Appendix — Leroy Chasson v. Joseph Ponte

[NOT FOR PUBLICATION}

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 82-1070

LEROY CHASSON,

Petitioner, Appellant,

Vv .

JOSEPH PONTE, ET AL.,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge)

Before

Coffin, Chief Judge,

Rosenn,* Senior Circuit Judge,

and Breyer, Circuit Judge.

ff, by appointment of the Court, with whom

[ was on brief, for appellant.

° ssistant Attorney General, with whom Francis X.

pane ey General, Stephen R. Delinsky, Chief, Criminal Bureau, and

arbara A.H. Smith, Assistant paras onaval, Chief, Criminal Appeliate

Division, were on brief, for appellees.

August 3, 1982

*Of the Third Circuit, sitting by designation.

Per Curiam. Leroy Chasson appeals from a denial

of his petition for a writ of habeas corpus. He is confined

in @ Massachusetts prison after having been convicted of

first degree murder and a related Crime. Commonwealth v.

Chasson, 423 N.E.2d 306 (1981).

Chasson's main contention on this appeal is that

the trial court erred in giving a "presumed intent” instruction.

Chasson claims that such instruction has the effect of

eliminating "intent" as an ingredient of the offense.

See Sandstrom v. Montana, 442 U.S. 510 (1979). Accordingly,

Chasson concludes that his tria) lacked the “due process

of law” that the federa) constitution requires.

Before turning to the merits of Chasson's claim,

we note that the Commonwealth now @rgues that the federa)

courts are foreclosed from considering that claim because

Chasson did not object to the instruction at the time of

trial. This failure to object arguably constitutes an

adequate state ground upon which to rest the conviction,

see Henry v. Mississippi, 379 U.s. 443 (1965), at least

unless (1) there is a showing of "cause" for failing to

object and consequent “prejudice,” see Francis v. Henderson,

425 U.S. 536 (1976), or (2) the State courts have reviewed

the federal claim on the merits anyway. See Wainwright v.

Sykes, 433 U.S. 72 (1977). In this instance, the Massachusetts

Sypreme Judicial Court did consider Chasson's federal

slain. but it did so under a special state statute, Mass. Gen. L.

ch. 278, 33E, which specifies for murder cases that the

Supreme Judicial Court shall review the “whole case." This

“whole case” review involves greater discretion, claims

the Commonwealth, than application of the federal “due process”

standard to the specific instruction. It is more like the

“substantial miscarriage of justice" standard, which this court

has considered a “limited relaxation of [the] . « » Contemporaneous

objection rule, .. . [in)sufficient to preclude the application

Of Wainwright." Zeigler v. Callahan, 659 F.24 234, 271 n.j]

(lst Cir. 1981). Be that as it may, the Commonwealth did not

properly raise this argument in the trial court. And, we

find no strong reason for granting an exception from the

ordinary rule against raising new legal issues for the first

time on appeal, see Nogueira v. United States, No. 81-1682

(lst Cir. July 19, 1982); United Ststes v. Sachs, 679 F.24

1035, 1018-19 (lst Cir. 1982). In any event, we believe

the Commonwealth is correct on the merits of the constitutional]

claim.

The instruction to which Chasson objects is the

following:

So we have the words that must be

Giscussed and their legal meanings explained

to you; and even though the word does not

appear in the statute I am going to charge you on

intent, the word, “intent,” because one is

responsible for acts that he intends to do;

and yet, because of our very nature as men

and women, no one can be sure of what is

in the mind of another person. Your intention,

of course, is that which lies within the

recesses of your mind. So how do we find

intention?

It is rather simple. When one does an

unlawful act he is by the law presumed to have

intended to do it and to have intended its

ordinary and natural consequences on the

° ground that these must have been within his

“8 contemplation, if he is a sane man and acts

with the deliberation which ought to govern

men in the conduct of their affairs. So much

for intent. :

The question for us, as the Supreme Court has pointed ovt, is

not whether this “instruction is undesirable, erroneous,

or even universally condemned;" it is whether the “instruction

by itself so infected the entire trial that the resulting

conviction violates due process,” Cupp v. Naughton,:414 U.S. 141

(1973); Henderson v. Kibbe, 431 U.S. 145, 154 (1977). If read

literally, it might be taken as telling the jury to presume

that a person intends to do those things that he actually

Goes only when he is “sane” and “acts with deliberation.”

But, the less literal reader or listener might well find the

instruction confusing. Cf. Sandstrom v. Montana, 442 U.S.

at 517. The Supreme Judicial Court wrote that it “was at best

obscure,” Commonwealth v. Chasson, 423 N.E.2d at 312. Chasson

argues that it amounted to an instruction that relieved the

jury from its duty to find intent beyond a reasonable doubt;

and that it led the jurors to ignore his defense that

he did not intend to kill anyone (which we take, roughly

Speaking, as a claim that he was confused in the scuffle

that led to the killing).

We need not spend time determining precisely what

this instruction meant, or might have been taken to mean,

however, for in our view whatever false impression it may

have given the jury about the law was cured by a later

instruction. The trial judge told the jury that to find

Chasson guilty of first degree murder, they had to find

that “there was deliberate premeditation, .. . the prior

formation of a purpose to kill." The trial court stated:

{O)ur Courts have said that deliberate

premeditation does not require any particular

time. The word, “deliberately,” in the

phrase, “deliberately premeditated malice

aforethought,” refers to the prior formation

of a purpose to kill rather than to any

Gefinite length of time. And upon evidence

that there was a sequence of events, the jury

can find or not find, depending upon your

view, whether there was deliberate premeditation to

do a certain act. It is not a matter of time.

It can be long or short. It can be as short as

it requires a person to make an intent, to intend

to do something. And if he does that, it could be

found by you, but it is for you to say whether it

is deliberately premeditated.

t,t

The jury returned a verdict of guilty of first degree murder.

it thus presumably considered this instruction and found

Geliberate premeditation. To find "premeditation"--under

® correct, unchallenged instruction--is to find “intent”

and more besides. Commonwealth v. Sheehan, 383 N.E.2d 1115,

1122 (Mass. 1978). Thus, whatever error the “intent”

instruction contained could not have fatally undermined

in any constitutional sense the fairness of the trial,

"taken as a whole." Cf. United States v. Moccia, No. 81-1532,

Slip Op. at 5 (lst Cir. June 16, 1982). As our brother

Aldrich has remarked, "if there is a big hole in the fence for

the big cat, need there be a small hole for the small one?"

