Massachusetts Law Review

Commonwealth v. Paulding: Redefining the Role of the Jury in First-Degree Murder Cases

Commonwealth v. Paulding, 438 Mass. 1 (2002)

Introduction

In Commonwealth v. Paulding,1 the Supreme Judicial Court reexamined the long-standing Massachusetts practice of authorizing juries to determine the degree of murder in homicide cases regardless of the state of the evidence in such cases.2 Prior to Paulding, Massachusetts courts followed the rule that the language of the murder statute, which provides that "[t]he degree of murder shall be found by the jury," requires a judge to instruct on murder in the first and second degrees even though no reasonable view of the evidence supports a conviction of murder in the second degree.3 The basis for this practice lay in the SJC's previous determination that the plain language of the murder statute gave juries a "dispensing power" that effectively vests juries with the discretion to determine the degree of murder in a homicide case regardless of the actual state of the evidence.4 Juries have thus held an expansive, highly discretionary role in deciding first-degree murder cases over the past 25 years.

In Paulding, however, after revisiting the language of Commonwealth v. Dickerson5 and the holding in Commonwealth v. Brown,6 the SJC rejected its previous construction of the murder statute, in the context of first-degree felony-murder cases.7 The court held that in circumstances where the commonwealth proceeds only on the theory of felony-murder in the first degree, and there is no evidence of malice that would support a conviction of murder in the second degree, the judge cannot instruct and the jury is not authorized to return a verdict of murder in the second degree.8 Paulding eliminates a "legal fiction,"9 which empowered jurors to ignore their limited role as finders of fact, usurp the role of the legislature and the judge as the makers and keepers of the law and act as the conscience of the courtroom in first-degree felony-murder cases. Paulding "abandon[s] an anachronism"10 - perhaps stemming from judicial distaste for the death penalty - that allowed juries to arrive at verdicts unsupported by the evidence and effectively authorized a form of jury nullification. Paulding ultimately restores the role of the jury to its well-established, narrow focus as finders of fact.11

Dickerson and Brown

In Dickerson, the defendant was convicted of murder in the first degree on a theory of felony-murder.12 The trial judge in the underlying case instructed the jury that they had the option of returning one of three verdicts: "not guilty, guilty of murder in the first degree, or guilty of murder in the second degree."13 Writing for a majority of the SJC, Chief Justice Hennessey explained that the trial judge correctly submitted to the jury the three options, "even though it could be argued that the evidence would support only one of the two verdicts: either not guilty or guilty of murder in the first degree," where "the judge specifically, and correctly, relied on the statutory language in c. 265, ß 1, that the degree of murder is for the jury to determine."14 The Dickerson plain language analysis was later formally adopted in Brown.15

The analysis in Dickerson, however, did not end with the majority decision. Justice Braucher, joined by Justice Kaplan, wrote a concurring opinion that contended the jury had a "dispensing power" because the Legislature, under chapter 265, section 1, "considers murder as one kind or species of crime, the punishment of which may be more or less severe according to certain aggravating circumstances, which may appear on the trial."16 Justices Braucher and Kaplan found that the Legislature vested the jury with extreme discretion to determine and dispense justice depending on the severity and nature of the murder itself.17 Indeed, their concurrence concluded that a second-degree murder instruction, regardless of the state of evidence in first-degree murder cases, was not merely appropriate, but "if requested by the defendant, the judge would be bound to give such instructions."18

Justices Braucher and Kaplan were ultimately willing to read the murder statute in a manner that allowed the jury to act as the conscience of the courtroom and the final arbiters of justice, irrespective of the underlying facts of the case.19 Such an interpretation of the murder statute granted the jury wide latitude to render a range of verdicts, and, in effect, a range of punishments. Viewed more cynically, the Braucher-Kaplan concurrence allowed, if not encouraged, a form of jury nullification, and violated the doctrine of separation of powers by treading upon the legislature's role to prescribe specific punishments for enumerated crimes.20

