COMMONWEALTH v. HART

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Docket Number

SJC-07614

Attorney(S)

Robert J. Carnes for the defendant. Kelly-Anne DeFao, Assistant District Attorney ( Paul C. Dawley, Assistant District Attorney, with her) for the Commonwealth.

Judges

WILKINS, C.J.

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Smart Summary

Factual and Procedural Background

The defendant was convicted of (1) murder in the first degree of Michael Moore, (2) murder in the second degree of Pierre Pauleus, (3) armed assault with intent to murder on Murray Moore, and (4) unlawful possession of an altered firearm. The shootings occurred in the Rockland apartment of Sherry Curtin on the night of February 11, 1994. Curtin and a surviving victim identified the defendant as the person who entered the apartment and shot the victims. The evidence that the defendant was the shooter was described as overwhelming.

Approximately one week earlier, the defendant and Michael and Murray Moore had committed an armed robbery in Brockton; the defendant retained a Boston Red Sox jacket taken in that robbery. On the night of the shootings the defendant and Michael Moore argued over that jacket at Curtin's apartment; the defendant left, said he would get the jacket, retrieved it, and returned about ten minutes later. His girlfriend attempted unsuccessfully to stop him from returning. Curtin admitted him; Michael reached for the jacket; the defendant then shot Michael three times and Pauleus once. Murray, who had been in the bathroom, fled toward the bedrooms and was shot in the arm. There was no evidence that the victims were armed.

Legal Issues Presented

Whether the evidence required the judge to instruct the jury on self-defense when deadly force was used.
Whether the judge's instruction on reasonable doubt (including explanation of "moral certainty") was erroneous.
Whether the prosecutor's closing remark characterizing the Moores as the defendant's "criminal associates" was improper.

Arguments of the Parties

Appellant's Arguments

The defendant argued that the evidence required a self-defense instruction and that such an instruction might have led the jury to convict of manslaughter or to acquit.
The defendant also challenges the reasonable doubt instruction on appeal despite not objecting at trial.

Commonwealth's Arguments

The Commonwealth urged that the evidence did not warrant a self-defense instruction because the defendant failed to use reasonably available means of escape before resorting to deadly force.
The Commonwealth presented the prosecutor's closing inference that the Moores were the defendant's friends and "criminal associates" as a permissible inference from the evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. Pike, ante 393, 395 (1998)	Standard of review: evidence is reviewed in the light most favorable to the defendant when assessing whether an instruction is required.	Used to frame the standard of review of the self-defense instruction claim.
Commonwealth v. Reed, 427 Mass. 100, 102-103 (1998)	When deadly force is used, a self-defense instruction is required only if evidence permits at least a reasonable doubt that the defendant reasonably and actually believed he was in imminent danger and could save himself only by deadly force.	Applied as part of the legal test for whether a self-defense instruction was required; court concluded test was not met.
Commonwealth v. Harrington, 379 Mass. 446, 450 (1980)	Supporting principle regarding the requirements for a self-defense instruction when deadly force is used.	Applied alongside Reed to define the elements necessary for giving a self-defense instruction.
Commonwealth v. Barros, 425 Mass. 572, 576-577 (1997)	Before using deadly force, a defendant must have used all proper means to avoid physical combat.	Relied upon to conclude the defendant failed to avail himself of all proper means to avoid combat.
Commonwealth v. Epsom, 399 Mass. 254, 258 (1987)	Evidence must show the defendant was left without reasonable means of escape to warrant self-defense instruction.	Applied to determine there was no evidence the defendant was left without reasonable means of escape.
Commonwealth v. Medina, 20 Mass. App. Ct. 258, 260 (1985)	Reference that a defendant who had an opportunity to retreat and did so but later returned armed affects the self-defense inquiry.	Applied to the fact that the defendant left the apartment and returned minutes later armed, undermining entitlement to a self-defense instruction.
Commonwealth v. Maguire, 375 Mass. 768, 771 (1978)	Alternatives to deadly force (e.g., calling police or staying away) are relevant to whether deadly force was necessary.	Used to note obvious alternatives were available to the defendant, supporting refusal to instruct on self-defense.
Commonwealth v. Webster, 5 Cush. 295, 320 (1850)	Traditional instruction on reasonable doubt, including explanation of "moral certainty."	The judge followed the substance of this traditional instruction; court found no error in the reasonable doubt instruction.
Commonwealth v. Andrews, 427 Mass. 434, 444-445 (1998)	Support for correctness of reasonable doubt instruction principles applied by the trial judge.	Relied upon to conclude there was no error in the reasonable doubt instruction.
Commonwealth v. Pinckney, 419 Mass. 341, 345 (1995)	Support for the trial court's reasonable doubt instruction being proper.	Applied to affirm that the reasonable doubt instruction contained no error.

