Commonwealth v. Valentin , 474 Mass. 301 ( 2016 )

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SJC-11448
COMMONWEALTH vs. ELVIN VALENTIN.
Bristol. January 12, 2016. - May 20, 2016.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
Homicide. Intoxication. Evidence, Prior misconduct, Relevancy
and materiality. Practice, Criminal, Capital case,
Argument by prosecutor, Request for jury instructions,
Instructions to jury.
Indictments found and returned in the Superior Court
Department on September 28, 2009.
The cases were tried before Thomas F. McGuire, Jr., J.
John F. Palmer for the defendant.
Rachel W. van Deuren, Assistant District Attorney, for the
Commonwealth.
DUFFLY, J. The defendant was convicted by a Superior Court
jury of murder in the first degree in the shooting deaths of
Nettie Becht and Luis Diaz, on theories of premeditation and
extreme atrocity or cruelty. On appeal, the defendant asserts
error in the judge's decision to permit the introduction in
2
evidence of weapons and related items that he lawfully owned and
that were not alleged to have been used in the shooting. The
defendant asserts error also in the denial of his request that
the jury be instructed on voluntary manslaughter based on a
theory of reasonable provocation, and in the instruction that
was given that the jury must "find" the defendant was
intoxicated. He also challenges portions of the prosecutor's
closing argument in several respects.
Concluding that there was no error, we affirm the
defendant's convictions and decline to exercise our authority
under G. L. c. 278, § 33E, to grant a new trial or reduce the
verdicts to a lesser degree of guilt.
1. Background. a. Commonwealth's case. We recite the
facts the jury could have found, reserving certain facts for
later discussion. The defendant and Becht lived in different
apartments in the same housing complex in New Bedford. They had
been involved in an intermittent relationship that spanned a
four-year period; during that period, the defendant and Becht
occasionally spent the night at each other's apartments and the
defendant had loaned Becht money. According to the defendant,
Becht had "cheated" on him and he felt that she was "using" him.
Becht ended the relationship prior to the shootings.
Becht was treated at a hospital on the night before she was
3
killed.1 When the defendant attempted to visit her there, she
told him that she did not want to see him. The next day, August
14, 2009, at approximately 8 P.M., the defendant went to the
home of a friend of Becht, after Becht failed to return the
numerous telephone calls he had made throughout the day. Becht
came out of the house and spoke with the defendant while they
were standing outside the house. She told him that she had
started a relationship with someone else and that she was "done"
with him. The defendant responded by saying, "[W]e'll see,
we'll see," and told her not to do it "in [his] face." He left
and returned to his apartment.
Later that night, at approximately 10 P.M., Becht's friend
drove her to a bus station to pick up Luis Diaz, a man Becht had
met on a "chat line."2 Becht had spoken with Diaz on the
telephone, but the two had not met in person. After picking
Diaz up from the bus station, the friend drove Diaz and Becht to
Becht's apartment and left. At that time, the defendant was in
his apartment in the same apartment complex, sitting in his
kitchen with the lights turned off. He saw Becht and Diaz from
1
The reason for the hospitalization was unrelated to the
events leading to her death, and the judge excluded it from
evidence.
2
A witness described the "chat line" as a telephone chat
line. A chat line makes it possible for multiple people to
communicate with one another at the same time by telephone call,
and is often used as an alternative to online dating. See
Evenstad v. Carlson, 470 F.3d 777, 780 (8th Cir. 2006).
4
his window as they walked toward her apartment. He armed
himself with a loaded nine millimeter semiautomatic pistol,
which he subsequently told police that he kept readily
accessible for protection because he recently had been the
victim of a robbery.
The defendant emerged from his apartment carrying the
loaded gun. Becht saw that the defendant was armed and
screamed, "No, no." The defendant first pointed the gun at Diaz
and fired; he then pointed the gun at Becht and fired several
more shots. When Diaz tried to get up after he had been shot,
the defendant said, "What? You not ready to die yet?" and again
fired the gun at Diaz. In all, the defendant fired ten shots.