Polaroid Corporation v. Commissioner of Internal Revenue,

276 F.26 148, 153 (lst Cir. 1960); Jarecki v. G.D. Searle

& Co., 367 U.S. 303, 307 (1961). See United States v.

Frady, 50 U.S.L.W. 4388, 4394 (April 6, 1982); United States v.

Prady, 636 F.2d 506, 515-16 (D.C. Cir. 1980) (statement on

Genial of rehearing en banc by Judges Tamm, MacKinnon, Robb

and Wilkey); United States v. Green, 424 F.2€ 912, 913 (D.C. Cir.

1970), cert. denied, 400 U.S. 997 (1971). At least, the cat

can’t be hurt much by the small hole as long as the big one

is nearby.

Chasson argues that the record before the district

court was not sufficient to decide this question, and presumably

others, that he raised. If we take this argument as one for

reversal of the district court's denial of Chasson's motion

to reproduce the entire state court record, we disagree.

The district court has discretion in this matter. Rule 5

of the Rules Governing Cases in the United States District

Courts Under 28 U.S.C. § 2254. As do we. Dickerson v.

State of Alebama, 667 F.2d 1364, 1367 (llth Cir. 1982). Chasson's

counsel had complete access to the record; he was free to

make particularized showings of need; instead, he rested on

a general claim that the record would lead to greater

enlightenment. The Commonwealth argued that no need for the

entire record had been shown. We find no basis for requiring

reproduction of the entire record, for we find no abuse of

the trial court's discretion nor groynds for exercising our

own. Chasson does not challenge the accuracy of the summary

of the facts made by the Supreme Judicial Court. He fails

to show what will be found in the transcripts that will

augment the merits of his claim. See United States ex re).

Green v. Greer, 667 F.2d 585 (7th Cir. 1981).

If we take Chasson's argument as referring only to the

jury charge, we still find no ground for reversal. Chasson

Gid not specifically request the court to read the whole

jury charge. He could readily have reproduced it. He does not

now point to any absent portion that might be relevant to

the issue at stake. Consequently, we find no good reason

here to go beyond the excerpts quoted, delaying the case

further in the absence of any convincing explanation of

how additional documentation would help. Cf. Battie v.

Estelle, 655 F.2¢ 692, 703 n.24 (Sth Cir. 1981).

Finally, petitioner points to language in the

Gistrict court's decision--"we have copies of the jury

instructions"--and argues that the district court must

have had papers that it did not show counsel. However,

neither this language nor anything else in the opinion,

suggests that the court had anything other than the

instructions that counsel presented to him or that were

quoted in the opinion of the state court.

For these reasons, the judgment of the district court

is

Affirmed.

A?

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

LEROY CHASSON. Petitioner

v. Civil Action

81-1191-MA

JOSEPH PONTE, ET AL,

Respondents

bY

MEMORANDUM AND ORDER

Mazzone, D.J. January 7, 1982

Petitioner Leroy Chasson has filed a petition for a

writ of habeas corpus under 28 U.S.C. §2254. On June

1978, a jury in the Superior Court, Norfolk County, found

him guilty of first degree murder and assault and battery by

means of a dangerous weapon. The Massachusetts Supreme

Judicial Court affirmed the conviction. Commonwealth v.

Chasson, Mass. Adv. Sh. 724, 423 N.E. 306 (1981). He now

seeks habeas relief on the basis of an allegedly erroneous

trial ruling excluding certain evidence and an allegedly

erroneous jury instruction. Petitioner has also moved to

expand the record under Rule Mot the Rules Governing Section

2254 Cases to include the state trial transcript. The

defendant has filed a motion to dismiss.

For the purpose of reviewing this petition and the

motion to dismiss, we accept the Supreme Judicial Court's

statement of the evidence. Petitioner has not alleged any

misstatement in the Court's opinion.

One night in August, 1977, a group of people in their

twenties, including Kevin Racette, were present at Pageant

Park in Quincy. ‘They were drinking beer and other alcoholic

beverages. Petitioner went to the park and spoke to some

members of the group. He left and returned twenty minutes

later in order, as he admitted at trial, to “punch him out,”

referring to Racette, against whom he had a grievance.

There is evidence upon which a jury could find that the

petitioner was carrying a knife when he returned. Upon

I. Rule 7 would also a r to be

i a te a an approvriate rule for

arriving, Chasson drew Racette aside, hit him and a scuffle

ensued. Several witnesses saw Chasson “punch” one person

who, it soon became apparent, had received serious cuts from

which he died. The petitioner also stabbed another individual

when that individual attempted to intervene.

After the stabbings, Chasson left the park, and went to

Maine. He was arrested there a week later. A knife was

found nearby where he was arrested.

Petitioner's version is that he returned to the park to

attack Racette, but was not carrying a knife. During the

scuffle which ensued, he saw “ae couple of flashes,” and

picked up a knife in self-defense. He says that he threw

the knife away as he was leaving the park after the incident.

I.

Petitioner has moved to expand the record under Rule 5

of the rules in habeas corpus proceedings. Rule 5 (and Rule

7) is discretionary. It provides that the judge may order

or direct additional materials to be furnished where needed to

determine the merits of the petition. An expanded record is

useful where the petitioner is proceeding pro se or where

the government has not replied. See Haines v. Kerner, 404

U.S. 519 (1972); Raines v. United States, 423 F.2d 526, 529-

530 (4th Cir. 1970).

Here, however, we have a memorandum filed by petitioner's

attorney, one filed by the Commonwealth and a copy of the

opinion of the Supreme Judicial Court, whose recitation of

the facts petitioner has not challenged. In fact, the

petitioner has alleged no additional facts which would

necessitate reproduction of the record. We have copies of

the jury instructions and are aware of the circumstances

under which the trial court excluded the subject evidence.

