45 Mass. App. Ct. 526 | Mass. App. Ct. | 1998
Upon an indictment for first degree murder, a Superior Court jury found the defendant, Neil Niland, guilty of murder in the second degree. G. L. c. 265, § l.
We briefly summarize the facts presented at trial in the light most favorable to the Commonwealth, Commonwealth v. Nichypor, 419 Mass. 209, 210 (1994), reserving certain details to be discussed as they are relevant to the issues. The victim was the defendant’s girlfriend and the mother of his two and one-half month old daughter. The victim moved in with the defendant following the child’s birth. The defendant shared a three-bedroom, second-floor apartment with his two sisters. On the night of June 25, 1994, the defendant and victim had argued twice, once at 10:30 and again at midnight. At 1:30 a.m., Sunday, June 26, they were watching television and were joined by the defendant’s sisters and their boyfriends. Five minutes later the victim announced that she was tired and went to her bedroom. The defendant followed at 1:55 a.m. Approximately ten minutes later, in the bedroom lit by television, the defendant shot the victim with his .22-caliber, semiautomatic long rifle, at a forty-five degree angle, within twelve inches of the sleeping victim’s face. A single bullet entered the victim’s right cheek and lodged in the membrane surrounding the brain. She never regained consciousness and died of the gunshot wound three days later.
1. Consciousness of guilt instruction. After waiving his Miranda rights each time, the defendant gave three different accounts to the police of what took place in the bedroom.*
At the request of the Commonwealth, the trial judge instructed the jury on consciousness of guilt as follows:
“If the Commonwealth has proved that the defendant did give false statements to the police, you are permitted to consider whether such actions indicate feelings of guilt by the defendant, and whether, in turn, such feelings of guilt might tend to show actual guilt on these charges. You are not required to draw such inferences, and you should not do so unless they appear to be reasonable in light of all the circumstances of this case.
“If you decide that such inferences are reasonable, it will be up to you to decide how much importance to give them. But you should always remember that there may be numerous reasons why an innocent person might give false statements to the police. Such conduct does not necessarily reflect feelings of guilt. Please also bear in mind that a person having feelings of guilt is not necessarily guilty in fact, for such feelings are sometimes found in innocent people.
“Finally, remember that, standing alone, such evidence is never enough by itself to convict a person of a crime. You may not find a defendant guilty on such evidence alone, but you may consider it in your deliberations along with all of the other evidence that has been admitted in this case.”
The defendant contends that the “might tend to show actual guilt” language improperly allowed the jury to consider the defendant’s inconsistent statements as evidence of malice. He further contends that the effect was compounded by the Commonwealth’s closing argument that the statements could be
Consciousness of guilt evidence is relevant to the issue of whether an unlawful killing was committed but is not evidence of malice aforethought. See Commonwealth v. Lowe, 391 Mass. 97, 108 n.6, cert, denied, 469 U.S. 840 (1984). However, “[i]n determining the propriety of a jury instruction, ‘[w]e must consider the instruction in question in the context in which it was delivered, in order that we might determine its probable effect on the jury’s understanding of their function.’ ” Commonwealth v. Fryar, 425 Mass. 237, 246-247, cert, denied, 522 U.S. 1033 (1997), quoting from Commonwealth v. Adrey, 397 Mass. 751, 753-754 (1986).
The defendant concedes that the instructions were generally in accord with the Toney charge. See Commonwealth v. Toney, 385 Mass. 575, 585 (1982) (“We think that a judge should instmct the jury [1] that they are not to convict a defendant on the basis of evidence of flight or concealment alone [see, e.g., Commonwealth v. Smith, 368 Mass. 126, 129 (1975)], and [2] that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant”). In accordance with the supplemental Toney instmctions, the judge also cautioned the jury that feelings of guilt may also be present in innocent people. See id. at 585-586 n.6. The defendant argues, however, that, because the presence or absence of malice was a central issue at trial, the jury should have been given an explicit instmction that consciousness of guilt evidence can only be used as proof that an unlawful killing had been committed. Although the judge did not expressly instmct the jury that they could not infer malice aforethought from the consciousness of guilt evidence, the jury were properly instmcted on consciousness of guilt, and the later instmctions on malice aforethought adequately informed the jury of the distinction. See Commonwealth v. Cohen, 412 Mass. 375, 392 (1992). “[W]hile consciousness of guilt evidence cannot be used to prove that a criminal homicide was murder rather than manslaughter, it is admissible, as here, on the question whether a criminal homicide had been committed.” Commonwealth v. Epsom, 399 Mass. 254, 259 (1987), citing Commonwealth v. Blaikie, 375 Mass. 601, 605-606 (1978).
In light of the entire charge and the other evidence of guilt presented, the jury were able to consider the consciousness of guilt evidence and decide whether to weigh it with other evidence of guilt presented. See Commonwealth v. Mercado, 24 Mass. App. Ct. 391, 400 (1987). The prosecutor’s statements in her closing argument only encouraged the jury to do likewise.
