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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Garner,
Hampden.
Pretrial motions to suppress evidence were heard by C.
Brian McDonald, J.; the cases were tried before Lawrence B. Wernick, J., and a
motion for a new trial was heard by him.
Robert S. Sinsheimer (David Radner with him) for the
defendant.
Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.
The defendant was convicted of murder in the
second degree under G. L. c. 265, § 1, on a theory of
felony-murder, for a killing in a shootout on January 25, 1998, at Roscoe's
Banquet Hall ("Roscoe's" or "the club"), a popular
after-hours dance club in Springfield, which also sported an unlicensed bar
open from 1:00 A.M. to 5:00 A.M., after last call in licensed bars in the area.
The underlying felony for the murder conviction was based on a joint venture to
smuggle an unlawful firearm into the club. See G. L. c. 269, § 10(a).[1]
The principal issues in this appeal concern:
(1) whether the conditions existed under which the felony of unlawful
possession of a firearm was inherently dangerous or reflected a conscious
disregard for human life so as to serve as the predicate for felony-murder in
the second degree; (2) whether the evidence was sufficient to prove
felony-murder in the second degree; (3) whether the Commonwealth prejudiced the
defense by deliberately shifting its murder theory of proof from that
represented in pretrial hearings, in what the defendant criticizes as a
late-breaking specification at the close of the Commonwealth's case that the
prosecution would advance a theory of felony-murder in the second degree based
on joint venture unlawful possession of the firearm[2]; (4) whether the
jury instructions correctly outlined the interrelationship between joint
venture, felony-murder in the second degree, and self-defense; (5) whether
pretrial rulings properly declined to suppress ammunition seized from the
defendant's person following a warrantless entry into a house; and (6) whether
subsequent statements by the defendant were tainted by a prior statement that
was suppressed.
Certain of the issues make it necessary to rehearse with some depth of detail
the trial evidence and the judge's findings and uncontroverted evidence adduced
in evidentiary hearings on the motions to suppress and for a new trial. For the
reasons stated herein, we affirm the convictions and the order denying the
defendant's new trial motion.
1. Factual background. The trial evidence may
be summarized thusly. Because there had been prior incidents of guns being
brought into the club, doormen stationed outside searched all men for weapons
prior to entry. But, in a poorly thought out exception, women seeking entrance
were not subject to any weapons search whatsoever. To subvert the search
checkpoint, the defendant, on a prior occasion, had enlisted a young girl to
act as a cloak and smuggle his gun into the club. Having used this ruse
successfully in the past, on the night of the killing, the defendant, with the
assistance of others, embarked on a joint venture to replicate the gun
smuggling scheme by using another sixteen year old girl as the transporter.
On this night, Candi Barrett was already inside Roscoe's when she was solicited
by Troy Clemons, a friend of the defendant, to return outside and bring in a
gun that the defendant was holding. Clemons had previously asked another young
girl, Sabrina Jenkins, because she had done that for the defendant once before,
but Jenkins declined to do so this evening. Barrett went outside with Clemons
and met the defendant. The defendant handed her a "big" gun with a
brown handle -- the same color as the gun that Jenkins had previously smuggled
into the club for the defendant. This night, Barrett placed the gun in her
jacket and, not being subject to search, freely reentered the club with the
hidden gun. (In addition to Barrett's identification of the big gun with the
brown handle, fingerprint analysis disclosed the defendant's latent palm print
on this revolver.)[3] When back inside, Barrett passed to Clemons the
gun that the defendant had given her. Some time thereafter, gunfire erupted in
the club. Before the shooting commenced, two of the defendant's other friends,
"Chill Will" Brantley and Shundell Gasque, were seen trying to take a
neck chain from the victim, Orlando Taylor.
Barrett identified the defendant as the man who
shot at
Jenkins also witnessed the shooting and saw the defendant fire a shot in
Felicia Miller, the defendant's long-time
girlfriend, was also at the club that night, accompanied by her sister April
Miller. April saw a man standing near the front door shooting a gun. As the
sounds of gunfire reverberated about the club, April felt a sting in her side.
