COMMONWEALTH VS. PAUL LASHAWN FICKLING

CORDY, J. A jury convicted the defendant, Paul Lashawn Fickling, of murder in the first degree of both his infant daughter and her mother, by reason of extreme atrocity or cruelty. On appeal, the defendant claims that the judge erred in denying his motion for a required finding of not guilty on the indictment charging him with the murder of his daughter when only a

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manslaughter charge was merited by the evidence. He also argues that the trial judge erred in admitting evidence of prior violent incidents between the defendant and the child's mother occurring as long as fifteen months before their deaths, and committed reversible error by improperly instructing the jury on the issue of provocation as it applies to voluntary manslaughter with respect to the mother, and on malice aforethought with respect to both victims. Last, he asks that we exercise our power under G. L. c. 278, s. 33E, to reduce this conviction to manslaughter. We affirm the defendant's convictions and decline to exercise our power under G. L. c. 278, s. 33E.

1. Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997). On July 11, 1996, the police found the bodies of Amy Smith (victim) and her twenty-two month old daughter (hereinafter child or daughter) in their apartment on Dwight Street Extension in Springfield. The defendant was the child's father, but was not residing at that address. The victim's nude body was discovered in a closet, with her legs protruding. Her hands were bound to her chest, her face was covered by clothing and a stroller, and a sock was stuffed inside her mouth. An autopsy revealed that she died from asphyxia which could have been caused by strangulation due to a choke hold around her neck or suffocation due to the sock found in her mouth. The child's fully clothed body was found lying on a mattress near her mother. An autopsy determined that she had died from the combined effects of dehydration and starvation due to lack of water and food. [Note 1]

Sergeant Larry Brown and Detective Anthony Pioggia of the Springfield police department examined the crime scene. They found no sign of forced entry or robbery. All of the kitchen windows, which bordered the rear porch (the customary entrance to the dwelling), were locked with the shades drawn. The door

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to the rear porch was also locked by a deadbolt from the inside. The detectives discovered, in a kitchen drawer, a copy of a protective order that prohibited the defendant from having any contact with the victim and her daughter.

Soon after the police arrived, a local television station broadcast the names of the victims and the location of the murder scene. Responding to this broadcast, Brown dispatched officers to locate the defendant, who arrived at the scene while the search was underway. The defendant approached the rear porch door, where two officers were stationed, and angrily demanded to be admitted to the apartment to see his baby. The defendant, who was with two other young men, became aggressive and pushed one of the officers guarding the porch. He was then arrested on an unrelated outstanding warrant.

Detectives Pioggia and Raymond Muise began interviewing the defendant at the Springfield police department at approximately 7 P.m., following the defendant's signed waiver of his Miranda rights. He signed the waiver as "Shawn Fickling." When asked about the protective order, the defendant claimed it was directed at his twin brother Paul, who had "problems" with the victim. He also told them that the outstanding warrant on which he had been arrested was really against his twin brother, who was currently in jail.

Detective Pioggia left briefly to make inquiries about the alleged twin brother. When Pioggia returned and confronted the defendant with the fact that no such twin brother existed, the defendant admitted he did not have a twin brother, and then told the detectives that the protective order was issued against him after an incident that occurred when he and the victim lived together on Purl Strcet in Springfield, prior to and shortly following their child's birth. The defendant stated that he struck the victim and that it was the only time that had happened. When asked if he could think of anyone who could have committed these crimes, the defendant mentioned a local street person. The defendant then proceeded to tell the detectives that he had last seen the victim one month before her death. When the police informed him that they had spoken to a person who could place him near the apartment a few days before her death, the defendant remembered that on July 6 he had been paged by

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the victim, and had gone to her apartment to give her forty dollars for the baby.

The police subsequently established that the pager did not exist, and confronted the defendant with this and other inconsistencies in his story. Detective Muise testified that at approximately 10:25 P.m., the defendant "lowered his head, looked up at us, and said he did it; 'Excuse me, all right, I did it'. He said he hit her a couple of times, and then he choked her." The defendant then expressed surprise that he would be spending the rest of his life in jail for murder. Following this admission, a first written statement was taken.

The defendant provided the details of his relationship with the victim and stated that she had obtained a protective order because "a couple of times I slapped her." In addition, the defendant described his visit to her apartment on July 5, 1996, where he last saw her at about 6 P.m. According to the defendant, he was accompanied by a man named "Broadway." [Note 2] When they arrived at the apartment, the defendant saw that the child was naked and had fecal matter on her legs. The defendant and the victim got into an argument as he cleaned the baby and diapered her. He stated that he did not put any clothing on the child. [Note 3] As he finished cleaning the baby, the victim pushed him from behind, he fell forward, and "[his] face went mushing right into the shit." He was "real mad" and slapped her twice. According to the defendant's statement, the victim then grabbed a knife from the kitchen and swung it at him repeatedly. She cut his right wrist and right hand. [Note 4] He grabbed her in a head lock and "squeezed her for about 2-3 minutes while she struggled with me." When he released her, she fell to the mattress and swore at him. He then left the apartment by the back door, after Broadway told him he was going to "stash" her. The defendant claimed that he next returned to the apartment on July 9, 1996, and knocked on her door. He could hear the television on inside

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the apartment. Two neighbors told him they had not seen the victim or her daughter for about one week.