For our purposes the record is complete. Not additional

facts, but the legal effect of the “facts” is all that is

required in order to decide the Commonwealth's motion to

dismiss. Therefore, the petitioner's motion to expand the

record is denied.

Il.

The first ground upon which petitioner claims relief

was the trial court's ‘ruling excluding two knives found

later at the park. To merit habeas corpus relief, the

petitioner must show not only that the ruling was erroneous,

but that he was severely prejudiced. Habeas relief is not

available “solely on the basis of alleged error in evidentiary

rulings." Salemme v. Ristaino, 587 F.2d 81 (1978). See

also Allen v. Snow, 635 F.2d 12 (1980), cert. denied, 101

S.Ct. (1981) (such error must so infuse a trial with inflammatory

prejudice as to render a fair trial impossible) (quoting

|

Salemme, supra, at 586). It is only where “there is a

denial of fundamental fairness that habeas should be granted.”

Anderson v. Maggio, 555 P.2d 447 (Sth Cir. 1977).

The first knife was a small steak knife found sticking

in the underside of the park's pavilion roof two and a half

weeks after the stabbings. The second was a folding jackknife

found against the edge of the raised cement floor of that

game pavilion. It was discovered a month and a half after

the incident. Tests revealed traces of either human or

animal blood on the steak knife and no blood traces on the

jackknife. At an extensive voir dire, evidence showed that

three exhaustive searches of the area had taken place after

the stabbings and no knife was found. It was also shown

3

that large numbers of people used the area in summer as a

picnic area.

“~~ Petitioner asserts that the introduction of these

knives would have daspontat his version of the night's

events that knives were plentiful at the pwark. Conceivably,

then, petitioner could have arrived without a knife and

picked one up during the fight. Moreover, he claims to have

thrown the knife away as he departed.

The connection between the knives and petitioner's

theory of his defense is tenuous at best. There is no

evidence linking the knives to the stabbings other than the

~j3-

AlO

fact that they were found in the park where the stabbings

occurred 2 1/2 weeks and a month and a half later. It was

within the trial court's discretion to consider the remote-

ness in time in deciding whether the evidence was admissible.

Given the circumstances, it cannot be said that the exclusion

resulted in fundamental unfairness.

Iii.

Petitioner also challenged the trial court's “presumed

intent" jury instruction as unconstitutional under the

principles of Sandstrom v. Montana, 442 U.S. 510 (1979).

The trial court gave the following instruction on the element

of intent.

So we have the words that must be discussed and

their legal meanings explained to you; and even though

the word does not appear in the statute I am going to

charge you on intent, the word, “intent,” because one

is responsible for acts that he intends to do; and yet,

because of our very nature as men and women, no one can

be sure of what is in the mind of another person. Your

intention, of course, is that which lies within the

recesses of your mind. So how do we find intention?

It is rather simple. When one does an unlawful

act he is by the law presumed to have intended to do it

and to have intended its ordinary and natural con-

sequences on the ground that these must have been

within his contemplation, if he is a sane man and acts

with the deliberation which ought to govern men in the

conduct of their affairs. So much for intent. Tr. ll-

83-84. 1/

In Sandstrom the court found that a jury instruction which

states that “the law presumes that a person intends the

ordinary consequences of his voluntary act” violates the

Fourteenth Amendment's requirement that the State prove

every clement beyond a reasonable doubt. The court stated

fae test as “whether a defendant has been accorded his

constitutional rights depends upon the way in which a

reasonable juror could have interpreted the instruction."

Sandstrom, supra, at 515.

The rule in this Circuit is that it is always error to

instruct that a person is presumed to intend the natural and

probable consequences of his acts. United States v. Winter,

Slip Op. No. 79-1437 (Oct. 31, 1981). Winter also establishes

that the error can be considered harmless if it is ill-suited

All

to both the theory or which the case is tried and the evidence

presented.

Under these guidelines, the instruction here did not

violate the petitioner's constitutional rights. A reasonable

juror would not have interpreted the instruction as shifting

the burden of the defense to him. Moreover, petitioner's

challenge is not suited to his version of the events.

The jury convicted petitioner of first degree murder.

The first degree murder instruction required the jury to

find that he acted with “deliberate premeditation." The

court instructed:

The word, “deliberately”...refers to the prior formation

of a purpose to kill rather than to any definite length

of time. And upon evidence that there was a sequence

= events, the ju can find or not find depending upon

ur view, whether there was deliberate premeditation

= do a certain act. It is not a matter of time. It

can be long or short. It can be as short as it requires

a person to make an intent, to intend to do something.

And if he does that, it could be found by you, but it

is for you to to say whether it is ; welicacacete premeditated.

Temphas added}

Clearly a reasonable juror would know that a finding

that he “intended” to kill would not be enough to convict

the defendant of first degree murder. The trial court made

it apparent that the jury had to decide that Chasson acted

with “deliberate premeditation,” an element which differed

from “intent.” Moreover, the fact that the court also

instructed on the elements of second degree murder, manslaughter

and involuntary manslaughter, as well as self-defense, shows

that a reasonable juror would understand the varying degrees

of intent that the Commonwealth would have to prove. The

situation here is unlike that in Sandstrom where the jurors

“were not told they had a choice." Supra, at 515.

We find therefore that the intent instruction did not

violate petitioner's due process rights to have the state

prove its case against him.

Moreover, under the Winter criteria, the petitioner's

challenge to the jury instruction is not pertinent to his

version of the events. He did not claim that he did not

— 5-

53

Al2

intend to stab the victims. His claim was that he was

defending himself and that his actions were justified. See

Hollway v. McElroy, 632 F.2d 605 (Sth Cir. 1980), cert.

Genied, 49 U.S.L.W. 38881 (May 26, 1981) (defendant did not

claim that he did not intend to shoot the victim but that

the hcmicide was justified). Cited in Winter, supra, at

44.

The court instructed that first degree murder requires

a finding of “deliberately premeditated malice aforethought.”