A bullet had hit her, but had been deflected by a lipstick container in her
pocket. (As shall be described later, this bullet was retrieved from April when
the police -- following pursuit of a fleeing suspect -- entered a house where,
among others, April and the defendant were found.) At trial, April confirmed
that the shooter was standing near the front door of the club, but stated that
she was unable to identify the man. April also testified that she did not see
the defendant with a gun that night.
Such was the scene inside the club. We turn to outside events. At 2:53 A.M.,
Springfield police Officers Howard Lockwood and Kimberly Brantley were on
cruiser patrol near Roscoe's when they heard four or five shots fired and saw
muzzle flashes through the front window. The officers quickly alighted, radioed
a bulletin of gunfire at the club, and then ran toward the building. As they
did so, the officers saw two men moving backwards out of the front door. One
man was tall, clad in a black puffy coat and a black knit cap. The officers
could see he was holding a silver handgun. See note 6, infra. The second man
wore a white "barn-style" coat and black jeans. The officers were
unable to see whether this man was also holding a gun.
Having identified themselves as police, the officers ordered the two suspects
to stop, but the two ran towards the back parking lot, split in different
directions, and fled. Officer Lockwood pursued the man in the barn-style coat
and black pants. As this suspect rounded the building from the rear parking lot
area, Lockwood tried to intercept him by circling to the front of the building.
As Lockwood did so, he saw the victim Taylor being helped out the door. Lockwood
abandoned the chase and directed his attention to
Meanwhile, Officer Brantley continued pursuit
of the other fleeing suspect in the puffy coat with the silver gun. This man
ran through the parking lot, across a street, and behind a house, and then he
jumped over a fence, moving onto
Seven people were collected inside. These
included the defendant, three young males, April and Felicia Miller, and their
mother. The officers ordered everyone to lie on the floor.[5] The
defendant was wearing black jeans (as had one of the fleeing suspects) but was
not wearing a coat or a shirt. He was "sweating profusely,"
"gasping" for air, "panting very heavily" and "very
agitated."
Further events unfolded at the house. April Miller gave Detective Bigda the
spent .38 caliber bullet that had ricocheted off the lipstick holder in her
pocket. Within a short time, while the other officers were still in the house,
Officer Brantley, who had been pursuing the man with the silver gun in the
black puffy coat, arrived. Brantley indicated that the defendant was not the
person she had chased. (Officer Lockwood, who had given chase to the man in the
black pants, was not present.) After approximately ten minutes and without
making an arrest, the police left.
The next morning, the defendant voluntarily
came to the police station and, following Miranda warnings, gave a written
statement and subsequently made oral statements. The gist of the statements was
that the defendant was not involved in the shooting inside the club, but rather
was standing outside Roscoe's when the shots were fired and that he found the
bullets in a plastic bag outside the club. After receiving the statements, the
officers arrested the defendant for
The main defenses were that, given the hail of bullets and the presence of
other shooters, the prosecution had not proved that it was the defendant who
fired the fatal bullet that felled
The judge charged the jury to consider four theories of homicide: murder in the
first degree by deliberate premeditation; murder in the second degree under a
theory of unlawful killing with malice aforethought; murder in the second
degree under a theory of felony-murder, predicated on joint venture unlawful
possession of a firearm; and voluntary manslaughter. On a special verdict slip,
the jury indicated a finding of guilt on the felony-murder theory.
2. Unlawful possession of a firearm as the
felony-murder predicate. At the outset, the defendant argues that the felony of
unlawful possession of a firearm could not serve as the predicate for
felony-murder in the second degree in this case because, even though the
defendant may have participated in a joint venture to smuggle a gun into the
club, that still was not sufficient to prove that he perpetrated this
possessory offense in a manner posing inherent danger or conscious disregard
for human life under the felony-murder doctrine.
