439 Mass. 340 | Mass. | 2003
The defendant was convicted of murder in the second degree, and his conviction was affirmed on direct appeal. Commonwealth v. Russell, 38 Mass. App. Ct. 199 (1995). Represented by new counsel, the defendant moved for a new trial on the ground that the judge had erroneously instructed the jury with respect to the third prong of malice, allowing them to
1. Facts. The victim, a pedestrian, was killed when she was struck by a vehicle operated by the defendant. The Commonwealth presented evidence showing that the defendant had argued with the victim and struck her in the face a day or two prior to her death,
According to the Commonwealth’s witnesses, the victim was walking on the sidewalk in front of a restaurant on Market Street in Lowell at approximately 1:30 a.m. She was plainly visible (wearing a white sweater and carrying a red and white striped umbrella). The defendant, operating a Pontiac Grand Prix, drove by at a high rate of speed, made a U-tum, went up on the sidewalk, and ran the victim over without attempting to
The defendant presented evidence supporting the contrary theory: that the collision had occurred entirely by accident. The defendant claimed that the combination of alcohol and medication he had consumed earlier that night had impaired his faculties. He had been moving his car to a legal parking space, and had turned around near the restaurant. Visibility was poor, and his windshield was smeared. He had no recollection of seeing anyone or hitting anyone with his car, and was unaware of the incident until the man on the bicycle told him he had hit someone. The defendant claimed that, on returning to the scene, he did not recognize the victim (although he acknowledged that he had known her in the past and might have seen her earlier at the bar). He denied having moved the body, and ascribed put
2. Instructions. The judge’s instructions on murder in the second degree began with the definition of the first element, “the unlawful killing.” As part of that definition, the judge explained that an “accident” qualified as an “excusable” killing and therefore was not an “unlawful” killing. He instructed the jury that the evidence in the case raised the issue whether the killing was “excused as the result of an accident,” and that they therefore needed to “determine whether the [djefendant intentionally committed the act or whether what occurred was an accident.” He then defined “accident” as “an unexpected happening that occurs without intention or design on the [djefendant’s part,” “a sudden, unexpected event that takes place without the [djefendant’s intending it,” repeating that “[ijf an act is accidental, it is not a crime.” Reminding the jury of the burden of proof, the judge further explained that the defendant did not have to prove justification or excuse. “Rather, the Commonwealth must prove to you beyond a reasonable doubt that the killing was not the result of an accident. If it fails in its burden to prove that the killing was unlawful and not accidental, then you need not proceed further but must return a verdict of not guilty on the indictment for murder.”
The judge then turned to the element of malice, defining malice by reference to the three prongs. As to the third prong, the judge erroneously instructed the jury that malice could be
After completing his instructions on murder in the second degree, the judge instructed the jury on the lesser included offense of manslaughter. He defined manslaughter as “an unlawful killing, unintentionally caused by an act which constitutes such a disregard of probable, harmful consequences to another, as to rise to the level of wanton or reckless conduct.” To explain what was meant by “wanton or reckless conduct,” the judge described escalating categories of “carelessness,” from mere negligence, through gross negligence, and finally wanton or reckless conduct, requiring the Commonwealth to prove “that grave danger to others was apparent, and that the [djefendant chose to run the risk rather than alter his conduct so as to avoid the act which caused the harm.” He concluded with the explanation that “ [t]he essence of wanton or reckless conduct is intentional conduct where such conduct will most likely result in substantial harm to another.”
3. Discussion. The defendant made no objection to the erroneous third prong malice instruction,
Here, three of the questions are readily answered in the affirmative: there was an error, its nature was adverse to the defendant, and we perceive no tactical or strategic reason for defense counsel’s failure to object (or for appellate counsel’s failure to raise the issue on direct appeal). At issue is the third question, namely, whether it would be “reasonable to conclude that the error materially influenced the verdict.” Id. That question must be analyzed “ [considering the error in the context of the entire trial,” id., with reference to “the evidence and the case as a whole,” Commonwealth v. Azar, supra at 687.
