Commonwealth v. Lyons

444 Mass. 289

828 NE 2d 1

COMMONWEALTH v. MICHAEL J. LYONS.

Supreme Judicial Court of Massachusetts, Plymouth.

February 8, 2005.

May 20, 2005.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

Paul J. McManus, Committee for Public Counsel Services, for the defendant.

IRELAND, J.

After a jury convicted the defendant of murder in the second degree for the shaking death of his two week old son, he filed a motion pursuant to Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), seeking reduction of the verdict. The trial judge reduced the verdict to involuntary manslaughter, which the Appeals Court upheld on appeal. Commonwealth v. Lyons, 61 Mass. App. Ct. 1103 (2004). The Commonwealth appeals from the judge's order reducing the verdict. The defendant appeals from his conviction and now asks this court to order a new trial, raising a number of errors, but waives them if we should uphold the judge's reduction of the verdict from murder to involuntary manslaughter. We granted the Commonwealth's application for further appellate review. Because we conclude that the judge abused her discretion in reducing the verdict to manslaughter and that there is no merit in the defendant's allegations of error, we affirm the conviction of murder in the second degree and vacate the order reducing the degree of guilt.

Facts.

On the afternoon of June 28, 1998, the victim, a two week old infant boy, was rushed to Good Samaritan Hospital and was then "med flighted" to New England Medical Center in Boston, where he died as a result of "severe cerebral edema and subdural hematomas due to shaking." The victim had bruises on his upper back muscles just below the neck on both sides. His body showed all the signs of shaken baby syndrome, which "essentially destroyed his brain."¹ The defendant, an approximately five foot, eight inch, tall man weighing between 275 and 300 pounds, admitted to holding the victim's body with his hands underneath the victim's armpits and shaking him with enough force to shake a 215 pound man.² Given the severity of the victim's injuries, he would have lost consciousness and become unresponsive "[n]early instantaneously or within a very few seconds." The defendant admitted shaking the victim, but claimed that he did so in a panic to revive him. The crux of his defense was that he had acted without legal malice.

Discussion.

1. The Commonwealth's appeal. "Pursuant to rule 25 (b) (2), a trial judge has the authority to reduce a verdict, despite the presence of evidence sufficient to support the jury's original verdict." Commonwealth v. Rolon, 438 Mass. 808, 820 (2003), citing Commonwealth v. Woodward, 427 Mass. 659, 666-667 (1998), and cases cited. This authority is similar to our power to review capital cases under G. L. c. 278, § 33E, and a trial judge's decision on a rule 25 (b) (2) motion "should be guided by the same considerations." Commonwealth v. Gaulden, 383 Mass. 543, 555 (1981). The purpose of such post-conviction powers is "to ensure that the result in every criminal case is consonant with justice." Commonwealth v. Woodward, supra at 666. In exercising this power, the judge is required "to consider the whole case broadly to determine whether there was any miscarriage of justice" (quotations omitted). Commonwealth v. Jones, 366 Mass. 805, 807 (1975), and cases cited. As we have previously cautioned, "judge[s] should use this power sparingly," id. at 667, and not sit as a "second jury." Commonwealth v. Keough, 385 Mass. 314, 321 (1982). However, we will disturb a judge's order reducing a verdict only where the judge abused his discretion or committed an error of law. Commonwealth v. Woodward, supra at 668, quoting Commonwealth v. Millyan, 399 Mass. 171, 188 (1987).

A judge's discretion to reduce a verdict is appropriately exercised where the weight of the evidence in the case points to a lesser crime even though it is technically sufficient to support the jury's verdict. Commonwealth v. Rolon, supra at 821. Accordingly, to justify a reduction in the verdict, there must be some weakness in the critical evidence, see Commonwealth v. Ghee, 414 Mass. 313, 322 (1993) (verdict reduction appropriate where evidence of premeditation "slim"); Commonwealth v. Millyan, supra at 188-189 (verdict reduction appropriate where evidence of intoxication undermined theory of deliberate premeditation); Commonwealth v. Gaulden, supra at 557-558 (verdict reduction appropriate where evidence showed victim was first aggressor and defendant's conduct likely was influenced by alcohol); Commonwealth v. Jones, supra at 808 (verdict reduction appropriate where evidence of intoxication and sudden combat negated malice element), or some weakness in the evidence coupled with trial error. See Commonwealth v. Woodward, supra at 671 (although evidence suggested defendant did not act with malice, jury not instructed on manslaughter); Commonwealth v. Millyan, supra (although there was evidence of intoxication, jury not instructed on issue of impairment due to intoxication). However, a judge is not justified in reducing "to a lesser verdict that would be inconsistent with the weight of the evidence," nor in basing reduction "solely on factors irrelevant to the level of the offense proved." Commonwealth v. Rolon, supra at 822, and cases cited.

