Commonwealth v. Garabedian

*319 Liacos, J.

(concurring in part and dissenting in part, with whom O’Connor, J., joins). I have no disagreement with the legal analysis of the court. I write solely because, in my view, we should exercise our power under G. L. c. 278, § 33E (1984 ed.), to order entry of a verdict of guilty of murder in the second degree.

Pursuant to our power and duty under § 33E, we must consider whether the verdict is “against the weight of the evidence considered in. a large or nontechnical sense.” Commonwealth v. Bowman, 373 Mass. 760, 765 (1977), citing Commonwealth v. McInerney, 373 Mass. 136, 140 (1977), and Commonwealth v. Baker, 346 Mass. 107, 109 (1963). See Commonwealth v. Lattimore, 396 Mass. 446, 453 (1985); Commonwealth v. Almon, 387 Mass. 599 (1982). As this court stated in Commonwealth v. Gaulden, 383 Mass. 543, 553-554 (1981): “Our § 33E power has not been limited to cases in which the evidence did not warrant the conviction but has included cases in which we concluded that justice required the entry of a verdict of a lesser degree of guilt. See, e.g., Commonwealth v. Vanderpool, 367 Mass. 743, 749 (1975); Commonwealth v. Williams, 364 Mass. 145, 151-152 (1973); Commonwealth v. Baker, 346 Mass. 107, 109, 119 (1963).”

I do not argue that the court should consider reducing the verdict below that of murder. Nevertheless, the question that presents itself on the facts of this case is the less drastic one, whether there is ground for reducing the conviction from murder in the first degree to murder in the second degree. In addressing that question, “[a] most important consideration is whether the jury verdict is markedly inconsistent with verdicts returned in similar cases.” Commonwealth v. Gaulden, supra at 556. Accordingly, while analysis under § 33E can never be merely “a process of ‘color matching’ ” with prior cases, Commonwealth v. Coleman, 366 Mass. 705, 715 (1975), it is useful to consider the factors that have been influential in those decisions. Such an analysis, in my view, points to a reduction of the degree of David Garabedian’s guilt.

The entire sequence of events the day of the killing reflects “spontaneity rather than premeditation.” Commonwealth v. *320 Williams, supra at 152 . The defendant brought no weapon to the Muldoon home. 1 See Commonwealth v. Keough, 385 Mass. 314, 320-321 (1982); Commonwealth v. King, 374 Mass. 501, 506-507 (1978); Commonwealth v. Vanderpoorl, supra at 749-750; Commonwealth v. Williams, supra. This distinguishes the case at hand from those where we have declined to exercise our power under § 33E, in part because in those instances the defendants either brought weapons “with a violent or vengeful purpose,” or left an encounter with their victims to procure a weapon and returned to punish their vicitims. Commonwealth v. King, supra at 507 . See, e.g., Commonwealth v. Maldonado, 389 Mass. 626, 632-633 (1983); Commonwealth s. Almon, supra at 605. The victim and the defendant had had no confrontation or dealings with each other prior to March 29, 1983. 2 The entire incident was characterized by “senseless conduct.” Commonwealth v. Keough, supra at 321. 3

The victim’s fatal encounter with Garabedian fits into “the pattern of those cases involving senseless encounters in which ... we have ordered the entry of a finding of a lesser degree of guilt. See Commonwealth v. Tavares, [385 Mass.] 140, 157-159 [, cert. denied, 457 U.S. 1137 ] (1982); Common *321 wealth v. King, 374 Mass. 501, 506-508 (1978); Commonwealth v. Jones, 366 Mass. 805, 807-809 (1975); Commonwealth v. Kinney, 361 Mass. 709, 713 (1972); Commonwealth v. Ransom, 358 Mass. 580, 582-583 (1971).” Commonwealth v. Keough, supra at 321 . As we said in Commonwealth v. Keough , “ ‘[t]his is a tragic case in which a minor controversy between strangers exploded into the killing of a human being. ’ ” Id. at 320 .

“[I]n deciding whether to ‘shade the verdict,’ we are entitled to give weight to the defendant’s character. See Commonwealth v. Seit, 373 Mass. 83, 95 (1977); Commonwealth v. Vanderpool, 367 Mass. 743, 750 (1975).” Commonwealth v. Tavares, supra at 159. 4 Garabedian was twenty-one years old and employed at the timé of the homicide. He had completed several semesters of college, then had worked fairly steadily for almost two years after returning to live with his parents in Chelmsford. He had no prior criminal record and no prior history of aggression or violence. 5 In short, he “was not a hoodlum or gangster,” as the court put it in Commonwealth v. Seit, supra at 95 .

*322 On the whole record, there is an “irreducible doubt in all the circumstances whether the defendant consciously formed a purpose ... to do [the victim] mortal injury; but if the defendant did, it is still probable that the resolve lasted for only ‘a fleeting period to time,’ as we said of the interval of premeditation in Commonwealth v. Williams, 364 Mass. 145, 152 (1973), where we applied § 33E to reduce a murder verdict to the second degree.” Commonwealth v. Cadwell, 374 Mass. 308, 317 (1978).