The detectives confronted the defendant with evidence of inconsistencies in his first statement and, after being informed again of his Miranda rights, the defendant gave a second statement. In the second statement, he added that he remained in the apartment and saw " 'Broadway' hitting [the victim] after I let her go and stopped choking her." Broadway punched her in the face and head and "just went crazy." [Note 5] He then held her lips shut, and she lapsed into unconsciousness. At this point the defendant claimed he walked outside to dispose of a soiled diaper. When he returned, he saw Broadway inserting his fingers into the victim's genitalia while fondling her breasts. She remained unresponsive. When Broadway was "finished" he told the defendant he was going to "stash" the victim, and he dragged her to a closet and placed her inside. At this point the defendant "got real scared" and left by the back door, followed by "Broadway" a few minutes later. The defendant was aware that he had left the child behind, but he claimed that he assumed someone would come in to get her through the unlocked back door. [Note 6] The detectives, still believing the defendant was not being forthcoming, took an additional statement from him that was later made an addendum to the second statement. [Note 7] The defendant said he went back to the apartment on July 9 because he knew that his child was there and that her mother was dead. He knocked, but did not try to enter because he did not wish to attract the attention of the neighbors. [Note 8]

2. Motion for a required finding of not guilty with respect to

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the murder of the child. In reviewing a denial of a motion for a required finding, we consider the evidence in its light most favorable to the Commonwealth to determine whether it was sufficient to permit a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). "The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding." Commonwealth v. Lydon, 413 Mass. 309, 312 (1992). The Commonwealth proceeded on the theory that, because the defendant intentionally abandoned his infant daughter in circumstances that he reasonably would have known would result in her death, the jury could reasonably have inferred the malice required for conviction of murder in the first degree on a theory of extreme atrocity or cruelty. [Note 9] The defendant asserts that, because the windows facing the street were open and the door providing access from the building's common hallway was unlocked, the evidence was sufficient to prove only that he was guilty of wilful and wanton conduct amounting to involuntary manslaughter by abandoning the child without care.

The evidence at trial was sufficient to permit a jury to find the defendant guilty of murder in the first degree. The defendant concedes that he left his twenty-two month old child alone with her dead or dying mother in an apartment in the July heat without care, and that he took no steps to alert anyone to the child's plight. The evidence supports a finding that the apartment door and accessible windows were locked. "The jury could have found on the . . . evidence that the baby died of starvation and dehydration resulting from the intentional conduct of the defendant in placing it [in isolation] and withholding food and liquids from it." Commonwealth v. Hall, 322 Mass. 523, 527-528 (1948). [Note 10] Based on the expert testimony, the jury could also have found that, during the days the child would

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have remained conscious prior to her death, she would have experienced a very high degree of suffering. "[T]he theory of extreme atrocity or cruelty does not have a requirement of specific intent. Rather, the determination whether an unlawful killing was perpetrated with extreme atrocity or cruelty 'focuses both on the defendant's actions, in terms of the manner and means of inflicting death, and on the resulting effect on the victim, in terms of the extent of physical injury and the degree of suffering endured.' " Commonwealth v. Judge, 420 Mass. 433, 442 (1995), quoting Commonwealth v. Lacy, 371 Mass. 363, 367 (1976).

The judge's charge to the jury on involuntary manslaughter included a careful explanation of "[t]he difference between th[e] third form of malice [that a plain and strong likelihood of death would follow] and wanton and reckless conduct which would amount to involuntary manslaughter." The jury were made well aware that "[a] fine line distinguishes murder based on the third prong of malice from the lesser included offense of involuntary manslaughter." Commonwealth v. Woodward, 427 Mass. 659, 669 (1998). We conclude that the evidence presented was sufficient to permit a rational jury to find beyond a reasonable doubt that the defendant had, as to his child, committed murder in the first degree with extreme atrocity or cruelty.

