*1 Commonwealth v. Puleio. Joseph A. Puleio. vs. — 1985. September February 25,
Essex. Hennessey, Lynch, & Present: C.J., Wilkins, Liacos, Abrams, Nolan, O’Connor, JJ. Witness, Evidence, Homicide. Malice. Impeachment. Impeachment of Practice, Criminal, credibility, Spontaneous utterance. Instructions jury. The judge at the trial of an indictment for murder properly refused to suspend
the trial during defense counsel’s cross-examination of a nonparty witness so that certified copies certain criminal convictions of the witness might be obtained in order to impeach testimony, where counsel had had ample opportunity prior to trial to subpoena court personnel with the appropriate procure records or to the certified copies, neg- but had lected to do so. [103-104] trial,
At a murder did not abuse his discretion in permitting testi- mony relating the response received from an inquiry made to the defend- girl ant’s friend at the scene of shooting asking who had fired the gun, theory on the girl response friend’s a spontaneous utterance admissible as an exception hearsay rule. [104-105] trial, At a murder the judge’s jury, instructions to the erroneously which malice, failed to define did not create a substantial miscarriage risk of a
of justice inasmuch as the error complained actually placed a heavier Commonwealth, burden of proof on the and the principal issue at trial was not whether a murder had been committed but whether the murder J., had been committed by the defendant. with whom [105-109] Nolan, J., joined, dissenting. Liacos, trial, At a murder the judge’s instructions to the on transferred intent correctly emphasized the Commonwealth’s burden of proving the defend- ant’s intent to person, although one another became the victim. [109-110] at a murder trial did not err in refusing to instruct the on volun- tary manslaughter, where defense counsel made no request for such an
instruction and where there was no evidence to warrant it. [110] found and returned in the Court De- Superior Indictment partment September Zobel, case was tried before Hiller B. J. for the defendant.
Bernard Grossberg *2 Polatin, Klein Assistant District for the Attorney, Dyanne Commonwealth. trial, the was convicted
O’Connor, After a defendant J. the was to life of murder in and sentenced degree impris- five onment. The defendant errors. He alleges (1) efforts to trial restricted his impeach impermissibly witness; (2) in evidence inad- a admitted key for the (3) failed to define missible hearsay; erroneously (4) “malice” his instructed charge; incorrectly the word during intent; (5) have instructed the on transferred and should the defendant the manslaughter. Finally, voluntary this G. L. c. court use its under requests power 33E, of a verdict to order new trial or direct the entry affirm of a lesser We judgment. guilt. theOn eve- We summarize the Commonwealth’s evidence. brother, June the defendant and his Richard ning Puleio, at Bar in found arrived the Pinederosa Amesbury Eaton, friend, Richard Puleio’s with girl socializing Bonnie The defendant Subatch and two of Subatch’s friends. Wayne and, in at the bar about minutes thirty forty-five spent altercations, time, one he threatened had two of which during Subatch, . . head of.” to “blow . right person’s] [that bar, friends, and Eaton left the followed defend- closely by ensued, and his brother. An ant argument brother on side and Subatch on the other. The and his one head, aimed it at out a Subatch’s gun, pulled was fired shot. Subatch ducked. Sharon Ann Snow standing one struck her in the behind and the defendant’s bullet scene, and killed The defendant fled from the chest her. him as he next State arrested night Virginia trooper south, on The defendant had Interstate traveling Highway and the his beard and had his motorcycle, shaved repainted to him the by bore a not assigned motorcycle registration plate of Motor Vehicles. Registry testified, witnesses other among
The defendant and his fatal shot. that Subatch —not the defendant —fired things, Subatch. After conference be- Impeachment Wayne tween the and both counsel which the declined to defendant’s introduction of evidence agree of Subatch’s criminal convictions through probation depart- sheet,” ment form known as “blue with the judge, agree- counsel, ment conducted a voir dire examination of Subatch. of the examination towas determine whether purpose sheet, and, Subatch had been as convicted shown the blue so, whether he had been counsel when he represented by had been convicted. Subatch testified that he was the person who had been convicted of several of the offenses listed on Furthermore, the blue sheet. he testified that he had been rep- *3 resented counsel connection some but by not all of those convictions. The defendant that the in- requested judge whether Subatch had quire waived counsel the occasions he when was but the refused to so unrepresented, judge inquire. dire, On the that voir day following defense counsel’s during cross-examination of the Subatch before defense counsel jury, the that requested judge so that coun- suspend proceedings sel’s assistant obtain certified of might Subatch’s con- copies victions. Counsel had not with the subpoenaed personnel court records, nor he had appropriate certified of procured copies those records. The that prosecutor objected defense counsel had known for several months that the Commonwealth would witness, call as a Subatch and that counsel had had sufficient information to have obtained of certified the records copies trial, to trial. The refused to but prior judge he suspend his had expressed understanding agreed that, before without day official records or offering certified defense counsel could those convictions shown copies, prove on the blue sheet with to which Subatch had admitted respect having Defense counsel those convic- representation. proved but tions no others.
