422 Mass. 305 | Mass. | 1996
The defendant, David M. Robbins, was convicted of murder in the first degree and armed burglary in the nighttime. While his appeal was pending, he filed a motion and an amended motion for a new trial in this court. These motions were denied by a single justice of this court to whom they were referred. We consider the matter of those motions together with this appeal and affirm the denial of those motions as well as the defendant’s conviction of first degree murder by reason of deliberate premeditation. We reverse the defendant’s conviction of armed burglary.
I
Robbins entered his estranged wife’s apartment at about 4 a.m. on April 18, 1990, by slashing the screen door at the back of the apartment and using a key he had borrowed earlier from his wife’s daughter (by a previous marriage) to open the inner door. He found his wife in the shower, and stabbed her sixteen times, inflicting a number of mortal wounds, and slit her throat. The victim screamed and struggled, staggered out of the bathroom and collapsed on the kitchen floor. The screams brought her daughter from her room. She shouted at the defendant, “What did you do to my mother.” The defendant pushed her out of the way and walked out of the apartment. When the daughter went back to her mother, she was not yet dead. Neighbors were alerted, the pohce were called, and shortly thereafter Robbins was located in the beam of a pohce spothght still holding the bloody knife and covered in blood. Robbins had almost certainly taken the knife from the kitchen of a friend with whom he had been staying that night before he made his way back to his wife’s apartment. Once apprehended, Robbins insisted that his wife was still alive and would shortly come to bail him out.
At his eight-day trial, Robbins emphasized issues relating to criminal responsibihty, since there could be httle dispute that he had actually killed his wife. The evidence showed that Robbins had a long history of serious drug and alcohol abuse, for which he had received in-patient treatment in 1990, 1988, and twice in 1984. In 1990, just days before the kilhng he had made a suicide threat sufficiently credible that the pohce had taken him to an in-patient psychiatric facility. His alcoholism had been a principal source of difficulty in his brief marriage
At the end of the Commonwealth’s evidence the trial judge allowed the defendant’s motion for a required finding of not guilty on the indictment charging a violation of a restraining order. The jury returned verdicts finding Robbins guilty of murder in the first degree by deliberate premeditation, extreme atrocity or cruelty, and felony-murder premised on armed burglary, and guilty also of armed burglary. The judge had given a specific unanimity instruction. Defense counsel made detailed requests for instructions on all major issues. The judge’s instructions differed in some respect from the requested instructions, and trial counsel objected to several of these deviations. His motions at the close of the Commonwealth’s evidence, at the close of all the evidence, and after the return of the verdicts sought required findings of not guilty on the armed burglary and the felony-murder charges, claiming that the evidence was insufficient as matter of law to sustain those charges. Robbins also seeks reversal on the ground that he received ineffective assistance of counsel in présenting his defense relating to his mental state and lack of criminal responsibility and invokes our authority under G. L. c. 278, § 33E (1994 ed.), to order a new trial.
II
A
We consider the issue of Robbins’s criminal responsibility the most substantial issue in this case. There is no doubt that he was a man in the grips of alcohol. There was testimony about the vast quantities of alcohol he drank, his use of cocaine, and his inability to stay clear of these for any prolonged period of time, even as it became clear that his drinking and the anger and abusive conduct that went along
We do not think that trial counsel’s conduct allows Robbins to meet that rather stringent test as a ground of relief. See Commonwealth v. Parker, 420 Mass. 242, 245-246 (1995) (more favorable standard of review for “capital” cases); Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992); Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Trial counsel emphasized Robbins’s experience of blackouts as the main support for a conclusion that Robbins was not responsible for his actions. Trial counsel produced Dr. Kenneth Lorenz as a witness. Dr. Lorenz had treated Robbins for alcohol and cocaine dependency on an in-patient basis some fifteen months
B
Robbins complains about the instruction on extreme atrocity or cruelty. The bases for his claim of error here are somewhat contradictory: first, that the charge as given allowed the jury to find extreme atrocity or cruelty even in the absence of any of the several factors gleaned from our cases and that the judge set out in her charge; but also that by beginning her list with what the defendant calls the objective factors (the nature
In Commonwealth v. Hunter, 416 Mass. 831, 837 (1994), we ruled that a jury instruction on extreme atrocity or cruelty was “inconsistent with our case law,” in that it “improperly permitted the jury to find extreme atrocity or cruelty without finding that any of the factors [set out in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983)] was present.” Although this case went to trial before our decision in the Hunter case, Robbins objected to a charge that allowed the jury to find extreme atrocity or cruelty even in the absence of any of the Cunneen factors. The objection directly raised the Hunter issue, complaining that the instruction is “going on to tell [the jury] that it’s not limited to cases involving such evidence” with the resulting vagueness and lack of guidance offered by such an instruction. If there was error in Hunter, then there must have been error here as well. Therefore, the conviction of murder in the first degree by reason of extreme atrocity or cruelty must be reversed.
