forensic link to that shooting and the police had reasonable grounds to believe that time was of the essence to prevent him from doing so. Contrast id. at 685-687 (no reason to believe that stolen money would be removed from apartment or that suspects had any incentive to remove or destroy clothing or masks used in robbery).
As to the risks to the safety of the police and others, the motion judge correctly noted that the police “knew that a hotheaded gunman was in the apartment and was still in possession of a weapon.” Where the police knew that others, including children, were in the apartment, the motion judge concluded:
“To conduct a siege of the apartment while awaiting the arrival of a search warrant would permit the suspect to take hostages and set up a defensive position that would create conditions even more dangerous than would exist in the event that an immediate assault were undertaken. It was wisest to pursue the [defendant immediately while he was likely to be off balance.”
Given that an armed suspect had just shot someone under these circumstances, we agree that the police had reasonable grounds to fear that the delay inherent in obtaining a warrant would have increased the danger to the police and to the residents of the apartment. Contrast id. at 688-690 & n.28 (no safety risk where suspects were not “on the run,” and no evidence to suggest that suspects were likely to engage in violence to avoid
Because there was probable cause to believe that the shooter was in the upstairs apartment, and because there were reasonable grounds to believe that obtaining a warrant would be impracticable under the circumstances where taking the time to do so would have posed a significant risk that the suspect may flee, evidence may be destroyed, or the safety of the police or others may be endangered, we conclude that the judge did not err in finding that the warrantless entry into the apartment was justified by exigent circumstances.
c. Seizure of ammunition in duffel bag. The defendant contends that, even if the entry was lawful, the seizure of the ammunition in the duffel bag in the bedroom where the defendant was arrested was not. The motion judge concluded that the seizure was justified as the result of a search incident to arrest because the ammunition was found in an area “within [the defendant’s] immediate reach.” The defendant argues that this was error because he already had been handcuffed and taken out of the room when the ammunition was found. We agree with the motion judge that the ammunition was properly seized as the result of a search incident to arrest.
The geographic scope of a lawful search incident to arrest is the area within the defendant’s “immediate control” at the moment of arrest, that is, “the area within which he might gain possession of a weapon or destructible evidence.” Commonwealth v. Elizondo, 428 Mass. 322, 323-324 (1998), quoting Chimel v. California, 395 U.S. 752, 763 (1969). We do not measure its scope by the “grab area” at the time of the search, when the defendant may have been restrained or handcuffed. Elizondo, supra at 324 n.3. Measuring the “grab area” at the time of the search would compromise the safety of arresting officers because it would require them to seize all evidence within the arrestee’s immediate control before securing the arrestee in order to make lawful the search incident to arrest. See Commonwealth v. Netto, 438 Mass. 686, 695 (2003), quoting United States v. Nelson, 102 F.3d 1344, 1347 (4th Cir. 1996), cert. denied, 520 U.S. 1203 (1997) (officers “need not reorder the sequence of their conduct during arrest simply to satisfy an artificial rule that
d. Seizure of firearm and ammunition in first-floor apartment. We also agree with the motion judge that the defendant did not have standing to seek suppression of the firearm and ammunition seized the next day in the first-floor apartment. The defendant was not charged with a possessory offense regarding the firearm or ammunition, so he does not have automatic standing to challenge its seizure. See Commonwealth v. Mubdi, 456 Mass. 385, 392 (2010). Nevertheless, he would have standing to challenge the seizure of evidence from the first-floor apartment if he had a reasonable expectation of privacy in that apartment. See Rakas v. Illinois, 439 U.S. 128, 138-139, 143 (1978); Commonwealth v. Mora, 402 Mass. 262, 265 (1988). The defendant argues that he had such an expectation of privacy because the evidence at the motion hearing showed he was entitled to freely enter the first-floor apartment without knocking. Where the defendant was not an overnight guest but was “at most, an occasional visitor to the [first-floor] apartment who happened to enter without knocking on some occasions,” the defendant does not have standing to challenge the search of that apartment. See Minnesota v. Olson, 495 U.S. 91, 99-100 (1990) (recognizing overnight guest’s legitimate expectation of privacy in host’s apartment); Rakas, supra at 142-148 (rejecting “legitimately on premises” standard as overly broad for standing); Mora, supra (defendant “did not claim to be the tenant, to have lived in the apartment at any time, or to have been present at the time of the search,” and, thus, lacked standing to challenge warrantless entry into apartment).
