COMMONWEALTH vs. GEORGE P. HUGHES.
Supreme Judicial Court of Massachusetts
May 7, 1980
380 Mass. 596
Worcester. January 8, 1980. — May 7, 1980. Present: HENNESSEY, C.J., BRAUCHER, KAPLAN, LIACOS, & ABRAMS, JJ.
Although the cumulative effect of defects in a judge‘s charge on reasonable doubt was such that if the charge had been given after this court‘s decision in Commonwealth v. Ferreira, 373 Mass. 116 (1977), and a proper exception had been taken, reversal would have been required, in the circumstances reversal was not required since there was no substantial risk of a miscarriage of justice. [598-602] LIACOS, J., dissenting.
At the trial of a defendant charged with breaking and entering a dwelling house in the nighttime with intent to commit larceny, the judge‘s use of the word “presumption” in instructing the jury as to specific intent to commit larceny, while better avoided, did not in the context of the entire charge shift the burden of proof to the defendant. [602-604]
INDICTMENT found and returned in the Superior Court on June 23, 1976.
The case was tried before Sullivan, J.
The Supreme Judicial Court granted a request for direct appellate review.
Hugh W. Samson for the defendant.
Lynn Morrill Turcotte, Assistant District Attorney, for the Commonwealth.
BRAUCHER, J. The defendant appeals from his conviction of breaking and entering a dwelling house in the nighttime with intent to commit larceny. He took no exceptions to the judge‘s charge to the jury, but he argues to us that the instructions on reasonable doubt and on presumptions require reversal to prevent a miscarriage of justice. We affirm the conviction.
We summarize the evidence on behalf of the Commonwealth. About 10 P.M. on April 1, 1976, a Worcester police officer observed the defendant and Edward Mallett loading furniture in a van in front of a six-family building. George Mallett stayed by the van. Police officers followed the defendant and Edward Mallett to a third-floor apartment. The front door of the apartment had been forced open, the outside lock was hanging on the door, part of the lock was on the floor, and the door had been broken. The bedroom had been ransacked. The police arrested the three men. Karle Lamson, the manager of the building and resident of the apartment, testified that he was on Cape Cod at the time. A few days before an intruder had broken the door of the apartment, and the defendant put on a new door and transferred the lock. The defendant was “working as kind of an assistant manager with me in the building.” According to Lamson‘s testimony, he asked Mark Rossiter to check his apartment daily while he was away “to see if anything was wrong,” but he did not give anyone permission to enter his apartment or to remove any furniture during his absence.
Rossiter testified for the defense that he had been asked by Lamson to drop by and check the apartment, that he was aware of a similar understanding between Lamson and the defendant, who lived on the floor below Lamson, and that he had discovered a second forcible entry into the Lamson apartment, had made a list of missing items, and had fixed the door jamb so the door would close but not lock. Rossiter
Edward Mallett did not testify. George Mallett testified that his brother Edward telephoned him about 8:30 P.M. on the evening in question, said he had bought some used furniture for their mother, and asked for a ride to pick it up. George later picked up his brother, drove him to the apartment house, and stayed by the van while Edward and the defendant carried out furniture.
The jury found the defendant and Edward Mallett guilty as charged, but acquitted George Mallett. The defendant made no objections and took no exception to any portion of the judge‘s charge, but argues to us that the cumulative errors in the judge‘s charge on proof beyond a reasonable doubt and on proof of specific intent to commit larceny resulted in a miscarriage of justice, citing Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
1. Reasonable doubt. The defendant claims error in the judge‘s instruction to the jury on reasonable doubt in three respects: (1) the use of a decision whether to undergo heart surgery as an illustration; (2) the charge that a reasonable doubt was a doubt for which a juror could give a “good reason“; (3) warning of the consequences of holding the Commonwealth to too strict a standard, without counterbalancing warnings about the danger of convicting an innocent person.
