COMMONWEALTH vs. FREDERICK H. DUNKER, JR.

CUTTER, J. Dunker appeals from the denial by a Superior Court judge (the motion judge) of Dunker's fourth motion for a new trial of the indictment resulting in his conviction on April 29, 1971, of murder (on June 29, 1970) [Note 1] in the second

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degree of Alfred J. Crowley. On an earlier appeal, the conviction was affirmed by the Supreme Judicial Court. Commonwealth v. Dunker, 363 Mass. 792 (1973). Dunker asserts, as a basis for his present motion for a new trial, that the judge's instructions on malice and manslaughter at the original trial (a) "created an impermissible mandatory presumption in violation of . . . [Dunker's] rights to due process of law," and (b) "improperly shifted to . . . [Dunker] the burden of proving that he acted in passion or heat of blood and that his conduct was wanton and reckless." At the 1971 trial no objection or exception was claimed to the pertinent portions of the charge. The original trial took place before the decisions in Mullaney v. Wilbur, 421 U.S. 684 (1975), and Sandstrom v. Montana, 442 U.S. 510 (1979).

The motion judge, in a 1985 memorandum decision denying a new trial, reviewed the general facts established at the 1971 trial, and concluded that Dunker's "defense consisted solely of [an] alibi," viz., that he had been in New Bedford on the early morning of June 25, 1970, when Crowley was shot in Dorchester, and stated in a footnote to his memorandum that "[a]t one point counsel for . . . Dunker indicated that he intended to present evidence that . . . [Dunker] acted in self defense" but that "[n]o such evidence, in fact, however, was offered at trial." The motion for a new trial was denied on the ground that any error in the judge's charge on malice was harmless because "the heart of . . . [Dunker's] defense . . . was alibi" and that Dunker "never . . . advanced any theory of justification, mitigation[,] or lack of intent nor . . . were these issues raised by the evidence." The consequence, in the opinion of the motion judge, was that Dunker had "waived the issue of . . . errors in the charge [Note 2] on malice in light of his strategy of an alibi defense." The motion judge thus concluded that, if all of the defense founded on the evidence was an alibi, the "charge on malice was unrelated to the issues in the case [and in fact tried] and was harmless beyond a reasonable doubt."

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The motion judge (who was not the trial judge) was advised by counsel (for the Commonwealth and for Dunker), at the hearing on the motion for a new trial, that the only evidence at trial bearing upon any defense other than alibi, was from a police officer who had talked with the victim and from two prisoners with whom Dunker had talked at M.C.I., Bridgewater, while there for pretrial examination. [Note 3]

The evidence against Dunker at the 1971 trial came from four principal witnesses. Two were police officers who talked with the victim at Boston City Hospital shortly after he was shot. The admission of the victim's statements to these officers that Dunker had shot him was sustained, on the ground that they constituted dying declarations, in the 1973 opinion of the Supreme Judicial Court, 363 Mass. at 793-795. The two prisoners who in 1970 had been in protective confinement at M.C.I., Bridgewater, testified to admissions made there to them by Dunker.

One of these prisoners (Francis Garney) testified that Dunker told him that he (Dunker) "and another fellow called Big Mack . . . stole a Chrysler . . ., brought it . . . to Boston with the intentions to pick up and kill . . . Crowley. They drove . . . to the 1310 Lounge at around one o'clock in the morning . . . and Big Mack went into the 1310 Lounge on Dorchester Avenue and he picked up . . . Crowley and took him out with the intentions [sic] to kill him." Garney's testimony continued. "[T]hey drove around Dorchester . . . into the Fields Corner area and where an argument took place in the car and . . .

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Dunker asked Big Mack for the gun, while he was sitting in the back seat with . . . Crowley. And he shot . . . Crowley in the left side of the face and the kid . . . ran out of the door of the car . . . and he [Dunker] shot him again in the side" (emphasis supplied). Garney further testified Dunker had said that "Big Mack was driving the car," that they then drove to South Boston, and that Dunker "took Big Mack's car and drove to New Bedford." This, Dunker told Garney, was "to set up an alibi . . . if he got arrested." On cross-examination by Dunker's counsel, further inquiry about the "argument" in the automobile was made. The witness, Garney, persisted in his testimony that Dunker told him that, during or after the "argument," he [Dunker] had asked Big Mack in the front seat for a gun and had been passed one. Before that Dunker didn't have a gun.