I conclude that the “thrust of the evidence,” Commonwealth v. Jones, supra at 808 , regarding David Garabedian’s encounter with the victim on March 29, 1983, is toward a verdict of murder in the second degree rather than the verdict the jury brought in. We have stated that “[r]egard for the public interest impels us to use with restraint our power under § 33E to modify the jury’s verdict. On the other hand it is clear that in all cases our obligations under § 33E require the most serious deliberation.” Commonwealth v. Williams, supra at 151 . The crime was abhorrent. Nevertheless, I am persuaded that the defendant’s “criminal involvement was not of the nature that judges and juries, in weighing evidence, ordinarily equate with murder in the first degree.”* **** 6 Williams, supra at 152 . We, unlike a *323 jury, are aware of the differing aspects of punishment flowing from a conviction of murder in the first or the second degree. Also, unlike a jury, we are aware of the broad range of defendants charged or convicted of these crimes. It is our duty under § 33E to see to it that the punishment imposed does not exceed the mandate of justice. This is such a case. This defendant is not a gangster or a hired killer. At worst, he is a young man of misfortune. No just or humane purpose requires that he be imprisoned for life without any prospect of parole. I would therefore order entry of a verdict of guilty of murder in the second degree. Accordingly, I respecfully dissent from the court’s refusal to do so.

As we stated in Commonwealth v. Seit, 373 Mass. 83, 94 (1977), “No third-party witness exists to any part of the actual event, and the defendant’s account, which he took the stand to defend, deserves consideration. See Commonwealth v. Mahnke, 368 Mass. 662, 700-704 (1975), cert. denied, 425 U.S. 959 (1976).” The court recognizes this principle in its own recitation of the circumstances of this homicide.

The fact that the defendant and the victim were strangers, or had had no prior confrontation, was cited as one consideration in the court’s conclusion that a verdict of manslaughter was “more consonant with justice” in Commownealth v. Ransom, 358 Mass. 580, 583 (1971). See Commonwealth v. Keough, supra at 320 (defendant and victim had had no previous confrontation); and Commonwealth v. Jones, 366 Mass. 805, 808 (1975) (no evidence of prior trouble between defendant and victim).

Although, as the court implicitly acknowledges, there was substantial evidence that the defendant’s conduct was explainable in no other way than that involuntary chemical intoxication caused the defendant to behave in an aberrational manner, I need not rely on this aspect of the case to reach the conclusion that the defendant should have the verdict of guilt reduced to murder in the second degree.

See, e.g., Commonwealth v. McDermott, 393 Mass. 451, 460-461 (1984) (defendant seventeen years old at the time of the incident, academically deficient, with some drag and alcohol problems); Commonwealth v. Tavares, supra at 146, 158 (defendant seventeen years old, married, and the father of a young child, had completed the tenth grade, and was about to enter the armed forces); Commonwealth v. Seit, supra (defendant was a “hard worker with no prior criminal record”); Commonwealth v. Mahnke, supra at 703-704 (defendant had no prior involvement with the law and had not manifested any violent tendencies prior to the evening of the victim’s death); Commonwealth v. Vanderpool, supra at 750-751 (defendant twenty-two years old, married, with two children, and suffering from disabling injuries as a result of his service in the Viet Nam war); Commonwealth v. Jones, supra at 808 (defendant was twenty-eight years old, married, with six small children, and “gainfully employed”).

But see Commonwealth v. Almon, 387 Mass. 599, 608 (1982), where the court states that, “although the defendant was only twenty-one years old and does not have a criminal record that indicates a tendency to violence, these factors are insufficient to warrant ignoring the Commonwealth’s ample evidence or disturbing the jury’s verdict.” I note, however, that many other factors which this court has considered under § 33E weighed against relief in Almon . For example, the defendant in Almon carried the weapon; the defendant struck the victim first; and the case did not involve a “senseless brawl.” Commonwealth v. Ransom, supra at 583 .

The lack of a prior criminal record frequently weighs in a defendant’s favor in our § 33E analysis. See, e.g., Commonwealth v. McDermott, supra *322 at 460-461 , Commonwealth v. Dalton, 385 Mass. 190, 196-197 (1982), Commonwealth v. Tavares, supra at 158, Commonwealth v. Keough, supra at 320-321 , Commonwealth v. Seit, supra at 94-95 , Commonwealth v. Mahnke, supra at 703-704 , Commonwealth v. Vanderpool, supra at 750-751 , and Commonwealth v. Jones, supra at 808 .

As Justice Quirico stated in Commonwealth v. Gould, 380 Mass. 672, 688 (1980) (concurring in part and dissenting in part), we are “not concerned here with the technical question whether the evidence was sufficient to support the jury’s implied finding .... Rather, [we are] concerned with the broader question whether we can reasonably and fairly conclude, upon consideration of the entire evidence of insanity . .. that there is no substantial likelihood of a miscarriage of justice in these circumstances. In such a case it is not enough, nor is it a proper discharge of our responsibility under § 33E, to base our decision solely on the fact that there was some evidence ... to support the jury’s conclusion .... If that were the sole test there would be no need or occasion for the exercise of the extraordinary powers vested in this court by § 33E. While those powers are to be exercised *323 sparingly, they may, and perhaps must, be exercised when all other conventional tests and procedures have been exhausted but we are still left with a miscarriage which may result unless we exercise those powers to prevent it.”