A showup identification is disfavored because it is inherently suggestive, but it violates due process only where the defendant proves by a preponderance of the evidence that it is “unnecessarily suggestive.” Commonwealth v. Phillips, 452 Mass. 617, 627-628 (2008), quoting Commonwealth v. Martin, 447 Mass. 274, 279 (2006). A showup identification is unnecessarily suggestive where there was not “good reason” for the police to conduct it under the circumstances. Phillips, supra at 628, quoting Martin, supra. We regularly conclude that there is good reason for a showup identification where an eyewitness is shown a suspect promptly after the commission of the crime. Phillips, supra. Not only is a prompt identification procedure more likely to be accurate, because the eyewitness’s memory is fresh, but also, more importantly, it allows the police to learn quickly whether the suspect is the perpetrator of the crime so that, if he is not, the police can continue the investigation to find the actual perpetrator. See id. at 629. Even where there is “good reason” for a showup identification, it may still be suppressed if the identification procedure so needlessly adds to the suggestiveness inherent in such an identification that it is “conducive to irreparable mistaken identification.” Id. at 628, quoting Martin, supra at 279-280.
The motion judge here found that approximately two and one-half hours after the shooting (and approximately one hour after the defendant’s arrest), Paulino was brought to the street outside 59 Salem Street for a showup identification of the defendant. The police told him that they wanted to show him someone regarding the shooting, and that he should let them know whether he could identify the person. While sitting in an unmarked
We agree that, under these circumstances, there was good reason to conduct a showup identification, and that the procedure, although inherently suggestive, was not so unnecessarily suggestive that it created a substantial risk of a mistaken identification. See Commonwealth v. Meas, 467 Mass. 434, 441 (2014) (police had “very good justification for resorting to . . . showup procedure” where crime involved use of firearm not recovered at scene). The passage of approximately two and one-half hours since the shooting did not dissolve the public safety justification for the showup. See Commonwealth v. Bowden, 379 Mass. 472, 479 (1980) (showup identification conducted approximately two hours after murder admissible); Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 37-38, 41 (1985) (showup identification admissible where victim identified defendant over two hours after incident). Accordingly, the motion to suppress the identification was properly denied.
3. Reasonable doubt instruction. In his final instructions to the jury, the judge departed from the reasonable doubt instruction crafted from Commonwealth v. Webster, 5 Cush. 295, 320 (1850),
“[T]he Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995), quoting Victor v. Nebraska, 511 U.S. 1, 5 (1994). Rather, we look to whether the reasonable doubt instruction adequately impressed on the jury “the need to reach a subjective state of near certitude of the guilt of the accused.” Victor, supra at 15, quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979). “In reviewing a reasonable doubt instruction, we consider whether there is a ‘reasonable likelihood’ that the instruction led the jury to believe that they could convict the defendant on proof insufficient to dispel reasonable doubt.” Denis, supra at 621, quoting Pinckney, supra.
We have cited but not indorsed Instruction 21, see Commonwealth v. Therrien, 428 Mass. 607, 611 n.5 (1998), as an alternative to the “moral certainty” instruction that passes constitutional muster only where supplemented with another instruction that impresses on a jury “the need to reach a subjective state of near certitude of the guilt of the accused.” Id. at 610, quoting Pickney, supra at 344. Justice Ginsburg in her concurrence in Victor, supra at 26-27, described Instruction 21 as “clear, straightforward, and accurate,” and declared that it surpassed other model reasonable doubt instructions “in stating the reasonable doubt standard succinctly and comprehensibly.” The phrase “firmly convinced” has been described as a correct and adequate statement of the reasonable doubt standard by the United States Court of Appeals for the Fifth and Tenth Circuits,
We leave for another day the question whether the judge’s instruction communicated the requirement of “near certitude” of guilt to a jury as effectively as the model reasonable doubt instruction adapted from Webster, supra at 320.