"Malice" was defined as a killing done with the intent to

inflict serious injury without legal justification or

mitigating circumstances." The court also charged on

deliberate premeditation adding that "[t]he law permits the

jury to infer the existence of malice from the fact of an

intentional killing, coupled with an implied negation of any

excuse of justification.” The jury could have found that

the petitioner intended the natural consequences of his act

but that he acted to protect himself.

On the facts of this case, therefore, the challenged

jury instruction did not violate petitioner's constitutional

rights.

Conclusion

In accordance with the above, the respondent's motion to

dismiss is granted.

SO ORDERED.

United | Aland sregp Judge

Al3

306 Mass. 423 NORTH EASTERN REPORTER, 24 SERIES

consider in viewing probative value of evi-

dence

COMMONWEALTH

¥.

Lerey CHASSON.

Supreme Judicial Court of Massachusetts.

Norfolk

Argued Dec. 2, 1980.

Decided March 18, 198).

The Superior Court, Norfolk County,

McGuire, J, found defendant guilty of mur-

der im first degree and assault and battery

by means of dangerous weapon, and de-

fendant appealed The Supreme Judicial

victim's mother to testify was not an abuse

of discretion; (2) exclusion of certain evi-

dence and cross-e1amination eas not error,

and (3) instructions were nol erroneous.

Affirmed.

1. Criminal Law @ 338(7)

Trial judge did not abuse his discretion

im permitting hormucde victim's mother to

testify

2. Criminal Law @=358(7)

Where testimony of close relatiwe

redundant and of minsmum matenality and

where there s reasonable prospect thal jury

would be prejudwed, review ing court would

find no fault with determination to eachude

such evidence

3. Crimina! Lee © 703

Where prosecutor «as warranted in an-

tcipating witness's testimony as he did,

prosecutor dud not act improperly im slating

certain anticipated testimony im he opening

slalement to jury, even though witness did

nol testify as expected

4. Criminal Law @338(1)

Whether evidence is legally relevant is

question which is generally left to discre-

tion of trial judge.

& Criminal Law @ 354

Proximity to crime in point of time is

clement which judge in his discretion may

6. Criminal Law @ 404(4)

Where defendant offered no evidence

linking particular knives to stabbing inci-

dent other than their presence in park two

and » half weeks and # month and » half,

respectively, after stabbings occurred in

park, trial court did not err in eaciuding

knives from evidence even though defend-

ant argued that admiasibility supported his

theory that he did not use knife already in

his possession but prched up knife which fell

to ground during fight and later threw it

out of car as he was leaving park.

2. Witnesses 282%

Where subject was adequately devel.

oped in other questioning, there was no

error in exclusion of questions asked on

cross-examination of Commonwealth's wit-

& Witnesses @ 270(2)

Where defendant made no showing #

to relevancy, judge did not abuse his discre-

tion in excluding question which was pro

pounded to wilness of cross-@ x aminalion

and which inquired as to whether witness

had conversation just before victimes were

stabteed

9. Homicide = 300(3)

Judge's charge on self-defense was not

inadequate

10. Criminal Law @ 834(2)

Judge is not bound to instruct in exact

language of particular requests for instruc

ons

11. Criminal Law @ 782(7)

Judge need not instruct on every sub>

diary fact and possible inference

12. Homicide 325

Where there was no objection to such

charge, adequacy of charge on deliberate

premeditation would be considered only un-

der statute relating to review in capital

case. MGLA ¢ 278, § BE

Alé

COM. +. CHASSON

Mes 307

Che on. Mase. 423 \ fe doe

13. Homicide @ 286(3)

Judge's definition of deliberate pre-

meditation as “the prior formation of «

purpose to kill” was not error

14. Homicide @» 294(2)

Where defendant charged with murder

did not rely on such theory, did not request

instruction based on such theory, and evi-

dence did pot warrant giving such instruc-

der person mentally incapable of premedita-

15. Homicide @» 325

In revewing case pursuant to statute

relating to review in capital cases, court

would review claims that particular charges

whconstitutionally misstated degree of

proof required even though no objection

was made to charge MGLA. c¢ 278,

§ BE.

16. Homicide @= 325

In absence of objection, standard of

review wonder statute relating rewew in

capital cases is broader than standard of

review im other circumstances

17. Criminal Law @@1134(7)

On writ of error seeking postconviction

rebef, reviewing court would apply substan-

tual risk of mucarriage of justice standard

but would not permit writ of error to raise

claim whose constitutional agnificance was

developed before defendant's trial or ap

peal

18. Criminal Law © 622(1)

Reviewing court would consider charge

aso whole to see whether effect of errone-

ous insiruction was mitigated by other lan-

gvage in charge

19. Assault and Battery Oo» 49

Conviction of assault and battery re-

quires finding of intentional striking of vie-

tim.

20. Criminal Law © 822(11)

In light of charge as « «hole, court's

Statement that one who does unlawful act

is presumed to have intended to do it and te

have intended iis ordinary and natural con-

sequences did not eliminate intent as ingre-

dient of offense by creating conclusive pre-

sumption that defendant intended wo kill

with mahce of forethought and delberate

premediiabon

21. Hemicide @*251(1)

Record sustained first-degree murder

conviction of defendant whe claimed he act-

ed in self-defense but whe sought to punch

out one party, knifed two bystanders one of

whom died, and fled junsdiclion.

