|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Lee, 383
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Elliot M. Weinstein,
William E. Loughlin, Asst.
Dist. Atty., for the Commonwealth.
Before HENNESSEY, C. J., and BRAUCHER,
WILKINS, LIACOS and ABRAMS, JJ.
LIACOS, Justice.
This is a
murder for hire case. The defense was
alibi. A
The
defendant argues that the trial judge committed reversible error by his jury
instructions on malice, his refusal to include a charge on involuntary
manslaughter, his denial of the defendant's motion for a directed verdict, and
his [383 Mass. 508] misapplication of the plain view
doctrine in denying the defendant's motion to suppress a gun seized from his
home. We consider each of these claims
of error and conclude by affirming the conviction.
The Commonwealth
presented evidence that, on the evening of
Police
officers investigating the shooting found a single yellow Sears shotgun shell
outside the victim's house. There was
expert testimony that the spent shell came from a 20[383 Mass. 509] ‑gauge
shotgun. The lead fragments found on the
stairway inside the victim's house, as well as those extracted from his body
during the autopsy, were No. 8 shot. The
officers who arrested Lee on August 29 discovered in his closet a 20‑gauge
Remington shotgun and five yellow Sears 20‑gauge shotgun shells filled
with No. 8 shot. The police subsequently
obtained a warrant and seized the gun and shells.
The
testimony of neighbors of the victim indicated that the shooting occurred about
8:45 P.M. on August 26, 1976. A small
reddish car with a noisy muffler was seen being driven away from the scene. The defendant's wife owned a red Toyota
automobile. Other witnesses testified
that sometime between August 23 and 26 Lee picked up the shotgun in question,
which he had loaned earlier to a friend.
Presenting
an alibi defense, Lee offered his own and corroborating testimony that he was
at a bar some distance away from the victim's home from eight o'clock until
well after nine on the evening in question.
He sought to show that he was not driving his wife's red Toyota but a
jeep that night, that the Toyota was not old or noisy, and that he did not recover
his shotgun until Friday, August 27, the day after the shooting. Lee's version of his contact with Janet Brady
was that she asked him to collect money from a Mr. "Warner." He claimed Brady concocted the story of the
conspiracy with Lee in order to protect her son or someone else who actually
shot Davilla.
(1) 1. The
motion to supress.
The defendant claims error in the trial judge's refusal to suppress
evidence of a 20‑gauge shotgun and five yellow Sears 20‑gauge
"8 shot" shotgun shells discovered by police in his bedroom
closet. The shotgun, and other objects
not relevant to this appeal, were discovered in the defendant's partially open
bedroom closet when the arresting officers accompanied the defendant to the
bedroom so that he might dress himself prior to departing his home in their
custody. The shells were discovered when
the officers went to the closet to procure clothing for the defendant (at his
request). The judge found the discovery
to be inadvertent. The defendant
conceded[383 Mass. 510]
the arrest to be based on probable cause and that it was made pursuant
to a lawful warrant. In short, the
defendant concedes the lawfulness of the arrest and of the presence of the
police in the defendant's bedroom. He
claims, however, that the discovery of the shotgun and shells was not
inadvertent in that the police knew, or should have known, of their presence in
the defendant's home. See Commonwealth
v. Cefalo, ‑‑‑ Mass. ‑‑‑,
‑‑‑ & n.9, ([FNA]) 409 N.E.2d
719 (1980); Commonwealth v. Accaputo, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ([FNB])
404 N.E.2d 1204 (1980); Commonwealth v. Walker, 370 Mass. 548, 350 N.E.2d 678,
cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d
314 (1976). The answer to this argument
is that the judge found the facts contrary to the defendant's claim. ([FN2])
(2) We
have reviewed the transcript of the suppression hearing. The judge's findings are fully warranted by the evidence, and we will not disturb them,
and we give substantial deference to his ultimate conclusions. Commonwealth v. Meehan, 377 Mass. 552, ‑‑‑,
([FNC]) 387 N.E.2d 527 (1979). The defendant's reliance on Commonwealth v. Accaputo, supra, is misplaced; there is nothing in that
opinion inconsistent with the findings and rulings of the trial judge in this
case. ([FN3])
2. The
jury instruction on malice. We address
preliminarily the failure of the defendant's attorney at trial to object or
take exception to the judge's instruction on malice. Although the defendant's trial took place
after Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), it occurred prior to our
decision in Commonwealth v. Callahan, ‑‑‑ Mass. ‑‑‑,
‑‑‑, ([FND]) 406 N.E.2d 385 (1980),
based in part on the ruling in Sandstrom v. Montana,
442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), that
a charge which creates a mandatory presumption improperly forecloses the jury's
function to determine the essential fact of malice. Because
[383 Mass. 511] the defendant's
trial took place in 1977, before Sandstrom, supra, we
take up his claim despite failure of trial counsel to object. DeJoinville v.
Commonwealth, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, ([FNE]) 408 N.E.2d
1353 (1980).
Lee
challenges in particular the following section of the judge's instruction:
"If a man intentionally, without any legal justification or excuse, uses
upon the body of another a force, such as a sword, a machine gun, if one uses a
force against the body of another, a force that as used would probably do
grievous harm to that other and would create a plain and strong likelihood that
the other would die as a result, then that act is malicious within the meaning
of the law ..." (emphasis supplied).
Compare Commonwealth v. Madeiros, 255 Mass.
304, 309, 315, 151 N.E. 297 (1926). The
judge avoided the terms "presumption" and "inference" which
have been problematic in post‑Mullaney
appeals. See, e. g., Commonwealth v.
