Commonwealth v. Santos , 454 Mass. 770 ( 2009 )

Cowin, J.

A jury in the Superior Court convicted the defendant of murder in the first degree on the theory of deliberate premeditation. The defendant, appealing from the conviction and from the denial of his motion for a new trial, asserts that the jury instructions on voluntary manslaughter were erroneous; that admission of testimony of the medical examiner (who was not the medical examiner who performed the autopsy on the victim) violated the defendant’s right of confrontation; and that it was error to deny his motion for a new trial, where, at a minimum, the motion judge¹ should have authorized funds for a ballistics expert.² We conclude that the trial judge’s instructions on manslaughter with respect to the use of excessive force in self-defense were erroneous and that, although not objected to at trial, the error created a substantial likelihood of a miscarriage of justice. Accordingly, we reverse the conviction.³

1. Background. There was no dispute that the defendant, angered by sexual advances the victim had made to the defendant’s girl friend, confronted the victim in the victim’s apartment and killed him. The victim’s naked body was discovered by the Lowell police on the evening of October 18, 2002, “slumped” in the bathtub, with the water running from the faucet. It did not appear to the police that there had been a struggle in the bathroom. The room was small, approximately six feet two inches by five feet eight inches, and the tub consumed about half that space; the victim and defendant weighed over 200 pounds each; and most of the items on the bathroom shelves were standing upright when the police observed the scene.

Discharged cartridge casings were found on the bathroom floor, on the bathroom shelf, and in the toilet bowl. A nine-millimeter spent projectile was located under the victim in the tub and a second bullet was found in his body during the autopsy. A State police ballistician opined that three shots were fired in the bathroom, all from the same weapon, and that the third projectile was washed down the open tub drain in the running water.

The shower curtain had three bullet holes in it, two of which were made by the same bullet passing through a fold in the curtain. A State police chemist believed that, because these holes contained copper and lead but no gunpowder residue, they were made by a gun fired from at least three to four feet away. Bullets had struck but not penetrated the vinyl in the shower “surround” in two places; one was fifty-eight inches from the bottom of the tub and the other was twenty inches.

The Commonwealth contended that the defendant came to the apartment and shot the defenseless victim three times while the victim was in his bathtub. The defense theory was that the killing occurred in self-defense. The defendant’s girl friend testified⁴ that, when the defendant approached the victim, the victim “grabbed” a gun from a cupboard above the bathroom sink, the two men grappled for the weapon, and while they were fighting over it, the victim “got shot,” with the defendant left holding the gun.

In his own statement to the police, repeated at trial by a police officer, the defendant stated that, when the victim reached for a gun on the shelf, he (the defendant) pushed the victim into the tub, grabbed the gun, and shot the victim. “If I didn’t he would have killed me.”

2. Discussion, a. Erroneous jury instruction. The defendant contends that error in the judge’s instructions on excessive force in self-defense requires reversal. Trial counsel did not object to the instructions on the grounds the defendant now asserts. We therefore determine whether there was error and, if so, whether that error created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Carlino, 429 Mass. 692, 695-696 (1999).

Before a defendant is entitled to an instruction on self-defense with a dangerous weapon likely to cause serious injury or death, there must be evidence that he had a reasonable apprehension of great bodily harm or death and a reasonable belief that no other means would suffice to prevent such harm. That is, the proper exercise of self-defense means that a person in the defendant’s circumstances would reasonably believe that he was about to be attacked and that he was in immediate danger of being killed or seriously injured, and that there was no other way to avoid the attack. A person using a dangerous weapon (or deadly force) in self-defense must also have actually believed that he was in imminent danger of serious harm or death. A person may not use force in self-defense until he has availed himself of all proper means to avoid physical combat, and must use no more force than reasonably necessary in all the circumstances. See Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). The defendant is entitled to an instruction on self-defense with a dangerous weapon if the evidence, from any source, would warrant a finding in his favor on that issue. Id. The testimony from the defendant’s girl friend that the victim grabbed a gun and that the defendant struggled with the victim for the gun during which time the gun went off, together with the defendant’s statement to the police that he believed the victim would kill him, was sufficient to require an instruction on self-defense with a dangerous weapon. See Commonwealth v. Kendrick, 351 Mass. 203, 211 (1966).

