Opinion
No. 91-91.
December 28, 2004.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR A NEW TRIAL
On February 5, 1992, a Middlesex County jury convicted Preston Gilbert ("Gilbert") of the first degree murder of Lana Gilbert. The Supreme Judicial Court denied the defendant's motion requesting relief under G.L. c. 278, § 33E, and affirmed his conviction in Commonwealth v. Gilbert, 423 Mass. 863 (1996). This case is currently before the court on the defendant's motion for a new trial pursuant to Mass. R. Crim. P. 30(b) in which he argues that the trial judge's jury instructions, especially her supplemental instructions in response to a jury question, created a substantial risk of a miscarriage of justice. For the reasons detailed below, the defendant's motion for a new trial is ALLOWED.
BACKGROUND
Lana Gilbert ("Lana") was the common law wife of the defendant, having lived with him for approximately fifteen years when she died on January 7, 1991, and having taken the defendant's name as her own. They lived together in the defendant's apartment at 15 Weston Avenue in Somerville, which he leased from the Somerville Housing Authority.
At around 7:00 p.m. on January 7, 1991, the defendant telephoned the police and reported that Lana was not breathing. Police, firefighters, and paramedics quickly responded to the defendant's apartment, and found Lana naked on the couch, covered by a blanket, sitting in a fetal position with her knees bent up to her chest. She was not breathing and had no pulse. She had bruises on both of her legs and right arm, cuts on both lips and another laceration on her forehead. The police immediately performed CPR on her, until the emergency medical technicians ("EMTs") arrived on the scene and took over. The EMTs compressed her chest, gave her oxygen, and then intubated her by inserting a tube through her mouth and into her windpipe to help her breathe. They then tried to "jump start" her heart with Epinephrine and Atropine, which produced a "transient pulse" for about seven or eight minutes, but Lana lost her pulse before she departed for Somerville Hospital and was pronounced dead there at 7:59 p.m.
The autopsy performed by Dr. Stanton Kessler, the Chief Medical Examiner, revealed in more detail the bruising and cuts that had been noticed by the emergency responders. Dr. Kessler testified that the laceration on Lana's forehead was fresh, having been received within about an hour of her death. He also opined that the linear bruises on her body could have been caused by a blunt object with a curve, such as the cane that the defendant had in his possession when the emergency responders came to the apartment. He described the wound on Lana's left arm as a "defensive wound," consistent with the type of wound one would receive while fending off blows from an attacker. He concluded that the cause of death was blunt neck trauma to Lana's carotid arteries, caused by thumbs, fingers, or a linear object with a rounded or padded edge, such as a cane. He said that the injuries derived from "a relatively strong force, a jabbing force" similar to what happens when a person is strangled by the neck. He said that the victim would have lived for at most five minutes after suffering these injuries. When asked to explain how his findings were consistent with the absence of bruising on the exterior of Lana's neck, Dr. Kessler said that bruises do not necessarily develop if the attacker uses his hands to strangle the victim and applies the force slowly, especially if the victim has clothing or similar material around her neck.
Dr. Kessler's internal examination revealed a pint of standing blood in Lana's abdominal cavity, which he deduced resulted from a blunt trauma to the duodenum, a soft part of the intestines that can bleed if forced hard against the bones of the spinal column. He also found other internal bruising on the muscle covering the abdominal wall, which he believed was caused by blunt trauma from an object with a flat, smooth surface that would cause internal injuries but not leave external bruises. He said that these internal injuries generally required a relatively large quantity of force, such as being kicked with a knee, or falling down several flights of stairs, or being struck by a steering wheel in a car crash occurring at speeds over 35 miles per hour.
During the defendant's various interviews with the police following Lana's death, he denied having struck Lana but admitted that he had been alone with Lana in his apartment since roughly 4:30 p.m. that day. Consequently, the theory of the prosecution was relatively straightforward:
During his interviews, he told the police he had been home since roughly 2:30 p.m. on the day of her death. At trial, on cross-examination, he admitted for the first time that he had gone out again at roughly 4 p.m. to purchase eight cans of beer and drink one in the Weston Street parking lot.
Lana was essentially strangled to death shortly before 7 p.m. on January 7, 1991, whether with bare hands or a cane;
The defendant had been alone with her since earlier that afternoon; and
The defendant had a motive to kill her, based on the events of the previous few days.
As to motive, the Commonwealth presented evidence that, on the evening of January 2, 1991, the defendant and two of his adult sons, in Lana's presence, had a violent fight in the defendant's apartment, triggered by the accusation that one of the sons had taken the defendant's car keys. During the course of the fight, the defendant smashed a beer bottle over the head of one of his sons. Before the melee ended with the arrival of the police, a coffee table, end table, and various lamps, including a $300 Tiffany lamp, had been damaged or destroyed. Lana was angry about the fight and the damage done to her possessions, and told the defendant that she was going to leave him.
Two events occurred on January 3 that caused her anger to escalate. First, the defendant told her that he had recently had sex in his car with a woman that Lana knew. Second, when she was alone in the apartment, a Somerville police officer came to the apartment and told her that he had been instructed to remove an unwanted female guest. Later that same day, Lana telephoned Ann Whitney, the Manager at the Somerville Housing Authority, to complain about having been removed. Ms. Whitney had never met Lana or known she was living at the apartment. When Lana came in person to speak with Ms. Whitney later that afternoon, Lana told Ms. Whitney that she had lived in the apartment since the defendant had moved in and had earned most of the money that was used to pay for the apartment. Since the defendant was required to report to the Somerville Housing Authority with whom he was living and their total income, and since the amount of rent charged for his apartment was determined as a percentage of income, Lana's revelation caused Ms. Whitney on Friday, January 4 to mail a notice to the defendant requiring him to attend a meeting to discuss the fight at the apartment and the need to adjust his rent.