In numerous cases positing the identical error in the definition of third prong malice, we have concluded that the likeli
The Commonwealth contended, and the judge agreed, that the risk posed by deliberately driving over a pedestrian at a speed approaching twenty miles an hour creates nothing less than a plain and strong likelihood of death. We agree with that analysis. The reasonably prudent person knows that running down a pedestrian with a car poses a plain and strong likelihood that the pedestrian will die, not merely a likelihood of injury. According to common experience, such encounters between pedestrians and vehicles are likely to prove fatal. As such, the nature of this particular fatal attack is comparable to the fatal attacks in the above cases, and the erroneous definition of third prong malice is of no consequence.
The defendant argues, however, that his own version of the accident — a completely unintentional collision with the victim that occurred while he was under the influence of liquor and
Seeking to avoid the ramifications of the judge’s instruction on accident, the defendant posits that the “intentional” conduct found by the jury to satisfy the Commonwealth’s burden to prove nonaccidental conduct could have been the defendant’s “intentional” driving of a car while impaired, not necessarily the “intentional” striking of the victim. Thus, while the jury may have believed that the collision was “accidental,” they could have treated the defendant’s decision to drive the vehicle as the culpable “intentional” conduct and, consistent with the judge’s instructions, moved on to consider the element of malice. Because “intentionally” driving a car while impaired may pose only a plain and strong likelihood of grievous bodily harm, and not necessarily a likelihood of death, the defendant contends that the error in third prong malice could have caused the jury to return a murder verdict when they actually found only manslaughter.
While it would theoretically be possible for the jury to parse
The closing arguments reflected these diametrically opposed views as to whether the defendant had struck the victim on purpose or by accident. The defense closing argued that “[e]verything was consistent with an accident,” “what happened was an accident,” the medical examiner had determined it was an “accident,” the vehicle had struck “[a] glancing blow that in a terrible tragedy killed her,” “this is an unintentional act,” “a negligent act” that was not even manslaughter. Defense counsel characterized the prosecutor’s position as alleging an intentional slaying (that the defendant “intentionally killed this unfortunate woman,” “that he killed her on purpose,” and that “he killed her over free sex”), with the defense arguing that the only evidence of such “an intentional act” surfaced months after the accident and that the prosecution had no persuasive evidence “of an intentional act.” The prosecutor argued that the only reason the defendant’s car went up over the curb onto the sidewalk was because the defendant “intentionally was trying to strike” the victim, that he “ran her down,” and that he did not stop “[b]ecause he meant to do it” and “meant to hit her.” The prosecutor pointed out that the Commonwealth did not have to prove any “motive” for the killing, but that the evidence established “why [the defendant] did it.” He asked rhetorically how anyone could drive in the manner the defendant did “and not mean to hit her,” arguing that if such a driver did not mean to hit the victim the driver would “stop,” and the only reason
The judge’s extensive instructions on accident and the Commonwealth’s burden to prove that “the killing was not the result of an accident” were surely understood by the jury to refer to the kind of “accident” that had been so hotly contested throughout the trial, i.e., to whether the actual striking of the victim was “accidental” or “intentional.” By the time of the judge’s instructions, the term “accident” had been repeatedly used in only that context, and only fertile imagination would suggest that the jury invented the novel concept that some other aspect of the defendant’s conduct might be “intentional” as opposed to “accidental.” At no point had the Commonwealth suggested or even hinted that a murder verdict could be predicated on the defendant’s having “intentionally” driven while impaired. Nor had the defendant’s repeated contention that the case was one of “accident” remotely suggested the theory that he had only “accidentally” gotten behind the wheel of a car while impaired. While it may be theoretically possible to drive “by accident,” we see no risk that the jury understood the judge’s instruction on “accident” to refer to such a farfetched and hitherto unmentioned theory of “accident.” On the instructions given, the jury’s verdict meant that they had found intentional, not accidental, conduct in the manner that those concepts had been unambiguously presented and argued to them, i.e., that the defendant ran the victim over on purpose and not by accident. That conduct poses nothing less than a plain and
As the terminology implies, a “substantial risk of a miscarriage of justice” refers to a risk that has some genuine substance to it. That standard does not encompass an abstract, theoretical possibility of a miscarriage of justice, utterly divorced from the case as it was tried. When evaluating the potential impact of an error, we consider the error “in the context of the entire trial,” Commonwealth v. Randolph, 438 Mass. 290, 298 (2002), and in light of “the evidence and the case as a whole,” Commonwealth v. Azar, supra at 687. If an error in that “context” poses a substantial risk, we grant relief. If, however, the only risk identified is one that is totally removed from or at odds with that “context,” we may rest assured that the error did not give rise to a substantial risk of a miscarriage of justice.