The Commonwealth argues that, once the defendant pushed the victim into the tub and disarmed him, the naked victim “no longer presented a threat to anyone,” Commonwealth v. Medina, 430 Mass. 800, 811 (2000), and that self-defense could not explain why the defendant shot the victim three times. The Commonwealth’s version of events ignores the girl friend’s testimony.⁵ For purposes of determining whether the evidence warrants an instruction on self-defense with a dangerous weapon, we do not balance the testimony of the witnesses for each side, nor do we consider the credibility of the evidence. Commonwealth v. Vander-pool, 367 Mass. 743, 746 (1975). The evidence most favorable to the defendant is that the gun went off during a struggle, thereby entitling the defendant to a self-defense instruction.

An instruction on the use of excessive force was also appropriate. “Ordinarily the question how far a party may properly go in self defen[s]e is a question for the jury, not to be judged of very nicely, but with due regard to the infirmity of human impulses and passions.” Commonwealth v. Kendrick, supra, quoting Monize v. Begaso, 190 Mass. 87, 89 (1906). We proceed to consider whether the judge’s instructions on the use of excessive force in self-defense were correct.

After explaining the right of self-defense, the judge stated:

“[Ejven if a person is entitled to use force in self-defense, he may not use excessive force in defending himself. A person may use only such force in self-defense as appears reasonably necessary to prevent the initiation, a continuation, or the recurrence of an attack. The law does not permit retaliation, and if a person’s conduct is not privileged when greater force or harsher means are used than reasonably appear to be necessary, then that person is not entitled to a defense of self-defense.”

This passage effectively informed the jury that, if a defendant otherwise entitled to defend himself uses excessive force, he loses the defense of self-defense altogether. The correct rule is that a defendant who uses excessive force in self-defense is entitled to a verdict of manslaughter. Here, the instruction communicated the opposite, specifically, that a finding of excessive force eliminated any consideration of self-defense, and that the jury were free to return a verdict of murder if otherwise satisfied that a murder had occurred. Thus, we cannot discern from the verdict whether the jury returned a verdict of murder because they rejected the defendant’s assertion of self-defense altogether, or because they had been led to believe that excessive force in self-defense permitted a murder finding. See Commonwealth v. Kendrick, supra.

The dissent states that the court has taken this instruction “out of context” and failed to recognize that this instruction “defined the excuse or justification of self-defense . . . , which it did correctly, and did not define the mitigating factor of excessive use of force in self-defense.” See post at 780. The concept that the judge conveyed to the jury was that excessive force negates self-defense altogether, a proposition that is incorrect. This error could have influenced the outcome of the deliberations, particularly in conjunction with the judge’s later equation of excessive force with murder. See infra.

Citing Commonwealth v. Glacken, 451 Mass. 163, 167 (2008), and Commonwealth v. Little, 431 Mass. 782, 787 (2000), the dissent states that, in the event that the Commonwealth proves that the defendant used excessive force, “then the defense of self-defense fails, but the mitigating factor of use of excessive force in self-defense survives, and the jury would be warranted only to return a verdict of voluntary manslaughter, not of murder.” Post at 781.

The Glacken and Little decisions say nothing about the defense of self-defense “failing” in these circumstances, and such a concept defies logic. The jury cannot reach the question of excessive force in self-defense unless they decide that the defendant has exercised his right of self-defense in the first place. Once the jury so decide, the existence of self-defense does not disappear from the case; the very term we have employed (excessive force in self-defense) demonstrates as much. What the Glacken and Little decisions stand for is the correct proposition that the use of excessive force deprives the defendant of his right to be acquitted altogether, entitling him instead to a verdict of manslaughter.

The judge’s error was compounded when, later in the charge, he stated: “However, if the means used were unreasonable and clearly excessive in light of the existing circumstances or if the defendant himself became the attacker, then the defendant may be found guilty of murder.” That portion of the charge was, as the dissent concedes, see post at 786, plainly incorrect because excessive force in self-defense requires a manslaughter conviction. The jury should have been instructed, in accordance with Commonwealth v. Kendrick, supra at 211, “that if the use of the [gun] by the defendant as a means of averting harm to himself was unreasonable and clearly excessive in light of the existing circumstances, they could conclude that the defendant himself became the attacker and, since death resulted from his use of excessive force, he would be guilty of manslaughter.” The legal consequence of using disproportionate violence in the otherwise lawful exercise of self-defense was thus presented to the jury erroneously.