Police and paramedics arrived within minutes of the shootings;
Diaz was still breathing but Becht was not. Both victims were
taken by ambulance to a nearby hospital where, later that night,
they were pronounced dead. Each died of gunshot wounds to the
torso.
The defendant returned to his apartment and changed his
clothes and shoes.3 He put the gun in a closet in the living
room and left the apartment. Immediately after the shootings,
the defendant spoke to his son on his cellular telephone, and
3
Testing of deoxyribonucleic acid samples taken from the
defendant's shoes recovered from his apartment, the gun used to
shoot the victims, and the doorknob on his apartment door
established that Becht's blood was on each item.
5
said, "Hey, I killed Netti because I find her with another guy
and I killed that other guy, too." Shortly thereafter, a police
officer noticed the defendant walking away from the crowd of
people that had gathered. The officer followed the defendant,
who was still talking on his cellular telephone, and ordered him
to stop. When the officer approached, the defendant said, "Yes,
yes. I'm the one who did it." The officer read the defendant
his Miranda rights, in English, and handcuffed him.4 The
defendant indicated that he understood his rights. Before the
officer had asked any questions, the defendant asked, "Is the
lady dead?" When the officer responded that he did not know,
the defendant asked, "How about the guy? Is he dead?" The
defendant's tone was "casual" and without emotion.5
As the officer spoke to the defendant, the crowd of people
that had gathered at the scene of the shootings began angrily to
approach the defendant. The officer placed the defendant in his
police cruiser for the defendant's safety. As they sat in the
cruiser, the defendant told the officer that he was concerned
the crowd would burn his automobile. When the officer asked why
he had that concern, the defendant replied that it was because
4
The officer asked the defendant whether he spoke and
understood English, and the defendant said that he did. The
defendant also indicated that he spoke Spanish.
5
Prior to trial, the defendant filed a motion to suppress
his various statements to police. The motion was denied, and,
on appeal, the defendant does not challenge that denial.
6
he had shot the victims. The officer asked the defendant why he
had done so, and the defendant responded that he had told Becht
not to cheat on him. The defendant told another officer that
the gun used in the shootings was located in his apartment.6
Police transported the defendant to the police station,
where he agreed to be interviewed. In a video-recorded
interview, conducted in English, the defendant explained that he
had been in a relationship with Becht for about four years, but
that she wanted to date other people.7 The defendant stated that
he had been sitting in his kitchen with the lights turned off,
drinking whiskey, as he waited for Becht to return to her
apartment. He said that he had consumed one-half of a bottle of
whiskey in the hours before the shootings, and went "crazy" when
he saw Becht walk by his apartment with Diaz because he had been
drinking.8 When asked whether he had made the decision to shoot
6
The gun was found in a closet in the defendant's living
room.
7
Prior to this interview, an off-duty bilingual officer
read the defendant his Miranda rights, this time in Spanish.
The defendant stated that he did not want to speak to the
officers and that he wanted an attorney. Then, unprompted, the
defendant told the officer that, earlier that night, he had
sought out Becht at her friend's house to ask about the status
of their relationship, and Becht had said that it was over
between them and that she was seeing someone else. The
defendant told the officer that he had said to Becht, "We'll see
about that." He also said that he had consumed three to four
glasses of whiskey as he waited for Becht to return home.
8
A half-empty bottle of whiskey was found in the
7
Becht and Diaz when he walked out of the apartment with his gun,
the defendant said, "Well, yeah, I think that the alcohol made
me do the shooting."
b. Defendant's case. The primary defense at trial was
that the defendant's intoxication warranted convictions of a
lesser offense than murder in the first degree. The defendant
called a forensic psychiatrist as an expert witness to explain
generally the effects of alcohol intoxication.9 In addition, one
police officer testified that he smelled the odor of alcohol
emanating from the defendant as they sat in the police cruiser
immediately after the defendant was arrested.