Despite all of this, Lana returned to the apartment to live with the defendant. On Saturday morning January 5, according to the defendant, he saw that Lana was getting mad and decided to spend the day at his ex-wife's apartment in Somerville to avoid an argument. He did not return home until Sunday evening, January 6, when his daughter (Denise) and son-in-law (Mohammed Sherif) drove him home in his car. Sherif testified that Lana was laying down on the couch when they arrived, and appeared to be ill with a fever. Her voice was slurred and there were empty pill bottles around the sofa. She had a cut on her upper lip, with the blood having turned black. Sherif asked if she wanted to go to the hospital, but she refused and remained in the apartment that evening after having bathed with Denise's help.
When Sherif and Denise returned to the apartment on Monday morning, January 7, having returned the defendant's car, Lana was laying awake on the couch. According to the defendant, he left around noon to perform some errands. Before he returned at 2:30 p.m., he bought two beers and drank one in the Weston Street parking lot. He left again around 4:00 p.m. to buy eight more beers, drinking another one in the parking lot. The defendant said that Lana lay naked on the couch because she said she was "burning up." He gave her two Ben Gay rubdowns, covered her with a woolen blanket, turned on the television, and lay down on the couch adjoining the couch on which Lana lay. He said he heard her breathing loudly for a period of time and then appeared to stop breathing. When he no longer heard her breathing, he said he first called Lana's cousin and then the police.
The defendant testified that he did not receive the notice from the Housing Authority until Tuesday, January 8, the day after Lana's death. However, he also testified that he personally retrieved his mail that day from a female postal carrier. The evidence, though, demonstrated that a female postal carrier delivered the mail to that residence on Monday, January 7, and a male postal carrier delivered the mail on January 8. This, plus the evidence from the manager of the Somerville Post Office indicating that male posted in Somerville was usually delivered in Somerville the next business day, supported the inference that the defendant received the notice on the afternoon of Lana's death.
The defense contended that Lana had not been strangled to death, but had instead died from "synergistic intoxication" arising from her overdose of quantities of Tylenol and aspirin that were not lethal alone, but became lethal when combined in her bloodstream. At trial, this defense was presented by Dr. William Ober, a pathologist and medical examiner in Bergen County, New Jersey. He noted that, when a victim is strangled to death, one usually finds hemorrhage to the strap muscles in the neck, a fracture of the hyoid bone at the base of the tongue, petechial hemorrhages in the eyes, lungs, and heart, fractures of the Adam's apple, and either fingerprints or fingernail marks on the neck. There was no evidence of any of these on Lana. He opined that the damage to her carotid arteries and the bleeding from her duodenum were likely caused by the unsuccessful attempts to resuscitate her by the EMTs, and were not sufficient in severity to cause her death. Rather, he offered the opinion that her death arose from the large quantity of Tylenol (acetaminophen) and aspirin found in her blood (100.2 milligrams of acetaminophen per liter of blood and 105 milligrams of aspirin per liter of blood). He said that these levels, taken alone, are toxic but not lethal, but can be lethal when combined. He said that lethal combination triggered, first, a respiratory arrest shortly before 7 p.m., followed by a cardiac arrest.
In view of the evidence at trial, the jury essentially needed to grapple with three fundamental questions in determining the defendant's guilt or innocence:
1. Did Lana die from blunt neck trauma to her carotid arteries or from "synergistic intoxication" arising from her overdose of quantities of Tylenol and aspirin? If the former, there could be no reasonable doubt that the defendant was the source of that blunt neck trauma, since he had been alone with her when she stopped breathing.
2. If the defendant had indeed strangled her with his hands or his cane, did he act with the deliberateness needed for a finding of first degree murder?
3. If he acted with deliberation, did he intend to kill her or did he intend only to cause her grievous bodily harm? If he intended to kill her, then he would be guilty of first degree murder. If he intended grievous bodily harm, then he would be guilty of murder in the second degree.
As will be shown below, it is plain that the jury grappled with this third question but, as a result of the jury instructions they were provided, especially the court's response to a specific question the jury asked on this issue, there is a substantial risk that the jury failed to understand that it could not find the defendant guilty of first degree murder if it found that he intended to do grievous bodily harm to Lana but did not intend to kill her. Consequently, there is a substantial risk of a miscarriage of justice that requires a new trial.
THE COURT'S JURY INSTRUCTIONS
The trial judge instructed the jury for the first time ("Main Charge") on February 3, 1992. The relevant portions of that charge are reprinted below:
. . . Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought is an essential, necessary element that the Commonwealth must prove beyond a reasonable doubt. Malice, the term includes not only anger, hatred, or revenge that we normally think associated with that term of malice, but it includes every other unlawful and unjustified motive. It's not simply confined to ill-will, and a jury is entitled to infer malice from any deliberate or cruel act against another, however sudden. It includes any unexcused or unjustified intent to kill, an intent to do grievous harm, or intent to do an act creating a plain and strong likelihood that death or grievous harm will follow.