Whether the Braucher-Kaplan analysis stemmed from distaste for the death penalty is unclear from the language and context of their concurring opinion. Clearly, however, both the majority opinion and the Braucher-Kaplan concurrence in Dickerson must be viewed in light of the legal and political climate in Massachusetts and nationally in 1977, when Dickerson was decided. In 1972, a majority of the United States Supreme Court held in Furman v. Georgia that capital punishment as currently administered violated the United States Constitution because of the "arbitrary imposition on a small percentage of eligible defendants due to the lack of standards to guide the discretion of juries and judges."21 As a result, many states enacted new death penalty statutes "in an effort to comply with the somewhat vague requirements of Furman."22 In the wake of Furman, the SJC decided two cases involving Massachusetts death penalty statutes. In Commonwealth v. O'Neal,23 decided in 1975, a majority of the court held that a mandatory death penalty for rape-murder constituted cruel or unusual punishment and violated Article 26 of the Declaration of Rights of the Massachusetts Constitution.24 In Opinion of the Justices to the House of Representatives,25 decided in 1977, the SJC evaluated the constitutionality of a 1972 death penalty statute, and a majority of the court held that Article 26 of the Declaration of Rights "forbids the imposition of a death penalty in this Commonwealth in the absence of a showing on the part of the Commonwealth that the availability of that penalty contributes more to the achievement of a legitimate State purpose - for example, the purpose of deterring criminal conduct - than the availability in like cases of the penalty of life imprisonment."26

Through these decisions, as well as the Watson case, the SJC effectively quashed post-Furman legislative efforts in the 1970s to resuscitate the death penalty in Massachusetts.27 Even though capital punishment did not exist in Massachusetts at the time Dickerson was decided, it was clearly under attack locally and nationally. Viewed in this context, Justices Braucher and Kaplan as well as the majority of the Dickerson court were engaging in a pattern of legislating to further narrow, if not foreclose, the potential use of the death penalty. Authorizing jury nullification, whether directly through the Braucher-Kaplan approach in Dickerson, or indirectly through the majority approach in Dickerson, helped to accomplish this goal.

Justice Quirico's concurring opinion in Dickerson forcefully refuted the majority opinion and analyzed the problems with the trial judge's instructions. Justice Quirico rejected his colleagues' flexible, jury-empowering approach, and stated simply that the jury must be instructed that:

if they find that a defendant has committed a (1) murder (2) in the commission or attempted commission of (3) a crime punishable by death or life imprisonment, it is then their duty to find the defendant guilty of murder in the first degree. These factors, not the age of the perpetrator or the confusion surrounding the crime, determine the degree of the defendant's guilt under G.L. c. 265, ß 1.28

Justice Quirico's concurring opinion focused on the specific and limited historical, traditional and clearly defined role of the jury.29 He noted that the trial judge's instruction in Dickerson "trenches on our long-established, consistently applied, and zealously guarded line of demarcation between the respective roles, functions, and responsibilities of the judge and of the jury in the trial of a criminal case."30 He also conducted an exhaustive review of the history of the murder statute and Massachusetts case law. Through this review, Justice Quirico concluded that:

• The language of the murder statute that "the degree of murder shall be found by the jury" does not permit "a judge to instruct the jury that they may find all of the facts constituting murder in the first degree, and yet find the defendant guilty of murder in the second degree."31

• "[N]either the language, nor the history of the statute in which it is contained, nor any decision of this court supports a subversion of the trial judge's exclusive role, vis-‡-vis the jury, 'to adjudicate finally, upon the whole question of law.'"32

• There is no basis in the language of the murder statute "for encouraging the jury to usurp the power of the judge and thereby produce a verdict contrary to that required by the law and the facts."33

• The legislative documents that precede the enactment of St. 1858, c. 154 (the statute which divided murder into two degrees and introduced the language that "the degree of murder is to be found by the jury") suggest that "murder was divided into degrees largely to mitigate the harshness of the common law rule imposing a mandatory death penalty on all murderers."34

• The same legislative documents give no "indication of any intention to grant to the jury a discretion to decide the degree of murder regardless of the facts."35

Justice Quirico's analysis and view of the jury's limited role is entirely consistent with SJC case law. Indeed, the SJC has repeatedly refused to recognize the concept or underlying premise of jury nullification.36

