433 Mass. 266 | Mass. | 2001
The defendant, William R. Riley, was convicted of murder in the second degree. On appeal, he claims that the trial judge erred in (1) denying his motion for a required finding of not guilty as to the charge of murder in the second degree on the ground that there was insufficient evidence of malice; and (2) instructing the jury on reasonable doubt. The defendant also argues that third prong malice should be abolished as a basis for
1. Background. The defendant lawfully owned a nine millimeter semiautomatic pistol that he kept in his Brockton apartment. In general, he knew how to handle the firearm and was familiar with its operation. Having completed a National Rifle Association safety course, the defendant was schooled in the proper way to load and unload semiautomatic weapons. The defendant generally carried his weapon, loaded, “most of the time when he went out,” and he regularly attended a local gun club. In addition, the defendant disassembled and reassembled the gun “about every other day.”
On June 10, 1992, he invited the victim, John E. Nelson, to his apartment. Two boys, Douglas Bonebrake (then sixteen years old) and his half-brother Daniel Craig (then fourteen years old), lived with the defendant and witnessed the events leading up to the victim’s death. At some point, the victim asked to see the defendant’s gun. After unloading the gun, the defendant handed it to the victim. The victim looked at the gun for a few minutes and handed it back to the defendant. At this time, the defendant reloaded the gun, in such a way that he allowed a “five round into the chamber.” Both witnesses testified that, on previous occasions, they had often watched the defendant load and unload his weapon, but never in the manner he used immediately before the victim was shot. When the victim again asked to see the gun, the defendant showed it to him and, according to Bonebrake, asked the victim, “Are you ready?”
When the police arrived at the scene, they found the gun on the kitchen stove. In his statement to the police, the defendant related that, after leaving his bedroom, he heard a shot and returned to find the victim lying against the bureau with a head wound. At the station, the boys, mindful of the defendant’s threats, gave separate statements explaining that the victim had shot himself.
In the summer of 1996, the defendant related a new version of an old story to a friend. In the course of their discussion, the defendant described the incident as follows: “[The victim] had been playing around with his gun and [the defendant] didn’t like it. And [the defendant] went up to [the victim]. . . . [The defendant] said that he didn’t realize that he had chambered a round. And when [the defendant] pulled the trigger a bullet was expelled [into the victim’s forehead].” A few months later, a State police sergeant reinterviewed the boys (September 14, 1996) and the defendant (September 27, 1996). After receiving his Miranda rights, the defendant initially recalled that the victim was “fooling around” with the weapon and that his attempt to grab the gun caused the firing of the fatal shot. After further discussion, the defendant modified his version of events, stating the victim was “fooling around with the gun” and said, “I want to die anyway.” The defendant picked up the handgun; the victim “brought the barrel of the gun up to his forehead”; and then, “without [his] realizing it, the gun went off.” The defendant gave a recorded statement to this effect.
On November 4, 1996, a grand jury returned an indictment charging the defendant with murder in the second degree. At trial, the jury rejected the defendant’s “accident” defense, i.e., that in his mind he had unloaded the gun and it was safe. A guilty verdict was returned on the indictment.
2. Motion for a required finding. At the close of the evidence, the defendant moved for a required finding of not guilty, claim
We view the evidence at trial in the light most favorable to the Commonwealth, and “determine whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Given the extensive evidence of the defendant’s familiarity with the weapon, a jury could reasonably conclude that the defendant knew when, how, and whether his weapon was loaded.
As to the defendant’s knowledge at the time of the shooting, the jury heard even more damaging evidence. Of crucial importance is the fact that, immediately before the shooting, both boys warned the defendant that there was still one live round “in there, in the chamber.” “Yelling,” and “in a voice so [the defendant] could hear,” the boys repeated the warning between three and five times. The defendant callously ignored their pleas, telling them to “shut up”
Where two witnesses warn a defendant immediately prior to a shooting, we conclude that a rational jury could, beyond a reasonable doubt, find that the defendant knew the gun was
3. Jury instructions on reasonable doubt. The defendant claims three errors tainted the judge’s reasonable doubt charge. These errors, the defendant argues, unconstitutionally lowered the Commonwealth’s burden of proof and thereby implicated his due process rights. Where, as here, the defendant contests the adequacy of a jury instruction on reasonable doubt,
(a) The defendant challenges the omission of the “strong probability” language of Commonwealth v. Webster, 5 Cush. 295, 320 (1850).
Here, while the judge strayed from Commonwealth v. Webster,
(c) The defendant argues that the judge should have made clear that reasonable doubt is equivalent to “near certitude.”