Between these two incorrect instructions, the judge did state that, “if the defendant killed the victim by virtue of the use of excessive force in self-defense, the defendant may be found guilty of the crime of manslaughter.” Unfortunately, use of the word “may” erroneously altered what was an otherwise accurate instruction. See Commonwealth v. McLaughlin, 433 Mass. 558, 563 (2001) (permissive language should not be used where mandatory language is required). If the defendant killed the victim by the use of excessive force in self-defense, the defendant must be found guilty of manslaughter; the jury cannot be given the option of considering that a murder has been committed. In any event, even had this instruction been correct, it was “sandwiched” between two incorrect instructions, see id. at 562, rendering the “center of gravity of the . . . instructions . . . strongly on the side of misstatement.” Commonwealth v. Acevedo, 427 Mass. 714, 111 (1998).

The dissent disagrees that the judge should not have used the word “may,” and believes that any harm that word might have caused was dissipated by the judge’s later general instruction, at the behest of defense counsel, that “he did not mean to compel them to make any finding on any issue.” See post at 785-786. The judge failed to make clear to the jury, however, that murder was unavailable.

Because the defendant did not object to the erroneous instructions at trial, we consider whether the errors created a substantial likelihood of a miscarriage of justice. Self-defense and excessive force in self-defense were obvious issues in the case; the evidence required that those issues be submitted to the jury; and the judge instructed on the issues, although incorrectly in some respects. The evidence warranted a finding of excessive force in self-defense, and if the jury so found, the defendant was entitled to a verdict of manslaughter. There can be no doubt of a miscarriage of justice if a defendant guilty of manslaughter is serving the penalty for murder. See Commonwealth v. Richards, 384 Mass. 396, 405 (1981).

The dissent seeks to avoid this conclusion by stating that the jury could not have found in the defendant’s favor on the threshold facts, and that therefore errors in the instructions were inconsequential. See post at 786-787. The dissent reaches this conclusion by examining each of three different versions of the event⁶ independently, and then arguing that each version inexorably leads to a result inconsistent with a finding of excessive force in self-defense. Id. Passing the fact that the argument discusses the weight of the evidence (not this court’s function), the contention assumes that the jury could only have adopted or rejected one of the three versions in its entirety. This is not the case. The jury are entitled to pick and choose among conflicting versions, accepting or rejecting all or portions of the testimony as they see fit. Koonce v. Commonwealth, 412 Mass. 71, 75 (1992). We do not attempt to penetrate the jury’s thought process. Commonwealth v. Kincaid, 444 Mass. 381, 391 (2005). We know only that the jury permissibly could have found that the victim died as the result of excessive force in self-defense, and that they were told that such a finding allowed a verdict of murder.

For the reasons stated, the conviction must be reversed. Our decision makes it unnecessary to consider the defendant’s remaining contentions with respect to the instructions. We turn to a discussion of other issues that may arise at a retrial.

b. Medical examiner testimony. The defendant argues on appeal that his right of confrontation secured by the Sixth Amendment to the Federal Constitution and art. 12 of the Massachusetts Declaration of Rights was violated by the admission of Dr. Richard Evans’s testimony regarding the autopsy findings of another medical examiner, Dr. Alexander M. Chirkov. In other words, he contends that, to the extent that Dr. Evans’s testimony reflected written statements of Dr. Chirkov, the defendant was deprived of the opportunity to cross-examine the witness who was actually providing substantive testimonial information. In a related argument, he states that counsel was ineffective in failing to object to the testimony of Dr. Evans.