We state the general principles relating to the
underlying felonies that suffice for invocation of the felony-murder doctrine.
As a general matter, there is no black-letter catalogue of predefined felonies
deemed on a per se basis to be predicates for invocation of felony-murder in
the second degree.
Turning to the particular gun-related felony at
issue in this case, there is no per se rule, in the Ortiz case or elsewhere,
that the offense of unlawful possession of a firearm is automatically a proper
felony predicate for invocation of the felony-murder doctrine. Indeed, as
regards reasonable suspicion to justify an investigatory stop, mere possession
of a firearm, in and of itself, has been considered not to pose "any
imminent threat to public safety." Commonwealth v. Alvarado, 423
That is the case presented here. In the
particular factual nucleus that the prosecution proved, the boundary limned in
the Ortiz analysis, concerning when the felony of unlawfully carrying a firearm
may give rise to inherent danger or conscious disregard for human life, was
crossed. We reject the defendant's argument that the felony-murder doctrine
predicated on unlawful firearm possession must be bypassed because there was no
evidence that the defendant planned the shootout. That the defendant might not
have planned the gunfight at the crowded club did not lessen the risk of
gunplay engendered by his participation in a joint venture to smuggle a loaded
.357 magnum revolver inside. To the contrary, it was obvious that guns were a
threat in a nightclub crowded with dancers moving about and people drinking
alcoholic beverages. There had been shots fired in the club in the past, and
the defendant himself had previously smuggled in a gun. Indeed, it was such a
threat of guns that had been the catalyst for the institution of the search
protocol outside the club. Aware of the security measures to keep forbidden and
dangerous guns out of the club, the defendant wilfully engaged in a joint
venture to subvert this search protocol and smuggle his loaded .357 magnum
revolver into the club, creating a milieu of inherent danger.
3. Sufficiency of evidence of felony-murder. The defendant's related challenges
to the sufficiency of the evidence on the elements of felony-murder in the
second degree are prone to briefer dispatch. The elements of felony-murder, as
set forth in the judge's jury charge, were in accord with the case law in
effect at the time of this trial. But see note 8, infra. As then formulated,
the elements of felony-murder required proof that: "(1) the defendant
participated in a felonious enterprise; (2) a homicide occurred in the course
of that enterprise; (3) the felony was inherently dangerous to human life or
committed with conscious disregard on the part of the defendant for the risk to
human life; (4) the death[] must have been the natural and probable consequence
of the felony; and (5) the felony must have been independent of the
homicide[]." Commonwealth v. Chase,
To begin, we do not accept the defendant's
premise that a required finding of not guilty was in order because the killing
did not occur in the course of the felony in that, or so the defendant asserts,
the joint venture of unlawful possession was "completely over" and
"wholly unrelated." As to this contention, the Commonwealth need only
prove that the "the homicide[] [was] connected with and incident to the
carrying [of the firearm and that] the carrying and the homicide[] took place
at substantially the same time and place." Commonwealth v. Ortiz, 408
With respect to the defendant's additional
challenges concerning the two final elements of proof, given the abandonment of
those elements in the model homicide instructions (see note 8, supra), and
given the analysis of the Supreme Judicial Court as to the superfluous nature of
the natural and probable consequence element, as well as the court's conclusion
that the independence element is not a jury determination, but one of law for
the judge, it is difficult to see how the defendant's evidentiary sufficiency
claim gains any buoyancy from these two moorings. However, even assuming that
the defendant's claims relating to the abandoned elements of proof ought to be
addressed, the evidence was more than sufficient to establish the requisite
connection to the felony. The defendant's unlawful possession of a firearm was
independent of the homicide.