2. Discussion. a. Admission of evidence of other
weapons. The defendant argues that he was prejudiced by the
Commonwealth's improper introduction of evidence concerning his
ownership of weapons other than the weapon used in the
shootings, which the defendant categorizes as evidence of prior
bad acts. The Commonwealth introduced testimony that the
defendant owned several handguns, a rifle, a shotgun, several
boxes of ammunition, gun magazines, a National Rifle Association
certificate, and a buck knife. Photographs of these items were
introduced in evidence, as were the boxes of ammunition and
defendant's apartment.
9
The expert had not reviewed any of the evidence in the
case and had not spoken with the defendant.
8
other items themselves. The defendant did not object to the
introduction of the testimony or this evidence. On cross-
examination, the defendant elicited testimony establishing that
he had been required to satisfy specific criteria to obtain
licenses for the firearms. The prosecutor also referred to some
of the weapons evidence in the opening statement.10 Because the
defendant did not object, we review his claim to determine
whether the evidence should not have been admitted and, if it
was admitted erroneously, whether the admission created a
substantial likelihood of a miscarriage of justice.
We have cautioned against the admission of evidence of
weapons or firearms where those items "definitively could not
have been used in the commission of the crime" charged.
Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). We have
expressed concern in such circumstances that the introduction of
evidence of firearms unrelated to the crime charged "creates a
risk that the jury will use the evidence impermissibly to infer
that the defendant has a bad character or a propensity to commit
the crime charged." Commonwealth v. McGee, 467 Mass. 141, 156
(2014). We also have recognized, however, that there may be a
10
The prosecutor told the jury, "You will hear the choices
that the defendant made over that evening. First, he had the
choice of which gun he was going to use. He had a .357, he had
a .45 caliber, he had a .40 caliber; all handguns. He had a .12
gauge shotgun, and he had a Colt 223 rifle. However, this
defendant chose his Smith & Wesson, a nine millimeter, loaded
with ten rounds in the magazine."
9
permissible purpose for the admission of such weapons-related
evidence, and have "not unconditionally disapproved" of it.
Commonwealth v. Barbosa, supra at 122-123, and cases cited. The
critical questions are whether the weapons-related evidence is
relevant and, if so, whether the probative value of the evidence
is substantially outweighed by its prejudicial effect. See
Commonwealth v. McGee, supra.
Here, it is undisputed that none of the weapons-related
evidence that the defendant challenges was relevant to the
crimes charged. The defendant kept the gun used in the
shootings loaded and accessible, apparently not locked in his
gun safe. The police recovered that gun from a closet in the
defendant's living room; the defendant has not challenged its
admission, nor has he challenged the introduction of a box of
ammunition from which ten bullets apparently had been used to
load the gun used in the shootings. That box of ammunition and
the other weapons and ammunition were found locked in a gun safe
in the defendant's bedroom.
The Commonwealth contends that the weapons evidence
properly was admitted to show that the shootings were
premeditated. In the circumstances here, we do not agree.
Unlike the scenario presented in Commonwealth v. Tassinari, 466
Mass. 340, 352-353 (2013), there was no evidence in this case
that the defendant "deliberately chose" the murder weapon from a
10
cache of other available weapons, and there was no evidence
that, on the night of the shootings, the defendant even unlocked
the safe where the other weapons were stored. Further, the
Commonwealth's theory at trial was that the defendant decided to
kill Becht because she had told him earlier that day, as well as
the night before, that she no longer wanted to be involved in a
relationship with him. There is no suggestion that the
defendant acquired or handled any of his other weapons at some
point after Becht rebuffed him. The fact that the defendant
lawfully owned multiple firearms and a buck knife, which he kept
securely locked in a gun safe, bears no relevance to whether he
deliberated before he shot Becht and Diaz. Contrast
Commonwealth v. Carney, 472 Mass. 252, 256 (2015) (evidence
defendant owned and was familiar with firearms relevant to show
shooting was not accident as defendant claimed).