The other prisoner at M.C.I., Bridgewater, who testified that he talked with Dunker in 1970 was Carlos A. Wilson. His pertinent testimony is summarized in the margin. [Note 4]

At the hearing before the motion judge, the testimony at trial of Sergeant Francis Whalen was referred to as possibly providing some support for a defense other than alibi. Sergeant Whalen had testified to talking three times with Crowley, the victim, at the hospital prior to his death. Crowley told him that Fred Dunker had shot him, that he (Crowley) did not know where Dunker lived, that he did not know the reason why the shooting happened, and that they (Crowley and Dunker) had served time together at M.C.I., Concord. On cross-examination,

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Sergeant Whalen testified that Crowley had said that, while he was in the back seat of a vehicle, sitting next to a man from South Boston named Mack "he was shot . . . and then jumped out the door and ran . . . about 28 feet." The victim told the sergeant that the victim did not know whether "Mack" was a first name, a nickname, or a last name. Crowley also told the sergeant that he "had an argument with" Dunker in the car.

The only other evidence which might have a bearing on any defense other than alibi was that referred to in the 1973 opinion of the Supreme Judicial Court, 363 Mass. at 798-800. There it was recited that defense counsel had asked Crowley's father whether Crowley would get upset if someone was seeing Crowley's former wife and whether Crowley was easily excitable. As the 1973 opinion states (at 798), counsel in a bench conference had told the trial judge that the inquiry was material because "our defense here is going to be self defense." The opinion went on (at 799), "Based on that representation, the judge allowed . . . evidence concerning the victim. . . . [T]he victim's father testified that, except on occasion, the victim had not been living with his wife for four years prior to his death; he could not be the judge of whether the victim disliked his wife; he had trouble with his son; and his son was quick tempered. When the witness testified that he did not know whether his son `would take offense . . . at anybody who was stepping out or having any affair with his wife,' the judge asked counsel in front of the jury whether he was `going to have evidence of that.' Counsel replied, `Yes, I am, definitely.' No such evidence was ever introduced" (emphasis supplied). [Note 5]

The evidence just summarized is the only evidence brought to the motion judge's, and to our, attention as constituting

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evidence (a) permitting or requiring the trial judge to charge on manslaughter, or (b) constituting a basis for Dunker to argue a defense other than alibi. After the Commonwealth rested its case in chief, there was no defense effort to establish anything other than that Dunker was in New Bedford when Crowley was shot. Indeed, Dunker himself took the stand and testified that he was not in the Boston area "between the morning of June 24 and the noon of June 25, 1970," and described in detail what he claimed to have been doing in New Bedford during that period.

Dunker's present counsel now contends that the judge's instructions at the 1971 trial concerning malice created an impermissible mandatory presumption of malice which deprived Dunker of due process of law under principles discussed in the Mullaney case, 421 U.S. at 694-704, the Sandstrom case, 442 U.S. at 514-527, and Francis v. Franklin, 471 U.S. 307 (1985). See also Commonwealth v. Rodriguez, 370 Mass. 684, 687-692 (1976). Defense counsel also contends that these decisions are retroactive to convictions obtained and affirmed prior to their rendition. See Hankerson v. North Carolina, 432 U.S. 233, 240-244 (1977).

The charge given by the trial judge must be viewed as a whole. See Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980). The judge, at the outset, gave appropriate instructions on the presumption of innocence and that Dunker "does not have to prove that he is innocent." The judge also instructed that it is "the obligation of the Commonwealth to establish beyond a reasonable doubt every essential element of the crime." In discussing specific intent, he told the jury, "An intent to kill may be inferred from the act of killing where a loaded firearm held by a defendant is aimed at a person and is discharged; the jury have a right to infer that such defendant intended to discharge it and to cause the bullet to hit a person at whom the firearm was aimed" (emphasis supplied). The trial judge gave adequate instructions on the whole spectrum of homicides: murder in the first degree, second degree murder, voluntary and involuntary manslaughter, and on the sometimes included offense of assault and battery. He distinguished murder from manslaughter by "the absence of malice in manslaughter".