Each of these claims has a foundation in our decisions. (1) In Commonwealth v. Bumpus, 362 Mass. 672, 682 (1972), judgment vacated on other grounds, 411 U.S. 945 (1973), aff‘d on rehearing, 365 Mass. 66 (1974), reviewed on petition for habeas corpus, sub nom., Bumpus v. Gunter, 452 F. Supp. 1060 (D. Mass. 1978), we identified the “inherent difficulty” in using examples such as a decision to undergo major heart surgery: “while they may assist in explaining the seriousness of the decision before the jury, they may not be illustrative of the degree of certainty required.” See Commonwealth v. Ferguson, 365 Mass. 1, 12 (1974); Commonwealth v. Coleman, 366 Mass. 705, 712 (1975). In Commonwealth v. Ferreira, 373 Mass. 116, 128-130 (1977), where “the evidence of the defendant‘s guilt was not overwhelming,” we reversed a conviction of murder in the first degree pursuant to
(2) In Commonwealth v. Bjorkman, 364 Mass. 297, 307-309 (1973), we upheld a charge that a reasonable doubt is a “doubt based upon a reason,” but only after reviewing cases in which appellate courts had expressed disapproval of such definitions. Considering the charge in that case “in its entirety,” we thought that the phrase objected to, “even if of doubtful propriety standing alone, could not have caused any prejudicial shifting of the Commonwealth‘s burden of proof in the minds of the jurors.” See Commonwealth v. Coleman, 366 Mass. 705, 712 (1975). Contrast Dunn v. Perrin, 570 F.2d 21, 23-24 (1st Cir.), cert. denied, 437 U.S. 910 (1978) (“good and sufficient reason” improper; reversi-
(3) In Commonwealth v. Williams, 378 Mass. 217, 233-235 (1979), as in the present case, the judge quoted from Commonwealth v. Madeiros, 255 Mass. 304, 307 (1926), and we were persuaded “that if warnings about the consequences of misapplication of the law flow all in one direction, they might cause the jury to overcompensate and misapply the law in the other direction.” See Bumpus v. Gunter, 452 F. Supp. 1060, 1063-1064 (D. Mass. 1978). Considering the charge in the Williams case as a whole, however, we held that there was no error.
Each of the defendant‘s three claims has force in the present case. The judge began his discussion of reasonable doubt with a statement that the presumption of innocence “goes with these defendants right into the jury room as you deliberate, until such time as you collectively are convinced that the Commonwealth has met” its burden of proving the guilt of the defendant beyond a reasonable doubt. He then defined reasonable doubt as “a doubt for which you can give a good reason,” and added that, “as a practical matter, that means that if you are in the jury room deliberating and you are able to stand up and face your fellow jurors and say, ‘I have a doubt and this is the good reason for it,’ then you have a reasonable doubt.” He then distinguished between “absolute proof beyond all imaginary doubt” and “a deep and abiding conviction of the defendant‘s guilt amounting to a moral certainty,” and read the passages from the Madeiros case that are criticized as one-sided. Moral certitude, he said, is “the kind of certitude that the reasonable man would have about those matters of highest and most important events of his life.” After describing a heart surgery situation, he said that “clearly such an individual would look carefully into the alternatives. Would obtain all the information before he came to a decision as to what he should do. And members of the jury, you are in a similar situation. You are called upon to make a very important decision. And
We have approved the use of “moral certainty” and the use of “doubt based upon a reason” in this context, and it seems doubtful that the addition of “good” to “reason” or the dramatic phrase “stand up and face your fellow jurors” would be fatal, if those defects stood alone. Similarly, the quotation from the Madeiros case is not of itself so one-sided as to require automatic reversal. Finally, the heart surgery illustration has far less tendency to trivialize the jury‘s duty than the illustrations used in the Ferreira and Garcia cases. Moreover, the judge used the heart surgery illustration more to explain the seriousness of the decision than to illustrate the required degree of certainty. Nonetheless, the cumulative effect of the defects in the charge is such that if the charge had been given after the Ferreira decision and a proper exception had been taken we would have held that there was error.