In this regard I instruct you, the defendant is not required in any way to show the existence of excuse or justification, or, as I have told you, the defendant need not show, nor prove anything at this trial. The burden remains upon the Commonwealth to prove beyond a reasonable doubt the absence of any justification or excuse. And in order to prove malice aforethought necessary for murder, the Commonwealth must prove that the defendant, Preston Gilbert, without justification or excuse, acted with one of these alternate intents. It must prove either that the defendant specifically intended to kill Lana Gilbert, or that he specifically intended to do grievous bodily harm to Lana Gilbert.
According to our law, the first two forms of malice that I have given to you in the alternative are considered to be specific intent, either the defendant specifically intended to kill Lana Gilbert or that he specifically intended to do bodily harm to the victim.
There is a third form of malice which is that the defendant intended to do an act creating a plain and strong likelihood that death or grievous bodily harm would follow. If in the circumstances known to the defendant that a reasonable prudent person would have known of the plain and strong likelihood that death or grievous bodily harm would follow a contemplated act, malice may be found without any actual intent to kill or do grievous bodily harm and without any foresight by the defendant of such consequence. This third form of malice is considered to embrace what is known as general intent. So there are three forms by which the Commonwealth may prove the element of malice aforethought in the case.
Within this indictment, the Commonwealth has charged the defendant with murder in the first degree, and our law sets forth what is known as degrees of murder. And the law says that murder committed with deliberately premeditated malice aforethought is murder in the first degree, and that is the charge, the highest charge that the Commonwealth has brought against this defendant. They have charged Preston Lee Gilbert with having committed murder in the first degree by deliberately premeditated malice aforethought.
And in order to find the defendant guilty of first degree murder with deliberately premeditated malice aforethought, the Commonwealth must prove beyond a reasonable doubt the following elements; that there was an unlawful killing, that the killing was committed with deliberate premeditation, and that the killing was committed with malice aforethought.
As an element of murder in the first degree, the Commonwealth must prove beyond a reasonable doubt that the killing was done with deliberate premeditation. The Commonwealth must prove that the defendant thought before he acted, that he formed a plan, no matter how simple, to murder after deliberation. Deliberation does not require a particular length of time in order for deliberate premeditation to be found. Deliberation does not require an extended time span, nor does it mean that deliberation must be accomplished slowly. In view of the speed with which the human mind may act, the law does not attempt to set any time limit. Deliberation may be a matter of days, hours, or seconds. It is not so much a matter of time as it is chronological sequence. The sequence would be first the deliberation and premeditation, then the decision to kill, and lastly, the killing in furtherance of that decision.
The term deliberate premeditation implies that the action is meditated on beforehand sufficiently long to form both a clear intent and a purpose to carry out that intent. All of which may occur within a few seconds. Severe injuries may demonstrate a conscious and fixed purpose to kill, continuing for a period of time and warranting a finding of deliberate premeditation. If, after considering all of the evidence you find that the Commonwealth has not proved beyond a reasonable doubt the element necessary to find the defendant guilty of murder in the first degree by deliberate premeditation, you would consider whether the Commonwealth has proved murder in the second degree.
The Commonwealth to sustain its burden for murder in the second degree must prove beyond a reasonable doubt two elements: that there was an unlawful killing and that the killing was accomplished or committed with malice aforethought. And I have previously instructed you on what is unlawful, what is a killing, and what is malice aforethought, and I call to your mind that the consideration for malice aforethought, there are three intents, they are alternate intents, two of them are specific and one is general.
So the difference, murder in the first degree is the unlawful killing of a human being with deliberately premeditated malice aforethought. Murder in the second degree is the unlawful killing of a human being with malice aforethought. The distinction between the two is deliberate premeditation. For murder in the first degree, it has to be deliberate premeditation proved beyond a reasonable doubt as all elements must be proved beyond a reasonable doubt. Murder in the second degree does not require the proof of deliberate premeditation, but it does require the unlawful killing of a human being with malice aforethought. . . .
Transcript, 12/94-100.
As can be seen from the Main Charge, the judge, in essence, first told the jury that there were three elements of the crime of murder: (1) that the defendant killed the alleged victim; (2) that he committed the killing unlawfully, without justification or excuse; and (3) that he committed the killing with one of the three forms of malice aforethought. The judge did not initially mention the various degrees of murder. Consequently, the jury (correctly) would have understood from these instructions that one can murder someone without intending to kill her, as long as he intended to cause her grievous bodily harm.
The judge then went on to describe the difference between murder in the first degree vs. murder in the second degree, and specifically told them that "[t]he distinction between the two is deliberate premeditation." She never expressly told them that there was a second distinction between murder in the first and second degree — that murder in the first degree requires proof beyond a reasonable doubt that the defendant had a specific intent to kill (the first prong of malice), not simply an intent to commit grievous bodily harm or to do an intentional act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood of death. (the second and third prongs of malice). See, e.g.,Commonwealth v. Johnson, 435 Mass. 113, 119 (2001) ("Only the first prong of malice can support a conviction of deliberately premeditated error"); Commonwealth v. Simpson, 434 Mass. 570, 588 (2001); Commonwealth v. LaCava, 438 Mass. 708, 717 n. 9 (2003). The failure to make this second distinction clear constituted error. See, e.g., Commonwealth v. Johnson, 435 Mass. at 119; Commonwealth v. Simpson, 434 Mass. at 588;Commonwealth v. LaCava, 438 Mass. at 717 n. 9.