The argues by evidence Su- excluding batch’s convictions while violated the unrepresented to confront the right adverse witness and right law, to due to him the Sixth process rights guaranteed by Constitution, and Fourteenth Amendments the United States 104 Mass. 101 394 art. 12 the Declaration of of the Massachusetts by Rights Constitution, § L. c. 5. He that the law and G. by argues of the Commonwealth him Subatch clearly permits impeach Furthermore, with counsel-waived convictions. he — he can because Subatch is a not a defendant witness convictions, even obtained Subatch with those impeach not counsel. The when Subatch had no counsel and did waive below. In any did not the latter argument present event, at a we need not consider whether a witness nonparty when criminal trial be convictions obtained may impeached by counsel, that witness had no of whether the witness regardless criminal had waived counsel. In order to witness impeach by conviction, record the conviction must be a court proved Atkins, Mass. or certified copy. (1982). Commonwealth v. Clifford, Walsh, (1978). 369-370 that, See c. 21. The defendant did not do G. L. not to allow obliged trial suspend he have done defendant to do then what could earlier. LaMothe, the hearsay Admission evidence. Jacqueline bartender, that while in the bar she heard a shot testified scream, that then ran into the bar and told then someone an She that after her to for ambulance. testified telephone *4 call outside “asked who she went and making telephone once, answered Over the had shot and me.” nobody the gun Eaton LaMothe testified Bonnie objection, to her The inquiry. then out” “yelled response counsel the bench. Defense and objected, again approached on rule counsel that he based his objection against stated indicated that she relied on the “spon hearsay. prosecutor rule. See taneous utterance” to that exception allowed Hampton, judge LaMothe, did Eaton say?” ask “What Bonnie to “Joe LaMothe Puleio.” responded, “With utterances guiding princi spontaneous respect — Prof. have in our view been stated correctly ples been has utterance must have been before there ‘The Wigmore: . . . . It is to be observed time to contrive and misrepresent Mass. 101 that the statements need not be strictly contemporaneous cause; it, be exciting they may subsequent provided there has not been time for the influence to lose its exciting and to be . sway . . can be no definite and dissipated. [TJhere fixed limit of time. Each case must its own cir depend upon cumstances.’ Wigmore Evidence (3d ed.) [1940] 1750. . .. The trial judge whether an utterance meets determining the tests of be broad discretion. admissibility ought . .. in clear cases ... of an exercise of [A]nd improper discretion should his be revised.” Rocco v. ruling Boston- Leader, Inc., 195, 196-197 (1960). Those principles criminal, civil, as well as apply cases. See Commonwealth at Hampton, supra The defendant that LaMothe’s argues that no one testimony answered her initially about who had fired the inquiry gun indicated “that a substantial of time had period be- elapsed” tween LaMothe’s However, Eaton’s question utterance. the record does not demonstrate how much time be- elapsed tween the and the We cannot inquiry response. say utterance lacked the to meet the spontaneity required test of In admissibility. allowing LaMothe’s did testimony, not abuse his discretion.
The defendant also should have excluded the statement because the hearsay no evidence that presented Eaton had observed the shooting. LaMothe testified that minutes just before the shooting Eaton left the bar with Subatch and the two other men. That testimony Eaton at the scene sufficiently placed of the shooting. instructions, “malice.” In his the judge Definition of defined for the murder in the first murder in the degree, second involuntary manslaughter: “[I]f has an unexcused intent to not injure somebody, necessarily but to injure under such somebody, circumstances known to the defendant that common shows to experience *5 a present likelihood that death will the plain strong follow act, result, and death does then that contemplated that defendant person, would be of guilty murder in the second That is to if there is an degree. say, intent to under injure, when in human there is a circumstances experience plain death, in likelihood that the will result death strong injury result, is in If instead then that murder the second degree. does intended of to the the defendant merely intending injure person, result, the and death does that is the next to kill highest person, is, in the The difference between degree. that murder first step, the first and murder in second is degree degree murder the that, in the there is an to murder first degree, respect to murder in the second intent to whereas with respect there is an intent to injure. degree “Now, in the second the down from murder deal with step no If there is intent involuntarily manslaughter. namely, involves a but the defendant’s conduct high to injure will result to some likelihood that substantial harm person; is, harmful conse- if the defendant the that disregards probable results, and death then that is involun- to some quences person that the defendant have It is not necessary tary manslaughter. in mind.” individual “[brought] that After giving general explanation, been a little closer to discussing that principles had] [he are not told the “If convinced you beyond this case.” He jury: fired the will you doubt that the defendant pistol, reasonable convinced beyond not If are you return a verdict of guilty. that the defendant fired pistol intending reasonable doubt Subatch, a verdict of guilty will return kill Wayne you convinced beyond If are you murder in the degree. intending that the defendant fired pistol reasonable doubt known to in such circumstances Mr. injure was a that, there common according experience, the firing, would follow likelihood that death and strong plain a reasonable beyond not convinced are though you then even Subatch, you to kill Wayne intended doubt that in the second degree. murder return a verdict guilty will that a reasonable doubt convinced beyond are Finally, you Su- Mr. not intending fired the the defendant pistol a reason- find batch, beyond and you other but for purpose, in the defendant’s position reasonable person able doubt would involve of the pistol firing have realized would *6 Commonwealth v. Puleio. of likelihood that the bullet would strike some- high degree then would return a
body, you verdict guilty manslaugh- ter.” The also instructed the judge jury self-defense not an issue in the case. The defendant does not contest that instruction.