Ultimately, Justice Quirico's review led him to two conclusions. First, that the legislative history revealed that:

the creation of two degrees of murder was thus part of a desire to limit and restrict the mandatory death sentence by isolating certain murders appropriately punishable by death. By delineating those murders for which death was considered proper, the statute would forestall the jury from taking the law into their own hands by refusing to convict of a capital offense. Far from authorizing jury discretion to choose a verdict of murder in the second degree when the facts warranted murder in the first degree, St. 1858, c. 154, ß 3, was intended to oblige the jury to find facts within legislative categories.37

Second, that the SJC has "never held that by virtue of St. 1858, c. 154, now G.L. c. 265, ß 1, the jury have 'untrammeled discretion' to return a verdict of guilty of murder either in the first degree or in the second degree against a defendant who is found to have committed murder, and more specifically in a case involving a defendant found to have committed acts which constitute murder in the first degree as defined in the statute."38

Paulding - Background

The defendant in Paulding participated in a masked armed robbery in a park in the Roxbury section of Boston.39 The defendant admittedly went to the park with his coventurer "to commit a robbery," knew that his coventurer had a loaded gun, surveiled the victims by riding past them on bicycles with his coventurer, rode up to the victims again, robbed one victim while the coventurer pointed the cocked handgun at both victims and actively participated in the robbery in the course of which the coventurer shot and killed one of the two robbery victims who was running away from the scene.40 The commonwealth submitted the case to the jury "solely on the theory that, as a joint venturer, the defendant committed felony-murder in the first degree," the underlying felony being armed robbery.41

In her final charge, after instructing the jury on joint venture and the elements of armed robbery and felony-murder in the first degree, the trial judge instructed as follows:

I told you that the statute [G.L. c. 265, ß 1,] provides that the degree of murder is always up to the jury and I've defined for you what felony-murder is. If you find the Commonwealth has proved all of the elements that I've told you that make up the crime of felony-murder in the first degree, you would find him guilty of that crime and you are, indeed, obligated to find a defendant guilty of the highest degree of crime that is proved beyond a reasonable doubt. But in the end the degree of murder, whether it is first degree or second degree is up to you as the jury. . . . And you will have with you on the verdict slip . . . options of finding the defendant not guilty of felony-murder, guilty of felony-murder in the first degree, or guilty of murder in the second degree and that's going to be up to you.42

In response to the jury's subsequent question regarding "what conditions have to be met to convict a person of murder in the second degree,"43 the trial judge reinstructed on the elements of murder in the first degree and then instructed:

I did explain to you that under our murder statute it specifically provides that the degree of murder, whether it is first degree murder or second degree murder, is up to the jury. So you, as a jury, if you find that there was - that the Commonwealth has proved there was an unlawful killing of [the victim], and that the elements of felony-murder have been proved, in the end, it is up to you whether to find the defendant guilty of first degree murder or second degree murder. And so that option of second degree murder is there because the statute vests in the jury the right to determine the degree of murder. But I cannot explain to you any more factors or conditions on that.44

The defendant objected to the trial judge's failure to define the elements of murder in the second degree and refusal to instruct the jury on the three prongs of malice that could warrant the return of a second degree murder verdict.45 The jury subsequently returned a verdict of felony-murder in the first degree.46

On appeal, the defendant argued that the language in the murder statute, stating that is for the jury to decide the degree of murder, required the trial judge "to define the elements of murder in the second degree in the traditional sense, even though no hypothesis in the evidence in this case would support the instruction."47 Taking a more global view of the case, the SJC considered the broader issue of whether Dickerson and Brown "provide a correct construction of the meaning of the provision in G.L. c. 265, ß 1 that 'the degree of murder shall be found by the jury,' when, as here, the evidence supports only the view that the defendant is guilty or not guilty of felony-murder in the first degree."48 Analysis of this question turned on the long-standing rule espoused in the Dickerson case, discussed supra.