This error was mitigated to some degree by two sentences in the instruction on premeditation. The first declared that a finding of premeditation required proof "that the defendant thought before he acted, that he formed a plan, no matter how simple, to murder after deliberation." The second declared that "[t]he sequence [for premeditated murder] would be first the deliberation and premeditation, then the decision to kill, and lastly, the killing in furtherance of that decision." The first sentence was unlikely to correct the error because the jury had earlier been told that one may commit "murder" without intending to kill. The second sentence more clearly made this point because it spoke specifically of a "decision to kill." If the jury had focused on that phrase when it was spoken (the jury was not given a tape recording of the charge or a transcription of it or any writing setting forth the elements of murder), it may have understood that implicit in the finding of premeditation is a finding that the defendant had the specific intent to kill.
The jury was unable to reach a verdict on February 3, 1992, and went home at the end of the day. After deliberating for some period of time on February 4, the jury asked the following question:
"Please define the following: One, first degree murder; two, second degree murder; three, specific intent; four, general intent[;] and five, premeditation."
The relevant portions of the court's reply to this first question are reprinted below:
The Commonwealth, to prevail on a case of murder in the first degree, would be required to prove beyond a reasonable doubt that there was an unlawful killing of a human being, that human being being Lana Gilbert, by deliberately premeditated malice aforethought.
And we're going to first take the element unlawful. Unlawful killing is one that is done without justification or excuse. So a murder is unlawful when it is done without justification or excuse. And yesterday, I gave you examples of what constituted justification or excuse.
A killing, I told you the term killing refers to the causing of death, and the Commonwealth must prove on that element that death occurred as a proximate result of the defendant's act or acts. An act which is the proximate cause of death is an act which in the natural and continuous sequence produces death, and without which, the death would not have occurred. And that's the element of killing. So we have an unlawful killing. I told you you do not have to consider that the human being was Lana Gilbert, that's stipulated to.
In the area of deliberate premeditation which is the element that is required on first degree murder, in addition to the others, and I just want to make sure I'm going through it exactly the same. In the area of deliberate premeditation that the Commonwealth must prove beyond a reasonable doubt that the defendant thought before he acted, that he formed a plan, no matter how simple, to murder after deliberation.
Deliberation does not require a particular length of time in order for deliberate premeditation to be found. Deliberation does not require an extended time span, nor does it mean that deliberation must be accomplished slowly. In view of the speed with which the human mind may act, the law does not attempt to set any time limit. Deliberation may be a matter of days, hours, or seconds. It is not so much a matter of time as it is of logical sequence. The sequence would have to be first the deliberation and premeditation, then the decision to kill, and lastly the killing in furtherance of that decision.
The term deliberate premeditation implies that the action is meditated on beforehand sufficiently long enough to form both a clear intent and a purpose to carry out that intent. All of this may occur in a few seconds. Severe injuries may demonstrate a conscious and fixed purpose to kill continuing for a period of time and warranting a finding of deliberate premeditation.
So on the charge of murder in the first degree, it is an unlawful killing of a human being with deliberate premeditation and finally, there's one additional element, and that is the additional element of malice.
We use the term malice aforethought, and some jurors seem to confuse that occasionally with deliberate premeditation. It is a separate element apart, and the only reason for that is that we add that word aforethought in there. So I'm just going to use at this point the term malice because I think the aforethought is an obvious, that it has to be there, and in existence at the time the act occurs. It can't happen after the act, but the term malice is an essential ingredient of the crime of murder to be proved by the Commonwealth, as all the others are indeed.
And in order to prove the malice necessary for murder, the Commonwealth must prove that the defendant, without justification or excuse, acted with one of these alternate intents. The Commonwealth must prove either that the defendant specifically intended to kill Lana Gilbert, or that he specifically intended to do grievous bodily harm to Lana Gilbert.
Now those first two alternate types of intents are specific intents that would require a particularized or definite purpose. There is a third form of malice, and that is, where a defendant intended to do an act creating a plain and strong likelihood that death or grievous bodily harm would follow. If in that circumstance known to the 'defendant that a reasonable prudent person would have known of the plain and strong likelihood that death grievous bodily harm would follow a contemplated act, malice may be found without any actual intent to kill or do grievous bodily harm and without any foresight by the defendant of such consequence. This third form of malice is considered to embrace what is known as general intent. That is the element that deals with the issue of malice aforethought, and it contains, basically, the three intents. They are written into the in the alternate. The first two are specific. The last is a general.
The two specifics that the Commonwealth must prove either that the defendant specifically intended to kill Lana Gilbert or that he specifically intended to do grievous bodily to Lana Gilbert, written in the alternative, those are specifics. The general intent that Commonwealth must prove, one of the three, is that the defendant intended to do an act creating a plain and strong likelihood that death or grievous bodily harm would follow. And if in the circumstances known to the defendant that a reasonably prudent person would have known of the plain and strong likelihood that death or grievous bodily harm would follow a contemplated act, malice may be found without any actual intent to kill or to do grievous bodily harm, and without any foresight by the defendant of such consequences. As I told you, that third form of malice is and embraces what is known as the general intent as opposed to the two specific intents.
Reviewing for a moment the elements of murder in the first degree, the Commonwealth would be required to prove beyond a reasonable doubt that there was an unlawful killing of Lana Gilbert by deliberate premeditation and malice.
Murder in the second degree is the unlawful killing of a human being with malice aforethought. The difference between murder in the first degree and murder in the second degree is the absence of deliberate premeditation. So the Commonwealth would still, on murder in the second degree, be required to prove an unlawful killing of a human being; to wit, Lana Gilbert, with malice aforethought. First degree, the additional element that they would be required to prove deliberate premeditation.
Transcript 13/11-17.