Court's Reasoning and Analysis

The court reviewed the evidence in the light most favorable to the defendant. It stated the legal standard that when deadly force is used, a self-defense instruction is required only if the evidence permits at least a reasonable doubt that the defendant reasonably and actually believed he was in imminent danger of death or serious bodily harm and could save himself only by using deadly force. The court emphasized that, before using deadly force, a defendant must have used all proper means to avoid physical combat.

Applying those principles to the facts, the court observed: (1) the defendant and the Moores had recently committed an armed robbery and the defendant retained a stolen Red Sox jacket; (2) on the night in question an argument and fight occurred over the jacket; (3) the defendant left saying he would get the jacket, retrieved it, and returned about ten minutes later while his girlfriend attempted to stop him; (4) after reentry he shot Michael and Pauleus although there was no evidence the victims were armed; and (5) he had an opportunity to retreat and had in fact left the apartment before returning armed. The court concluded there was no evidence the defendant was left without any reasonable means of escape and that obvious alternatives (calling police or remaining at home) were available. On that basis the court held the evidence did not warrant a self-defense instruction because the defendant failed to use reasonably available means of escape.

Regarding the reasonable doubt instruction, the court found the judge's explanation, including the meaning of "moral certainty," followed the traditional Webster formulation and cited Andrews and Pinckney in support, concluding there was no error. The court also held the prosecutor's remark that the Moores were the defendant's "criminal associates" was a permissible inference from the evidence. Finally, the court declined to exercise its authority under G. L. c. 278, § 33E.

Holding and Implications

Judgments affirmed.

Direct effect: The defendant's convictions were affirmed and the trial judge's refusal to instruct on self-defense was upheld. The opinion did not announce a new legal rule beyond applying existing precedent and did not indicate broader implications beyond the disposition of these convictions.

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COMMONWEALTH vs. GLENN E. HART.

Practice, Criminal, Instructions to jury, Reasonable doubt, Capital case. Self-Defense. Evidence, Self-defense.

Evidence at the trial of two indictments for murder did not warrant an instruction on self-defense, where it demonstrated that the defendant failed to use reasonably available means of escape before resorting to the use of deadly force. [616]

At a murder trial, there was no error in the judge's instruction to the jury on reasonable doubt. [616]

At a criminal trial, the prosecutor properly argued a permissible inference from the evidence. [616]

WILKINS, C.J.

The defendant appeals from his convictions of (1) murder in the first degree of Michael Moore, (2) murder in the second degree of Pierre Pauleus, (3) armed assault with intent to murder on Murray Moore, and (4) unlawful possession of an altered firearm. The evidence showed that the defendant shot the victims in the Rockland apartment of a Sherry Curtin on the night of February 11, 1994. She and the surviving victim knew the defendant and identified him as the person who entered the apartment and shot the victims. The evidence that the defendant was the shooter was overwhelming.

Apart from two insubstantial claims of error that we shall discuss briefly, the defendant's appeal challenges the judge's refusal to instruct the jury on self-defense. He claims that the evidence required the giving of a self-defense instruction and argues that, if such an instruction had been given, the jury might have returned a verdict of manslaughter or even of not guilty.