4. Specification of the Commonwealth's theory
of proof of murder. The defendant's new trial motion was premised on an
argument that the Commonwealth's late-breaking specification that, in addition
to murder in the first degree by deliberate premeditation, the prosecution
would also advance a theory of felony-murder in the second degree predicated
upon joint venture unlawful possession of a firearm violated the defendant's due
process right to notice of the nature and grounds of the charges to be tried
and, by unfair surprise, hampered the preparation of the defense. It was not
until the close of its case-in-chief that the Commonwealth specified the
felony-murder theory. In addition, the defendant presents an estoppel
challenge, viz., that the Commonwealth should have been estopped from pursuing
joint venture felony-murder in the second degree because, in pretrial
proceedings, the Commonwealth had indicated that it would not pursue
felony-murder by unlawful possession of a firearm, but would prove murder by
other manner and means.
The judge found that no measurable prejudice flowed to the defendant from the
Commonwealth's specification of felony-murder at the close of its case because
the defense theory of the case was that the defendant did not fire the fatal
shot at all or, alternatively, if the jury thought the defendant was the
shooter, he still was not guilty of an unlawful killing because he acted in
self-defense or defense of another (his girlfriend).
The defendant argues on appeal that the trial judge's analysis ignores the
litigation background in which, or so the defendant asserts, the Commonwealth
first represented that the prosecution case would rest on a different theory of
murder and then purposely shifted grounds concerning its murder theory, and
that this deliberate shifting of sands caused prejudice in marshaling his
defense.[9]
"The Commonwealth is not required to
specify in answer to a request for a bill of particulars the type of murder it
intends to prove, nor the theory under which it intends to proceed."
Commonwealth v.
Beyond that, our review of the record does not
support the proposition that the Commonwealth sought to mislead the defense by
subterfuge or deliberate shifting of its theory of murder.[10] Rather
than subterfuge, what emerges from the record of the pretrial hearings is that
the prosecution's case in these earlier stages remained open and in evidentiary
development -- not an unpredictable circumstance, given the need to distill
what actually transpired in the pandemonium of a shooting in a crowded
nightclub with a host of witnesses who had differing vantage points and
differing perspectives of what happened, and whose descriptions were diverse
and sometimes changing. See note 4, supra, as to contrasting trial and grand
jury testimony of the witness Jenkins.
Based on the full record of the pretrial proceedings, we conclude that the
Commonwealth did not lock itself into any one murder theory of proof to the
exclusion of felony-murder in the second degree based on joint venture unlawful
possession of a firearm, and we agree with the trial judge's analysis that
there was no undue surprise or unfair prejudice.[11]
5. The jury instructions on joint venture and
self-defense. The defendant contends that the jury instructions were
confusingly formulated vis-à-vis the joint venture unlawfully to possess a gun,
felony-murder and self-defense.[12] Specifically, he complains that the
instructions may have led the jury to believe that self-defense was not a
defense to felony-murder or that the prosecution did not have to prove the
absence of self-defense beyond a reasonable doubt. Because there was no
objection, we review to determine if there was error in the instructions and,
if so, whether any such error gave rise to a substantial risk of a miscarriage
of justice. The defendant's challenge fails in the first inquiry. Viewing in
entirety, we do not perceive error in the instructions. To the contrary, in
this complex case, the judge's carefully crafted instructions were a correct
statement of murder in the second degree by virtue of a joint venture to
perpetrate the felony of unlawful firearm possession, a felony which carries a
maximum sentence of less than life imprisonment. Furthermore, the judge fully
and correctly instructed on self-defense at several points in the charge,[13],[14]
including its relation to the theory of proof of joint venture felony-murder in
the second degree.[15]
6. The warrantless entry and patfrisk. The
defendant argues that his motion to suppress evidence of the bullets found in
his pocket was improperly denied since the police officers' warrantless entry
into
With respect to probable cause, the test is whether there were circumstances
sufficient to warrant a prudent person in the belief that a suspect had
committed or was committing an offense. Commonwealth v. LeBlanc, 373
The composition of the whole of the known facts
is set as of the moment in time of the entry, not refracted through the prism
of hindsight. Commonwealth v. Young, 382
As to the patfrisk, the officers' attention was reasonably drawn to the
defendant, who, very late on this cold winter night, was out of breath,
"distressed," and sweating profusely (as if he had been just running)
-- from which the officers reasonably concluded that the defendant may have
been the fleeing suspect and may have posed a threat. "Constitutional
principles do not require the police to approach a person who is reasonably
suspected of being armed with a loaded . . . handgun and
reasonably believed to have engaged in violent criminal conduct without taking
precautions against the use of that weapon against them." Commonwealth v.