Prior to trial, the Commonwealth informed the defendant that Dr. Chirkov, the medical examiner who had performed the autopsy, had left the medical examiner’s office and that another medical examiner, Dr. Evans, was prepared to testify to the contents of Dr. Chirkov’s report. Claiming that the case of Crawford v. Washington, 541 U.S. 36 (2004), barred Dr. Evans from testifying in this manner, defense counsel filed a motion in limine to exclude that testimony. The judge denied the motion in limine. Before calling Dr. Evans, however, the Commonwealth agreed that the doctor would limit his testimony to the contents of Dr. Chirkov’s report. Despite the fact that a Crawford issue, if any, had not been removed, defense counsel indicated his consent with this limitation, and agreed that Dr. Evans could testify in place of Dr. Chirkov. Given the defendant’s agreement, there was no error in admitting the testimony.

On appeal, the defendant reasserts his argument that the Crawford decision prohibited the testimony of Dr. Evans, and argues that his trial counsel was therefore ineffective for agreeing that such testimony could be received. “In evaluating a claim of ineffective assistance of counsel in a case of murder in the first degree, we begin by determining whether there was a serious failure by trial counsel.” Commonwealth v. Harbin, 435 Mass. 654, 656 (2002). Serious failure of counsel means “serious incompetency, inefficiency, or inattention of counsel — behavior falling measurably below that which might be expected from an ordinary, fallible lawyer.” Commonwealth v. Shuman, 445 Mass. 268, 276 (2005), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A tactical decision by trial counsel is considered ineffective assistance only if such a decision was manifestly unreasonable when made. Commonwealth v. Martin, 427 Mass. 816, 822 (1988). If there is such a failure by counsel, we must resolve “whether counsel’s failure gives rise to a substantial likelihood of a miscarriage of justice, i.e., whether it was ‘likely to have influenced the jury’s conclusion.’ Commonwealth v. Mitchell, 428 Mass. 852, 854 (1999), quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992).” Commonwealth v. Diaz, 448 Mass. 286, 289 (2007).

We conclude that defense counsel’s choice to permit the introduction of Dr. Evans’s testimony, if limited to the report of Dr. Chirkov, was hardly unreasonable, see Commonwealth v. Saferian, supra. The defense used Dr. Chirkov’s material, as well as Dr. Evans’s testimony, to support its self-defense theory. To document the nature of the injuries to the victim, the defendant introduced the diagram prepared by Dr. Chirkov and explained by Dr. Evans. Then, in his closing argument, defense counsel relied on Dr. Evans’s testimony admitting that he could not say what position the victim was in when he was shot, as well as the report and chart of Dr. Chirkov regarding the location of the wounds to argue that the victim was standing and within reach of the gun when he was shot. Thus, “the defense . . . depended on getting at least some of [Dr. Chirkov’s] findings before the jury.” Commonwealth v. Nardi, 452 Mass. 379, 395 (2008).

Although the issue whether one medical examiner may testify about the facts contained in an autopsy report prepared by another may arise at a retrial, it is unnecessary for us to rule on such question. The issue may arise in a different form at retrial; in any event, to the extent the issue is a live one at retrial, the judge and the parties may seek guidance from Commonwealth v. Avila, ante 744, 759-765 (2009); and Commonwealth v. Hensley, ante 721, 731-734 (2009).⁷

Judgment reversed.

1 The trial judge having died, the defendant’s motion for a new trial was heard and decided by another judge.

2 Appellate counsel’s brief was supplemented by a so-called Moffett brief filed by the defendant himself, see Commonwealth v. Moffett, 383 Mass. 201, 207-209 (1981), and we have considered both briefs.

3 Given our disposition of the direct appeal, the motion for a new trial is moot.

4 The girl friend recounted what the defendant had told her, and the testimony was admitted without objection by the Commonwealth.

5 The Commonwealth’s assertion is that, before any shots were fired, the defendant had control of the weapon and that, therefore, the defendant was no longer acting in self-defense; he could have left the apartment and it was not necessary to shoot the victim at all, much less three times.

6 The versions are those contained in the defendant’s statement to the police, his girl friend’s statement to the police together with her grand jury and direct testimony, and his girl friend’s testimony on cross-examination.

7 The final issue raised by the defendant, i.e., denial of his posttrial motion for funds for an expert ballistician, is now moot. In the event of a retrial, the matter of funds for experts most likely will be resolved pretrial.