Likewise, we conclude that the weapons evidence is not
relevant to the question whether the murder was committed with
extreme atrocity or cruelty. In total, the defendant fired ten
shots at the two victims, and both died of multiple gunshot
wounds. The Commonwealth contends that the weapons evidence
permitted the jury reasonably to infer that the defendant was
familiar with weapons, and that, based on that inference, the
jury could draw the further inference that the disproportionate
means the defendant used to inflict death was not the result of
11
an unskilled shooter, but rather the result intended by an
experienced shooter. Such a "piling of inference upon
inference" is improper in this context. Cf. Commonwealth v.
Kelly, 470 Mass. 682, 693 (2015). The defendant made no claim
at trial that the multiple bullets fired, or the shootings
themselves, were the result of a lack of familiarity with guns
or ignorance regarding the damage multiple gunshots could
inflict. Nothing about the defendant's skill level as a shooter
or familiarity with guns was related to any of the issues at
trial. Cf. Commonwealth v. Anderson, 448 Mass. 548, 560 (2007)
(testimony that defendant was skilled with knife "tended to
prove that [he] possessed the means and ability to commit the
crime, thus making it relevant to whether he was the killer").
Because the evidence of the defendant's lawful ownership of
other firearms, ammunition, and a buck knife was not relevant to
the jury's determination whether the shootings were committed
with extreme atrocity or cruelty, the evidence should not have
been admitted.
Even if we were to agree, as the Commonwealth argues, that
it had some "tenuous relevancy" to show that the defendant "was
acquainted with weapons and was able to use them," that
probative value is substantially outweighed by its prejudicial
effect. See Commonwealth v. Toro, 395 Mass. 354, 358 (1985).
The Commonwealth contends also that because the defendant
12
lawfully owned the weapons and ammunition, he cannot argue that
evidence of his ownership was prejudicial "bad act" evidence.
The rules of evidence, however, do not contemplate only the
exclusion of evidence relating to unlawful acts. A trial judge
"may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice."
See Mass. G. Evid. § 403 (2016). In addition, "[e]vidence of a
crime, wrong, or other act is not admissible to prove a person's
character in order to show that on a particular occasion the
person acted in accordance with the character." See Mass. G.
Evid. § 404(b)(1) (2016).
Accordingly, our focus is on whether the weapons evidence
"creates a risk that the jury will use the evidence
impermissibly to infer that the defendant has a bad character or
a propensity to commit the crime charged." See Commonwealth v.
McGee, supra at 156. As the defendant argues, the evidence of
his ownership of multiple firearms portrayed him as someone who
was likely to commit murder, the crime with which he was
charged, and should not have been admitted.
The improperly admitted evidence, however, did not create a
substantial likelihood of a miscarriage of justice. The
evidence against the defendant was strong. There was a vast
quantity of evidence that he was the shooter and shot both
victims with the firearm recovered by police, and no evidence to
13
the contrary. There were several witnesses to the shootings
and, immediately after the shootings, the defendant confessed
and explained his motive to police. In this context, the
evidence of the defendant's other weapons would have been
"insignificant" in the jury's thinking. See Commonwealth v.
Toro, supra at 359. Although the judge did not provide a
limiting instruction on the use of the unrelated weapons
evidence, defense counsel effectively cross-examined the police
witness who testified about the other weapons in order to
establish that the defendant lawfully owned them, and thus that
he had satisfied the required criteria for a firearms license,
and that the other weapons had not been used in the crime
charged. This mitigated some of the danger that the jury would
draw a prejudicial inference from the evidence. In sum, the
jury's verdicts would not have been different had the improperly
admitted weapons evidence been excluded.
b. Prosecutor's closing argument. The defendant asserts
that several aspects of the prosecutor's closing argument were
improper. He claims that the prosecutor suggested, without
evidentiary basis, that the defendant was "lying in wait" for
Becht to return on the night of the shootings, and that she was
"begging" for her life as the shots were being fired. The
defendant also contends that the prosecutor injected her own
view of the witnesses' credibility into her closing, and
14
improperly asked the jury to put themselves in the place of the
defendant. Because the defendant did not object to any portion
of the closing argument at trial, we review to determine whether
the improprieties, if any, posed a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Mejia, 463 Mass.
