COMMONWEALTH vs. JOHN J. HARRINGTON.

KEVILLE, J. The defendant was convicted by a jury of second degree murder and sentenced to life imprisonment. That conviction was affirmed on appeal. Commonwealth v. Harrington, 367 Mass. 13 (1975). His conviction of assault with a dangerous weapon with intent to rob arising from the same incident had been placed on file. Id. at 15. More than two and one-half years later the defendant moved for a new trial. His motion was denied by a judge of the Superior Court. A single justice of the Supreme Judicial Court allowed the defendant's claim of appeal under G. L. c. 278, Section 33E. The appeal was entered in this court. Our disposition of a single issue makes it unnecessary to treat those errors assigned by the defendant

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arising from the denial of his motion for a new trial. [Note 1] That issue with respect to the murder conviction [Note 2] is whether the trial judge's instructions were constitutionally inadequate on self-defense, self-defense albeit with excessive force and reasonable provocation under Mullaney v. Wilbur, 421 U.S. 684, 704 (1975), and its progeny. Although both the trial and affirmance of the defendant's conviction occurred before the decisions in Mullaney v. Wilbur, supra, and Commonwealth v. Rodriguez, 370 Mass. 684 (1976), and although the defendant failed to challenge the judge's instructions at trial or on appeal, we are not precluded from reviewing his instructions in order to avoid the risk of a miscarriage of justice. See Commonwealth v. Stokes, 374 Mass. 583 , 588-590 (1978); Connolly v. Commonwealth, 377 Mass. 527 , 530-531 & n.9, (1979); Gibson v. Commonwealth, 377 Mass. 539 , 540-541 (1979). Stokes was decided after the defendant had filed motions for a new trial, after the hearing on the denial of the motions, and after the defendant had filed his claim of appeal. Although the Mullaney claim is being made for the first time before us, we agree with the defendant that considerations of judicial economy and efficiency make it appropriate for us to deal with the question at this time. [Note 3] We hold that the trial judge's instructions improperly

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shifted the burden of proof to the defendant on the issue of self-defense and that the defendant is entitled to a new trial on the indictment for murder.

At the trial Rosemarie LaTerza testified that on the morning of May 2, 1973, she, the defendant and David Raimer met and planned to rob the victim Alfred Mott at his apartment. Raimer claimed knowledge that the victim would be visited that evening by a young male prostitute known as Jimmy whose appearance at the apartment would signify that Mott was at home. Raimer suggested that they could then rob both Jimmy and Mott. Raimer and the defendant then stole a car which they were to use that evening in the robbery.

Later that afternoon LaTerza, Raimer and the defendant went to the defendant's home in Belmont where they obtained two hunting knives which they planned to use to frighten Mott. That evening, after driving to Mott's apartment, they saw Jimmy leave but then lost sight of him when they tried to follow him. After returning to Mott's building, LaTerza and the defendant went to Mott's apartment while Raimer remained in the car.

Mott opened the apartment door but then tried to close it against LaTerza and the defendant who succeeded in forcing their way inside. The defendant asked Mott for money but Mott denied having any. The defendant then grasped Mott about the waist and held a hand over Mott's

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mouth while LaTerza searched through a desk drawer. As she looked up she observed that Mott's white T-shirt was covered with blood. Mott was screaming. The defendant told him to "shut up" and then stabbed him. LaTerza and the defendant then left Mott's apartment. After they had driven for two blocks, she noticed that the defendant was bleeding from a stab wound in the leg.

The defendant's version differed markedly from that of LaTerza. He testified that the purpose of going to Mott's apartment was not to rob Mott but to look for Jimmy who had some of Raimer's clothes and owed Raimer money. The defendant also claimed that he did not go to Belmont that day to pick up a knife but rather that he always carried it with him and that the car was stolen for the purpose of moving some stolen goods. He asserted that they did not force their way into the apartment but were admitted by Mott. The defendant claimed that Mott pushed him first, causing him to fall, whereupon Mott jumped on him and struck him. In the course of their struggle, the defendant's knife was drawn. He claimed that it was only after Mott had stabbed him that he retaliated by stabbing Mott.