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The judge also instructed on the relationship between (a) malice, and (b) the use of a firearm which caused a homicide, in language set out in the margin. [Note 6] Dunker's present attorney argues that some of this language tends to shift to Dunker the Commonwealth's burden of establishing all the elements of murder in the second degree, in large part because of the use of the word "presumption" in the language immediately following the bracketed letters [X] and [Y] in n.6. With this language, however, there must be read the trial judge's instructions with respect to manslaughter in this particular case. [Note 7]

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At the close of the charge, after a bench conference, the judge gave his final instructions: "It is not sufficient to sustain a conviction of murder that the defendant may have been guilty of some other crime or crimes or that he may have been guilty of generally bad or imprudent conduct. . . . The proof must establish the guilt of the defendant beyond a reasonable doubt of every essential element of the particular charge made in the indictment. . . . You must find the evidence to sustain the essential elements of either voluntary or involuntary manslaughter as I have explained them or don't find manslaughter. . . . [I]n the event you don't find beyond a reasonable doubt the essential elements of any of the crimes which I have defined, of course he is entitled to a not guilty to everything" (emphasis supplied).

There was little evidence to require that the trial judge charge on manslaughter, even if Dunker had admitted that he had shot Crowley. An autopsy revealed that a bullet had gone through the victim's head and that there was a bullet wound also in his side. This showing of accurate markmanship in close quarters at least tended to negate accidental shooting. The evidence of any physical argument or fight in the automobile was slight, at best. No evidence of provocation by Dunker by any inappropriate conduct with the victim's former wife ever was presented. The general testimony of Crowley's father that he had trouble with his son and that the son was quick tempered had no specific relation to the circumstances in which the son was killed. It may well be that the trial judge merely gave the manslaughter charge out of abundance of caution. See Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975); Commonwealth v. Estremera, 383 Mass. 382, 391-393 (1981);

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Commonwealth v. Dustin, 391 Mass. 481, 487, cert. denied, 469 U.S. 844 (1984). See also Commonwealth v. Walden, 380 Mass. 724, 727 (1980); Commonwealth v. Lee, 383 Mass. 507, 514 (1981).

Viewed as a whole, the judge's charge (as mentioned above) gave full instructions on the presumption of Dunker's innocence and on the continuing burden resting upon the Commonwealth to prove every element of the crime with which Dunker was charged. The inadequacies now asserted, understandably, were not argued at all in 1973 (upon the original pre-Mullaney case appeal, 363 Mass. 792) and nothing about any improprieties in the jury charge then was discussed by the court, despite the comprehensive review (see, at 800) required by G. L. c. 278, Section 33E. Even in the present post-Mullaney and post-Sandstrom era, however, the charge reasonably can be viewed as not risking interpretations by a jury prescribing any mandatory presumption, in view of (a) the broad flexibility described to the jury by the trial judge concerning their power to find the facts and (b) his repeated instructions that to convict they must be convinced beyond a reasonable doubt of each element of a crime charged. See Commonwealth v. Adrey, 397 Mass. 751, 753-755 (1986), and cases cited at 755. Particularly should this view prevail upon the possibly more lenient scrutiny to be afforded to jury instructions given prior to the Mullaney and Sandstrom decisions. See Commonwealth v. Collins, 374 Mass. 596, 599 pars. (1) & (5) (1978).

We recognize, of course, that use of the terms "presumption" and "findings" (with reference to the proof of malice) have been disapproved as recently as Commonwealth v. Nieves, 394 Mass. 355, 361 (1985), which reached a conclusion different from that in the Adrey case. In the present case, however, the situation was greatly affected by the circumstances that Dunker shifted to an alibi defense after the Commonwealth rested its case-in-chief.

