COMMONWEALTH v. KELCOURSE, Mass., Judgment, Law, casemine.com

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Attorney(S)

Carol A. Donovan, Committee for Public Counsel Services, for the defendant. Ann E. Rascati, Assistant District Attorney, for the Commonwealth.

Judges

WILKINS, J.

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Smart Summary

Factual and Procedural Background

The defendant, Jeffrey R. Kelcourse, was indicted for murder in the first degree following an incident in which he, after drinking alcoholic beverages, engaged in an argument with the victim, retrieved a shotgun, reloaded it, and shot the victim. The indictment was returned by a grand jury on January 12, 1987. A motion to dismiss the indictment was heard and denied, and the case proceeded to trial where the defendant was convicted of murder in the second degree. The defendant appealed, and the Supreme Judicial Court granted direct appellate review.

Legal Issues Presented

Whether the indictment should be dismissed due to an allegedly erroneous statement of law by the prosecutor to the grand jury regarding the relevance of intoxication evidence to a murder indictment.
Whether the trial judge’s instructions to the jury concerning voluntary intoxication and its effect on the proof of malice were erroneous and warranted a new trial.

Arguments of the Parties

Defendant's Arguments

The defendant contended that the indictment should be dismissed because the prosecutor incorrectly instructed the grand jury that evidence of intoxication was irrelevant to a murder indictment, thereby impairing the grand jury process and violating his rights under Massachusetts law and the Fourteenth Amendment.
The defendant argued that the jury instructions were flawed because the judge required the jury to "find" intoxication before considering it as evidence, which improperly shifted the burden of proof and affected the jury’s consideration of malice.

Commonwealth's Arguments

The Commonwealth maintained that the prosecutor’s statement to the grand jury was technically correct and did not misstate the law or impair the grand jury’s function.
The Commonwealth argued that the judge’s instructions, taken as a whole, properly conveyed the burden of proof and the role of voluntary intoxication as an evidentiary factor, not as a defense requiring proof by the defendant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. McCarthy, 385 Mass. 160 (1982)	Insufficiency of evidence before grand jury as a basis for dismissal	Confirmed that the defendant made no claim that the evidence was insufficient to support the indictment.
Attorney Gen. v. Pelletier, 240 Mass. 264 (1922)	Prosecutor’s role in advising grand jury on law without expressing opinion or irrelevant facts	Supported the principle that a prosecutor may advise the grand jury on the law in appropriate instances but must avoid improper influence.
Commonwealth v. Favulli, 352 Mass. 95 (1967)	Prohibition on prosecutor’s conduct that invades grand jury’s province or induces unwarranted action	Reinforced the standard for prosecutorial conduct before a grand jury to preserve its integrity.
Commonwealth v. Mayfield, 398 Mass. 615 (1986)	Standards for evaluating claims of false or deceptive evidence presented to grand jury	Outlined the heavy burden on a defendant to prove intentional or reckless falsehood influencing indictment.
Commonwealth v. Reddington, 395 Mass. 315 (1985)	Good faith inaccurate testimony does not automatically require dismissal	Applied to conclude no dismissal was warranted absent intentional misconduct.
Commonwealth v. O'Dell, 392 Mass. 445 (1984)	Grand jury process impaired by deliberate excision of exculpatory statements	Distinguished from the present case where no such misconduct occurred.
Commonwealth v. McGahee, 393 Mass. 743 (1985)	Grand jury process not impaired by prosecutor’s failure to inform grand jury of witness’s inability to identify defendant	Used to illustrate that not all omissions impair grand jury integrity.
Commonwealth v. Seminara, 20 Mass. App. Ct. 789 (1985)	Misstatement of law by prosecutor does not necessarily require dismissal of indictment	Supported the conclusion that the prosecutor’s technically correct statement here did not warrant dismissal.
Morrissette v. Commonwealth, 380 Mass. 197 (1980)	Standards for grand jury indictment validity	Referenced in support of grand jury procedural standards.
Commonwealth v. Grey, 399 Mass. 469 (1987)	Proper jury instruction on voluntary intoxication relevance to malice	Confirmed that voluntary intoxication is relevant to malice and proper jury instructions must reflect this.
Commonwealth v. Glass, 401 Mass. 799 (1988)	Voluntary intoxication affects capacity to form specific intent	Supported the principle that intoxication is an evidentiary factor on intent.
Commonwealth v. Sylvester, 400 Mass. 334 (1987)	Voluntary intoxication as evidentiary factor; burden of proof remains with Commonwealth	Applied to affirm that jury instructions must emphasize Commonwealth’s burden despite intoxication evidence.
Commonwealth v. Sinnott, 399 Mass. 863 (1987)	Similar to Sylvester on intoxication and burden of proof	Reinforced the proper jury instruction framework for intoxication evidence.
Commonwealth v. Costello, 392 Mass. 393 (1984)	Commonwealth not required to disprove intoxication	Supported the court’s rejection of defendant’s claim that intoxication must be proved by prosecution.