Willis, 415
7. The statements at the police station. The defendant moved to suppress a
written statement and oral statements, which he provided after having
voluntarily come to the police station the morning after the shooting. (As noted
previously, the defendant was not arrested at the house following the
patfrisk). The statements the defendant proffered at the police station
concerning his actions were largely exculpatory, but were used by the
Commonwealth at trial as incriminatory evidence of consciousness of guilt by
false explanation.
The basis of the defendant's claim to suppression was that his statements at
the police station were tainted, and would not have been given, except that
"the cat was out of the bag" because of a prior admission, voiced by
the defendant at the house the evening before in response to police
questioning, that he had been at the club. This prior statement had been
suppressed.[16] See generally Commonwealth v. Mahnke, 368 Mass. 662,
686-687 (1975), cert. denied, 425 U.S. 959 (1976) (analysis of due process
implications of taint where initial statements are determined to be improperly
obtained and initial statement let secret "out for good").
The motion judge, in a well-reasoned analysis of fact and law, determined that
there had been an intervening break sufficiently great to insulate the
statements at the police station from the prior suppressed comment. The judge
considered intervening factors such as that the defendant was not detained
following the events at the 48 Rifle Street house; the defendant voluntarily
agreed the next day to go to the police station because he wanted to
"cooperate" in the investigation; the defendant expressed a
willingness to be interviewed and to provide statements at the police station;
the defendant was not restrained in any way; and the interviews at the station
took place some seven hours after the night entry into the house where the
earlier suppressed statement had been given. Further, although not in custody,
the defendant was provided Miranda warnings prior to offering his purportedly
exculpatory statements.[17]
The judgments of conviction of murder in the second degree and unlawful
possession of ammunition are affirmed. On the charge of unlawful possession of
a firearm, the judgment is vacated, the verdict is set aside, and an order
shall enter dismissing the indictment as duplicative.[18] The order
denying the motion for a new trial is affirmed.
So ordered.
FOOTNOTES:
[1] The defendant was also convicted of the underlying
crime of unlawful possession of a firearm under G. L. c. 269,
§ 10(a), as well as of possession of ammunition without a firearm
identification card, G. L. c. 269, § 10(h). In light of our
affirmance of the conviction of murder in the second degree, the conviction of
unlawful possession of a firearm, which served as the predicate felony for the
felony-murder theory, is to be vacated as duplicative.
[2] This claim was
raised by means of a motion for new trial, which was denied by the judge who
presided over the trial. The appeal from that denial was consolidated with the
direct appeal
from the convictions.
[3] The ballistics evidence was that the subject gun,
a .357 magnum revolver that was found after the shooting in the parking lot of
the club, had fired the bullet killing the victim. The six cylinders of the
magnum held one discharged .357 magnum casing, four other live .357 magnum
rounds, and one live .38 special round. See note 6, infra, regarding other guns
involved in the shootout.
[4] Whether Taylor fired a shot was a disputed point.
Jenkins's grand jury testimony was inconsistent with her trial testimony. At
the former proceeding, Jenkins stated that she saw
[5] A search was conducted for guns. No gun was
found.
[6] In addition to the .357 magnum revolver, which
was the murder weapon, a Smith and Wesson .22 caliber revolver was found inside
the club near the spot where
[7] The difference
between felony-murder in the first degree and felony-murder in the second
degree is that the former involves an underlying felony punishable by life
imprisonment, while the latter does not. See, e.g., Commonwealth v. Gaskins,
419
restricted to felony-murder in the second degree because unlawful possession
of a firearm carries a maximum sentence of five years in prison. See G. L.
c. 269, § 10(a).