The evidence, which for the purpose of assessing this argument we must review in the light most favorable to the defendant ( Commonwealth v. Pike, ante 393, 395 [1998]), did not require the giving of the requested self-defense instruction. If deadly force is used, a self-defense instruction must be given only if the evidence permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force. See id.; Commonwealth v. Reed, 427 Mass. 100, 102-103 (1998); Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). Before using deadly force, a defendant must have used all proper means to avoid physical combat. See Commonwealth v. Reed, supra.

Approximately one week before the shootings the defendant, Michael Moore, and Murray Moore committed an armed robbery of three men who were walking along a street in Brockton. The defendant drove the automobile and the Moores robbed and beat the victims. Among the items seized were the jackets of the three men, including a Boston Red Sox jacket. The defendant retained possession of that jacket.

Earlier on the night of the shootings, Michael Moore and the defendant argued at Curtin's apartment over the stolen Red Sox jacket. The argument escalated into a fight in which Murray Moore (Michael's cousin) and Pauleus joined. The defendant left the apartment, announcing that he would get the jacket. As he did so, Michael and Murray Moore each shouted that he was going to kill the defendant. The defendant walked toward his home which was located nearby. The defendant got the Red Sox jacket and started back to Curtin's apartment. His girl friend met him and tried unsuccessfully to stop him from returning to the apartment.

Approximately ten minutes after he had left the apartment, the defendant knocked on the apartment door. Curtin let him in. The defendant was carrying the jacket. Michael reached for the jacket. The defendant then shot Michael three times and Pauleus once. There was no evidence that either of these victims was armed. Murray had been in the bathroom when the defendant returned to the apartment. He heard the shots, left the bathroom, and fled through the kitchen toward the bedrooms. The defendant shot Murray in the arm.

Although the defendant may have believed (perhaps not reasonably) that he was in imminent danger of being killed or seriously injured, he did not avail himself of all proper means to avoid physical combat before resorting to the use of deadly force. See Commonwealth v. Barros, 425 Mass. 572, 576-577 (1997), and cases cited. There was no evidence that the defendant was left without any reasonable means of escape. See Commonwealth v. Pike, supra at 398-399; Commonwealth v. Epsom, 399 Mass. 254, 258 (1987). Indeed, the defendant had the opportunity to retreat and did so, but only to return a few minutes later armed with a loaded handgun. See Commonwealth v. Medina, 20 Mass. App. Ct. 258, 260 (1985). There were obvious alternatives available to the defendant, such as calling the police or simply remaining at his home. See Commonwealth v. Maguire, 375 Mass. 768, 771 (1978). Without consideration of any other aspect of the question whether a self-defense instruction was required, we hold that the evidence did not warrant the giving of such an instruction because the defendant unquestionably failed to use reasonably available means of escape.

The defendant's other arguments lack persuasive force. The defendant did not object at trial to the judge's instruction on reasonable doubt but does so now. We conclude that the instruction, particularly the explanation of what "moral certainty" means, was not erroneous. The judge followed the substance of the traditional instruction from Commonwealth v. Webster, 5 Cush. 295, 320 (1850). There was no error. See Commonwealth v. Andrews, 427 Mass. 434, 444-445 (1998); Commonwealth v. Pinckney, 419 Mass. 341, 345 (1995). Because there was no error in the reasonable doubt instruction, there was no substantial likelihood of a miscarriage of justice that would warrant relief even in the absence of an objection at trial.

In his closing argument, the prosecutor said that Michael and Murray Moore were the defendant's friends and "his criminal associates." This statement was a permissible inference from the evidence. Indeed, in his closing argument, defense counsel was critical of the Moores' violent criminal behavior.

There is nothing in the record or in the arguments on appeal that prompts us to exercise our authority under G. L. c. 278, § 33E.

Judgments affirmed.