243, 253-254 (2012). We discern no error.
"Prosecutors must limit the scope of their closing
arguments to facts in evidence and the fair inferences that may
be drawn therefrom." Commonwealth v. Guy, 441 Mass. 96, 110
(2004). Here, there was evidence that the defendant was in his
apartment, sitting in the dark, waiting for Becht to come home,
and that he had a loaded gun nearby. The prosecutor's statement
that the defendant was "lying in wait" and other similar remarks
were fair arguments grounded in the evidence, and were related
to the issue of premeditation. There also was testimony that
Becht yelled, "No, no," as the defendant shot at her. The
prosecutor's argument that Becht was "begging for her life" was
not improper in light of this evidence, and was relevant to the
Commonwealth's theory of extreme atrocity or cruelty. See
Commonwealth v. Taylor, 455 Mass. 372, 383 (2009), quoting
Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) ("A prosecutor
may argue 'forcefully for a conviction based on the evidence and
on inferences that may reasonably be drawn from the evidence").
The defendant also contends that the prosecutor improperly
15
injected her own view of the witnesses' credibility into her
closing in discussing the issue of intoxication. In reviewing
this claim, we consider the context in which the prosecutor made
her remarks. At trial, defense counsel elicited testimony from
a police officer that the police had found a half-empty bottle
of whiskey in the defendant's apartment. In his closing
argument, defense counsel drew attention to the presence of the
whiskey bottle, stating, "As a matter of fact, when [the
detective] testified, and [the prosecutor] was introducing a
number of items, you didn't see him pick up that bottle and
introduce it. I did. I did. They want this [half-empty bottle
of whiskey] to be nonexistent. It's not. It exists. And you
can't disregard it."
The prosecutor began her closing argument by responding to
defense counsel's argument. She stated:
"Defense counsel made mention [of] the fact that he
had to put [the half-empty whiskey bottle] into evidence
through [the detective]. Well, do you remember the
testimony of [the detective]? He wasn't the one who found
it. Why would it go in through him? [A State police
trooper] was the person who found the alcohol, who hadn't
testified yet. So is that what you think, ladies and
gentlemen? That [we] have been trying to keep things from
you during the course of this trial? We've put well over a
hundred exhibits before you. I'm not asking you to ignore
the alcohol at all."
This argument was not improper, but, rather, was in direct
response to the defendant's suggestion that the Commonwealth
sought to hide evidence that a partially consumed bottle of
16
whiskey had been recovered from the defendant's home. See
Commonwealth v. Lewis, 465 Mass. 119, 130 (2013) ("prosecutor
may address a particular point in defense counsel's closing
argument").
Likewise, the prosecutor's final statement to the jury
"ask[ing]" them, "on [her] behalf, and on the behalf of [her co-
prosecutor], and on behalf of the Commonwealth, that [they] find
this defendant . . . guilty of . . . murder in the first degree"
was not improper. The phrase was a "rhetorical flourish" that
the prosecutor used to argue that the jury should render guilty
verdicts. "[W]e presume the jury 'know that the prosecutor is
an advocate' . . . and that they recognize arguments as
'advocacy and not statements of personal belief'" (citations
omitted). See Commonwealth v. Mejia, supra at 254.
The defendant's final contention is that "the prosecutor
improperly urged the jurors to rely on their own experiences
with intoxication, instead of the evidence, in evaluating
the . . . intoxication defense." The prosecutor stated,
"Use your common sense and life experience. . . .
Certainly you guys over your various years have seen people
intoxicated, might have been intoxicated yourself. You
know what the reaction is. You know what outward signs you
might have had. Would you have the capability to do this?
To walk up calmly, confidently, deliberately, put up a gun,
hold your hand straight, shoot ten times?"
Inviting the jurors to draw upon their own life experience and
common sense is permissible. See Commonwealth v. Lao, 460 Mass.