Since the jury specifically found Robbins guilty of murder in the first degree by reason of deliberate premeditation and felony-murder, if the conviction can stand on either of these grounds the error with respect to extreme atrocity or cruelty is harmless, unless it somehow can be said to infect and undermine otherwise proper verdicts on the remaining grounds, requiring either a new trial or a reduction of the charge to second degree murder. See Commonwealth v. Burke, 414 Mass. 252, 267 (1993) (upholding jury’s separate verdict on theory of deliberate premeditation where defendant alleged instructional error on extreme atrocity). See also Commonwealth v. Wallace, 417 Mass. 126, 134-135 (1994); Commonwealth v. Glass, 401 Mass. 799, 802-803 n.2, 804 (1988) (possibility of prejudice where, as factual matter, extreme atrocity should not have been submitted to the jury).
C
We reject Robbins’s claims relating to the instructions given to the jury on the relevance of voluntary intoxication and on criminal responsibility.
Robbins clearly requested instructions that would allow the jury to consider the effect of voluntary intoxication and mental impairment on every aspect of the charges to which his state of mind was relevant. And the judge complied. In the context of this case, the trial judge’s charge was sufficient, and we find nothing else in the jury instructions that would undermine its force.
The judge’s instructions on criminal responsibility essentially tracked language we approved in Commonwealth v. McHoul, 352 Mass. 544 (1967). The charge elaborated on the McHoul, supra, instruction, stating that a defendant may be said to lack substantial capacity when “a major portion of the defendant’s thinking and rational process does not enable him to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” It might be better if trial judges refrained from such elaborations on formulas that we have approved, since every such departure is sure to
We also reject Robbins’s claim that the judge committed “plain error” by including in her explanation of the consequences of a verdict of not guilty by reason of insanity the statement that in seeking to commit Robbins to a treatment center after such a verdict, the Commonwealth would have the burden of proving beyond a reasonable doubt that he was mentally ill at the time and that his discharge would create a likelihood of serious harm to himself or others. The defendant requested this so-called Mutina charge. See Commonwealth v. Mutina, 366 Mass. 810 (1975). The explanation of the standard of proof of which Robbins complains is not a standard part of such a charge and constitutes “an embellishment with ... no support whatsoever in the case law.” It is, however, entirely accurate. The defendant having asked that the jury be instructed on this matter, we would hesitate a long time before we would fault an instruction that explains it to the jury accurately. See Commonwealth v. Callahan, 380 Mass. 821, 827 (1980) (“[t]he Mutina case does not prescribe any particular wording . . . but requires ... an instruction . . . which fairly informs the jury of the possible consequences of a verdict of not guilty by reason of insanity”). In any event, trial counsel made no objection on this account, and it does not create a substantial likelihood of a miscarriage of justice.
The conviction of felony-murder depends on the premise that Robbins “had no right of habitation or occupancy” of the victim’s apartment at the time of his forced entry. Commonwealth v. Ricardo, 26 Mass. App. Ct. 345, 357 (1988) (statutory burglary embodies common law definition of burglary in this respect). See G. L. c. 266, § 14 (1994 ed.). The judge did not elaborate on the criteria for finding that the defendant had no such right. During their deliberation the jury inquired on this score and received the answer from the judge that “[i]t is the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant had no right of habitation or occupancy in the apartment at the time of entry.” On appeal the defendant raises troubling suggestions that, because he had resided in the apartment with his wife off and on since their marriage, had been allowed to return after being ordered to leave — even after the issuance of a temporary restraining order — had in fact been allowed to return as recently as two days before the killing,
The defendant objected that the judge failed to instruct that the defendant had to know that he did not have the right to enter the premises at that time. Given the evidence that would put this matter in issue, the objection was sufficient to raise and preserve it, and the judge considered the matter in a
We agree with the Commonwealth that this issue exposes a gap in our law insofar as it may fail clearly to protect the expectations of security of a person in the victim’s situation. But if neither the judge nor, the Commonwealth could come up with a definitive rule marking out when a person no longer has the right to enter premises in which he had lived only the day before, then it cannot be the role of the jury, considering all the circumstances, to reach that determination without further guidance. And certainly the defendant was correct to insist that the judge at least charge the jury that they must find that “the defendant knew that he had no right to enter . . . that premises.” If the judge was perplexed as to the line that delineates the underlying legal rights, how can it not be prejudicial error to deny the defendant the benefit of jury instructions on this matter where the defendant too may have been of at least two minds on this account? See Commonwealth v. Key, 381 Mass. 19, 27 (1980) (defendant entitled to instruction that clearly presents issues of fact and carefully explains applicable law). In the future in a case such as this, the judge should instruct the jury regarding factors that bear on a defendant’s right to enter. These include the marital status of the parties,
E
The conviction of first degree murder need not depend on the verdict of felony-murder, however, because Robbins was separately convicted of murder in the first degree by reason of deliberate premeditation. The defendant made no objection directed specifically to this ground of conviction, except as he generally complains about the disposition of his claims regarding insanity, mental impairment, voluntary intoxication, the charges regarding specific and general intent,
Ill
We have considered the record as a whole and find no reason to exercise our authority under G. L. c. 278, § 33E, either to order a new trial or to reduce the charge to murder in the second degree. The errors in the charge in respect to extreme atrocity or cruelty and felony-murder could not have prejudiced the jury’s consideration of the remaining charge of first degree murder by reason of deliberate premeditation. The evidence was more than sufficient to sustain that charge.
