Commonwealth v. Anderson

682 N.E.2d 859, 425 Mass. 685, 1997 Mass. LEXIS 194
Massachusetts Supreme Judicial Court·Decided August 4, 1997·Published·Cited by 27 cases

Opinion

Marshall, J.

On December 10, 1975, a Suffolk County jury convicted the defendant, Robert Anderson, of murder in the first degree (by reason of deliberate premeditation or felony-murder), armed robbery, and the unlawful carrying of a firearm.2 On December 18, 1975, the defendant filed a notice of appeal, but no further steps were taken in connection with his appeal. On May 17, 1977, the trial judge dismissed the appeal. On September 17, 1996, a single justice of this court allowed the defendant’s petition to reinstate his appeal pursuant to G. L. c. 211, § 3.

The defendant argues that the trial judge’s instructions on reasonable doubt impermissibly reduced the Commonwealth’s burden of proof, and that his armed robbery conviction is duplicative of his murder conviction. The defendant also asks that, pursuant to G. L. c. 278, § 33E, we order a new trial or reduce the verdict. We conclude that the trial judge properly instructed the jury on proof beyond a reasonable doubt, and that there is no basis to exercise our power under G. L. c. 278, § 33E. We also conclude that the defendant’s armed robbery conviction may have been duplicative of his conviction of murder in the first degree, and we vacate his conviction of armed robbery.

We summarize the facts as the jurors could have found them, in the light most favorable to the Commonwealth. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997). On December 10, 1974, at approximately 4 p.m., the victim’s fifteen year old son was tending the cash register in the victim’s shoe repair shop in the Roxbury section of Boston when the defendant, one Jerry Funderberg, and a man known as “Pabst” entered the shop.3 In response to a request for change from one of the men, the victim’s son opened the register, whereupon “Pabst” reached in and removed money from the cash drawer. The victim emerged from the rear of the store. The defendant and Funderberg both had guns. As the victim walked toward them, they [687] both fired several shots, fatally wounding the victim.4 The three men then fled to a nearby housing project.

An apartment at the housing project was used as a “shooting gallery” where customers could pay a fee to use heroin. The three men arrived there out of breath, some time after 4 p.m. Both the defendant and Funderberg were carrying pistols. The three men argued over the amount of money they had taken, “Pabst” purchased some heroin from a seller in a different apartment in the building, and all three men then retreated into a back room of the apartment. The police arrived while the men were still there, but left without searching the apartment when the proprietor of the “shooting gallery” asked them for a search warrant. Several days later, Funderberg boasted to the proprietor that he had shot the victim.

On the evening of the robbery, the defendant returned a .32 caliber revolver to Wilbur Billings that he had borrowed earlier that same day. Three of the chambers were empty. The defendant explained to Billings that he had used the bullets when “a dude was coming at him with a piece and he wasn’t about to let the dude hurt him so he had to cap him.”5

On March 2, 1975, the police arrested the defendant. That same day, and again on March 3, the defendant made statements to the police that were recorded, in which he confessed to his involvement in the robbery and the shooting of the victim. Although he admitted to firing three shots at the victim, he said that he had intentionally aimed his weapon to miss the victim.

1. Jury instructions on reasonable doubt. The defendant argues that errors in the judge’s instruction, quoted in the margin,6 improperly lowered the Commonwealth’s burden of [688] proof in violation of Ms due process rigMs under the Fifth and Fourteenth Amendments to the Urnted States Constitution and art. 12 of the Massachusetts Declaration of Rights. Specifically, the defendant claims that the judge failed to express the “near certainty” required for conviction, erroneously used the pMase “doubt based on reason,” and improperly defined “reasonable doubt” in negative terms without'balancing the defimtion with positive terms. At trial the defendant did not object to the portion of the charge regarding reasonable doubt; we review the challenged instruction under G. L. c. 278, § 33E, to determine whether the instruction on reasonable doubt created a substantial likelihood of a miscarriage of justice. Commonwealth v. Torres, 420 Mass. 479, 483 (1995).7

When we review a jury instruction to determine whether the charge unconstitutionally diminishes the Commonwealth’s burden of proof, we consider “whether a reasonable juror could have used the instruction incorrectly.” Commonwealth v. Rosa, [689] 422 Mass. 18, 27 (1996).8 In making that determination, we review the charge as a whole. See id.; Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995), quoting Victor v. Nebraska, 511 U.S. 1, 5 (1994) (“taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury”); Commonwealth v. Libby, 405 Mass. 231, 234 (1989) (defendant’s claim is not supported “by a reading of the charge as a whole”); Commonwealth v. Lanoue, 392 Mass. 583, 591 (1984), S.C., 400 Mass. 1007 (1987), and 409 Mass. 1 (1990) (“propriety of [reasonable doubt] instructions must be determined from a consideration of the charge as a whole and not from a consideration of isolated portions”). Reviewing the jury charge in its entirety, we are satisfied that in this case the judge properly instructed the jury on reasonable doubt.

First, we do not agree that the trial judge impermissibly failed to instruct the jury that a “near certitude” was required for conviction. See Jackson v. Virginia, 443 U.S. 307, 315 (1979). According to the defendant, the “heart” of the traditional charge stemming from Commonwealth v. Webster, 5 Cush. 295, 320 (1850), is the language requiring that the Commonwealth prove its case to a “moral certainty.” Where we have approved of alternative jury instructions, he says, other language approximating “near certitude” has been substituted.

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Commonwealth v. Anderson, 682 N.E.2d 859, 425 Mass. 685, 1997 Mass. LEXIS 194 (Mass. 1997).

682 N.E.2d 859 (Commonwealth v. Anderson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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