As can be seen, this supplemental instruction essentially repeated the instructions from the Main Charge, but changed the order of presentation, describing, first, the elements of first degree murder and, then, the elements of second degree murder. Here, too, the jury was erroneously told that the element of malice aforethought for first degree murder could be satisfied by proof that the defendant intended to do grievous bodily harm. Here, too, that error was mitigated to some degree by two sentences in the premeditation instruction that declared that a finding of premeditation required "a plan, no matter how simple, to murder after deliberation" and that "[t]he sequence would have to be first the deliberation and premeditation, then the decision to kill, and lastly the killing in furtherance of that decision."
In the afternoon, the jury asked a second question regarding the meaning of the court's instructions of law, this one quite pointed: "Does deliberate premeditation to do grievous bodily harm which sets in motion a set of circumstances which leads to death constitute murder one or murder two?" Transcript 13/21. This question made it crystal clear that the jury did not understand from the court's Main Charge or its first supplemental instruction that a conscious plan to do grievous bodily harm was not sufficient to find the defendant guilty of first degree murder, and was seeking specific guidance on this issue. This question provided the court with a perfect opportunity to correct its earlier error and make clear that a finding of a specific intent to kill, not simply an intent to commit grievous bodily harm, is necessary for a finding of first degree murder. The court, however, squandered this opportunity and did not provide a clear, or even useful, answer to this reasonable question. Instead, the court essentially repeated the earlier instructions that it had already twice given, which not only had earlier failed to resolve this question for the jury but had actually erroneously generated the confusion that triggered the question. The entirety of the court's answer to this question is reprinted below:
And I'm going to answer that as follows:
Murder in the first degree carries the following elements, unlawful; that is, without excuse or justification; unlawfully killing, the word killing means the causing of death, so that the Commonwealth must prove that death occurred as the proximate result of this defendant's act or acts. An act which is the proximate cause of death is an act which in the natural and continuous sequence produces the death and without which the death would not have occurred.
The Commonwealth has placed its case that the death was blunt neck trauma and specifically said Lana Gilbert died as a result of her carotid arteries being crushed and torn, a hand, first [sic] or cane all could have inflicted the damage done to the deceased's carotid arteries, and that is the Commonwealth's theory of the case, the theory as to the cause of death. So that it would be an act which is the proximate cause of death. An act which is the natural and continuous sequence producing the death and without which the death would not have occurred, with the blunt neck trauma and the act being done by this defendant. So the Commonwealth must prove that there was an unlawful killing.
For first degree murder, it must further prove that it was by deliberate premeditation, which means in summary form, that first the deliberation, and the premeditation, then the decision to kill, and lastly, the killing in furtherance of that decision, and, as I informed you earlier, it's the question of sequence, more then a question of time, that first the deliberation, the premeditation, then the decision to kill, and lastly the killing in furtherance of that decision.
The final element that the Commonwealth would be required to prove beyond a reasonable doubt would be the element of malice, and malice can be accomplished in any of three ways: either by a specific intent to kill or by a specific intent to do grievous bodily harm, or the general intent to do an act creating a plain and strong likelihood that death or grievous bodily harm will follow the contemplated act.
For first degree murder, the Commonwealth must prove each and every one of those elements, each and every one of these parts beyond a reasonable doubt, that there was unlawful killing by deliberate premeditation with malice aforethought. So those are the elements of first degree murder, unlawful killing, deliberate premeditation, malice aforethought.
Murder in the second degree, the Commonwealth would be required to prove that there was unlawful killing with malice aforethought. Murder in the second degree is a lesser-included crime of murder in the first degree. The difference is murder in the second degree is not by deliberate premeditation; that is an element that the Commonwealth is not required to prove for murder in the second degree. Murder in the first degree, unlawful killing with deliberate premeditation with malice aforethought, all of those elements. Murder in the second degree, the Commonwealth would be required to prove beyond a reasonable doubt unlawful killing with malice aforethought.
In that form, I think that best reviews the distinction between murder in the first degree and murder in the second degree as such.
Transcript at 13/21-24.
The jury continued its deliberations but was unable to reach a verdict on February 4 and retired for the day. On February 5, shortly after 11 a.m., the jury found the defendant guilty of murder in the first degree.
DISCUSSION
I. Standard for Granting a New Trial
"The trial judge upon a motion in writing may grant a new trial at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30(b). The trial judge in this case has retired, so this motion has been assigned to a different judge. See Commonwealth v. Yancy, 440 Mass. 234, 235 (2003);Commonwealth v. Carter, 423 Mass. 506, 512 n. 7 (1996) ("It is well settled that, although it is preferable that such motion be decided by the original trial judge, decision by a different judge of the same court is entirely proper."). While the granting of a new trial is within the discretion of the judge, "that discretion is not boundless and absolute." Commonwealth v.Genius, 402 Mass. 711, 714 (1988), citing Commonwealth v.Preston, 393 Mass. 318, 324-325 (1984). "Judges are to apply the standard set forth in rule 30(b) rigorously and should only grant such a motion if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth." Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 635-636 (2001).