Paulding and the Adoption of Justice Quirico's
Concurring Opinion in Dickerson

In Paulding, the SJC seized upon Justice Quirico's thorough analysis in Dickerson, noting that it "forcefully points out the infirmities that beset the prevailing construction of G.L. c. 265, ß 1."49 The SJC recognized that the post-Dickerson practice of authorizing juries to decide the degree of murder in first-degree felony-murder cases, even where the evidence solely warranted a verdict of guilty of murder in the first degree or a verdict of not guilty, lent itself to confusion and verdicts based upon an inaccurate, if not absurd, legal foundation. In the court's own words, the construction of the murder statute advanced in Dickerson and Brown, and followed for the past quarter century:

enmeshes trial judges in a dilemma by compelling them to give inconsistent jury instructions that interject confusion in a case. The present construction is unfair to the Commonwealth, and potentially gives the defendant an advantage to which he is not entitled. . . . Further, the construction may invite unjustified compromise verdicts and grants juries powers arguably broader than those granted to us under G.L. c. 278, ß 33E, because the construction essentially authorizes, in certain circumstances, unfettered jury nullification. Such a legally untenable exercise of power by the jury is not protective of the public's interest.50

The SJC recognized the "time has come to abandon an anachronism - an interpretation of G.L. c. 265, ß 1, that rests on a doubtful legal foundation, and is at odds with the statute's textual formulation, the purpose of a prosecution of felony-murder in the first degree, and the respective roles of a judge and jury in such a prosecution, the former to explain the law correctly, and the latter to arrive at a verdict based on the actual evidence, not on a legal fiction."51 Accordingly, the court adopted the construction of the murder statute advanced by Justice Quirico in Dickerson.

Thus, contrary to the defendant's argument in Paulding, the trial judge did not err by refusing to define the elements of murder in the second degree, even though no hypothesis in the evidence in this case would support the instruction. "There being no evidence of malice in the case to support a conviction of murder in the second degree, and no evidence of a felony supporting a verdict on all elements of felony-murder in the second degree, the defendant cannot show that the judge's failure to define the elements of murder in the second degree prejudiced him in any way."52 In fact, the defendant actually received a windfall because he received an instruction that impermissibly allowed the jury to consider a verdict of murder in the second degree, "an instruction to which he was not entitled, but from which he stood potentially to benefit."53

Impact and Ramifications of the Paulding Decision

On its face, Paulding applies only to first-degree felony-murder cases. As the SJC held, "we now reject the reasoning of these cases [Dickerson and Brown] insofar as they apply to circumstances where the Commonwealth proceeds (and the judge rules that there is evidence) only on the theory of felony-murder in the first degree and there is no evidence of malice that would support a conviction of murder on the theory of deliberately premeditated murder or murder committed with extreme atrocity or cruelty."54 The SJC went on to state that where "there is evidence of such malice, there would be a basis for the jury to return a verdict of murder in the second degree, and the jury should be instructed on the elements of murder in the second degree."55 That notwithstanding, the long-term significance of the SJC's analysis in Paulding may be its impact on and application to all categories of first-degree murder cases.

In cases alleging first-degree murder committed on the basis of deliberate premeditation or extreme atrocity or cruelty, where the sole defense is misidentification and where malice and the severity of the crime are not at issue, defendants routinely receive the benefit of a second-degree murder instruction.56 Under the holding and reasoning of Paulding, however, defendants are not necessarily entitled to a second-degree murder instruction simply because malice is an element of the case. On the contrary, in particularly grievous homicide cases where intent and malice are not raised as a defense - e.g., where death was caused by 70 stab wounds, multiple gunshots fired at point-blank range or other scenarios involving unequivocal malice - the language in Paulding strongly suggests that second-degree murder instructions are not appropriate or required. As Justice Quirico compellingly stated in Dickerson:

G.L. c. 265, ß 1, does not exempt jurors in a trial on an indictment charging murder in the first degree from the basic rules governing the distinctly separate roles of the judge and the jury in all other criminal trials. It does not endow them with any power to exercise clemency. It does not give them the right to return a verdict contrary to the facts or the law of the case. It does not authorize them to contrive a verdict designed by them to control the punishment which they think should be imposed on the defendant for his crime. Rather it requires them to return a just verdict on the basis of the facts found by them and the law applicable thereto as stated by the judge, to the end that the judge may impose such penalty as is required or permitted by law.57

Any expansion of the Paulding holding would present obvious and ominous ramifications to defendants and defense counsel. The risk in pursuing a defense of misidentification or a defense of making the prosecution prove its case would grow exponentially if juries are not given the option of rendering a verdict of murder in the second-degree. Nevertheless, Paulding merely ended the legally erroneous practice of granting defendants a jury nullification boon, and properly requires juries to decide cases on their facts. Whether courts will continue to apply that practice to other types of homicide cases remains to be seen.

