Criminal Law – Homicide – Jury Instructions – Malice

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Where, during a homicide trial, a judge (1) explained the meaning of the second and third prongs of malice when the murder charge was being sent to the jury solely on the basis of deliberate premeditation and (2) did not frame a jury instruction on involuntary manslaughter, this caused no substantial likelihood of a miscarriage of justice.

Having said this, finding no merit in the defendant’s claim that the trial judge erred in denying without a hearing the defendant’s postconviction motion for a new trial and discovering no reason in the record for us to exercise our extraordinary powers under G.L.c. 278, Sect. 33E, we affirm the defendant’s conviction and the denial of his new trial motion.

Jury Instruction Issues

“The Commonwealth’s theory was that, in firing the last two shots [of seven fired at a dance, defendant Alfred] Jenks was holding the gun straight out before him and aiming it at a person or persons in the crowd who were retreating from him and heading for the exits. He was either firing at [victim Leth] Delva, whom he had threatened with his gun earlier in the evening, or at those who had just wrestled him to the floor and disarmed him. The defense argued to the jury that the lax security measures had allowed others with guns to be present on the dance floor, that a shot was fired from another gun, and that the fatal shot may have come from some other gun than Jenks’s. The defense introduced testimony by one witness that, during the fight on the dance floor, Jenks had been surrounded by persons who kicked and punched him, and that one of those showed a gun. Jenks asked for and received an instruction on voluntary manslaughter and on self-defense, suggesting, as he did in his closing argument, a theory that when he fired on the dance floor after having been knocked to the ground, Jenks was seeking — reasonably or unreasonably — to protect himself. It is only on appeal that Jenks raises the further possibility that when he rose from the floor he fired all seven shots wildly and unthinkingly, with no intention of hitting anyone.

“Because there was no objection on either ground and the judge charged the jury consistently with defense counsel’s requests at trial, we review these claims to determine if there was a substantial likelihood of a miscarriage of justice. As to the inclusion of second and third prong malice in the charge, we have stated before that it is better to make clear to the jury that ‘murder in the first degree by reason of deliberate premeditation relates only to the first prong of malice.’ … Where only deliberate premeditation is offered to the jury as a basis for murder in the first degree, the inclusion of instructions on second and third prong malice, even if justified for other reasons, could be confusing without the limiting instruction that only first prong malice supports a deliberate premeditation conviction. Nonetheless, there is no basis for concluding that this caused a substantial likelihood of a miscarriage of justice. The judge’s instruction on deliberate premeditation was correct, clear and emphatic, so that ‘a reasonable juror could only have understood that a guilty verdict … by reason of deliberate premeditation required a finding of purposeful conduct that included a finding beyond a reasonable doubt of a specific intent to kill.’ … And such a jury finding was sufficiently supported by the evidence: two of the shots were fired at shoulder level, there was an appreciable pause between the upwardly fired shots that cleared the space around Jenks and the two shoulder-level shots, suggesting that Jenks paused to search out and aim at a particular individual, and there was testimony that he appeared to be doing just that.

“As to the omission of the unrequested charge on involuntary manslaughter, the defendant’s argument fails. No reasonable view of the evidence would have permitted the jury to find ‘wanton and reckless’ conduct rather than actions from which ‘plain and strong likelihood’ of death would follow. … Even taking as true the story that the defendant presents on appeal — that he was knocked to the dance floor in a struggle, and, as he was rising, shot seven times wildly and without aiming his gun — the dance hall was full of party goers and the defendant knew that he was surrounded by others and therefore by definition shooting into a crowd. … Firing a pistol seven times in a crowded room is more than wanton and reckless conduct risking substantial harm; it is malicious conduct in the plainest sense. The judge was not obliged to instruct on involuntary manslaughter, and defense counsel did not err by not pressing for such an instruction.”

New Trial Motion

“Jenks’s pro se motion for a new trial raised three issues: that the grand jury indictment had been procured through intentional misstatements by a police witness and the improper mention of Jenks’s record of prior arrests, and that defense counsel was ineffective at trial. The trial judge, who was also the motion judge, denied it without hearing, but accompanied by a careful and comprehensive written memorandum of decision. Ordinarily we defer to the discretion of the trial judge to determine whether an evidentiary hearing is required on a motion for a new trial. … ‘The judge may rule on the issue or issues presented by [a] motion [for a new trial] on the basis of the facts alleged … without further hearing if no substantial issue is raised by the motion or affidavits.’ … We conclude that each of Jenks’s contentions was fully considered by the judge, that the judge correctly did not require a hearing on them, and that he rejected them for the most convincing reasons.

“Jenks’s first claim is that in his testimony before the grand jury a police officer misstated the substance of an interview with one Ferd Casimir, who witnessed the shooting. Jenks argues that Casimir told the police that he believed Jenks was acting in self-defense, but that the police failed to relay this opinion to the grand jury. But the Commonwealth was not obliged to relate this sort of opinion testimony, particularly exculpatory evidence to the grand jury that the defendant was assaulted by others on the dance floor prior to the shooting. This was not an issue requiring a hearing; it could easily be disposed of on the written record.

“The second of Jenks’s grand jury claims related to a police officer’s reading Jenks’s own statement, which included a reference to Jenks’s prior arrests, to the grand jury. The judge found that ‘those portions [of the statement] were inadvertently related to the [g]rand [j]ury,’ and not ‘with the intention of obtaining the indictments.’ … Moreover, the prosecutor promptly cautioned the grand jury to ignore completely the mention of the prior arrests. Finally, the judge very reasonably found that, because Jenks had admitted that he had been carrying a handgun that evening, ‘it is unlikely that his further admission [of prior arrests on gun and assault and battery charges] would have a significant prejudicial impact that would infect the [g]rand [j]ury proceedings.’

“The judge also properly disposed of the ineffective assistance of counsel claim without a hearing. Jenks’s principal complaint was that at trial his counsel did not call one Clovis Legister, the disc jockey at the dance, to testify to what he saw of the altercation on the dance floor. Legister’s testimony might have served to support some aspects of Jenks’s contentions that he fired in self-defense or that he fired wildly and with no intention of hitting anyone. But the judge found that Legister’s statement also contained matter that would have been damaging to Jenks, and that Jenks’s counsel, whom the judge went out of his way to commend, made a reasonable tactical decision to call instead Legister’s fiancee, Laurie Ann Galante, who gave testimony on these matters at least as helpful to Jenks. No substantial issue was raised requiring a hearing.”

Conclusion

“Having reviewed the whole record we conclude that there is no reason to exercise our power under G.L.c. 278, Sect. 33E, to order a new trial or to direct entry of a verdict of a lesser degree of guilt. Jenks came to the dance armed. He was looking for trouble. When he did not find it, he made it. And an innocent young woman was killed.

“Judgment affirmed.

“Order denying motion for new trial affirmed.”

Commonwealth v. Jenks (Lawyers Weekly No. 10-032-98) (9 pages) (Fried, J.) Case tried before Richard E. Welch III, J., and a motion for a new trial was heard by him. Charles K. Stephenson for the defendant; Robert J. Bender and Gerald P. Shea for the commonwealth (Docket No. SJC-07512).