When the finished his judge charge, prosecutor requested that the further instruct the that in judge order to convict jury the defendant of murder in the first they must find deliberate Defense counsel “I premeditation. objected, saying think that have you instruction on it.” In proper response to the whether defense judge’s counsel had inquiry any objec- tion to the said, as charge counsel “Just given,1 about that deliberation.” Counsel then that the instruct requested judge that “there must be and malice premeditation aforethought.” then read to judge G. L. from 39, § c. which defines murder as “the killing of human with malice being and from G. L. c. aforethought,” which defines the of murder. The degrees also defined judge for the the term “deliberate Counsel made premeditation.” no further or objections requests.
The defendant argues that the erred judge to define by failing for the the word “malice.” We agree judge’s instructions were erroneous. It was incorrect to clearly say that, to establish murder in the
had to that the defendant prove intended to kill Subatch. The too placed heavy burden on the Commonwealth. How- ever, was, as basic as the error it was harmless to the defendant doubt, beyond a reasonable and therefore it was not reversible. Murder in the first degree “[mjurder includes committed with deliberately malice premeditated . . ..” aforethought G. L. c. 1.§ “Murder is the unlawful aof human killing with malice being Commonwealth v. aforethought.” Campbell, 1 The prosecutor had the judge objection told that she had no to “the charge given,” as except for the omission concerning of an instruction premeditation. deliberate According to the transcript, then asked he charges given.” any objections defense counsel had to “the It seems asked, clear that the judge you as any objections have charge “[D]o given?” 394 Mass. “Malice includes aforethought harm, intent to to do grievous unexcused *7 bodily death
to do an act a likelihood that creating strong plain Huot, or harm will follow.” Commonwealth grievous So, in to convict a defendant of order murder, than the Com- murder in the first other degree, felony killed that the defendant unjustifiably monwealth must prove another, kill to do grievous bodily and that he intended to or victim, harm to the or that he intended to do an act creating the victim’s death or grievous a likelihood that strong plain must that would follow. The Commonwealth also prove harm or that the defendant the defendant acted with premeditation, this acted with extreme or atrocity cruelty. By using type a all the elements of the a can convey jury language, without the word crime of murder in the first degree using instruction obviates the need “malice.” That form of explain does not mean. to a what “malice” jury could have the jury, they Had the instructed judge properly if of murder in the first degree they found the defendant guilty defendant, in- with deliberate found that the premeditation, him kill or intended grievously, tended to likelihood creating strong or intended to do an act plain But, harm. grievous bodily would suffer death that Subatch the defend- could find only the under instruction given, found that he they in the first degree ant of murder guilty to kill Subatch. intended, deliberate with premeditation, the Commonwealth erroneously instruction deprived judge’s for murder the mens rea to satisfy requirement ability deliberate in addition to first establishing, in the degree by Subatch or to act an intent grievously injure premeditation, likelihood of and strong that would create plain in way defendant cannot legiti- harm. The or grievous bodily death have benefited could of an error mately complain that an intent that the judge gave him. The instruction could supply deliberate premeditation, with coupled — cor- in the first degree of murder mental element requisite in the for murder state mental described one rectly possible ’ found they s verdict demonstrates and the state. had that mental that the defendant Furthermore, as the between the and counsel colloquy shows, defendant, the main of the following charge part did not to the on instructions malice. understandably, object Rather, defense counsel joined focusing deliberate Because defense counsel did not premeditation. dissatisfaction suggest judge any further judge’s instructions, to obtain a reversal of the conviction on the ground that the defendant must charge inadequate, demonstrate that the error created a substantial likelihood of G. L. c. 33E. miscarriage justice. Roberts, 123 (1979). He has not done so. issue at trial was not whether murder had principal been *8 Rather, committed. it was whether the murder had been com- defendant, mitted contended, as the by Commonwealth Subatch, as the by Thus, defendant claimed. the erroneous instruction on malice did not relate to an contested actively issue, so it did not create a substantial risk of miscarriage of justice.