4. Third prong malice. In his final argument, the defendant argues for tire abolition of third prong malice
The facts of this case illustrate the usefulness of third prong malice. The evidence of “the circumstances known to the defendant” was compelling. The defendant, experienced in the use of firearms, held his pistol to the victim’s head and fired it, after being warned several times, by two different people, that the weapon was loaded. On the basis of his experience and this information, the defendant should have, at the very least, reexamined the weapon or taken other precautionary measures before pulling the trigger. Ignoring that course of action was particularly grievous where his conduct, firing point blank at another’s head, left no room for error. Where a defendant behaves in such a manner, we are satisfied that the degree of moral culpability necessary to support a conviction of second degree murder has been met.
Judgment affirmed.
On cross-examination Bonebrake testified that the defendant asked, “Do you dare me?,” and the victim responded, “Yes.”
There was evidence that on prior occasions the defendant had similarly placed his firearm to someone else’s head.
The judge did not instruct the jury on the other prongs of malice.
While it would be the height of irresponsibility to ignore such warnings from anyone, irrespective of their familiarity with firearms, we note that both boys knew about guns and occasionally shot hand rifles at a firing range.
The consciousness of guilt evidence (e.g., washing off firearm, relaying false story to police) does not constitute “evidence of malice aforethought,” and thus does not factor into our assessment of the defendant’s sufficiency claim. Commonwealth v. Epsom, 399 Mass. 254, 259 (1987).
Where, prior to shooting, the defendant is warned that the firearm is loaded, he cannot avail himself of the “various cases” involving “gun play” or a “defendant [who] did not know that the gun contained live bullets.” Commonwealth v. Ward, 426 Mass. 290, 298, 299 (1997) (declining to sit as “second jury” in Russian roulette case). See, e.g., Commonwealth v. Pichardo, 45 Mass. App. Ct. 296, 301 (1998) (where jury could conclude that defendant thought gun was empty, “events supported-a verdict of manslaughter, but no more”); Commonwealth v. Depradine, 42 Mass. App. Ct. 401, 406-408 & n.5 (1997) (record and inferences supported manslaughter verdict despite lack of direct evidence that defendant knew there was live round in chamber); Commonwealth v. Griffin, 8 Mass. App. Ct. 276, 279 (1979) (jury could reach manslaughter conviction where weapon contained “mix of live and blank ammunition”).
The judge declined to incorporate certain instructions requested by defense counsel, see notes 10 and 11, infra ', into his jury charge.
“For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary.” Commonwealth v. Webster, 5 Cush. 295, 320 (1850).
We caution that, “[w]here issues as important as reasonable doubt are concerned, judges would do well to follow approved models.” Commonwealth v. Burke, 44 Mass. App. Ct. 76, 81 (1997).
The defendant’s request for jury instructions included: “the prosecution has the burden of proving the defendant’s guilt beyond a reasonable doubt. This is the highest standard of proof known to the law. The degree of certainty required to convict is unique to the criminal law. It is not a degree of certainty used in your private lives.” See Commonwealth v. Bonds, 424 Mass. 698, 701 (1997), quoting Commonwealth v. Ferreira, 373 Mass. 116, 130 (1977). We note that the requested instruction was crafted to emphasize the danger presented when judges employ examples from “private decisions” in their explanations of “beyond a reasonable doubt.” Commonwealth v. Latimore, 423 Mass. 129, 132 n.2 (1996). Where, as here, the judge made no mention of private, everyday decisions in his reasonable doubt instruction, nothing suggests that the “awesome duty” of the jury was unconstitutionally “trvialize[d]” by omitting the requested language. Id. Commonwealth v. Andrews, 427 Mass. 434, 444-445 (1998).
The defendant requested the following instruction: “Proof beyond a reasonable doubt requires that a jury needs to ‘reach a subjective state of near certitude of the guilt of the accused],]’ Commonwealth v. Pinckney, 419 Mass. 341, 347 (1995), before it may return a guilty verdict.”
The third prong of malice has been defined as the intent to commit an act that “in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow the contemplated act.” Commonwealth v. Sama, 411 Mass. 293, 296 n.1 (1991), quoting Commonwealth v. Grey, 399 Mass. 469, 470 n.1 (1987).
The judge explained: “The difference between murder in the second degree and involuntary manslaughter here would turn on whether or not according to common experience there was a plain and strong likelihood that death would follow the contemplated act, murder two, or only substantial harm would follow, involuntary manslaughter.”