Robert L. Sheketoff, Boston, for defend.

ant

Charles J. Hely, Asst. Dist. Atty., for the

Commonwealth

Before HENNESSEY, C J, and

BRAUCHER, KAPLAN, WILKINS and

ABRAMS, JJ

WILKINS, Justice

The defendant appeals from he convie-

tion of murder in the first degree of one

Paul Melody and his conviction of assault

and battery by means of « dangerous weap

on, on one Robert Hayward We affirm the

convictions, and, as to the murder convie-

tien, we have performed our duty under

GL. c 278, § S36. and conclude that neither

a new trial is warranted nor the entry of &

verdict of » lesser degree of guilt,

We outline the evidence in general. The

defendant siabled Melody and Hayward in

Pageant Park in Quincy on a warm night in

August, 1077. There were » number of

people in their twenties present at e gather:

ing in the park, where they were drinking

beer or other alcoholic beverages. One of

these people was Kevin Raecetie ageinst

whom the defendant had « grievance. The

defendant, driven there by o frend, came to

the park and spoke with some members of

the group He left and returned about

twenty minutes later The defendant drew

Racetie aside and bit him in the fece, A

scuffle developed The defendant had «

knife in his hand, and there was evidence

that would have warranted the jury le con-

clude that the defendant arrived ot the

Al5

308 Mass

park with that knife Several witnesses

saw the defendant “punch” Melody, who it

goon became apparent had received the seri-

ous cuts from which he died shortly after-

ward The defendant stabbed Hayward

twice im the kidney area when Hayward

attempted to intervene. The defendant

was driven away from the park. He was

arrested in Maine « week later. A knife

was found near where he was arrested

The defendant testified at considerable

variance with this evidence. He admitted

that he returned to the park to attack Ra-

cette but claimed that he did not bring «

knife with him He sad that, after he

punched Racette, people came after him

and that, in the melee, he picked up a knife

from the ground and ined to defend bim-

welf He said that he had the knife in his

hand when he got into the car to leave the

park but that, as the car backed out of the

parking lot, he threw the knife out of the

window

With this bref background, we consider

the various points ramed by the defendant's

appeal, which has been brought through

counsel other than his trial counsel. Some

of the points argued were the subject of

objection below. Others were not.

[1.2] 1 The judge did not abuse his

discretion in permitting the victim's mother

to testify At the defendant's request, the

judge beld a bench conference lo determine

what the ~ ness was to testify about Her

testimony covers less than three pages of

the transcript and no prejudwe appears im

that testimony apart from the possible prej-

udice produced by reason of the witness

being the victim's mother. The defendant

did not object to any question on the

ground of relevancy or materiality. The

Commoneecalth was entitled to introduce

relevant evidence througa this witness,

even though none of her tertimony was

essential to the Commonwealth's case. See

Commonwealth » Chung, 378 Masa 451,

we 1 *, 392 NE 2d 1015 (1979), Common-

wealth ». Nassar, 354 Mass. 249, 257-258,

237 N E20 39 (1968), cert. denied, 393 US.

a Mass Ads Sh (197) 1722, 1723 a!

423 NORTH EASTERN REPORTER, 24 SERIES

1039, 89 S.C\. 662, 21 L.Ed.2d 586 (1969)

Testimony from «# victim's close relative

might have # prejudicial effect on the jury.

The judge was well aware of that risk and

controlled the scope of the prosecutor's

Questions, Where the testimony of « close

relative ie redundant and of minimum ma-

teriality and where there is @ reasonable

prospect that the jury would be prejudiced,

we would find no fault with « determina-

tion w exclude such evidence Kt is, of

course, within the power of prosecutors to

avoid the possibility of prejudice simply by

not presenting the witness. Here, however,

the judge did not abuse his discretion in

permitting Melody's mother to testify.

{3} 2 The claim that, in his opening to

the jury, the prosecutor acted improperly in

stating certain anticipated teslmony uo

without substance There was no caception

taken on this point at any time, and it

presented to us for consderation purtuant

to our duty under G.L. c 276, § 33E The

record, expanded on motion of the Com.

monwealth, shows that the prosecutor was

fully warranted im anticipating the wit-

nesa's Lestimony as he did. It is true that

the witness did not testify as expected

However, the defendant himself admitted

to making substantially the same statement

as it was expected the witness would atir-

bute wo the defendant

3 The defendant o'..ms reversible error

im the exclusion from evidence of two

knives The first was a small steak knife

found sticking into the underside of the

pavilion roof at Pageant Pield, approx

mately two and « half weeks after the

stabbings The second was « folding jack-

knife with # corrosion spotted blade found

close to a month and « half after the stab-

bings, lying against the edge of the ramed

cement fluor of the pavilion area. Tests

revealed traces of either human or animal

blood on the steak knife and no blood traces

on the jackknife

The defendant argued for the sdmussib:l-

ty of the knives om the grownd that they

supported the theory that the defendant did

Al6

COM. +. CHASSON

Mass 309

Cite an, tees. 613% Bd Me

not use s knife already in his possession at

the time of the stabbings but that he picked

up @ knife which fell to the ground during

the fight and lever threw it out of the car

as he was leaving the park. He also argued

that the knives supported the theory that

there were knives present during the inci-

dent other than the one tne defendant

wielded. After an extensive voir dire, the

judge ruled that the knives were inadmissi-

ble

The evidence at the voir dire showed

thal, soon after the slabbings, police con-

ducted three separate searches of the pavil-

jon area where the two knives were later

found. The third search in particular was

exhaustive, involving ten or twelve police

officers and thirty to forty assistants who

swept the area three Limes in « closely knit

formation in search of a knife or other

sharp instrument. In none of the searches

was any knife found Additional evidence

indicated that the pavihon was @ pecnic area

and was used by large sumbers of people in

the late summer

(4,5) Whether evidence is legally rele-

vant is @ question which is generally left to

the ducretion of the trial judge Common-

wealth v. Watiins, 375 Mass. 472, 491, 379

NE2d 10460 (1978) Commonwealth ¥.