Court's Reasoning and Analysis

The court first addressed the defendant’s claim regarding the prosecutor’s statement to the grand jury that no blood alcohol test had been conducted and that such evidence was not relevant to a murder indictment. The court found the prosecutor’s statement to be technically correct, as no such test is a prerequisite for a murder indictment. The defendant's argument that the grand jury might have inferred otherwise was deemed speculative and unsupported by any indication of intentional or reckless misstatement by the prosecutor. The court emphasized the heavy burden on the defendant to show that any false or deceptive evidence was knowingly presented to influence the grand jury, which was not met here.

Regarding the jury instructions, the court acknowledged the presence of "finding" language concerning voluntary intoxication but concluded that the charge as a whole made clear that the Commonwealth bore the burden of proving specific intent beyond a reasonable doubt. The judge's repeated emphasis on the prosecution's burden and the role of voluntary intoxication as an evidentiary factor satisfied legal standards. The court found no prejudicial error in the instructions.

Holding and Implications

The Supreme Judicial Court affirmed the defendant’s conviction.

The court held that the indictment was not subject to dismissal based on the prosecutor’s technically correct statement to the grand jury, and that the jury instructions concerning voluntary intoxication and malice were legally sound and non-prejudicial. The direct consequence is the upholding of the defendant’s conviction for second degree murder. The opinion did not establish any new legal precedent beyond reaffirming existing principles governing grand jury conduct and jury instructions on intoxication.

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COMMONWEALTH vs. JEFFREY R. KELCOURSE.

Homicide. Practice, Criminal, Dismissal, Indictment, Grand jury proceedings, Comment by prosecutor, Instructions to jury. Grand Jury. Constitutional Law, Grand jury. Malice. Intent. Intoxication.

No ground for dismissal of a first degree murder indictment was presented by a prosecutor's technically correct statement of law to the grand jury, where there was no indication of an intentional or reckless misstatement by the prosecutor; where the possibility that the jury might have drawn the wrong inference from the statement was speculative; and where the evidence overwhelmingly supported an indictment for murder in the first degree rather than a lesser offense. [467-469] Despite certain "finding" language in the judge's instructions to the jury at a murder trial with regard to the defendant's voluntary intoxication, the judge's charge as a whole made it clear that the Commonwealth had the burden of proving the defendant's specific intent where specific intent was an element of malice. [469-470]

WILKINS, J.

Convicted of murder in the second degree on an indictment charging murder in the first degree, the defendant has appealed, raising two issues. We granted his application for direct appellate review. We affirm.

There was evidence before the grand jury and at trial that the defendant had been drinking alcoholic beverages shortly before he had a senseless argument with the victim, left and obtained his shotgun, unloaded it, then reloaded it, and shot the victim. No further facts concerning the commission of the crime are necessary to the presentation and resolution of the issues.

1. The defendant argues that the indictment should have been dismissed because, it is claimed, the prosecutor erroneously instructed the grand jury on a point of law. He makes no claim that the evidence before the grand jury was insufficient to support the indictment. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).

A police officer who had responded to the defendant's telephone call reporting that he had killed someone and later was present when the defendant made a highly inculpatory statement at the police station, testified before the grand jury. At the conclusion of his testimony, the prosecutor asked the jury if there were any more questions. The following then occurred:

THE JUROR: "Was Mr. Kelcourse given a breathalyzer test?"

THE WITNESS: "No."

THE JUROR: "There was no blood test to ascertain the level of alcohol?"

THE WITNESS: "No."

THE PROSECUTOR: "That really isn't relevant to a murder indictment. Anything else of this witness? Okay. Thank you."

The defendant moved to have the indictment dismissed on the ground that the prosecutor's statement impaired the integrity of the grand jury process. The motion was denied.

We start with the fact that the prosecutor's statement was technically correct. Whether a blood test had been conducted to ascertain the level of alcohol in the defendant's blood was not relevant to a murder indictment. No such test need be performed as a condition precedent to such an indictment.

The defendant argues that the jury reasonably could have inferred from the prosecutor's answer that evidence of the defendant's intoxication was not relevant to a murder indictment. He claims that his right under G.L.c. 277, § 79 (1986 ed.), to have the grand jury decide the degree of murder to be charged was impaired, as well as his right under art. 12 of the Massachusetts Declaration of Rights to a proper grand jury proceeding and his Fourteenth Amendment right to due process (cf. Hicks v. Oklahoma, 447 U.S. 343, 345-347 [1980]).

A prosecutor may advise a grand jury on the law "in appropriate instances." Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922). In so doing, he may not express his own opinion, make arguments, or state facts which are not relevant to the guilt or innocence of the person under inquiry. Id. at 307-308. In presenting the law as well as the facts, he must "scrupulously refrain from words or conduct that will invade the province of the grand jury or tend to induce action other than that which the jurors in their uninfluenced judgment deem warranted on the evidence fairly presented before them." Commonwealth v. Favulli, 352 Mass. 95, 106 (1967). See Commonwealth v. Mayfield, 398 Mass. 615, 620-621 (1986).