4. Intoxication instruction. The crux of the defendant’s argument to the jury was that the defendant was so intoxicated at the time of the shooting that he was unable deliberately to premeditate the killing or to form an intent to kill. The judge instructed the jury as follows on the issue of intoxication:
“[Y]ou may consider any credible evidence ... of the defendant’s consumption of alcohol or narcotics on the issues of whether the defendant possessed an intent to kill, or whether he accomplished the killing after deliberate premeditation. . . . The Commonwealth, however, does not need to prove that the defendant was sober or not intoxicated, that is not the Commonwealth’s burden of proof. They don’t have to prove that he was not intoxicated.*222 People who are intoxicated still may be able to form an intent to do something, and then decide to accomplish that goal. The Commonwealth, however, must prove to you beyond a reasonable doubt that the defendant was not so intoxicated that he was unable to deliberately premeditate or form the necessary intent for malice.”
The defendant contends that the judge’s instruction that the Commonwealth need not prove that the defendant “was sober” was not only confusing but “unconstitutionally diluted the Commonwealth’s burden of proof on proving deliberate premeditation and malice aforethought.” He also contends the judge’s statement that “[pjeople who are intoxicated still may be able to form an intent to do something” was an improper comment not based on the evidence. Because the defendant timely objected to the judge’s instruction, we review it under the prejudicial error standard. See Commonwealth v. Szlachta, 463 Mass. 37, 45 (2012).
We conclude that the instruction was not erroneous. Where a defendant claims diminished capacity because of intoxication, the Commonwealth is required to prove only that the defendant was not so intoxicated that he was incapable of forming the requisite intent. See Commonwealth v. Herbert, 421 Mass. 307, 316 (1995) (intoxication instruction warranted where “evidence raised a reasonable doubt whether the defendant was so intoxicated at the time of the incident that he was incapable of forming the intent that is a necessary element of the crimes charged”). “[T]he Commonwealth does not have to prove that the defendant was not intoxicated.” Commonwealth v. Vasquez, 419 Mass. 350, 353 (1995), citing Commonwealth v. Costello, 392 Mass. 393, 404-405 (1984). Nor did the judge improperly comment on the potential capacity of persons who are intoxicated to form an intent. Where a judge properly instructs that the Commonwealth must prove that the defendant was not “so intoxicated” that he was unable to form an intent, it is implicit that a person less intoxicated may be capable of forming an intent.
5. Tuey-Rodriquez instruction. After approximately ten hours of deliberation over three days, the jury sent the following note to the judge: “If the [jury] cannot agree on first degree murder
We have declared, albeit in dicta, that Massachusetts is not
The “acquittal first” rule significantly increases the risk of a mistrial, because “a jury unable either to convict or acquit on the greater charge will not be able to reach a lesser charge on which it might have been able to agree.” Tsanas, 572 F.2d. at 346. See, e.g., Blueford v. Arkansas, 132 S. Ct. 2044, 2049 (2012) (colloquy between judge and foreperson in “acquittal first” jurisdiction revealed jury had, at that point in deliberations, agreed to acquit defendant of capital and first-degree murder but were deadlocked as to manslaughter, and, as a result, had not moved on to another lesser included offense). Alternatively, under the “acquittal first” rule, dissenting jurors might agree to convict the defendant as charged because they recognize that the jury’s inability to reach unanimity on the greater charge will prevent them from convicting the defendant of any lesser included offense and require a retrial. See Jackson, 726 F.2d at 1470 (“the risk [is] substantial that jurors harboring a doubt as to defendant’s guilt of the greater offense but at the same time convinced that defendant had committed some offense might wrongly yield to the majority and vote to convict of the greater offense rather than not convict defendant of any offense at all”); Tsanas, supra (“[i]f the jury [are] heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge”). Cf. Commonwealth v. Woodward, 427 Mass. 659, 664-665 (1998), citing Commonwealth v. Walker, 426 Mass. 301, 305 (1997) (doctrine favoring instructing juries on lesser
The “acquittal first” rule is also inconsistent with the requirement in Mass. R. Crim. P. 27 (a), 378 Mass. 897 (1979), that a jury’s verdict in a criminal case be a “general verdict.” “The term ‘general verdict’ refers to ‘a verdict dispositive of the entire charge,’ not just a portion of the charge.” Roth, 437 Mass. at 787, quoting A Juvenile v. Commonwealth, 392 Mass. 52, 55 (1984). We said in Roth:
“A lesser included offense is part of a single charge, not a separate ‘charge’ or separate ‘offense.’ A trial on a single complaint or indictment is not a trial on ‘two or more offenses,’ and the identification of applicable lesser included offenses at the time the case is submitted to the jury does not transform the trial into a trial on ‘two or more offenses.’ ”
Roth, supra, quoting Mass. R. Crim. P. 27 (b). Therefore, a jury are not deadlocked where they can reach a general verdict that disposes of the entire charge, even if that means conviction of a lesser charge. Only where the jury fail to return a general verdict “ ‘dispositive of the entire charge,’ not just a portion of the charge,” are the jury hung. Roth, supra, quoting A Juvenile, supra.