Burke, 339 Mass 521, 533-534, 159 N_E 2d

856 (1958) WB Leach & PJ. Liecos, Mas-

sachusetts Evidence 283 (4th ed 1967) The

proximity to the crime in point of time is an

element which the judge in hu discretion

may consider in viewing the probative value

of evidence. Commonecalth + Watkins,

supra Aldrich » Aldrich, 215 Mass. 164,

168, 102 N_E 2d 487 (1913), Commonwealth

v. Berger, —— Mass App —~, ——~*, 396

N E 2d 505 (1980)

[6] The defendant offered no evidence

lonking the particular korves to the stabbing

imesdent other than thew presence in the

park two and a half weeks and s month and

a half, respectively, after the stabbings

We think that thes lack of linking evidence,

together with «hat was in the cireumstanc-

es a significant passage of time, provided

& Mass App Ci Ady Sh (1960) 28, 29

sufficient grounds for the judge in his dis-

cretion to exclude them as lacking proba:

tive value

{7.8} 4 There was no error in the ex-

clumon of questions asked on cross-exam-

nation of three Commonwealth witnesses

In two instances, the subject was adequate-

ly developed in other questioning. In the

third instance, the witness was asked

whether she had a conversation, just before

the victims were stabbed, about what she

thought might happen. The relevancy of

what she thought or whal was sad about

what she thought was not epparent, and

defense counse! made no attempt to make it

apparent. The judge did not abuse his dis-

cretion in excluding these three questions

{11} & There is no merit to the de-

fendant's claim that the judge's charge on

self-defense was inadequate. He contends

that the judge should have made explicit

reference to specific facts on which the

defendant based his self-defense argument

The judge is not bound to instruct in the

exact language of particular requests for

instructions Commonwealth v. Edmonds,

365 Mass 496, 506, 313 N Ed 429 (1974)

He need not instruct on every subsidiary

fect and possible inference. Common-

wealth v. Therrien, 37} Mass. 203, 206, 355

N E24 913 (1976). Reeding the instructions

as a whole, they were not misleading, and

they fairly permitied the jury to consider

the defendant's self-defense contention

Commonwealth v. Shaffer, 367 Mass 508,

513, 326 N_E.2d 880 (1975) Commonwealth

v. Benders, 361 Mass 704, 707, 282 N E2d

405 (1972).

(12-14) 6 The defendant challenges

the adequacy of the judge's charge on delib-

erate premeditation. Because there was no

objection to the charge in this respect, we

consider the matter only under GL. ¢. 278,

§ 3E There was no error im any event.

Deliberate premeditation was clearly set

forth as a separate element which had to be

proved in addition to malice aforethought in

order to support a verdict of murder in the

first degree. The judge's definition of de-

Al?

“310 Mass 423 NORTH EASTERN REPORTER, 2¢ SERIES

liberate premeditation as “the prior forma-

tion of a purpose to kill” was consistent

with other formulations in our opinions

See Commonwealth v Blaikie, 375 Mass

60}, 605, 378 N_E.2d 136) (1978), Common-

wealth v McLaughin, 352 Mass 218, 230,

224 N E.2d 444, cert dened, 889 US 916,

8 SCi 250, 19 LEd 2d 268 (1967) We

have never required that any specific form

ef words be spoken!

7 The defendant argues that the

judge's charge eliminated intent as an in-

gredvent of the offense by creating « con-

clusive presumption that the defendant in-

tended to kill with malice aforethought and

deliberate premeditation He reads the

charge as improperly telling the jury that

the law presumes that « perscn intends the

ordinary and natural consequences of his

acts. Tria! counsel did not object to the

judge's charge in thu respect.

{15-17} As we have noted, this case is

before us for review under GL ¢ 278,

$33E Under § 33E, even im the absence of

an objection to a charge, we have reviewed

defendants’ claims that particular charges

1. The Gefendant suggests that the pudge erred

folng t@ metruct that avoceteon could

fender & person mentally um apable of premeds

teron Commonereth « Cobh ~ Mase

iMass Ad: Sh [1080] 59. 69). 405

“ E 2d 97 sacated on other grounds sub nom

Massachusetts v Hurley. 448 US 669. 101

SCt 36. 66 L Edie i2 (1980) No such w

Mrectran was requred «here ihe defemdan ded

ne fet on ites theory hd net request an

inttructon haswed on a and the evudence dd

ees warrant the grumg of such an priructson

©. Mass Ads Sh (1980) 1411. 1417

2 In the steemee of obyectean, the mandard of

teview wrder § SUE « broader than the sian

Gerd of revew m other cucummances§ See

Cammonncath « Cole —~ Marg am ——

(Mass Ady Sh [1060] S00. S81). 402 NE 2a 55

(1980) Im cases mot revew ed under § LIE, ihe

ies! on Gvect appeal m whether there @ “as

tubwantial tsk of mucerrage of justice ~

Commons cath + Mughes Mass --—

(Mass Adi Sh [i#eO) 1175. 1160), 404 NE 2¢

1246 (1980) Im such # case. the fact that

Gefects of the t)pe clauned in a charge head

been duckned bs ow previous Op mons and

founsel made ao relevant otbechon to the

charge mgt sugges that the defects mm the

charge were noe thought to be cruel if

unconstitutionally misstated the degree of

proof required of the Commonwealth See

Commonwealth « Callahan, -—~ Masa. —,

~——— *, 06 NE2d 385 (1980); Common.

wealth + Collins, 374 Mass. 506, 507, S99.

373 N_E 2d 968 (1978)? We have said that,

if the constitutional principles on which «

claim ie based had been developed at the

time of the jury charge, we would bring

greater expectations to the judge's charge

and would expect more of counse! as well in

rawing an appropriate objection. See Com-

monweaith v Callahan, -—~ Mam ——, —~

~——e#, 406 N E2d 385 (1980), Common-

wealth + Medina, —~ Mass -—, —~ 85°,

404 NE 2d 1228 (1980), Commonwealth v

Collins, 374 Mass 596, 509, 373 N.E2d 968

(1978) In practice, however, we have not

visited on a defendant, in « direct appeal,

his counsel's failure to object to & constitu-

tionally defiment charge concerning the de-

gree of proof required of the Common-

wealth The problem presented by the jury

charge, as claimed before us, was anticipa

ted to some degree by opemons which came

down before the nal," but the specific poont

On a wrt of error seeking posicomuction

reef we would also apply the sebaianial mek

of mucarnage of pustne” tandend (Gaean +

Commonweeth, 377 Masa SHB mw «>

[Mavs Ad Sh (197O) G92. GH @95)]) JA?