Order denying motion for a new trial affirmed.
The evidence suggested that the victim was an acquaintance of the defendant, and that he attempted to pick her up on the street one night. He was angered when she refused to accompany him for free. The defendant suggested to the victim that, because they were “friends,” she should go with him without being paid, to which the victim responded that she was not standing out on the street at night “to make friends.” An argument ensued, culminating in the defendant slapping the victim’s face.
The defendant arrived back at the scene before the eyewitness, and, when the eyewitness returned, he observed the defendant removing latex gloves and tossing them into the trunk of his vehicle. When police and medical personnel arrived, the body was farther out into the street than where the eyewitness to the accident had seen the body. From the victim’s injuries, medical personnel expected to find blood underneath the body. There was a pool of blood near the curb, but little or no blood underneath the body in its location out in the street. From this evidence, the jury could infer that the defendant had deliberately moved the body farther out into the street to make the collision appear accidental.
Although the defendant had no specific recollection of rendering medical aid to the victim, the suggestion was that he may have been preparing to do so.
This testimony was contrary to the evidence concerning the location of blood. See note 2, supra.
Defense counsel’s request for instructions included the erroneous reference to “grievous bodily harm,” and defense counsel repeatedly used that errone
Different counsel represented the defendant on his direct appeal.
By comparison, if the nature of the blows or wounds inflicted could be seen as posing a likelihood of grievous bodily injury but not necessarily a likelihood of death, the reference to “grievous bodily injury” in third prong malice does create a substantial risk of a miscarriage of justice. See Commonwealth v. Williams, 428 Mass. 383, 384-385, 387-389 (1998) (repeated blows with fist); Commonwealth v. Vizcarrondo, 427 Mass. 392, 397-398 (1998), S.C., 431 Mass. 360 (2000) (striking infant).
Indeed, from the prosecutor’s closing argument, it was clear that the Commonwealth was arguing first or second prong malice based on a theory of the defendant’s actual “intent.” The prosecutor’s argument did not invoke third prong malice, let alone invoke any erroneous definition of third prong malice. Cf. Commonwealth v. Azar, 435 Mass. 675, 684 (2002) (prosecutor’s closing invited jury to rely on erroneously defined third prong malice).
The defendant contends that an instruction on accident cannot cure an erroneous third prong malice instruction, citing Commonwealth v. Pichardo, 45 Mass. App. Ct. 296 (1998). The Pichardo opinion does not even reference an instruction on accident, nor does it discuss how the instruction might affect the analysis. More importantly, the Pichardo facts involved a defendant firing a gun at a time when he may have believed that it was unloaded. There was apparently no dispute that the pulling of the trigger was “intentional” and not “accidental” conduct. It would not be fanciful or farfetched to consider that the jury might have concluded that intentionally firing a weapon without confirming whether it was loaded was intentional conduct that posed a risk of grievous bodily injury. The Commonwealth apparently did not argue that the accident instruction combined with the parties’ treatment of the concept of accident in that case eliminated the risk of a miscarriage of justice, and we express no opinion whether such an argument would have had merit if raised. As illustrated by our opinion today, analysis of such an argument requires consideration of both the content of the accident instruction and a detailed review of the manner in which the parties presented and argued their theories of “accidental” as opposed to “intentional” conduct.
The defendant’s reliance on Commonwealth v. Cherubin, 55 Mass. App. Ct. 834 (2002), is also misplaced. While bearing some factual similarity to the present case (in the sense that it involved a vehicle colliding with a pedestrian), the opinion does not address or even reference the accident instruction.