Commonwealth v. Talkowski

604 N.E.2d 718, 33 Mass. App. Ct. 720, 1992 Mass. App. LEXIS 981
CourtMassachusetts Appeals Court
DecidedDecember 18, 1992
DocketNo. 91-P-1495
StatusPublished
Cited by3 cases

This text of 604 N.E.2d 718 (Commonwealth v. Talkowski) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Talkowski, 604 N.E.2d 718, 33 Mass. App. Ct. 720, 1992 Mass. App. LEXIS 981 (Mass. Ct. App. 1992).

Opinion

Dreben, J.

In 1976, the defendant was convicted of manslaughter on an indictment for first degree murder. No appeal was taken. In 1991,1 the defendant sought postconviction relief claiming that the jury had been given instructions as to presumed intent which violated Sandstrom v. Montana, 442 U.S. 510, 513 (1979), and that the instructions were not harmless beyond a reasonable doubt. Without explicitly determining that the instructions were erroneous, the motion [721]*721judge concluded that the defendant’s conviction must have been based on involuntary manslaughter — an unintentional killing — and hence the charge on intent was beyond any reasonable doubt inconsequential to the jury’s verdict.

On appeal from the denial of postconviction relief, the defendant concedes that if the jury found the defendant guilty of involuntary manslaughter, the instructions as to intent were harmless. He claims, however, that it is impossible to tell whether the jury convicted him of voluntary or involuntary manslaughter, and hence the judge was wrong in concluding that the instructions did not contribute to the verdict. We agree with the defendant that it cannot be determined on which theory of manslaughter the defendant was found guilty by the jury.2 Accordingly, we reverse the defendant’s conviction.

Since the Commonwealth argues that the instructions taken as a whole were valid, we must examine the challenged portions of the charge. After instructing the jury on first degree and second degree murder, the judge explained manslaughter as set forth in the margin.3 After determining that the jury did not want a recess, the judge next instructed them:

“Of course, a criminal act must include the intention to do the act on the part of the actor. You must have the [722]*722intent to do what you do, and, of course, no one knows what another person intends. You can’t read the mind of anyone else. So, when one does an unlawful act, he is by law presumed to have intended to do it and to have intended the ordinary arid natural consequences on the ground that these natural consequences must have been within his contemplation if he is the sane man and if he acts with a deliberation which ought to govern men in the conduct of their affairs. You are judged by what you do because that is how intent is inferred, because of our inability as human beings to read the mind of another.
“I used the. word there ‘inferences,’ and let me explain what an inference is and the limitations upon it. An inference is a fact you draw from another fact. If in your deliberations you find that a fact, an essential fact, has been proved beyond a reasonable doubt, you can draw inferences from the existence of that fact to the existence of another fact.”

The judge then gave the jury examples of inferences, e.g., if mail were left through the mail slot, the jury could infer that the mailman had come.

The Commonwealth urges that the subsequent discussion of inferences shows that the use of the word “presumed” was inadvertent. Even if reviewed with the “more tolerant” standard afforded instructions given in cases prior to the decision in Sandstrom, see Commonwealth v. Repoza, 400 Mass. 516, 520, cert, denied, 484 U.S. 935 (1987),4 the judge’s discussion of inferences did not sufficiently explain or modify his prior language that intent may be presumed in order “to en[723]*723sure that a juror did not misunderstand the instructions or could not view them as burden-shifting.” Id. at 521. The inference language could be interpreted as applying to inferences, other than intent, while leaving the impression that a mandatory, rather than a permissive, inference applied to intent.

Language contradicting or merely correcting a constitutionally infirm instruction will not suffice because “[a] reviewing court has no way of knowing which of two .... instructions the jurors applied in reaching their verdict.” Id. at 519, quoting from Francis v. Franklin, 471 U.S. 307, 322 (1985). Some other portion of the charge must not only correct the error, but, through explanation, must harmonize it, as well. Id. at 520. There was in the present charge no explanation of the particular infirm language; the “general instructions as to the prosecution’s burden and the defendant’s presumption of innocence [did] not dissipate the error.” Francis v. Franklin, supra at 320. Commonwealth v. Re-poza, supra at 519.

Neither the trial judge’s manslaughter instructions, see note 3, supra, nor the evidence supports the motion judge’s conclusion that the jury must have found the defendant guilty of involuntary manslaughter. Although the trial judge purported to explain involuntary manslaughter, he included a definition which encompasses voluntary manslaughter, saying: “It may be characterized by a real design and purpose to kill but without malice.” See note 3, supra. Moreover, during the course of their deliberations, the jury sent the following message to the judge, thereby indicating they wanted further instructions: “Definition of manslaughter, second degree, first degree.”

In response, the judge discussed the degrees of murder and then defined manslaughter as follows:

“And manslaughter, as I have indicated to you: that the crime of manslaughter imports the taking of a human life by an act not justified in law, but without the malice aforethought which is necessary to constitute murder. That is the difference between murder either in the [724]*724first or second degree and manslaughter. In manslaugh- • ter it is not necessary to show malice, the malice that I have described in its legal meaning.
“Manslaughter may be committed by an act which constitutes such a disregard of probable consequences to another as to constitute wanton, reckless conduct.”

The defendant’s counsel objected to the definition because the judge did not, according to counsel, describe the two parts of manslaughter, voluntary and involuntary. The judge then gave the additional instruction set forth in the margin.5

Looking at the manslaughter instructions, we cannot accept the Commonwealth’s view that the jury were not instructed on voluntary manslaughter and that the discussion of that offense was only intended to clarify the instructions on involuntary manslaughter.

When we examine the evidence before the jury, a verdict of voluntary manslaughter becomes a distinct possibility. We have reviewed the entire transcript and concur with the following narrative of events by the motion judge, to which we have added a few interpolations.

“On December 14, 1975, William Rogers was shot to death during a street altercation occurring outside a house at 22 Granville Street in Dorchester. The cause of death was a gunshot wound to the victim’s chest. Three defendants, Talkowski, his sister [Cathy Rack-auskas] and his former wife were indicted and tried for first-degree murder of William Rogers. A directed verdict was ordered for [the defendant’s] wife early in the trial.

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Cite This Page — Counsel Stack

Bluebook (online)
604 N.E.2d 718, 33 Mass. App. Ct. 720, 1992 Mass. App. LEXIS 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-talkowski-massappct-1992.