Defense counsel did not object to any of the court's instructions that are at issue in this motion for new trial. Nor did appellate counsel raise this issue on direct appeal. As a result, regardless of whether this motion for new trial is characterized as claiming prejudicial error in the court's jury instructions or ineffective assistance of counsel in failing to object to these instructions, a new trial may be ordered in this case only if the court's instructions, considered in their totality, "created a substantial risk of a miscarriage of justice." Commonwealth v. Randolph, 438 Mass. 290, 296-297(2002); Commonwealth v. Russell, 439 Mass. 340, 345 (2003) ("the error was waived, and we review the defendant's motion for a new trial — whether based on the error itself or framed as a claim of ineffective assistance of counsel — solely to determine whether the error gives rise to a substantial risk of a miscarriage of justice"); Commonwealth v. LeFave, 430 Mass. 169, 173 (1999) ("power to give relief when a waived issue is 'raised for the first time by a . . . motion for new trial should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result'"). See also Commonwealth v. Reed, 427 Mass. 100, 105 (1998), citing Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). Under the "substantial risk of miscarriage of justice test," the court must determine if it has "'a serious doubt whether the result of the trial might have been different had the error not been made.'" Commonwealth v. Russell, 439 Mass. at 345, quoting LeFave, 430 Mass. at 174. Specifically, the court must
"consider four questions: (1) whether there was error, (2) whether the defendant was prejudiced by the error, (3) '[c]onsidering the error in the context of the entire trial,' whether it would be 'reasonable to conclude that the error materially influenced the verdict,' and (4) whether we may infer from the record that counsel's failure to object was not a reasonable tactical decision."
Commonwealth v. Russell, 439 Mass. at 345, quotingCommonwealth v. Randolph, 438 Mass. at 298. The court may "find a substantial risk of a miscarriage of justice and grant relief '[o]nly if the answer to all four questions is yes.'"Commonwealth v. Russell, 439 Mass. at 345, quotingCommonwealth v. Randolph, 438 Mass. at 298.
II. The Four Questions of the Substantial Miscarriage of Justice Test
This Court need not dwell long on questions 1, 2, and 4 to determine that the answers to all three of these questions are "yes". As to question 1, as discussed already, the trial judge's failure clearly to inform the jury that it may find the defendant guilty of murder in the first degree only if it finds that he specifically intended to kill — the first prong of malice — was error. See infra at p. 10 and cases cited.
As to question 2, this error plainly caused prejudice to the defendant, since it created a risk that the defendant would be found guilty of first degree murder even if the jury found that he intended only to cause her grievous bodily harm. SeeCommonwealth v. Jenks, 426 Mass. 582, 585 (1998) ("Where only deliberate premeditation is offered to the jury as a basis for murder in the first degree, the inclusion of instructions on second and third prong malice, even if justified for other reasons, could be confusing without the limiting instruction that only first prong malice supports a deliberate premeditation conviction"); Commonwealth v. Cowans, 52 Mass. App. Ct. 811, 820 (2001) ("When an error 'pertains to the definition given to the jury of the crime charged, the possibility of a substantial risk of a miscarriage of justice is inherent'"), quotingCommonwealth v. Hall, 48 Mass. App. Ct. 727, 730 (2000).
As to question 4, having reviewed the entire record, this Court finds nothing to permit the inference that defense counsel's failure to object to the trial judge's error in her instructions was a reasonable tactical decision. Nothing was gained for the defendant by this instruction and there was a risk of a great deal being lost.
That leaves question 3 — whether, considering the error in the context of the entire trial, it would be reasonable to conclude that the error materially influenced the verdict. The Supreme Judicial Court has consistently held that where, as here, the court gave a correct instruction as to the element of premeditation but erred in instructing the jury that the element of malice aforethought for first degree murder may be satisfied by finding any of the three prongs of malice, it would not be reasonable to conclude that this error materially influenced the verdict. See, e.g., Commonwealth v. LaCava, 438 Mass. at 717 n. 9; Commonwealth v. Johnson, 435 Mass. at 121;Commonwealth v. Simpson, 434 Mass. at 588 n. 13;Commonwealth v. Johnson, 426 Mass. 617, 622 (1998);Commonwealth v. Jenks, 426 Mass. at 585; Commonwealth v.Gibson, 424 Mass. 242, 247 (1997). The Supreme Judicial Court's rationale has been that this error was mitigated by the words in the instruction on deliberate premeditation which required the jury to find a specific intent to kill, from which "a reasonable juror could only have understood that a guilty verdict of murder in the first degree by reason of deliberate premeditation required a finding of purposeful conduct that included a finding . . . of a specific intent to kill." Commonwealth v. Gibson, 424 Mass. at 247. See also Commonwealth v. LaCava, 438 Mass. at 717 n. 9 (2003) ("the judge's instruction on deliberate premeditation mitigated the error insofar as it emphasized that the jury must specifically find an 'intent to kill' in order for them to convict LaCava of murder in the first degree by premeditation"); Commonwealth v. Randolph, 438 Mass. at 301-302 ("Listing all three prongs of malice during the instruction on murder in the first degree is potentially confusing, but where a judge's instructions on the deliberate premeditation element of murder in the first degree are 'correct, clear and emphatic,' we have held that 'a reasonable juror could only have understood that a guilty verdict . . . by reason of deliberate premeditation required a finding of purposeful conduct that included a finding beyond a reasonable doubt of a specific intent to kill'"), quoting Commonwealth v. Roberts, 433 Mass. 45, 60 (2000), which quotes Commonwealth v. Jenks, 426 Mass. at 585; Commonwealth v. Johnson, 435 Mass. at 120-121 (2001) ("In such cases, we have held that, despite the erroneous malice instructions, the judge's explanation of deliberate premeditation focused the jury on the necessity of finding the specific intent to kill in order to find deliberate premeditation. In those cases, the instructions read as a whole clearly conveyed to the jury the requirement of finding an intent to kill; thus there was no risk of conviction based on a mental state other than the first prong of malice").