WE 2d 123 (1979) bet would noe pero ao ern

of error io tene # clan whose constawtional

verinance was developed before « defend

ants irel of appre! (Desde + Comune

wraith Mass {Macs Ad Sh

(10) 178), (7eR]) 408 NE De 1959 (1980)

@& Mase Ads Sh (1080) Tait, 1455 1496

@ tess Ady SH (1980) 1143, 1155 05

3. Pree to the defendant's tral we May, 1978, we

hed had occawon to dral with argurmenms chat

lenging references to presurrpions a: oppoard

te reasonable inferences, mM jury charges Com

cortung the proof of & Cast agaumat @ crerenal

defendam See e g. Comwnonurath + Mrio

ermes, 373 Mass 136. 14% 150, 365 NE 2d 815

(uly 38. 1977). Commenurelth » Johnson,

372 Mees 165, 192. 61 NE 2d 212 (March 14.

1977) Approssmatety twe months before trie!

«we sgecifcaliy noted that a judge mutt exer

ce Cautran m phrating references to conchu

sons that @ pur) mught property draw from a

Griendam's conduct See Commonwealth +

Codes, 374 Mass 996. 600 601 02, TINE 2d

Als

COM. +. CHASSON

Mas 311

Cite an. Mess.. 423 \.E.20 doe

argued was not fully dealt with in any

opinion of this court until Commonwealth +

Callahan, —— Mass ——', 406 N.E2d 385

(1980). Moreover, United States v United

States Gypsum Co, 438 US. 422, 98 SCt

2864, 57 L.Ed 2d 854 (June 29, 1978), and

Sandstrom + Montana, 42 US. 510, 99

SCt. 2450, 6) L.Ed 2d 39 (June 18, 1979),

were decided after the May, 1978, trial in

this case 1 is the Sandstrom opinion that

sets forth the theory on which the defend-

ant reles See DeJoinville v Common-

wealth, ~—— Mass ——, — © 408 NEQd

1353 (1980)

[18] We have reversed murder convic-

trons where the judge charged in effect

that & person was presumed to have intend-

ed the natural or probable consequences of

bis voluntary acta See Commonwealth +

Callahan, -—— Mas —, ~— - —~ 9 06

NE. 2d 385 (1980), DeJoinvilie + Common-

wealth, Mas ——, —-~-~——! 8

NE 2d 1353 (1980) (past conviction rehefi

We will consider « charge as @ «hole, how-

ever, to wee « hether the effect of an errone-

ous instruction was mil.gated by other lan-

guage i the charge See. g. Commen-

wealth v Pitegeraid, ~~ Mass. -—, ~— -

' 6 NEZA 3 (1960), Common-

wealth « Hughes. Mass on

965 (March 9 197R) « wherh we cad AR

one Puen on the unireri sone the padge sated to

the jury the tredsteonal meireecteon that « per

on mes be held io miend the naturel and

prabeble Corequences of bis conduct and that

the pots magi be « arranted wm inferring maiee

from the use of @ deed weapon The words

Chosen 0. the jade Came perieushs close bo

eHabbiwluny a presumption om favor of the Com

morarehh whet the defendant must over

ture = Such presumes tepding im the Siate

low giwe tree to the Mfudiames fv VW ibor. 42)

US Gea OS SC: eat, ook €4 20 Oe (19°75)

and Hankerson (s Sonth Caroline 432 US

233. 9° S Ce 2399 531 Ea 2e Ws (1977) hold

ies. and undvcate ihe Couto etech « needed

mn phrameng tech comepes

Masa Ady Sh (/MMO) 14d)

»

& Mass Ad Sh (1980) 1797. 180!

& Mass Ad Sh (1980) 1411. 1414 1415

Mass Adi Sh (1980) 1787. 1805 face

i

~—*, 404 N.E2d 1246 (1980), Common-

wealth +. Medina, Mass,

~~ mm ' 404 NE 2d 1228 (1980). Gibson

¥. Commonwealth, 377 Mas 639, -—~ -

~~ @ SBT NE2Zd 123 (1979), Common-

wealth » McInerney, 373 Mass 136, 150-

15), 365 N E2d 815 (1977). This court, in

conducting a G.L. ¢ 278, § 33E, review, has

also considered whether @ constitutionally

deficient charge was nevertheless harmiess

error, See Commonwealth + Gareu, ——

Mas ——, ——~.—* 399 NEQd 460

(1980), Cf Commonwealth v. Hughes, ~

Mass -—, —~*, 44 NE2d 1246 (1980)

(revweew under the “substantial risk of «

mucarmage of justice” standard)

{19} We come then t analyze the

judge's charge which we semmarize in per-

tinent part. The judge charged that the

defendant “is presumed to be innocent until

he is proven guilty beyond a reasonable

dowht on all the essenusl elements of the

erumes charged” He then expanded on the

presumption of innocence and the burden of

proof placed on the Commonwealth He

heat charged extensvel, in unexcepliona-

ble language, on the meaning of reasonable

doubt. He defined assault and battery in

language that the defendant does not chal-

lenge *

b Mass Ady Sh (1980) 1453 1497 1499

& Mass Ady Sh (1960) 1175 118) 1182

. Mass Ad: Sh (i980) 1149, F154 1186

™ Mass Ads Sh (197°C) O97 G65 Goe

& Mass Adv Sh (ifm) 21. 40 41

@ Mass Ady Sh (1980) 1175S 1180

4 The charge on assault and batiery had « bear

tg on cach of the wdectrmers belure the pary

& convecven of assault and batiers requres @

fonding of an imentoonal striking of the vec

Commons rath © Campbell, 152 Mass 367.