Therefore, we look to determine whether there was some weakness in the evidence that the defendant committed murder in the second degree, or evidence suggesting that he more likely committed involuntary manslaughter. If, as we conclude, the weight of the evidence is entirely consistent with murder in the second degree based on third prong malice, it was an abuse of discretion to reduce the verdict.

Here, the judge provided a written memorandum of decision outlining her reasons for reducing the verdict to involuntary manslaughter. See Commonwealth v. Gaulden, supra at 556 (judge should state reasons for reducing verdict). Those reasons were a lack of any evidence that the defendant had inflicted prior abuse or injuries on any of his children, especially the victim; the defendant's culpable conduct consisted of one violent shaking lasting "only a few seconds," while under the sway of painful memories of his other son's death³; the defendant was not a vicious man but one who succumbed to the frailty of the human condition and committed a momentary act of "extraordinarily poor judgment"; and the defendant was a steady worker with no prior criminal record. These reasons do not provide an adequate basis for reducing the verdict from murder in the second degree to involuntary manslaughter. Moreover, the judge outlined the evidence that would tend to comport more with murder than manslaughter, but failed to mention how the evidence supporting manslaughter made a manslaughter verdict more consonant with justice.

A fine line distinguishes murder in the second degree based on third prong malice from the lesser included offense of involuntary manslaughter. See Commonwealth v. Skinner, 408 Mass. 88, 93 (1990), and cases cited. "Without malice, an unlawful killing can be no more than manslaughter." Commonwealth v. Judge, 420 Mass. 433, 437 (1995), and cases cited. "The difference between the elements of the third prong of malice and . . . involuntary manslaughter lies in the degree of risk of physical harm that a reasonable person would recognize was created by particular conduct, based on what the defendant knew. The risk for the purposes of third prong malice is that there was a plain and strong likelihood of death. . . . The risk that will satisfy the standard for . . . involuntary manslaughter `involves a high degree of likelihood that substantial harm will result to another.'" Commonwealth v. Sires, 413 Mass. 292, 303-304 n.14 (1992), quoting Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). In this case, the jury received instructions on both murder in the second degree based on third prong malice and involuntary manslaughter. As the jury convicted the defendant of murder in the second degree, they must have found that in the circumstances known to the defendant, a reasonably prudent person would have known that, according to common experience, there was a plain and strong likelihood that the victim's death would follow the defendant's actions.

The judge's emphasis on the lack of evidence that the defendant had previously abused or injured any of his other children was misplaced — that the defendant ostensibly did not abuse the other children is irrelevant to the nature of the risk posed by his abuse of the victim.⁴ The judge also relied on the fact that the defendant had not abused the victim previously. The victim was only fourteen days old when he was killed, and this was the first time that the defendant had been alone with the victim. Thus, we do not find solace, as did the judge, in the fact that the defendant did not previously abuse the victim.

That the episode was brief does not create a weakness in the evidence of third prong malice. Although even evidence of repeated blows does not necessarily require a finding of malice, Commonwealth v. Vizcarrondo, 427 Mass. 392, 397-398 (1998), S.C., 431 Mass. 360 (2000), evidence of a single blow to a young child may be sufficient to support a jury's finding of malice. Commonwealth v. Starling, 382 Mass. 423, 426 (1981). This case is unlike the Woodward case, where the victim lived for five days after the injury was inflicted, the defendant denied shaking the victim, both the medical evidence and the cause of injury were controverted, and of particular importance, the jury had not even been given the option of convicting on the lesser included offense of manslaughter (an error which, by itself, would have required a new trial). See Commonwealth v. Woodward, supra at 660, 670-671. Here, the defendant admits that he shook the victim hard enough...