A recent SJC decision, however, suggests that the court may be prepared to expand Paulding to homicide cases tried on theories of deliberate premeditation and extreme atrocity or cruelty. In Commonwealth v. Noeun Sok,58 the trial court instructed the jury in a homicide case on theories of deliberate premeditation and extreme atrocity or cruelty, and the jury returned a first-degree murder verdict based on extreme atrocity or cruelty.59 On appeal, the defendant claimed the trial instructions that "the degree of murder shall be found by you, the jury" and "you have an obligation to return a verdict of the highest degree of murder . . . proven" were in conflict.60 The SJC affirmed the conviction and stated: "There is no doubt that the Dickerson instruction is correct. The language of G.L. c.265, ß1, 'does not exempt jurors in a trial on an indictment charging murder in the first degree from the basic rules governing the distinctly separate roles of the judge and the jury in all other criminal trials . . . . It does not give them the right to return a verdict contrary to the facts or the law of the case.'"61 The court stated further, "We have recently rejected as anachronistic and untenable the interpretation of G.L. c.265, ß1, advanced by the defendant in his appeal, that would vest the jury with the power of nullification."62 It thus seems that Paulding applies beyond felony-murder, at least insofar as the SJC is unwilling to promote or affirmatively allow jury nullification. Accordingly, in homicide cases where malice and intent are not live issues, the language and logic of Paulding should also preclude trial courts from giving juries a second-degree murder instruction or option. In short, if the core concepts espoused in Paulding are not expanded to all homicide cases, verdicts in other categories of homicide cases may continue to rest on the same "doubtful legal foundation" condemned by the SJC in Paulding.63


End Notes

1. 438 Mass. 1 (2002).[back]

2. Id. at 3-11.[back]

3. Mass. Gen. Laws ch.265, ß1 (2003); Paulding, 438 Mass. at 3. See Commonwealth v. Brown, 392 Mass. 632, 643-645 (1984) ("G.L. c. 265, ß 1, requires a trial judge to instruct on murder in the first and second degrees if there is evidence of murder in the first degree, even though there appears to be no hypothesis in the evidence to support a verdict of murder in the second degree"); Commonwealth v. Dickerson, 372 Mass. 783, 795-96 (1977) ("The judge, in our view, was correct in submitting verdicts of murder in both the first and second degree for the jury's consideration, even though it could be argued that the evidence would support only one of two verdicts: either not guilty or guilty of murder in the first degree. In instructing as to murder in the second degree, the judge specifically, and correctly, relied on the statutory language in c. 265, ß 1, that the degree of murder is for the jury to determine.")[back]

4. Dickerson, 372 Mass. at 813 (Braucher, J., concurring); See also Dickerson, 372 Mass. at 795-98.[back]

5. 372 Mass. 783 (1977).[back]

6. 392 Mass. 632 (1984).[back]

7. Paulding, 438 Mass. at 3.[back]

8. Id. at 10.[back]

9. Id.[back]

10. Id.[back]

11. Dickerson, 372 Mass. at 808 (Quirico, J., concurring).[back]

12. Id. at 784.[back]

13. Id. at 795.[back]

14. Id. at 795-96.[back]

15. Brown, 392 Mass. at 645.[back]

16. Dickerson, 372 Mass. at 813 (Braucher, J., concurring) (internal citations and quotations omitted).[back]

17. Id.[back]

18. Id. [back]

19. In the Dickerson final charge, the trial judge instructed the jury that:

[i]f it's a felony murder, what determines the jury to say murder in the first degree rather than murder in the second degree, and vice versa? Well, our Supreme Judicial Court has said that the degree of murder may be found by the jury, depending upon the circumstances as developed in the trial, aggravating or extenuating, I assume. But in no decision that I know has our Supreme Judicial Court gone beyond that to attempt to assist the trial court in instructing the jury or for the jury to have some guidelines as to what sort of circumstances developed at the trial that might make it murder one or murder two. And so that issue really ultimately is left to the good conscience and good judgment of the jury, I assume. . . . I emphasize once again that it really, it really rests in the consciences and the good judgment of the jurors."