But the charge was given before the Ferreira decision, and no objection was made or exception taken. The case is not subject to the special duty imposed on us by
2. Presumptions. The judge instructed the jury with respect to two presumptions: (1) “When a person by use of force enters a dwelling house in the middle of the night, it may ordinarily be presumed, in the absence of evidence to the contrary, that his intent is to steal or to do the act which he commits.” (2) “Now, possession of property taken from premises of a third party who owned the property or who had control over the property may be used by you as a presumption that the property was taken. . . . And the courts in some places talk about, if property that has been stolen is found in the possession of another person and no satisfactory explanation is made by him as to how he obtained possession of it, there is a presumption that he stole it.” The defendant argues that the result was an impermissible shift to the defendant of the burden of proof as to his specific intent to commit larceny, citing In re Winship, 397 U.S. 358 (1970), and Sandstrom v. Montana, 442 U.S. 510 (1979). We disagree.
“The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. . . . That determination requires careful attention to the words actually spoken to the jury, . . . for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom v. Montana, 442 U.S. 510, 514 (1979). In context it is quite clear that the judge used the word “presumption” interchangeably with the word “inference.” See Gibson v. Commonwealth, 377 Mass. 539, 542 (1979). Early in his charge he explained that an inference of a fact might follow naturally and normally, “reasonably” but “not necessarily,” from testimony to another fact, and that “you may” make all such inferences. Later, as to the intent to commit larceny, he said, “The intent that we refer to is inferred from the defendant‘s conduct. It is obvious that in most cases you are not going to have any direct evi-
The quoted portions of the charge explicitly negate any shifting of the burden of proof to the defendant. No reasonable juror could have understood that the presumption was conclusive, requiring a finding of intent if the described entry or the described possession was found, or that it was rebuttable only if the defendant carried a burden of contrary proof. Thus the defendant‘s claims of error fail. We adhere, however, to the view that it would be better practice to avoid the word “presumption” entirely in such situations. See Lannon v. Commonwealth, 379 Mass. 786, 793 (1980); Commonwealth v. Collins, 374 Mass. 596, 600 n.2 (1978). There is here no contention that a permissive inference of intent to steal was without rational basis in the circumstances described by the judge. See the full discussion of such inferences in Commonwealth v. Pauley, 368 Mass. 286, 292-299 (1975), appeal dismissed for want of substantial Federal question, 423 U.S. 887 (1975). Cf. Commonwealth v. Ronchetti, 333 Mass. 78, 81 (1955) (inference from forcible
Judgment affirmed.
LIACOS, J. (dissenting). I am unable to agree with the majority that the charge given on reasonable doubt does not constitute reversible error. The majority, apparently recognizing the serious infirmities in the charge, state, “[T]he cumulative effect of the defects in the charge is such that if the charge had been given after the Ferreira decision and a proper exception had been taken we would have held that there was error.” Supra at 601. I take the position that reversal is required, notwithstanding the defendant‘s failure to take a proper exception at his trial which occurred prior to the Ferreira decision.
This court applied the Ferreira decision retroactively in Commonwealth v. Garcia, 379 Mass. 422 (1980). The court stated, “We believe that In re Winship, 397 U.S. 358 (1970), made retroactive by Ivan V. v. New York, 407 U.S. 203 (1972), mandates retroactive application of Ferreira. We emphasize, however, that we will scrutinize more carefully jury instructions given after the date of Ferreira. Cf. Commonwealth v. Rodriguez, 370 Mass. 684, 692 (1976); Commonwealth v. Collins, 374 Mass. 596, 599 (1978); Commonwealth v. Stokes, 374 Mass. 583, 590-591 (1978).” Commonwealth v. Garcia, supra at 441.
