COMMONWEALTH vs. LLOYD A. GREENE.

WILKINS, J. The defendant challenges his conviction of murder in the second degree on the ground that the judge should have granted his motion for a directed verdict on so much of the indictment as charged him with murder. The defendant presented his motion at the conclusion of the prosecution's case in chief, arguing that the Commonwealth had failed to present evidence which would warrant the jury in finding beyond a reasonable doubt that he acted with malice aforethought when he shot the victim.

We have reviewed the evidence presented in the Commonwealth's case in chief and conclude that the evidence warranted a finding of malice. There was no abuse of discretion in denying the defendant's motion for a new trial which, as argued to us, was founded on the same contention. We conclude that this is not a case in which we should exercise our power and duty under G. L. c. 278, Section 33E, to direct that a verdict of guilty of manslaughter be entered in lieu of the verdict of guilty of murder in the second degree which was found by the jury.

Before analyzing the evidence which warranted a finding of malice on the defendant's part, we discuss the defendant's contention concerning the law which is applicable to the proof which is required in this Commonwealth to establish malice. The defendant argues that the

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constitutional requirements imposed by Mullaney v. Wilbur, 421 U.S. 684 (1975), have altered the permissible limits of State law concerning the proof of malice. The Mullaney case held that a State may not shift the burden of persuasion to a criminal defendant to show that he acted in the heat of passion on sudden provocation and thereby reduce murder to manslaughter. Id. at 703. The Mullaney case thus was concerned with the question of the placing of the burden of persuasion; it had nothing to do with the question of what proof must be made in order to overcome a motion for a directed verdict. See Commonwealth v. Gagne, 367 Mass. 519, 523 n.2 (1975). We have accepted the premise that, when there is some evidence of provocation, the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in the heat of passion. Commonwealth v. Johnson, ante, 185, 192 (1977). [Note 1] Cf. Commonwealth v. Rodriguez, 370 Mass. 684, 687-688 (1976).

The defendant argues that malice may not be proven beyond a reasonable doubt solely by reason of the fact that a defendant used a gun, if there is some evidence which would warrant a finding that the defendant acted on provocation. As will be seen, there was in fact evidence in addition to the defendant's use of a gun which warranted an inference of malice. In such a case "the jury ... [could] view the use of the weapon as giving rise to an inference of malice to be weighed with inferences, negative or positive, on the same topic derived from other evidence; all this leaving the Commonwealth with the burden of establishing beyond a reasonable doubt the essential elements of a murder." Commonwealth v. Johnson, supra at 192.

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Even if there is no evidence of malice apart from the use of a gun, the right to infer malice which is permissible from the use of a gun does not disappear simply because there is some evidence of mitigating circumstances. Commonwealth v. Gagne, 367 Mass. 519, 522 (1975). When dealing with the subjective question whether a defendant acted with malice, proof of actual malice, as opposed to proof of facts from which malice may be inferred, is not required to sustain a conviction of murder. It has never been the law of the Commonwealth (see id.) that an inference of malice is unwarranted where there is also evidence which would warrant a finding that the defendant acted "... from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat." Commonwealth v. Soaris, 275 Mass. 291, 299 (1931), quoted in Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975). In the context of a motion for a directed verdict, one must remember that the jury may disbelieve the evidence that the defendant acted with such provocation as would reduce the crime from murder to manslaughter. Certainly, there is no constitutional principle which bars a conviction of a defendant of murder where there is evidence warranting an inference of malice, such as the use of a gun, and also evidence warranting (but not requiring) a finding that the defendant acted with provocation. We turn then to a recitation of the evidence introduced in the Commonwealth's case in chief which warranted the jury in finding that the defendant acted with malice. [Note 2]

The defendant shot the victim in a road in the Jefferson Park housing project in Cambridge in the early morning of January 31, 1972. The defendant and the victim's wife were close friends and had been seeing each other "socially." On the night in question they had met at an apartment

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in the housing project occupied by a friend of the victim's wife. The defendant and the victim's wife left the apartment shortly after midnight. The defendant, who worked as a security guard, was carrying a gun. There was a substantial disagreement in the evidence as to what happened next. There was evidence from witnesses in apartments overlooking the scene which justified a finding that there was an argument among the defendant, the victim, and the victim's wife. The defendant then walked away some twenty-five feet, turned, and fired three shots at spaced intervals. The victim's wife drove the defendant away in her car. The defendant told her that he shot when the victim came after him with a gun. The victim died of a gunshot wound to his abdomen. In September of 1972, the victim's wife, who received insurance proceeds on the death of her husband, told the defendant that she was going to marry someone else. The defendant became angry and said, "I did the dirt and now someone else gets everything." [Note 3]

There is little evidence in the Commonwealth's case which shows that the defendant acted in the heat of passion. The victim obviously precipitated the encounter at the housing project, and there was evidence of an argument, but no evidence of what was said. Insults and arguing cannot provide provocation, and, in the absence of evidence of what was said, there can be no basis for concluding that the words spoken by the victim or the victim's wife provided reasonable provocation to support a manslaughter verdict. See Commonwealth v. Bermudez, 370 Mass. 438, 440-442 (1976). However, there was evidence that the victim came after the defendant with a gun, and, although that evidence normally would relate to a claim of self-defense, we do not discount it as reasonable provocation

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to cause the defendant to act from "a sudden transport of passion or heat of blood."

Accepting the Commonwealth's evidence as warranting, but not compelling, a finding of provocation, we rule that other evidence warranted the jury in finding that the defendant acted with malice. The defendant walked twenty-five feet away from the victim, turned, and fired three shots at him. There were pauses between the shots, which suggests that the defendant was acting intentionally in firing at the victim. In further support of a finding of an intention to kill, and therefore malice, several months later the defendant said that he "did the dirt" and someone else was going to get everything. This evidence warranted a finding of malice and justified both the denial of the defendant's motion for a directed verdict and the denial of his motion for a new trial.

As we said at the commencement of this opinion, this is not a case where the interest of justice requires an order changing the verdict of the jury from murder in the second degree to manslaughter. The evidence was highly conflicting. The jury declined to accept the defendant's claim of self-defense. Unlike Commonwealth v. Jones, 366 Mass. 805, 809 (1975), the great weight of the evidence does not tend to establish that the killing was carried out without malice aforethought. See Commonwealth v. Ravida, 371 Mass. 243 (1976).

Judgment affirmed.