[8] The Model Jury
Instructions on Homicide have modified these elements to exclude two elements
as follows:
"Language in a number of cases indicates
that in certain circumstances proof of felony murder requires proof that a
homicide was the natural and probable consequence of the defendant's
act . . . . The court has concluded that this language
should not be included as a fourth element in felony murder cases. The language
appears to be a superfluous addition to the third element of felony
murder. . . . Also, the term 'probable consequence' is
misleading because in the vast majority of felonies, including armed robbery,
the most common form of inherently dangerous felony, no one is killed.
Accordingly, death is not a 'probable' outcome, although it is an inherent
risk.
"In addition, the Court has concluded that
there is no need to include in the instructions as an element of felony murder
the following: -- 'The felony must have been independent of the
homicide.' . . . In virtually all cases, this is not an issue
for the jury; it is an issue of law to
be decided by the judge subject, of course, to
appellate review."
Model Jury Instructions on Homicide at 67-68 n.8 (1999).
[9] The Commonwealth
argues that this issue is waived. In denying the new trial motion, the judge
leaned to this view, and suggested in his memorandum of decision that the issue
may have been waived. The waiver reference by the judge finds support in a
colloquy held at the close of the Commonwealth's case. In the absence of any
available transcripts, at the colloquy, defense counsel expressed a belief that
his handwritten notes, composed during the pretrial proceedings, would show
that there was some kind of agreement by the Commonwealth not to pursue a
felony-murder theory of proof based on the firearm possession and instead, that
the prosecution had represented that the proof would be either murder in the
first degree by premeditation or felony-murder with armed robbery as the
predicate. Ultimately,
defense counsel drew back from the objection advanced on the basis of his
notes. However, we are not persuaded that this exchange gave rise to a full and
definitive waiver of the issue, for, beyond the colloquy, defense counsel later
renewed objection to the Commonwealth's supplemental jury instruction that set
forth felony-murder in the second degree based on joint venture unlawful
possession of a firearm; the judge expressly stated he would give this
felony-murder instruction "even though the defendant has requested that I
not do so"; and defense counsel objected again following the judge's
instructions in respect to this theory.
Finally, we note that, notwithstanding the suggestion of waiver, the judge
expressly stated that -- in the event his determination of waiver was not
sustainable in the fuller light of the transcripts -- he would address, in his
memorandum of decision on the new trial motion, the issue of prejudice accruing
to the defendant. In ruling on the new trial motion, the trial judge found no
such prejudice -- a determination entitled to deference.
[10] The defendant
cites to a hearing on the defendant's motion for a bill of particulars, which
was held six months before trial. Given the principle recited above, the motion
judge (who was not the trial judge) did not order particularization of the
Commonwealth's murder theory of proof. Despite that, the defendant relies
heavily on the fact that the motion judge asked whether "as a practical
matter, [the Commonwealth] see[s] this as a potential felony murder case; in
other words, felony apart from
the actual act of shooting." The prosecutor in response noted there was
"some suggestion" in the evidence that a chain was snatched from the
victim -- implying that armed robbery might be a potential underlying predicate
for felony-murder. However, this generalized reference was not meant to be, and
cannot be taken as, a binding specification.
The defendant next points to a hearing held approximately two weeks before
trial, wherein the prosecutor referenced deliberate premeditation for murder in
the first degree, and indicated that he did not think felony-murder would be at
issue. But the prosecutor also indicated that "the felony murder would be
a joint venture basis, . . . if that played out" (emphasis
added). Thus, contrary to the defendant's contention, the issue of joint
venture proof of an underlying felony charge had been referenced by the
prosecution before trial. Moreover, it was clear that such a joint venture
could encompass the gun smuggling and, hence, the unlawful firearm possession,
which actually did "play out" at trial.