In each of these cases, the Supreme Judicial Court presumed that the jury understood from the court's instructions that it could only find the element of deliberate premeditation if it also found a specific intent to kill. See Commonwealth v.Watkins, 425 Mass. 830, 840 (1997) (presuming that jury follows all instructions given to it); Commonwealth v. Green, 55 Mass. App. Ct. 376, 383 (2002) (jurors "are presumed to have understood and properly applied those concepts" on which they were instructed). In none of these cases did the jury ask a question that made it clear that it did not understand this crucial principle, but instead was unsure whether "deliberate premeditation to do grievous bodily harm which sets in motion a set of circumstances which leads to death constitute[s] murder one or murder two." Once the jury asked this question, it was no longer reasonable to presume that the jury understood that a finding of deliberate premeditation included a finding of specific intent to kill, because the jury specifically asked about the legal consequence of finding "deliberate premeditation to do grievous bodily harm." Moreover, once the jury asked this question, it was no longer reasonable to presume that the jury understood that a finding of first degree murder required a finding of specific intent to kill, because the jury specifically asked whether "deliberate premeditation to do grievous bodily harm which sets in motion a set of circumstances which leads to death constitute[s] murder one or murder two."
Generally, "'[t]he proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly.'" Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998), quoting Commonwealth v. Waite, 422 Mass. 792, 807 n. 11 (1996). At the same time, when a trial judge is faced with a jury question, she has an obligation, "above all, . . . not to give an answer that is misleading on a critical issue." Commonwealth v. Davis, 52 Mass. App. Ct. 75, 78 n. 6 (2001). "'When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy.'"Commonwealth v. Thomas, 21 Mass. App. Ct. 183, 186 (1985), quoting Bollenbach v. United States, 326 U.S. 607, 612-613 (1946). The trial judge's response to this specific jury question, by failing to clear the jury's confusion "away with concrete accuracy," was effectively "misleading" on this critical issue. Rather than answer the jury's question and clearly inform them that a finding of deliberate premeditation includes a finding of specific intent to kill and, therefore, a finding of first degree murder required a finding of specific intent to kill, the trial judge instead essentially repeated, in somewhat abbreviated form, the same instructions she had twice given which had engendered the jury's confusion as to this issue and caused it to ask for specific guidance. Since those same instructions, when earlier given, had created the jury's confusion, there is no reason to believe that giving them a third time would resolve that confusion. Indeed, there is good reason to believe that the judge's failure to give a clear and concise answer to the jury's specific question may have led the jury to believe that there was no simple answer to their question and that, under certain circumstances, "deliberate premeditation to do grievous bodily harm which sets in motion a set of circumstances which leads to death" may indeed be sufficient to find first degree murder. While, of course, this Court can never know what the jury understood from the trial judge's indirect answer to their specific question, this Court has more than "a serious doubt" that the jury believed when it returned its verdict that "deliberate premeditation to do grievous bodily harm which sets in motion a set of circumstances which leads to death" would be enough to permit a finding of first degree murder. SeeCommonwealth v. Russell, 439 Mass. at 345, quotingCommonwealth v. LeFave, 430 Mass. at 174.
While this Court finds that it is "reasonable to conclude" from the totality of these circumstances that the trial judge's instructions of law permitted the jury to misunderstand that "deliberate premeditation to do grievous bodily harm which sets in motion a set of circumstances which leads to death" would be enough to permit a finding of first degree murder, that finding, by itself, is not enough to justify a new trial. Rather, the third question may be answered in the affirmative and a new trial ordered only if "considering the error in the context of the entire trial, . . . it would be reasonable to conclude that the error materially influenced the verdict," or, as the Supreme Judicial Court has also framed the question, if this Court has "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v.Russell, 439 Mass. at 345, quoting Commonwealth v.Randolph, 438 Mass. at 298 and Commonwealth v. LeFave, 430 Mass. at 174. This requires the Court to examine the evidence at trial and determine, not only whether the jury may have misunderstood the elements of first degree murder, but also whether there is a serious risk based on the evidence presented at trial that at least one juror did not find beyond a reasonable doubt that the defendant had a specific intent to kill Lana, finding instead that he intended only to do her grievous bodily harm, and convicted the defendant of first degree murder based on the mistaken understanding that this was sufficient for such a verdict.
In evaluating the magnitude of the risk of prejudice, this Court must view the evidence in the light most favorable to the defendant. Commonwealth v. Randolph, 438 Mass. at 299 (in determining whether a defendant was prejudiced by an erroneous jury instruction, "we examine the evidence in a light most favorable to the defendant"). See also Commonwealth v.Little, 431 Mass. 782, 783 (2000), and cases cited.
As a result, this review of the evidence will likely differ from that of the Supreme Judicial Court in the direct appeal of this case, since the defendant challenged the sufficiency of the evidence and the Court needed, therefore, to view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Gilbert, 423 Mass. at 864 ("We summarize the evidence in the light most favorable to the Commonwealth").
While the defendant was plainly physically capable of committing an assault, as he essentially admitted in describing the fight with his sons on the evening of January 2, there was substantial evidence that the defendant was physically disabled and a chronic alcoholic. He had been receiving full disability benefits since 1969, arising from injuries to his stomach, back, and legs, and the loss of two of his fingers, and had a drinking problem since the 1950's, which had caused problems with his liver. He walked with the help of a cane.