Dickerson, 372 Mass. at 799 n. 1 (Braucher, J., concurring) (emphasis added).[back]

20. The SJC has consistently rejected the concept or underlying premise of jury nullification. See e.g., Commonwealth v. Leno, 415 Mass. 835, 842 (1993); Commonwealth v. Fernette, 398 Mass. 658, 670-71 n. 23 (1986).[back]

21. District Attorney for the Suffolk District v. Watson, 381 Mass. 648, 657 (1980), citing Furman v. Georgia, 408 U.S. 238 (1972).[back]

22. Watson, 381 Mass. at 657. [back]

23. 369 Mass. 242 (1975) (O'Neal II). [back]

24. Id. at 243. [back]

25. 372. Mass. 912 (1977).[back]

26. Id. at 917.[back]

27. See Watson, 381 Mass. at 665 (SJC ultimately held that death penalty violates Article 26 of Declaration of Rights of Massachusetts, and concluded: "from our examination of the actual operation of capital punishment provisions in Massachusetts, that the death penalty, with its full panoply of concomitant physical and mental tortures, is impermissibly cruel under art. 26 when judged by contemporary standards of decency.")[back]

28. Dickerson, 372 Mass. at 800 (Quirico, J., concurring).[back]

29. Id. at 800-11.[back]

30. Id. at 802.[back]

31. Id.[back]

32. Id.[back]

33. Id. at 802-03.[back]

34. Id. at 803.[back]

35. Id. at 802-05.[back]

36. See e.g., Commonwealth v. Leno, 415 Mass. 835, 842 (1993); Commonwealth v. Fernette, 398 Mass. 658, 670-71 n. 23 (1986). [back]

37. Dickerson, 372 Mass. at 804-05 (Quirico, J., concurring) (internal citations omitted).[back]

38. Id. at 808-09.[back]

39. Paulding, 438 Mass. at 3-4.[back]

40. Id. at 4.[back]

41. Id. at 4-5. See also Mass. Gen. Laws ch. 265, ß 1 (2003) (prescribing murder committed in the commission or attempted commission of a crime punishable with death or imprisonment for life as murder in the first degree); Mass. Gen. Laws ch. 265, ß 17 (2003) (penalty for armed robbery is imprisonment in state prison for any term of years or life).[back]

42. Paulding, 438 Mass. at 5 (emphasis added).[back]

43. Id. [back]

44. Id. at 6.[back]

45. Id. at 6.[back]

46. Id. at 2.[back]

47. Id. at 6.[back]

48. Id. (emphasis in original).[back]

49. Id. at 9.[back]

50. Id. at 10 (internal citations omitted).[back]

51. Id.[back]

52. Id. at 11.[back]

53. Id. at 10-11.[back]

54. Id. at 10.[back]

55. Id.[back]

56. See, e.g., Commonwealth v. Cook, 438 Mass. 766, 774 (2003), citing Paulding, 438 Mass. at 10 (in case where defendant was found guilty of first-degree murder on theory of extreme atrocity or cruelty, SJC reaffirmed that in context of a malice case "where there is evidence of murder in the first degree, the judge must instruct on both murder in the first and second degrees"); Commonwealth v. Morgan, 422 Mass. 373, 382 (1996) (second-degree murder instruction given even though "the record discloses that the evidence did not raise a serious question as to the presence of malice.")[back]

57. Dickerson, 372 Mass. at 812 (Quirico, J., concurring).[back]

58. Commonwealth v. Noeun Sok, No. SJC-08748 (May 20, 2003), available at 2003 Mass. LEXIS 431 (2003).[back]

59. Id. at *1.[back]

60. Id. at *22.[back]

61. Id., quoting Dickerson, 372 Mass. at 812 (Quirico, J., concurring).[back]

62. Id., citing Paulding, 438 Mass. at 10.[back]

63. Paulding, 438 Mass. at 10.[back]

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