37. 226 NE2e 21) (1967) As applied to the

tase before the pur). the question of an mien

bone! wiring «45 hot # paramount msue be

Cause the deferciom im effect comceded that he

ruck the cue with « kefe but argued that

he acted in sell defenee or at least on reasons

ble prowvod at cus

312 Mass

The judge read from GL ¢ 265, § 1,

distinguishing between murder in the first

degree and murder in the second degree

He then discussed intent in the following

language

“So we have the words that must be

discussed and their legal meanings ¢x-

plained Ww you, and even though the word

does not appear in Uhe statute | am going o

charge you on intent, the word, ‘intent,’

because one is responsible for acts that he

intends to do; and yet, because of our very

nature as men and women, so one can be

sure of what is in the mind of another

person Your intention, of course, is that

which hes within the recesses of your mind

So how do we find intention’

“lt w rather ample. When one does an

unlawful act he is by the law presumed to

have intended to do it and to have intended

ites ordinary and natural consequences on

the ground that these must have been with-

in his contemplation, if he w @ sane man

and acts with the deliberation which ought

to govern men in the conduct of their af-

fairs So much for intent”

The judge next charged on the definition

of murder in the first degree, murder in the

second degree, and manslaughter He sad

that malice means “a killing done with the

intent to inflict serious injury without legal

justification or mitigating circumstances.”

He further charged twice that “[m)alce in

murder means a knowledge of such circum

stances that according to common expert

ence there is @ plain and strong likelihood

that death will follow @ contemplated act”

He charged on dehberate premeditation

He added that “[t}he law permits the jury

to infer the existence of malice from the

fact of an intentional killing, coupled with

an implied negation of any excuse or justifi-

cation.” This language permitted an infer-

ence of malice, but did not presume malice,

from an intentional killing. The judge con-

cluded with a charge on voluntary man-

slaughter and self-defense. The matter of

& “When one does on unlawtul act he to by the

law presumed to have intended to Go HM and to

have imended as ordinary and natural come

quences on the grownd that these mom heve

Al9

423 NORTH EASTERN REPORTER, 24 SERIES

self-defense was crucial to the defendant's

contention at trial, both in his own testimo-

ny and in his counsel's argument to the

jury. The charge on self-defense in no way

involved any permissible inference or pre-

sumption concerning the defendant's inten-

tion

We return then to the specific portion of

the judge's charge on intent to which the

defendant objects. It is repeated in the

margin’ This is not @ straightforward

charge of the character with which we have

been concerned recently: thal @ person is

presumed to intend the natural and probe.

ble consequences of his ects. See DeJoin-

ville v. Commonwealth, supra; Common-

wealth v. Callahan, supra. The instruction

refers not to al! acts but only to unlawful

acta For this charge to have any applica

tion, the jury would have had to have deter-

mined, following other portions of the

judge's charge, that the defendant's acts

were unlawful Moreover, whatever the

presumption described by the judge meant,

he said that it applied only if the defendant

acted “with the deliberation which ought to

govern men in the conduct of their affairs”

Consequently, the defendant was to be heid

to the ordinary and natural consequences of

his unlawful conduct only if the jury found

that he was acting with reasonable deliber-

ation This limitation substantially negsted

the stated presumption and opened up the

question of the defendant's state of mind

for determination by the jury according to

other portions of the judge's charge.

[20] The judge's charge in its challenged

portion was hardly # pecture of clarity. It

was at best obscure It may in fact have

wold the jury nothing which could be of

assistance to them. It differs from the

erroneous but intelligible charges concern-

ing mandatory presumpiions which we have

found constitutionally deficient Because

the jury found deliberate premeditauion on

® proper charge on that question, the poss-

bility is substantially mitigated that the

teen withen his contemplation, f he m 6 sane

man and acts wih the debberavicn which ought

i govern men im the conduct of the affaors

So mweh for waem -

A20

HEISTAND v. HEISTAND

Mess 313

Cre wn. Mase. 423 © E30 313

challenged language improperly influenced

the jury in armving et verdict. Con-

sidered as part of the entire charge in the

context of this case, the challenged lan-

guage could not reasonabl) have been un

derstood by the jury, if it was understanda-

ble at all, as shifting the burden of proof

from the Commonwealth or as creating ®

constitutionally impermissible presump

tion *

{21} & Rebef under GL. ¢. 278, § 33E,

is not appropriate in this case We have

found no prejudicial error in any of the

lega! points advanced on appeal The de-

fendant makes no separate argument that

we should direct the entry of # verdict that

the defendant was guiliy of & lesser of.

fense. This was not the “typical” drunken

brawl in which someone suddenly and im-

puisvely pulled « knife In such @ case, 6

conviction of murder in the first degree

might not be the expected one. The incr

dent here had no bemgn orgs The de

fendant testified that he sought out Racetle

to “punch him out" because Racette had

“ripped off a close (rend of the defendant

while in prison. The defendant calculating-

:y atlacked one person, knifed two bystand-

ers against whom he had no grievance, did

not surrender to the police as & person who

acted in self-defense might be expected to

do, and fled the jurisdiction The convie-

tion of murder in the first degree should

stand

Judgments affirmed

6 tm any event, the charge had 0 bearing on

the defendant's comcuan of eteoult and bat-

Marjorie G. HEISTAND

¥

Peter J. HEISTAND.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued March 4, 1961

Decided July 2, 198)

Ex-husband appealed from decison of

the Probate Court, Norfolk County, Dolan,

J., which held him in contempt and ordered

upward modification of child support

gearded in divorce judgment. The Su-

preme Judie! Court, Lincos, 1, held that:

(1) ex-husband was fot entitled to reim-

bursement for alimony paid from date of

ex-wife's so-called remarriage ceremony

while she was still married to ex-husband to

date of lege! remarnage. (2) ex-wife was

entitled to upward modification of child

support, (3) trial court did not abuse discre-

tien in permitting ex-wife's late amend-

ment of modification complaint, and (4)

ex-husband was fot entitied wo offset

amount from weekly payments lo ex-wife

under divorce judgment in order to collect

money due for tax liability of ex-wife.

Affirmed

1. Divorce O» 247

Ex-husband was not entitled to reim-

bursement for alimony he silegedly over-

paid from date of wife's so-called remar-

riage «hile she «as still married to defend-

ant to date of legal remarriage where cere-

mony was o lege! nullity in the common

wealth, ex-husband adduced no evidence

that ex-wife's purported husband assumed

obligation to support her between date of

nullified marriage and date of legal mar-

riage and, even though ex-husband had

knowledge of sullified marrage, he conlin-

wed to pay weekly alimony.

tery wih « dangerous weapon on the victim

who survived