The defendant has a heavy burden. In considering a claim that false or deceptive evidence was presented to a grand jury, we have said that a defendant must show that (1) the evidence was given to the grand jury knowingly or with reckless disregard for the truth and for the purpose of obtaining an indictment, and (2) that the evidence probably influenced the grand jury's determination to indict the defendant. Id. at 621. Inaccurate testimony given in good faith does not by itself require dismissal. Id. at 620. Commonwealth v. Reddington, 395 Mass. 315, 319-320 (1985). Compare Commonwealth v. O'Dell, 392 Mass. 445, 449 (1984) (grand jury process impaired by prosecutor's deliberately excising exculpatory portions of a statement) with Commonwealth v. McGahee, 393 Mass. 743, 747-748 (1985) (grand jury process not impaired by prosecutor's failure to inform grand jury of a witness's inability to identify defendant at probable cause hearing). See also Commonwealth v. Petras, 26 Mass. App. Ct. 483, 487-489 (1988), cert. denied, U.S. (1989) (109 S.Ct. 1537 [1989]); Commonwealth v. Pond, 24 Mass. App. Ct. 546, 552 (1987).

There is no indication of an intentional or reckless misstatement by the prosecutor. The possibility that the grand jury might have drawn the wrong inference from a correct statement of law is speculative. It is most unlikely, in any event, that the grand jury would have decided to indict the defendant only for murder in the second degree if the prosecutor's remark had not been made. Even an assistant district attorney's misstatement of the law, suggesting that certain defendants had admitted in District Court proceedings that there was probable cause to believe that they had committed a crime, has not, in the circumstances, required dismissal of indictments. Commonwealth v. Seminara, 20 Mass. App. Ct. 789, 793-794 (1985). See Morrissette v. Commonwealth, 380 Mass. 197, 200 (1980). Here any chance that the grand jury would have decided differently was minimal where the evidence, including the defendant's confession to the police, overwhelmingly supported an indictment for murder in the first degree.

2. We reject the defendant's argument that he is entitled to a new trial on the ground that the judge misinstructed the jury on the consequences of the consumption of alcohol in relation to the proof of malice. His claim is that, although the judge properly instructed the jury on the relevance of voluntary intoxication to the existence of malice (see Commonwealth v. Grey, 399 Mass. 469, 470-471 [1987]), he should not have told the jury that they had to "find" that the defendant was intoxicated before they could consider evidence of his intoxication. The voluntary consumption of alcohol bears on the defendant's capacity to have a specific intent to do something. Commonwealth v. Glass, 401 Mass. 799, 809-810 (1988). Commonwealth v. Sylvester, 400 Mass. 334, 336 (1987). The Commonwealth, however, did not have to prove that the defendant was not intoxicated. See Commonwealth v. Costello, 392 Mass. 393, 405 (1984). Voluntary intoxication is merely "an evidentiary factor which the jury can consider" on questions of premeditation and malice. Commonwealth v. Sylvester, 400 Mass. 334, 338 (1987). Commonwealth v. Sinnott, 399 Mass. 863, 879-880 (1987).

Although there is "finding" language in the jury instructions (i.e., "if you find that he was voluntarily intoxicated"), the charge as a whole made it abundantly clear that the Commonwealth wealth had the burden of proving the defendant's specific intent where specific intent was an element of malice. See Commonwealth v. Sylvester, supra at 337-338; Commonwealth v. Sinnott, supra at 880. The judge not only properly and repeatedly instructed on the burden of proof, he expressly told the jury "if I've used expressions in these instructions such as `If you find —' or `If you decide —' or `If it is determined —' or `If it is proved —' I use such expressions always in the context of the prosecution having the burden of proof with respect to guilt beyond a reasonable doubt." There was not prejudicial error in the judge's charge.

The judge charged in part as follows: "And as I've told you, the law is that a jury should consider evidence of mental impairment whenever the Commonwealth has the burden of proving the defendant's specific intent to cause a particular result. Therefore, you should consider whether the defendant's voluntary intoxication, if you find such, so overcame the defendant or so substantially reduced his mental capacity that he was incapable of forming the required specific intent to kill or do grievous bodily harm. If so, and if the Commonwealth has not proved beyond a reasonable doubt that the defendant acted with malice aforethought under the third standard I just recited to you, then you must find the defendant not guilty of second degree murder."
Later, he said: "Also, if you find that the Commonwealth has proved beyond a reasonable doubt that the defendant unlawfully killed Terence Thatcher, and that he had the required specific intent to kill or to do grievous bodily harm, the defendant's intoxication, if any, does not reduce his crime."

Judgment affirmed.

COMMONWEALTH v. KELCOURSE