Commonwealth v. Festa, 388 Mass. 513, 514-516 (1983), dealt with a conviction in October, 1974, of murder (on January 27, 1974) in the second degree. See Commonwealth v. Festa, 369 Mass. 419, 420, 424 (1976). The trial judge had charged (see 388 Mass. at 514) that "[w]hen the killing is caused by the

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intentional use of a deadly weapon there arises a presumption of malice." This had been accompanied by an instruction that the jurors could "infer malice from the use of a deadly weapon, such as a revolver." The 1983 opinion (at 515) concluded that the charge "did not impose on [Festa] the duty to disprove malice" and further that "Festa's case was tried and argued by both parties solely on the issue of the identity of the perpetrator" of the homicide. Festa's renewed motion for a new trial was denied (on this phase of the case) because the "use of the word `presumption' in the malice instructions [has] no bearing on [Festa's] guilt, and . . . the instructions [do] not create a danger of grave prejudice or a substantial likelihood of a miscarriage of justice." Ibid., citing Commonwealth v. Pisa, 384 Mass. 362, 363-364 (1981). See also Commonwealth v. Lee, 383 Mass. at 512-513, where Lee presented an alibi defense (see, at 509) with the consequence (at 512) that "[t]he propriety of the charge as to malice was not in issue. The case was tried and argued by both parties on the theory that a murder had been committed. The issue contested by . . . [Lee] was solely that of the identity of the murderer." [Note 8]

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A more recent case, Commonwealth v. Egerton, 396 Mass. 499, 505 & n.4 (1986), is relevant. There the Lee case was referred to as presenting an analogy to the refusal of a trial judge to charge on a lesser included offense where there was little or no evidence or defense contention based "on the element differentiating the greater and lesser offenses" and (at 504) the "defense was primarily one of alibi." See also generally Commonwealth v. Estremera, 383 Mass. at 393-396; Commonwealth v. Doucette, 391 Mass. 443, 450-454 (1984).

The Estremera, Lee, Festa, and Egerton cases, in some degree, involve the appraisal of a jury charge on malice or intent in instances where other issues were predominantly the areas of contest at trial. This predominance of other issues has been treated as an important aspect of the context in which the probable impact on the jury of the malice charge has been determined. We are of opinion that the motion judge correctly concluded that, because of Dunker's alibi defense, any error in the 1971 malice charge was at most harmless. Viewing the evidence in the present case as a whole, we perceive no significant risk of any miscarriage of justice in the motion judge's decision. His conclusion that Dunker's assertion of an alibi defense was a waiver of any Sandstrom type error in the malice charge finds support in language in Commonwealth v. White, 392 Mass. 282, 286 (1984). See also Commonwealth v. Pisa, 384 Mass. 362, 363-364 (1981); Commonwealth v. Tameleo, 384 Mass. 368, 369-370 (1981).

There has been doubt expressed in recent decisions of the Supreme Court of the United States whether it was ever appropriate to regard any error as harmless where there was conceivably constitutional error of the type discussed in the Sandstrom case. See, e.g., Connecticut v. Johnson, 460 U.S. 73, 87 (1983, where possible instances of "harmless error" were discussed but not found there to exist by a majority of the Court). In Francis v. Franklin, 471 U.S. 307, 313-327 (1985),

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the issue was recognized as left unsettled. See also the dissents at 327-342. The question seems to have been answered in a recent split decision, Rose v. Clark, 478 U.S. 570, 576-584 (1986). The Rose case was remanded (at 584) to the United States Court of Appeals with directions to consider "whether the error committed . . . was harmless beyond a reasonable doubt." The case, for the present at least, decides that the "harmless error" principle of Chapman v. California, 386 U.S. 18 (1967), may be applied in a Sandstrom context. See United States v. Hastings, 461 U.S. 499, 507-512 (1983). As in that case "[o]n the whole record, we are satisfied beyond a reasonable doubt that the error [if any, now] relied upon was harmless." Id. at 512.

Order denying motion for new trial affirmed.