17
12, 22 (2011) ("request that jury apply their common sense was
proper"). Although the suggestion that the jury put themselves
in the place of the defendant would have been better not made,
here the statement was made in the context of asking the jurors
to consider their own life experiences and common sense in
evaluating the effect of intoxication. Cf. Commonwealth v.
Pontes, 402 Mass. 311, 318 (1988) (asking jury to put themselves
in place of victim's father not improper where, in context, it
was attempt to suggest father acted reasonably). Contrast
Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011) ("jury
should not be asked to put themselves 'in the shoes' of the
victim, or otherwise be asked to identify with the victim").
There was no error in the prosecutor's closing argument.
c. Jury instruction on voluntary manslaughter. At the
close of all the evidence, the defendant orally requested an
instruction on voluntary manslaughter based on the theory that
the defendant killed the victims in the heat of passion because
he was reasonably provoked when he saw Becht with Diaz on the
night of the shooting. Concluding that the evidence did not
warrant a finding of reasonable provocation, the judge denied
the request and the defendant objected.
The defendant contends that the judge should have
instructed the jury on voluntary manslaughter because the
defendant still considered Becht to be his "girl friend" at the
18
time of the shootings. The defendant acknowledges that Becht
had told him that their relationship was over and that she was
dating other people, but points to his statement that he had
warned her "[not to] do it in [his] face." The defendant
maintains that he went "crazy" when he saw Becht walking with
Diaz, and thus that the instruction was warranted.
Where an instruction on voluntary manslaughter is
requested, a trial judge should so instruct the jury if any view
of the evidence would warrant a finding that the unlawful
killing arose not from malice, but "from . . . sudden passion
induced by reasonable provocation, sudden combat, or excessive
force in self-defense." See Commonwealth v. Avecedo, 446 Mass.
435, 443 (2006), quoting Commonwealth v. Carrion, 407 Mass. 263,
267 (1990). Reasonable provocation means that a reasonable
person would have been provoked "to lose his self-control in the
heat of passion," and that person would not have had time to
"cool off" before the killing (citations omitted). See
Commonwealth v. Avecedo, supra at 442-443. Because the standard
is both objective and subjective, the jury must be able to infer
from the evidence not only that a reasonable person would have
been so provoked, but also that the defendant was in fact
provoked and that he or she did not have sufficient time to cool
off in the period that elapsed between the provocation and the
homicide. See id. at 443; Commonwealth v. Groome, 435 Mass.
19
201, 220 (2001). We "view the evidence in the light most
favorable to the defendant to determine whether an instruction
on reasonable provocation was warranted." Commonwealth v.
Avecedo, supra.
Here, the evidence introduced at trial would not have
permitted the jury to find reasonable provocation. Even
assuming that the defendant still believed that Becht was his
girl friend on the day of the shootings, the facts do not
support a finding of reasonable provocation as defined in our
case law. Viewed in the light most favorable to the defendant,
he and Becht had been involved in an occasional romantic
relationship, which Becht had ended several hours prior to the
shootings. Moreover, on the night before the shootings, Becht
had rebuffed the defendant when he tried to visit her at the
hospital. The defendant thus had no reason to expect that Becht
would not become romantically involved with other people, and
has no basis upon which to claim that he was reasonably provoked
when he saw Becht with Diaz. See Commonwealth v. Benson, 453
Mass. 90, 95 (2009) ("provocation occurs only when an action of
the victim triggers a sudden loss of self-control in the
defendant"). Contrast Commonwealth v. Andrade, 422 Mass. 236,
238 (1996) (evidence supported inference that defendant observed
spouse with another man, thus confirming his suspicion of
unfaithfulness).
20
Even were we to assume that the defendant reasonably could
have expected fidelity from Becht, the evidence would not have
permitted the jury to find that the defendant was reasonably
provoked. The defendant did not come upon Becht and Diaz
engaged in romantic or sexual activity; he observed them merely
walking together towards her apartment. Compare Commonwealth v.