The “acquittal first” rule requires the jury to deliberate as if they were furnished multiple verdict slips on a single indictment or complaint, with one slip reflecting the greater offense and another for each of the lesser included offenses, because they are instructed that they must first reach a verdict as to the greater offense and may render a verdict as to a lesser offense only if they reach a verdict of not guilty as to the greater offense. But our practice under rule 27 (a) is that “a single verdict slip accompanies the indictment or complaint, not a separate verdict slip for each lesser included offense.” Roth, supra. “The jury cannot . . . ‘file a verdict slip’ with the clerk and then resume deliberations on remaining lesser included offenses that are
Under the “soft transition” rule, the jury are instructed to move on to consider a lesser included offense where they did not find the defendant guilty of the greater offense rather than being required to find the defendant not guilty of the greater offense before moving on to the lesser included offense. While this instruction will suffice before the jury commence their deliberations, a “reasonable efforts” instruction should be given where the jury during deliberations announce their deadlock as to the greater offense because it ensures the jury will honor the instruction that the jury “have a duty to find the defendant guilty of the most serious offense that the Commonwealth has proved beyond a reasonable doubt.” Model Jury Instructions on Homicide 93 (2013). A reasonable efforts instruction informs the jury that if, after all reasonable efforts, they reach agreement that the defendant is not guilty of the greater offense or are unable to agree as to the greater offense, they may consider whether the defendant is guilty of a lesser offense. See, e.g., Pharr v. Israel, 629 F.2d 1278, 1281 n.1 (7th Cir. 1980), cert. denied, 449 U.S. 1088 (1981); Tsanas, 572 F.2d at 346.
We recognize that the “soft transition” rule means that a jury
Because we have rejected the “acquittal first” rule, the judge erred in telling the jury that they were a hung jury if they could not reach agreement on murder in the first degree, and in furnishing them with a Tuey-Rodriquez instruction that suggested that a failure to reach agreement on murder in the first degree would result in a mistrial. Instead, after receiving the jury’s note that they were deadlocked as to murder in the first degree, the judge should have instructed the jury that they were not a hung jury and that if, after all reasonable efforts, they were unable to reach agreement as to murder in the first degree (or if they reached agreement that the defendant was not guilty of murder
Where the defendant did not object to the judge’s instruction, we evaluate the error to determine whether it created a substantial likelihood of a miscarriage of justice. Under that standard, “a new trial is called for unless we are substantially confident that, if the error had not been made, the jury verdict would have been the same.” Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998). In the unusual circumstances of this case, we are not substantially confident that the jury would have returned a verdict of murder in the first degree if they had received the correct instruction. Where the defendant effectively conceded guilt with respect to murder in the second degree, acquittal was merely a theoretical possibility; the only real issue before the jury was the degree of murder. The jury had struggled with that issue for approximately ten hours over three days of deliberations, and had asked the judge several legal questions regarding premeditation and malice before asking whether they were a hung jury. If the jury had received the correct instruction, it is reasonably likely that they would have moved on to consider murder in the second degree, believing that they had exhausted all reasonable efforts to reach agreement as to murder in the first degree. Nor can we be substantially confident that the judge’s erroneous instruction did not cause the hold-out juror or jurors to “throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all,” especially where the defendant admitted that he shot the victim. Tsanas, 572 F.2d at 346. Therefore, we reverse the defendant’s conviction of murder in the first degree.
A jury that by its verdict has found that the prosecution has
Conclusion. The defendant’s conviction of murder in the first degree is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
The defendant testified that the “rule on the street” is that where one recommends a buyer to a drug seller and the buyer does not pay in full, the person who recommended the buyer is “responsible for that debt.”
An employee at the upholstery store testified that the defendant was sharing an approximately twelve-inch bottle of rum with another man in the store and “was kind of happy.”
The judge also concluded that, even if the search of the duffel bag were not incident to arrest, its suppression would still not be warranted because the contents of the duffel bag would inevitably have been discovered after the owner of the apartment had consented to a search of the apartment.