[11] We note that the defense did not renew a motion
for specification of the Commonwealth's murder theory of proof at the
commencement of trial.
[12] The defendant, in passing, challenges the trial
judge's declination to reduce the verdict to manslaughter. This issue is
presented in conclusory form without citation to any authority and it does not
fall within the boundaries of appellate advocacy. Accordingly, the claim is
deemed waived. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Were we
to consider the issue, we would be of the view that the trial judge's refusal
was well justified.
[13] First, the judge in the charge commented on the
evidence and, to the defendant's benefit, explicitly interjected self-defense
into the jury deliberations. The judge instructed that "[t]he evidence in
this case does raise the issue of whether this killing was excused as a result
of the defendant's act of self-defense or of defense of another." Second,
the judge immediately followed the instructions on joint venture felony-murder
in the second degree with a preliminary self-defense explanation, which was, in
turn, followed by a comprehensive set of self-defense instructions. Third,
consistent with his preliminary reference to self-defense, after a brief time
to allow the jury to stretch and thereby to foster fresh attention, the judge
recommenced the charge and gave a lengthy (spanning eight transcript pages),
comprehensive, and correct instruction on self-defense, emphasizing, among
other points, that if the jury had a reasonable doubt whether the defendant
acted in self-defense, the jury was required to return a verdict of not guilty
of any unlawful killing.
[14] The judge gave thoughtful consideration to the
issue whether and to what extent self-defense applied to the theory of
felony-murder in the second degree. He noted that, in cases where self-defense
may be inapposite, the very nature of the underlying predicate felony marked
the defendant as the initiating and dangerous aggressor, e.g., armed robbery.
This is consistent with felony-murder precedent. In a case of felony-murder in
the first degree, Commonwealth v. Griffith, 404 Mass. 256, 264-265 (1989), the
court reasoned that "[t]he right of self-defense ordinarily cannot be
claimed by a person who provokes or initiates an assault unless that person
withdraws in good faith from the conflict and announces his intention to
retire. . . . [T]he right to claim self-defense may be forfeited
by one who commits an armed robbery, even if excessive force is used by the intended
victim."
[15] Lastly, with
respect to the conduct of the trial, we address in summary fashion two
evidentiary rulings challenged by the defendant on appeal. First, the defendant
challenges the exclusion of what he characterizes as an excited utterance of
the witness Jenkins allegedly expressed on the way to the hospital after the
victim had been taken there by ambulance. The trial judge correctly excluded
the statement as not bearing the hallmarks of reliability necessary for
admission. In such determinations, the trial judge ought to be given broad
discretion. Commonwealth v.
Second, the defendant claims error in what he characterizes as a
prosecutorial leading question regarding Barrett's identification of exhibit 1
as the gun the defendant gave her outside the club. To be sure, the question
was pointed, but we see no substantial risk of miscarriage of justice flowing
therefrom -- the applicable standard, absent objection. Indeed, the lack of
objection may very well have been strategic defense election, as the
identification of the gun by Barrett had an element advantageous to the
defendant. As defense counsel argued in closing, Barrett's identification of
the gun bolstered the defense explanation of why the .357 magnum revolver,
which could be found to be the murder weapon, bore the defendant's palm print.
[16] The judge suppressed the remark voiced by the
defendant at the house because no Miranda warnings had been given,
notwithstanding a law enforcement show of authority in a custodial setting,
which included, but was not limited to, police orders that the defendant and
the other occupants lie on the floor and the patfrisk of the defendant.
[17] The defendant's related claim that the oral
statements were subject to suppression because the Miranda warnings were not
repeated, but rather were first given prior to the rendering of the written
statement, is unavailing. There was only an approximately three hour interlude
before the defendant's second interview, which yielded the oral statements.
Absent indications to the contrary, this relatively short passage of time did
not erase the efficacy of the Miranda warnings or invalidate the defendant's
waiver.
[18] See note 1, supra.