“Malice aforethought refers to a frame of mind which includes not only anger, hatred and revenge, but also every unlawful and unjustifiable motive. ... If the circumstances surrounding the killing disclose that death flowed from a purposeful, selfish, wrongful motive, as distinguished from the frailty of human nature, then there can be malice aforethought.”
The “frame of mind” language has since been disapproved' because it “might lead a jury to believe that a selfish, wrongful mood might be enough to show malice.” Commonwealth v. Johnson, 422 Mass. 420, 428 (1996). Second, the trial judge defined third prong malice as “an unexcused intent to do an act creating a plain and strong likelihood that death or grievous bodily harm will follow.” This is not a correct instruction. The third prong of malice “can only be satisfied by proof that ‘there was a plain and strong likelihood of death.’ ” Commonwealth v. Fuller, 421 Mass. 400, 412 (1995), quoting from Commonwealth v. Sires, 413 Mass. 292, 303 n.14 (1992). Third, the defendant argues that the trial judge’s instructions on involuntary manslaughter that referred to wanton and reckless conduct as a disregard of “probable harmful consequences to another” and disregard of “grave danger” were too diluted for the jury to differentiate them from “grievous bodily harm” in the malice instruction.
Because the defendant failed to object at trial, our review is limited to whether the judge’s instructions gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). They did not. “[T]he judge’s instruction[s] to the jury, considered as a whole, adequately explained the concept of malice aforethought.” Commonwealth v. Morgan, 422 Mass. 373, 382 (1996), and cases cited.
The Supreme Judicial Court has made it clear that the now obsolete “frame of mind” language does not create a substantial
“The use of a deadly weapon, such as a gun, generally supports a finding of malice.” Commonwealth v. Cohen, 412 Mass, at 379, citing Commonwealth v. Robertson, 408 Mass. 747, 756 (1990). The evidence showed that the victim was shot at a forty-five degree angle within twelve inches of her face.
The trial judge correctly gave the instruction that involuntary manslaughter was based on “wanton and reckless conduct.” See Commonwealth v. Welansky, 316 Mass. 383 (1944). Accordingly, the judge also stated that such conduct must involve “a high degree of likelihood that substantial harm will result to another.” See Commonwealth v. Sneed, 413 Mass. 387, 393
“Where the jury found that the defendant intended to injure the victim by shooting him point-blank in the chest, there is no doubt he intended serious or grievous bodily injury.” Commonwealth v. Van Liew, 38 Mass. App. Ct. 934, 935 (1995). In Van Liew, the defendant stood no more than two feet from the victim, pointed a gun at the victim’s chest, and fired. See ibid. As in the instant case, the main issue at trial was whether the shooting was intentional or accidental. We held that the jury could not have confused the difference between murder in the second degree and involuntary manslaughter where the judge used phrases such as “ ‘high degree of likelihood [of] substantial harm,’ the ‘gravity of the danger to the other person,’ ‘substantial harm,’ and ‘serious bodily injury or death.’ ” Ibid. Here, the trial judge used the words “grave danger to others,” “gravity of the danger,” and “substantial harm.” The judge made it clear that “malice may not be inferred if the use of a dangerous weapon was unintentional or accidental.” The judge instmcted that involuntary manslaughter is an unintentional killing committed by an intentional act.
The defendant in passing argues that, if the issue of the
Judgment affirmed.
The defendant was also charged and found guilty of unlawful possession of a rifle. G. L. c. 269, § 10(A). The trial judge placed the conviction on file
The defendant also gave two conflicting stories about how he acquired the rifle. In the first version he claimed he found it in the attic of an old apartment. In his second version he claimed he found it in the basement of a past apartment building. The Commonwealth presented evidence that the defendant bought the rifle from a friend of the victim’s family two years before the killing.
“Based upon [the ballistics] evidence, there should be no question this was no accident. In every explanation the defendant says it’s an accident. . . . Yet, every explanation about how this was an accident defies the physical evidence. The path that the bullet took, the stippling to the face, the blood spatter. . . . Based upon [the] three versions of what the defendant said, there should be no question that this was not an accident.
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“The evidence proves that at the time of this shooting, the defendant had the mental state — malice aforethought — which distinguishes, is the difference between, murder and manslaughter.
“The defendant’s mental state at the time relates to the evidence in a case regarding their relationship — how they were getting along, what his possible motives towards [the victim] were at that time, his words and his conduct around the time of the shooting.”
This circumstance distinguishes this homicide from that in Commonwealth v. Vizcarrondo, 427 Mass. 392, 397-398 (1998). By its verdict the jury here found that the defendant acted intentionally. One who deliberately shoots another in the face with a rifle at a range of twelve inches knows, as matter of law, that there is a plain and strong likelihood of death.
Ths judge’s instructions on involuntary manslaughter were, in part:
“The law recognizes a distinction between an intentional killing committed by an intentional act, which is murder, and an unintentional killing committed by an intentional act which constitutes such a disregard for the probable harmful consequences to another as to amount to wanton and reckless conduct, which we refer to in the law as ‘involuntary manslaughter.’ ”