We also agree with the motion judge that, even if the seizure were not lawful as the result of a search incident to arrest, the evidence properly was not suppressed because Nancy Alon subsequently voluntarily consented to a search of her apartment, and the ammunition would inevitably have been discovered during that search. See Nix v. Williams, 467 U.S. 431, 444 (1984).
The reasonable doubt instruction modeled on Commonwealth v. Webster, 5 Cush. 295, 320 (1850), states:
“The burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant is guilty of the charge[s] made against [him].
“What is proof beyond a reasonable doubt? The term is often used and probably pretty well understood, though it is not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of human beings is open to some possible or imaginary doubt. A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence,*219 you have in your minds an abiding conviction, to a moral certainty, that the charge is true.
“I have told you that every person is presumed to be innocent until [he] is proved guilty, and that the burden of proof is on the Commonwealth. If you evaluate all the evidence and you still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted.
“It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendant’s guilt to a reasonable and moral certainty; a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence. That is what we mean by proof beyond a reasonable doubt.”
Massachusetts Superior Court Criminal Practice Jury Instructions § 1.1.2 (Mass. Cont. Legal Educ., 2d ed. 2013).
The judge’s reasonable doubt instruction was as follows:
“The burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant is guilty of the charge made against him, the charge here is first degree murder.
“What is proof beyond a reasonable doubt? The term is often used and is probably pretty well understood by jurors, but, ladies and gentlemen, it is not easy for [j]udges to define it to jurors.
“Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of human beings is open to some possible or imaginary doubt.
“On the other hand, it is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty, that is not enough. . . .
“Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty.
“If on the other hand, you think there is real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. This is what we mean by proof beyond a reasonable doubt.”
We have granted direct appellate review of a criminal case where the same reasonable doubt instruction of this same judge was timely objected to at trial and therefore is subject to review for prejudicial error. See Commonwealth vs. Russell, No. SJC-11602. We need not consider here whether it is prejudicial error to give this instruction.
The judge intended to communicate this message to the jury. He told counsel that, as a matter of law, the jury could not consider murder in the second degree unless and until they reached unanimous agreement that the defendant was not guilty of murder in the first degree. The judge also warned counsel that, if the jury were unable to reach unanimous agreement as to murder in the first degree, the consequence would be a hung jury and a mistrial.
The judge instructed the jury:
“You should consider that it is desirable that this case be decided; that you were selected in the same manner and from the same source from which any future jury must be. And there is no reason to suppose that this case will ever be submitted to twelve persons more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on one side or the other.”
The judge asked “jurors for not guilty on first degree murder” to “consider whether a doubt in their own minds is a reasonable one which makes no impression on the minds of others equally honest, equally intelligent with themselves,” and “jurors for guilty on first degree murder” to “ask themselves whether they [may] not reasonably doubt the correctness of a judgment which is not concurred in by others.”
Defense counsel initially suggested that the judge answer the jury’s question by telling them “to move on to second degree murder,” but he later agreed with the judge’s decision to give a Tuey-Rodriquez instruction and made no objection when it was given.
Several courts have held that, where an instruction on a lesser included offense is appropriate, a judge may give either the “acquittal first” or “reasonable efforts” instruction if the defendant does not state a preference but that, if the defendant requests one of these instructions, it is error for the judge not to honor the request. See United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984); Catches v. United States, 582 F.2d 453, 459 (8th Cir. 1978); United States v. Tsanas, 572 F.2d 340, 346-347 (2d Cir.), cert. denied, 435 U.S. 995 (1978).
The judge was not alone in making this error. We erred in our Model Jury Instructions on Homicide 36 (2013), in providing that, where the jury are to be instructed on voluntary or involuntary manslaughter, the jury may be told, “If you find the defendant not guilty of murder in the first degree or murder in the second degree, you shall consider whether the Commonwealth has proved the defendant guilty beyond a reasonable doubt of the lesser offenses of voluntary manslaughter or involuntary manslaughter.” The instruction instead should read, “If you do not find the defendant guilty of murder in the first degree or murder in the second degree, you shall consider whether the Commonwealth has proved the defendant guilty beyond a reasonable doubt of the lesser offenses of voluntary manslaughter or involuntary manslaughter.”