3. Use of prior bad acts evidence. At trial, over the defendant's objection, the judge admitted evidence of prior incidents of violent conduct by the defendant toward the victim, all of which had occurred within fifteen months of the murder. [Note 11]

The defendant argues that this was error because the central is-

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sue at trial was whether his three signed statements, and his reported oral admission that he "did it" and "choked" the victim, were genuine, truthful, and offered voluntarily. The defendant further argues that if motive were at all an issue, it was amply demonstrated by evidence from two witnesses that the defendant had reported a conflict with the victim at the approximate time of her death. Therefore, the defendant reasons, evidence of past physical abuse was only marginally relevant and the judge exceeded her discretion in admitting it, because it was too remote in time, unnecessarily inflammatory and its prejudicial effect greatly outweighed its materiality.

The evidence was properly admitted to show the defendant's state of mind, motive, intent, and relationship with the victim, all live issues at trial. See Commonwealth v. Leonardi, 413 Mass. 757, 762-764 (1992) (admitting defendant's prior bad acts against girl friend for relevant probative purposes). The judge correctly exercised her discretion in weighing the probative value of this evidence against its prejudicial effect. See Commonwealth v. Fordham, 417 Mass. 10, 22 (1994), and cases cited ("Evidence that has relevance to issues other than bad character or criminal propensity is admissible if not outweighed by its unfair prejudice, which is a determination for the judge to make and one which we do not disturb unless, in our judgment, it is palpably wrong"); Commonwealth v. Robertson, 408 Mass. 747, 751 (1990) ("The evidence of prior violence by the defendant toward the victim[] also further demonstrated to the jury the full nature of the relationship between the defendant and the victim[]"); Commonwealth v. Gil, 393 Mass. 204, 216

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(1984) (evidence of continuing animosity between defendant and victim spouse relevant on issue of motive to kill).

While "[t]here is no bright-line test for determining temporal remoteness of evidence of prior misconduct," Commonwealth v. Helfant, 398 Mass. 214, 228 n.13 (1986), the time period at issue here falls well within a range we have found acceptable. See, e.g., Commonwealth v. Jordan (No. 1), 397 Mass. 489, 492 (1986) (judge did not err in admitting evidence of beatings and mistreatment of victim by defendant from five to seven months prior to events on which indictments were based); Commonwealth v. Little, 376 Mass. 233, 238 (1978) Judge did not err in allowing evidence that defendant, two years earlier, had pistol-whipped another man as "lesson" to victim).

Finally, the judge correctly gave limiting instructions both when the evidence was presented at trial and in her charge, stating that the evidence was admitted only on the issue of the defendant's state of mind and intent toward the victim, and not for its full probative value. [Note 12] There was no error entitling the defendant to a new trial.

4. Jury instructions. The judge instructed the jury on murder in the first degree with extreme atrocity or cruelty as to both the victim and her child, and on murder in the first degree based on deliberate premeditation as to the victim alone. [Note 13] The judge charged the jury on murder in the second degree as to both; on voluntary manslaughter as to the victim, and on involuntary manslaughter as to the child. The defendant alleges several er-

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rors in these instructions. No objection was made at trial. Thus, we review the challenged instructions to determine whether they contain error, and if so whether there is a "substantial likelihood that a miscarriage of justice occurred." Commonwealth v. Vinton, 432 Mass. 180, 188 (2000). See Commonwealth v. Niemic, 427 Mass. 718, 720 (1998).

a. Instruction on provocation with regard to the mother's death. At trial, the judge correctly determined that the evidence here required an instruction on provocation as to the mother's death. Commonwealth v. Carlino, 429 Mass. 692, 694 (1999). Commonwealth v. Acevedo, 427 Mass. 714, 715 (1998). The defendant argues correctly that because there was evidence of provocation here, the burden was on the Commonwealth to prove the absence of provocation beyond a reasonable doubt. Commonwealth v. Whitman, 430 Mass. 746, 751 (2000). The judge in the instant case correctly defined voluntary manslaughter. She then effed in assigning the burden of proof:

"For voluntary manslaughter, the prosecution must have proved the following three elements beyond a reasonable doubt: First, that Mr. Fickling inflicted an injury upon [the victim] from which she died. Second, that he injured [the victim] as a result of sudden combat or in the heat of passion . . . Third, that he committed the homicide or he committed the killing unlawfully, without legal justification or excuse." (Emphasis supplied.)

This language closely matches that which we found erroneous in Commonwealth v. Acevedo, supra at 716. [Note 14] See Commonwealth v. Little, 431 Mass. 782, 787 (2000); Commonwealth v. Carlino, supra at 694. In effect, the judge "incorrectly told the jury that malice is negated by provocation only if provocation is proved beyond a reasonable doubt. The correct rule is that, where the evidence raises the possibility that the defendant may have acted on reasonable provocation, the Commonwealth

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must prove, and the jury must find, beyond a reasonable doubt that the defendant did not act on reasonable provocation." Commonwealth v. Acevedo, supra, citing Commonwealth v. Boucher, 403 Mass. 659, 661 (1989).