Smith, 460 Mass. 318, 325 (2011) (defendant discovered victim,
whom he had been dating for six weeks, engaging in oral sex with
another man). On these facts, the jury could not infer that a
reasonable person would have become sufficiently provoked to
shoot and kill two people. See Commonwealth v. Benson, supra.
There was no error in the denial of the defendant's request for
a manslaughter instruction.
d. Jury instruction on intoxication. In her final charge,
the judge properly instructed the jury on intoxication, and the
defendant does not challenge that instruction. After a few
hours of deliberation, the jury submitted a note with a question
concerning the "subcategories" of murder. After a sidebar
discussion, neither the judge nor counsel were able to determine
precisely what information the jury sought. With counsel's
approval, the judge decided to "go over the instructions again,
perhaps in a more summary fashion."
In his summary review of the instructions, after describing
the elements of the various degrees and theories of murder, the
21
judge instructed,
"Intoxication does not necessarily excuse murder. The
question is did the intoxication prevent the defendant from
forming the intent or from having knowledge of the
circumstances giving rise to the plain and strong
likelihood of death. So you can consider any believable
evidence -- if you find that the defendant was intoxicated
from the consumption of alcohol, you can consider that
evidence on several points. . . . And then you can also
consider any intoxication, if you find intoxication, on the
issue of whether the defendant acted in a cruel or
atrocious manner in causing the death of the
deceased. . . . So I'll just repeat. . . . So the
intoxication bears on, if you find intoxication, you can
consider it in evaluating the defendant's intention and the
defendant's knowledge of the circumstances"
In total, the judge stated three times that if the jury found
the defendant was intoxicated, they could consider his
intoxication when evaluating both theories of murder in the
first degree.
The defendant argues that the instruction that the jury had
to "find" intoxication improperly shifted the burden of proof
from the Commonwealth to him. Because the defendant did not
object at trial, we review to determine whether there was a
substantial likelihood of a miscarriage of justice. Although we
have observed that this "finding" language is disfavored in a
jury instruction, it "is not in error when the charge, read as a
whole, clearly places the burden on the Commonwealth to prove
each element of the offense beyond a reasonable doubt."
Commonwealth v. Petetabella, 459 Mass. 177, 192 (2011), citing
22
Commonwealth v. Cundriff, 382 Mass. 137, 153 (1980), cert.
denied, 451 U.S. 973 (1981). Moreover, our concern with the
"finding" language is most acute when used in conjunction with
"complete, malice-negating defenses," such as self-defense,
accident, or necessity. See Commonwealth v. Waite, 422 Mass.
792, 805 (1996), and cases cited. Because "intoxication and
impairment do not negate premeditation, but are mere subsidiary
facts that the jury consider in sifting the circumstantial
evidence as to [the defendant's] mental state . . . , there is
no particular standard of proof that 'finding' language can
impermissibly alter."11 Id. at 805-806.
Here, as the defendant concedes, the instructions provided
to the jury before they began deliberating were proper.
Although the judge used the disfavored "finding" language in his
summary reiteration of the instructions, the use of this
language did not shift the burden of proof to the defendant.
When viewed as a whole, the instructions clearly placed the
burden of proof on the Commonwealth to prove each element of
11
We decline the defendant's invitation to reconsider our
line of cases distinguishing "subsidiary facts" from facts that
bear on "malice-negating offense" based on the United States
Supreme Court's decision in Alleyne v. United States, 133 S. Ct.
2151 (2013). There, the Court held that any fact that increases
a mandatory minimum sentence is an element of the crime, not
merely a sentencing factor, and therefore a criminal defendant
has a right under the Sixth Amendment to the United States
Constitution to have the jury decide all such facts. Id. at
2162-2163. Those Sixth Amendment concerns are not implicated
here.
23
murder, including intent, beyond a reasonable doubt.
e. Review under G. L. c. 278, § 33E. We have reviewed the
entire record pursuant to our duty under G. L. c. 278, § 33E,
and conclude that there is no reason to order a new trial or to
reduce the degree of guilt.
Judgments affirmed.