4. The
instruction as
judge’s
intent. The judge
transferred
instructed the
as follows:
“The
of the Common-
theory
wealth’s case ...
is
called transferred
something
intent. It
sounds like a
but it is
complicated concept,
really very simple.
If a
intends
person
to harm Smith and
about
goes
harming
Smith, but instead
Jones,
of harming Smith harms
the law
considers that the
started out to harm
person
Jones.
all
That’s
that transferred intent
If
means.
I aim at a
there
hit
but
person
direction,
in the other
person
the law assumes that I intended
to hit the second
That is what transferred
person.
intent means.
Now, observe that there has to be a proof
intent to injure
of
person
we even
get
question
the second
before
But once there
person.
has been
proved
reasonable
beyond
1,
doubt an intent to
No.
the fact that it
injure person
was
2No. who
hurt is
person
got
immaterial.”
The defendant
that that instruction
argues
relieved the Com-
monwealth
its burden of
proving every element of
defend-
doubt,
ant’s crime
a reasonable
beyond
therefore violated
Montana,
of Sandstrom v.
Commonwealth v. Púlelo. intent, v. 388 Mass. 76 n.13 Ely, see Commonwealth Hawkins, ; v. (1983) Commonwealth burden of (1893), the Commonwealth’s by prov emphasizing Snow intent to although the defendant’s ing victim. Our law is consistent with became the principles Sandstrom, enunciated in supra. The defendant argues Voluntary manslaughter. theory to instruct the failing erred counsel did not The defendant’s trial
voluntary manslaughter. v. Commonwealth an instruction. Citing such request the defendant (1981), Schnopps, brief, at which “[tjhere evidence trial produced upon find manslaughter, could voluntary provocation in the heat of the accused to lose his self-control passion causing to cool.” which occurred before time for tempers and killing none of that evidence. None The defendant appears points in the record. the defendant re § c. 33E. Finally, General Laws 33E, that, § this court order to G. L. c. pursuant
quests guilt. or reduce the verdict to lesser a new trial verdicts under 33E is be used to mitigate power “[0]ur Watson, 297, 301 393 Mass. sparingly.” Dalton, , (1984) quoting *9 in the record (1982). Nothing suggests 197 murder in the first was conviction of degree inappropriate.
Judgment affirmed. Liacos, J., A with whom joins). J. (dissenting, Nolan, is criminal justice of our system fundamental proposition absent a be convicted of crime proper that a defendant cannot which elements of the crime with to the on the instruction jury falls on to instruct stands duty properly he charged. Porter, 285-286 10 Met. trial judge. is the crime of murder proof element of (1845). An essential another, either with One who kills aforethought. of malice not necessarily to is injure, or with the intent intent kill 394 101 111 Mass. murder, excuse, for there be factors guilty may justifica tion, “Malice, murder, or in the definition of palliation present. anima, is to an act done malo an act imputed wilfully, wrong itself, another, in and for which there is no injurious apparent Such excuse. or excuse must justification justification facts; on the existence of and such facts be depend must proved found, in order to be the basis of decision.” judicial York, in Commonwealth v. 9 (Emphasis original.) Met. (1845). 104 See 357 Mass. Mangum, (1970). The court admits that no valid definition of malice it aforethought given; affirms the conviction yet because it views the erroneous as charge unduly favorable to the defend ant. The court misses the is that nowhere point. in point murder, was there a valid charge given definition of either in the first or second degree. The fact that the instructed irrelevant, is since such a factor is premeditation only one between the distinguishing of murder. degrees Common Hicks, wealth v. Premeditation is not an essential element murder; of the crime of premeditation Hence, relates degree murder. were no determine the guidelines Was there question: a murder? The of the of murder question cannot be addressed until a murder is “This shown. failure to define one of the elements of the offense charged required its determine, decision. The could not speculate reaching case, without what knowing malice meant in the context of this whether the Commonwealth had carried its burden of establish the existence of ing this element a reasonable doubt.” beyond Niziolek, (1980) (malice Commonwealth v. as a element of necessary arson). the crime of I cannot agree on the essential elements of allowing speculate a crime is I charged dissent. nonprejudicial. Accordingly,