Thе defendant Armand R. Therrien was convicted of murder in the first degree of Army Captain John Oi and police Officer William Sheehan; of assault with intent to murder police Officer Robert O’Donnell and assault and bаttery upon him with a dangerous weapon; and of unlawful possession of a weapon — all the crimes having occurred during a single episode on February 11,1975. The defendant takes the present aрpeal under G. L. c. 278, §§ 33A-33G, and urges on the court claimed errors in the judge’s instructions to the jury. 1
The prosecution’s version of the events, evidently credited by the jury, is for the most part epitomized in the testimony of Officer O’Donnell. On the evening of February 11 he and Officer Sheehan, driving in a cruiser on Canton Street in Westwood, came upon a car, bearing Oregon license plates, parked on the side of the road. The cruiser drew up. O’Donnell saw a man (Oi) slumped over the wheel of the car and another (the defendant) next to him in the passenger seat. The officers parked the cruiser, alighted, and went toward the car; the defendant at the same time left the car, moved toward the officers, and said his friend was sick and he was going to drive him home. As all three neared the car, O’Donnell looked within and saw that Oi’s face was bloodied. The defendant called out to the officers and as they turned toward him he opened fire with a gun — a .38 caliber Smith and Wesson snub-nosed revolver (known to have been in the defendant’s possession earlier that evening). Sheehan was struck by two bullets from the defendant’s gun and died within minutes. O’Donnell was grazed and stunned by the defendant’s first shot, but nevertheless managed in the next few
The defendant told а quite different story from the witness stand. While driving the car, Oi lost his temper and beat the defendant seated alongside — apparently Oi used his arm — until the defendant was unconscious. When the defendant began to rеcover he found himself lying near the car, now parked, with a police officer, supposedly Sheehan, leaning over him and asking how he felt. Then the defendant heard an argument with racial eрithets, and a gunshot. As Sheehan moved away, the defendant heard further argument in which someone kept “hollering about an accident.” He saw the two officers fire on each other, O’Donnell presumably using the defendant’s gun, which O’Donnell had taken from Oi, who in turn had taken it from the defendant while he was unconscious. The defendant attacked and wrestled to the ground the officer next to him, O’Donnell. During this struggle, the defеndant’s gun in O’Donnell’s hand went off once. The struggle resumed; as the two disengaged, O’Donnell drew his own revolver and shot the defendant.
1. The defendant assigns as error, based on due exception, that the judge, in illustrating оr elucidating the meaning of several passages of his charge, drew on the evidence supporting the prosecution’s case but did not make corresponding or balancing references to the defendant’s evidence.
2
The result, according to the defendant, was that
We think the criticism is much overdrawn. The judge did not attempt a comprehensive or complete analysis of all the evidence, nor was he bound to do so. “While a defendant, in a criminal case, is entitled to have thе issues of fact clearly presented to the jury and the law applicable thereto carefully explained, the method and extent of the charge must be left to the discretion of the judge. It is not to be expected that he shall discuss every subsidiary fact and possible inference.”
Commonwealth
v.
Greenberg,
2. The defendant complains of certain elements of the judge’s charge regarding the рrosecution’s burden of proving guilt beyond a reasonable doubt. In fact, the judge invoked and laid stress on this burden no fewer than fifteen times as he dealt successively with the indictment. He correctly described or defined the burden as calling for proof to a high degree of probability — “you must be sure, sure to a moral certainty.” This is the heart of the matter. The judge, however, went on to make two embellishments.
He said, “I like to think of that kind of certainty that is required by the words ‘beyond a reasonable doubt,’ that when the case is all over, no matter which way it goes, that the twelve of you will be able to live with each оther and yourself.” The defendant suggested to the judge that this might encourage the jury to reach for an emotional rather than a rational verdict. We need not pause on the point becausе the judge in response to the criticism added a curative remark: “Now, I in no way intended to give you the impression that by that expression I meant anything emotional, anything based on emotion or sympathy. I was using it just as another way of expressing the type of sureness that is required in the term beyond a reasonable doubt.” The defendant made no further objection, nor did he record an exception, so the point is, strictly, unavailable on appeal (see
Commonwealth
v.
McLeod,
The judge said in effect that if the evidence gavе rise to a reasonable doubt as to the defendant’s guilt, he must be acquitted; but there was a further remark that the jury should acquit if they had “serious unanswered questions” about the defendant’s guilt. No objection was tаken to the statement, 6 which is perhaps a true gauge of the importance counsel attached to it at the time. It is suggested on this appeal — again quite belatedly and irregularly — that the quoted language is harder on the defendant than the standard “reasonable doubt.” This is not clear even if the statement is considered in isolation from the rest of the charge. But in the context of the repеated references to “reasonable doubt” and the correct description of the prosecution’s burden elsewhere in the charge, the questioned statement seems to us nonprejudicial; it is highly likely that it would be taken as another way of putting the basic proposition and as not altering the meaning.
Although we are well persuaded that there was no substantial error in the instructions, we are frank to say that we deprecate the use of these freehand embellishments of the standard charge, just as we have had all too frequent recent occasion to deprecate other such embellishments
6
7
which can only create uncertainty and breed needless appeals. “Whatever their value in other areas of the law in adding zest or currency to otherwise all too predictable proceedings, personal variations on elements such as reasonable doubt seldom represent sound judicial practice.” Coffin, J., in
United States
v.
MacDonald,
3. Although adjuring us in argument to give the defendant some discretionary relief under G. L. c. 278, § 33E, the defendant’s counsel does not point to any specific basis in the record for such action, unless it be the claimed errors in the charge. As noted, if procedural bars to their consideration were waived under § 33E, these claims wоuld still deserve to fail. For the rest, the jury could well accept the Commonwealth’s version of the facts as recounted above, and there is no ground apparent to us in the record for interfеring with the verdicts or judgments.
Judgments affirmed.
Notes
We do not deal with four assignments of error which were not argued in the briefs and are considered waived.
Commonwealth
v.
Underwood,
This was also made the subject of a motion for a new trial which the trial judge denied.
There had evidently been an unrecorded discussion among counsel and the judge, before the judge commenced to charge, about the need for balance in the allusions to the evidence.
See also
Commonwealth
v.
Kelley,
The defendant did purport to assign error as to the original and supplemental instruction on the matter.
Nor was there any assignment of error on the point.
See, e.g.,
Commonwealth
v.
Fielding, ante,
97, 116 (1976);
Commonwealth
v.
Gilday,