Here, the judge went on to instruct correctly that "[w]here there is evidence of provocation, the prosecution has the burden of proving beyond a reasonable doubt that [the defendant] did not act in the heat of passion." Following further discussion of the required elements of voluntary manslaughter, the judge then made a point of emphasizing the correct instruction: "Again, the prosecution has the burden of proving beyond a reasonable doubt that [the defendant] did not act in the heat of passion or sudden provocation. You may not return a verdict of guilty unless the prosecution has met this burden" (emphasis supplied). This is followed by a final instruction on voluntary manslaughter that repeats the original error.

The defendant argues that the potential confusion caused by these instructions entitles him to a new trial as to his conviction in the victim's death. He asserts that the United States Supreme Court decision in Francis v. Franklin, 471 U.S. 307, 322 (1985), is controlling here:

"'Language that merely contradicts and does not explain constitutionally infirm instruction will not suffice to absolve the infirmity' because '[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.'"

Commonwealth v. Repoza, 400 Mass. 516, 519, cert. denied, 484 U.S. 935 (1987), quoting Francis v. Franklin, supra. The defendant reads the Francis decision too selectively. The passage relied on by the defendant is immediately preceded and qualified by the United States Supreme Court's prefatory observation that "[n]othing . . . in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other." Id. at 322. In the instant case, in contrast, the judge emphasized that "[y]ou may not return a verdict of guilty of murder unless the prosecution has met this burden," that is, "of proving beyond a reasonable doubt that [the defendant] did not act in the heat of passion or sudden provocation." Here we have two correct instructions on the

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Commonwealth's burden of proof on provocation sandwiched between two incorrect instructions. But the two correct instructions make it clear to the jury, as Francis v. Franklin, supra, requires, that those instructions carry more weight than the two incorrect ones. So while the inclusion of incorrect instructions here is far from ideal, we nevertheless cannot conclude that "the center of gravity of the provocation instructions was strongly on the side of misstatement." Commonwealth v. Acevedo, supra at 717. "Reviewing the whole charge, including the judge's emphatic and repeated statements that only the Commonwealth - and never the defendant - bore any burden, we believe that the jury could not have concluded that the judge's misstatement created an unconstitutional presumption relieving the State of its burden of persuasion beyond a reasonable doubt of every element of [the crime charged]." Commonwealth v. Torres, 420 Mass. 479, 490-491 (1995). [Note 15] These instructions do not create a substantial likelihood of a miscarriage of justice.

b. Instruction on malice aforethought with respect to both victims. The defendant also alleges error in the judge's instructions on malice aforethought, focusing in particular on the following section:

"Malice aforethought does not necessarily imply ill will towards the person killed. Any intentional killing of a human being without legal justification or excuse and with no extenuating circumstances sufficient in law to reduce the crime, for instance, to manslaughter, is malicious

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within the meaning of malice aforethought" (emphasis supplied).

The defendant claims that this instruction was incorrect because it was "overbroad," and "could have led the jury to conclude that any intentional act resulting in the death of another person was malicious unless extenuating circumstances were present." We are not persuaded. Immediately following the challenged portion of the instructions, the judge properly defined malice aforethought as including "a specific intent to kill the victim or a specific intent to do her grievous bodily harm" (emphasis supplied). The judge then goes on to define carefully "specific intent" for the jurors, and uses that term no fewer than five times. [Note 16] Further, the judge repeatedly emphasized that the burden was on the Commonwealth to prove each element of the crime charged, including specific intent. See Commonwealth v. Ferreira, 417 Mass. 592, 598 (1994). This is not "overbroad."

As for the use of "ill will" language in the judge's instruction, the defendant correctly notes that we have disapproved such language since our decision in Commonwealth v. Eagles, 419 Mass. 825, 836 (1995), where we declared that such phrasing "is not helpful and ought in the future to be omitted." [Note 17] However, this single use of the term "ill will" is followed by repeated, correct definitions of malice, including the third prong relevant to murder with extreme atrocity or cruelty: "malice aforethought may also include having an unexcused intent to

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commit an act which creates a plain and strong likelihood that death will follow." [Note 18] While we continue to discourage the use of "ill will" or "state of mind" language, "we have said that instructions on malice that include both the three prong definition and an obsolete definition adequately convey the meaning of malice to the jury." Commonwealth v. Murphy, 426 Mass. 395, 401 (1998), and cases cited. We conclude that there is no error in these instructions that creates a substantial likelihood of a miscarriage of justice.

5. G. L c. 278, s. 33E. We have reviewed the entire record of the defendant's trial pursuant to G. L. c. 278, s. 33E, and we see no basis for exercising our authority to reduce the jury's verdicts or to order a new trial. [Note 19]

Judgments affirmed.