In the past when this court has given retroactive effect to a decision, we have reviewed on appeal errors at trials occurring prior to such decision, even in the absence of a proper exception at trial. See, e.g., Commonwealth v. Stokes, supra, giving retroactive effect to Mullaney v. Wilbur, 421 U.S. 684 (1975), and Commonwealth v. Rodriguez, supra. See also Commonwealth v. Collins, supra; Commonwealth v. Harris, 376 Mass. 201 (1978). In Stokes, supra at 590,
First, we noted our ““power to set aside a verdict . . . when a decisive matter has not been raised at trial.’ Commonwealth v. Myers, [356 Mass. 343, 347 (1969)], quoting from Commonwealth v. Conroy, 333 Mass. 751, 757 (1956),” Stokes, supra at 589. We then concluded that appellate review is warranted because “the constitutional issue of burden of proof goes to the very heart of the truth-finding function of the criminal trial and, as such, raises ‘serious questions about the accuracy of guilty verdicts.‘” Id. (citations omitted). A closer examination of Commonwealth v. Myers, quoted above in Stokes, clarifies the conceptual underpinnings of this first rationale. In Myers, supra at 347, we stated, “We are mindful that, apart from § 33E, this court ‘in appropriate instances . . . has and will exercise the power to set aside a verdict or finding in order to prevent a miscarriage of justice when a decisive matter has not been raised at the trial.’ Commonwealth v. Conroy, 333 Mass. 751, 757 [1956]. This power has been sparingly used. ‘The test is whether there is a substantial risk of a miscarriage of justice.’ Commonwealth v. Freeman, 352 Mass. 556, 564 [1967].” It becomes apparent from Myers, that our conclusion in Stokes rests on our view that erroneous instructions on the burden of proof raise such “serious questions about the accuracy of guilty verdicts” as to raise “a substantial risk of a miscarriage of justice.” Hence, a defendant who received an erroneous instruction on the bur-
Our second reason for rejecting the Hankerson suggestion rested on the inconsistency of holding “on the one hand that a substantive rule of constitutional dimension is completely retroactive and [insisting], on the other hand, that defense counsel must have anticipated the rule in the form of an objection or exception before it may be applied retroactively.” Commonwealth v. Stokes, supra at 589-590. This court has never required “clairvoyance on the part of defense counsel.” Id. at 588.
While holding in Stokes that Mullaney would be applied retroactively in the absence of an exception at trial, we also recognized the need for a less stringent standard of review in pre-Mullaney cases. We stated, “[T]his court will bring greater expectations, and consequently more careful scrutiny of the judge‘s charge as to these issues, in any case where the trial occurred after the date of Mullaney, and particularly after the date of Rodriguez.” Id. at 591. See Collins, supra at 599. Thus our decision to apply Mullaney retroac-
I find no justification for treating the retroactive application of Ferreira any differently from our retroactive application of Mullaney and Rodriguez. An erroneous instruction on reasonable doubt also raises “serious questions about the accuracy of guilty verdicts.” The charge in the case at bar trivializes the Commonwealth‘s burden of proof and offends the constitutional requirements of Mullaney and In re Winship, supra.2 In light of our reasoning in Stokes, I cannot agree with the majority‘s reliance on Hankerson v. North Carolina, supra at 244, n.8, for the proposition that “we are not required by decisions of the Supreme Court to overlook the failure to take exceptions.” The Hankerson approach was squarely rejected in Stokes, supra at 588. It is my position that when this court takes the dramatic step of giving a decision retroactive effect, we make a policy judgment that a substantial risk of a miscarriage of justice is involved. In my view it is inconsistent to hold that Ferreira will be given retroactive effect, and to then conclude that the instant charge, which fails to meet the requirements of Ferreira, does not require reversal because “no such risk” exists, supra at 602. This conceptual inconsistency is exacerbated by the more obvious illogic of requiring “clairvoyance on the part of defense counsel” in order for a defendant to benefit from the retroactive application of Ferreira.
Reviewing the charge under the less stringent standard appropriate in a pre-Ferreira case, I conclude that the Commonwealth‘s burden of proving guilt beyond a reasonable doubt was seriously diminished by the charge given. Accordingly, I would reverse the conviction and order a new trial.