The judgment of conviction of murder in the first degree by reason of deliberate premeditation is affirmed. The judgment of conviction of armed burglary is reversed and the verdict is set aside.
So ordered.
The expert testimony indicated that a theory asserting lack of criminal responsibility premised on blackouts is inconsistent with a theory premised on hallucinations. Blackouts occur when a person drinks too much, while hallucinations of the type alluded to by the defendant occur during withdrawal. Defense counsel’s decision to rely on the blackout theory coincided with the defendant’s own testimony concerning his heavy drinking during the twenty-four hours prior to the murder.
Because the jury specified that they found the defendant guilty beyond a reasonable doubt of murder in the first degree by reason of deliberate premeditation, we do not have to speculate on the theory of first degree murder the jury found. Therefore, we do not come up against the issue addressed in Yates v. United States, 354 U.S. 298, 312 (1957) (“where the
At trial, the defense did object to the trial judge’s explanation that “the words to appreciate . . . is to understand rather than to merely know. . . . So the defendant must not only have an understanding, he must have an appreciation of the criminality of his conduct in that instance.” We find no error in this statement. The defendant asserts three other claims: (1) that the judge did not charge that insanity may be inferred from the very act that the defendant committed; (2) that the introduction to the insanity charge used the indefinite singular article (“an issue of insanity has been raised”), thereby improperly suggesting that the inquiry was confined to the blackout evidence discussed by one of the experts; and (3) that the instructions did not adequately explain that even a temporary manifestation of a mental disease or defect might suffice to relieve the defendant of criminal responsibility. We find no error with respect to these claims as well.
According to the defendant’s testimony, he had been ordered out of the apartment a few days before the murder, and because he had nowhere to go and feeling desperate, he went to his brother’s garage where he attempted suicide. He testified that the next thing he knew the police had taken him to a hospital. Two days later he returned to his wife’s apartment. He had spent the night at the apartment with her and on the morning of April 17 he made coffee for her before she went to work. He then began painting the kitchen and drinking heavily. It was when his wife returned from work that afternoon that she ordered him out of the house again. He returned to the house at 4 a.m. the next morning, which was when he knew she would usually be showering to leave for work.
A marital relationship does not preclude a conviction of burglary. See Parham v. State, 79 Md. App. 152, 162-163 (1989) (discussing cases from various States and concluding that “[t]he common thread running through these cases is that the mere existence of a marriage- relationship does not put a spouse’s separate property beyond the protection of the law and subject to the depredation of the other spouse”).
Because we reverse the burglary conviction on this ground, we do not reach the defendant’s argument that the Commonwealth did not prove beyond a reasonable doubt that the breaking and entering occurred during the nighttime.
The defendant complains that the language the judge used to distinguish specific intent from general intent improperly eased the Commonwealth’s burden, by suggesting that anything more than reflex action will count as specific intent. We do not read the charge as a whole as carrying any such implication. Especially as it related to first degree murder by reason of deliberate premeditation, the charge particularly required that “the Commonwealth must prove that the defendant [must have] thought before he acted. That is, that the defendant formed a plan to murder after deliberation.’’
The defendant complains that the judge twice used the term “moral certainty” in explaining the notion of reasonable doubt. The charge was fully in accord with our decision in Commonwealth v. Webster, 5 Cush. 295, 320 (1850), which we have never disapproved. See Commonwealth v. Pinckney, 419 Mass. 341, 342-347 (1995). The recent decision of the Supreme Court in Victor v. Nebraska, 114 S. Ct. 1239 (1994), concluded that such language was not constitutionally infirm.