The jury was also entitled to conclude that Lana Gilbert had been physically ill for reasons that had nothing to do with the defendant since at least Sunday evening, January 6, when Sherif saw her laying on the couch, with her voice slurred and a cut on her lip, appearing to be suffering from a fever. The jury could also have inferred that she had taken a large quantity of aspirin and Tylenol, although the jury, having found the defendant guilty of murder, must have rejected Dr. Ober's opinion that she died from synergistic intoxication rather than from being physically beaten. Whether from her illness or her medication, or both, the jury reasonably could also have inferred that Lana was lethargic and physically weak on the day she died.
The jury was also entitled to conclude, as the Assistant District Attorney argued in his closing, that the event that triggered the defendant's physical assault on Lana was his receipt of the notice from the Housing Authority when he opened the mail on Monday, January 7. To be sure, the events of January 2 and 3 — the fight between the defendant and his sons on the evening of January 2, the defendant's revelation on January 3 that he had had a sex in a car with a woman that Lana knew, and the defendant's telephone call to the police on January 3 that caused an officer to remove Lana from the apartment — had severely strained the relationship between the defendant and Lana. Yet, despite these events, the evidence demonstrated that Lana had moved back into the defendant's apartment by the morning of Saturday, January 5. The evidence also demonstrated that, rather than risk an ugly argument with Lana that morning, the defendant chose to leave the apartment and stay at his ex-wife's home for the rest of Saturday, January 5 and most of Sunday, January 6. There is no evidence that he had assaulted Lana before he left on Saturday or that he assaulted her upon his return to the apartment that Sunday night. Nor was there any indication that the defendant had assaulted her before Sherif and Denise returned to the apartment on Monday, January 7 after returning the car. Rather, the jury was justified in concluding that the assault against Lana began at some time between 4:30 p.m., when the defendant returned from his visit to the package store, and 7:00 p.m., when the police were called. Given her lethargic condition, it is doubtful that Lana did anything during those hours to provoke the defendant's wrath. The most likely "trigger" of the assault was his reading of the Housing Authority notice, which would have revealed to him that Lana had told the Authority that she was living there permanently and had been paying most of the rent, and would have caused him to expect either eviction or a substantial rent increase.
When one considers these various findings together, the jury reasonably could have concluded that the defendant became violently angry at Lana for having vindictively provided the Housing Authority with information that would cause him either to lose his apartment or to pay far greater rent to keep it. The jury could have found that, because of his disabilities, he underestimated his strength and underestimated as well, because of Lana's illness, medications, and lethargy, the ability of Lana to defend herself. The jury could also have found that the force used against Lana, while substantial, may not have been so overwhelming that it would have been obvious to the defendant that it would cause her death. There were no marks or signs of bruising on the neck, even though Lana's earlier medical records reflected that she bruised easily. In short, from the evidence, the jury reasonably could have found that, after receiving the letter, the defendant became enraged and deliberately intended "to do grievous bodily harm which set in motion a set of circumstances which [led to Lana's] death," but that he did not intend to kill her.
Since the jury's pointed question suggested that at least one juror (and perhaps all) held this view of the case and since this view of the case is supported by the evidence at trial, this Court finds it reasonable to conclude that the trial judge's erroneous and misleading answer to the last jury question, considered in the context of the entire trial, materially influenced the verdict. See Commonwealth v. Russell, 439 Mass. at 345. Applying the alternative test the Supreme Judicial Court has used in deciding whether a new trial is warrranted, this Court has "a serious doubt whether the result of the trial might have been different had the error not been made." SeeCommonwealth v. Russell, 439 Mass. at 345, quotingCommonwealth v. LeFave, 430 Mass. at 174.
III. The Need for a New Trial
In view of these findings, this Court finds that "the substantial risk of miscarriage of justice test" has been met, and that the defendant's conviction of murder in the first degree cannot stand without a new trial. Yet, this Court also finds that simply ordering a new trial would be an undeserved windfall for the defendant because the jury was plainly unanimous in finding, at a minimum, that the defendant intended to inflict, at least, grievous bodily harm on Lana that resulted in her death, which is sufficient for a finding of murder in the second degree. A verdict of murder in the second degree is supported by the evidence and is not infected by the error that infects the finding of first degree murder. The Commonwealth, in view of the age of this case, the age of the defendant, and the circumstances of Lana's death, may prefer to accept a reduction in the degree of the murder to second degree rather than try the case again in an attempt to obtain a verdict of first degree murder, with all the uncertainties that may accompany such a trial. Therefore, rather than simply order a new trial, this Court instead shall order a new trial only if the Commonwealth declares that it requests a new trial rather than accept a reduction in the degree of the defendant's murder conviction to second degree murder. SeeCommonwealth v. Lennon, 399 Mass. 443, 449-450 (1987).
ORDER
The defendant's motion for a new trial pursuant to Mass. R. Crim. P. 30(b) is ALLOWED to the extent that:
1. The jury's verdict of murder in the first degree is VACATED, but this Order is stayed until close of business on February 10, 2005 or further order of the Court.
2. No later than February 10, 2005, the Commonwealth shall inform the First Session Judge in Middlesex County whether it will accept a reduction in the verdict to second degree murder or wishes a new trial. If the Commonwealth accepts the reduction in degree, the defendant shall be declared guilty of murder in the second degree and shall be re-sentenced on that reduced charge. If the Commonwealth wishes a new trial on the grand jury's indictment of first degree murder, a date for trial shall be promptly set and a bail hearing conducted.
3. A status hearing shall be conducted at 2:00 p.m. in the First Session in Cambridge on February 10, 2005 to set appropriate dates depending on the alternative selected by the Commonwealth.