The medical examiner testified that Mott received six deep stab wounds, one of them through the breastbone. One was four inches deep, another eleven and six-tenths inches deep. It was his opinion that Mott's wounds could have been received while standing, consistent with LaTerza's testimony, or during a struggle, consonant with the defendant's testimony. The defendant's stab wound in the leg was deep and required his hospitalization for fifteen days.

At the trial of an indictment for murder, due process requires that the judge instruct the jury, when, as here, it is warranted by the evidence, that the prosecution, in order to establish the requisite malice, must prove beyond a reasonable doubt that the crime was not committed in self-defense, Commonwealth v. Rodriguez, 370 Mass. at 691-692, or was not committed in self-defense

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albeit with excessive force or with reasonable provocation, Commonwealth v. Stokes, 374 Mass. at 592. In accordance with the holding of these cases, jury instructions "which suggested, without explicitly stating, that the defendant had to prove that he acted in proper self-defense," have been found wanting. Connolly v. Commonwealth, 377 Mass. at 530.

Although "greater expectations" (Connolly v. Commonwealth, supra) and consequently more careful scrutiny of the judge's charge are required in the review of a trial occurring after Mullaney, and particularly after Rodriguez, than would be required in the case of instructions in earlier trials (Connolly v. Commonwealth, supra at 530-531), such as that before us, we nonetheless conclude that the charge was inadequate, even under the less rigid standard of review applicable to pre-Mullaney and pre-Rodriguez charges. [Note 4]

While the judge here instructed the jury that the prosecution was required to prove each and every ingredient of the crimes charged beyond a reasonable doubt, his

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instructions on the issue of self-defense were minimal, did not explicitly state that homicide may be justifiable if committed in self-defense and, more importantly, did not convey to the jury that self-defense negates a finding of malice. Commonwealth v. Stokes, 374 Mass. at 590-591. Connolly v. Commonwealth, 377 Mass. at 532. Whether these defects alone would require reversal in a pre-Mullaney case (id.) such as this one, we need not decide, for the charge embodied additionally the erroneous implication that it was the defendant's burden to prove self-defense at least by a fair preponderance of the evidence. Id. at 532-535 & n.13. [Note 5]

Prejudice resulting from the judge's charge on self-defense was compounded by his failure to charge on the possibility of a verdict of manslaughter specifically for excessive force used in self-defense or for murder committed on reasonable provocation. See Connolly v. Commonwealth, 377 Mass. at 535 n. 12. [Note 6]

The Commonwealth argues that any deficiencies in the judge's charge were harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 24 (1967), inasmuch

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as the jury convicted the defendant of assault by means of a dangerous weapon with intent to rob, and, having done so, "had no choice but to find the defendant guilty of second-degree murder" under the felony-murder doctrine. We do not agree. Although it may be unlikely that the jury found that the killing did not occur in the course of the felony, it would have been within the jury's province to have rendered verdicts of guilty of the felony but not guilty of felony-murder. See Commonwealth v. Scott, 355 Mass. 471 , 475 (1969); Commonwealth v. White, 363 Mass. 682 , 684-685 (1973); Commonwealth v. Bowman, 373 Mass. 760 , 762 n.2 (1977).

The judge permitted the jury to find second degree murder under either the felony-murder or intentional homicide theories, unlike Commonwealth v. Fluker, 377 Mass. 123 , 128-129 (1979), in which the jury's verdict of second degree murder was clearly attributable to an instruction on intentional homicide and not to an instruction on felony-murder, inasmuch as the latter permitted only a finding of first degree murder.

In the circumstances of this case, the judge's inadequate charge which shifted the burden of proof to the defendant on the issue of self-defense entitles the defendant to a new trial on the indictment for murder. Any retrial of that indictment must be treated as one for second degree murder, the defendant having been acquitted of murder in the first degree. Green v. United States, 355 U.S. 184, 190 (1957), as made applicable to the States by Benton v. Maryland, 395 U.S. 784, 793-796 (1968). Walsh v. Commonwealth, 358 Mass. 193 , 198 (1970).

Judgment reversed.

Verdict set aside.