Callahan, supra, ‑‑‑ Mass. at ‑‑‑ ‑ ‑‑‑,
([FNF]) 406 N.E.2d 385 (use of term "presumption
of malice" mandated jury to find malice from use of deadly weapon);
Commonwealth v. Medina, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, ([FNG]) 404 N.E.2d
1228 (1980) (inclusion of word "presumption" in malice instruction
not error because other parts of charge correctly explained permissible
inference); Lannon v. Commonwealth, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
([FNH]) 400 N.E.2d 862 (1980) (use of word
"inference" rather than "presumption" of malice avoided Sandstrom error); Gibson v. Commonwealth, 377 Mass. 539, ‑‑‑
‑ ‑‑‑, ([FNI]) 387 N.E.2d 123
(1979) (where charge made clear that "presumption" permitted jury's
inference, no Mullaney error); Commonwealth v. McInerney, 373 Mass. 136, 148‑151, 365 N.E.2d 815
(1977) (no error to charge that "malice may be inferred").
The
defendant contends the charge to have been fatally defective under cases such
as Commonwealth v. Callahan, supra. The
Commonwealth contends that the charge must be viewed as a whole. Commonwealth v. Sellon,
‑‑‑ Mass. ‑‑‑, ‑‑‑, ([FNJ]) 402 N.E.2d 1329 (1980). Under this view of the charge, the
Commonwealth urges, the charge given conveyed an appropriate impression to the
jury, placing the burden of proof on all elements of the crime, including
malice, on the prosecution. We need not
parse or analyze this charge in the detail
[383 Mass. 512] which the
defendant urges on us. We think it
clear, on alternative grounds, that the defendant fails to show error even if
we
assumed the defendant's analysis of the charge to be valid.
(3)(4)
Whether the victim had been murdered was not in dispute in this trial. ([FN4]) Malice is a common ingredient of both
murder in the first degree and murder in the second degree. Commonwealth v. Campbell, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ([FNK])
393 N.E.2d 820 (1979). The propriety of
the charge as to malice was not in issue.
The case was tried and argued by both parties on the theory that a
murder had been committed. The issue
contested by the defendant was solely that of the identity of the
murderer. In such circumstances, the
failure to object to the charge as to malice cannot be attributed to
inadvertence or lack of knowledge of evolving constitutional doctrine. Rather, the failure to object reflects a
conscious choice of trial strategy by defense counsel. ([FN5]) We think our language in Commonwealth
v. Johnson, 374 Mass. 453, 465, 373 N.E.2d 1121 (1978), disposes of the
defendant's claim of error: "We look askance when counsel who has tried a
case, without success, before a judge and jury on one theory of law, then
attempts to obtain appellate review on an entirely different theory which was
never advanced or suggested at the trial and which is not based on any
objection or exception. Our view is the
same notwithstanding the fact that the defendant is being represented on these
appeals by counsel other than the one who represented him at the original
trial. Neither the conventional type of
appellate review permitted in a criminal case, nor the special type prescribed
by G.L. c. 278, s 33E, for a 'capital case,' is
intended to afford an opportunity, from the vantage point of hindsight, to comb
the trial record for interesting questions which could have been, but in fact
were not, raised at the trial, or to attempt to convert the consequences of
unsuccessful trial tactics and strategy into alleged errors by the judge"
(emphasis supplied). [383 Mass. 513]
Cf. Commonwealth v. Shelley, ‑‑‑ Mass. ‑‑‑,
‑‑‑, ([FNL]) 409 N.E.2d 732
(1980). See also Commonwealth v.
Underwood, 358 Mass. 506, 509‑510, 265 N.E.2d 577 (1970).
The
evidence here raised no issue of justification, mitigation, or lack of intent
on the part of the perpetrator. Rather,
the identity of the killer was the paramount consideration. This case is thus factually distinguishable
from those in which malice is a pivotal element in the jury's
deliberation. E. g., Sandstrom,
supra 442 U.S. at 520‑521, 99 S.Ct. at 2457‑2458
(knowledge, intent sole element at issue); Commonwealth v. Repoza,
‑‑‑ Mass. ‑‑‑, ‑‑‑, ([FNM]) 414 N.E.2d 591 (1980) (stabbing during street fight);
Reddick v. Commonwealth, ‑‑‑ Mass. ‑‑‑,
‑‑‑, ([FNN]) 409 N.E.2d 764 (self‑defense
claim); Commonwealth v. McInerney, 373 Mass. 136,
141, 365 N.E.2d 815 (1977) (claim of lack of intent to hurt victim).
The charge
to the jury focused squarely on the fundamental questions of the credibility of
the witnesses and the identity of the killer.
([FN6]) Regarding the charge as a whole, the defendant alleges no defect
in the instructions on premeditation, the reasonable doubt standard, or the
over‑all burden of proof of guilt, and we find the charge proper in these
crucial respects.
(5) 3.
Failure to charge on manslaughter. The
defendant argues that the judge should have instructed the jury on the
alternative charge of involuntary manslaughter resulting from wanton and
reckless conduct. In deciding whether
instructions on a lesser offense are required, we are guided by the language of
our prior decisions. First, if the
evidence at trial is such that the jury could find the defendant guilty of
manslaughter rather than murder, it is error to refuse to give such instruction. Commonwealth v. Johnson, 379 Mass. ‑‑‑,[FNo] 396 N.E.2d 974 (1979).
Commonwealth v. Campbell, 352 Mass. 387, 392, 226 N.E.2d 211
(1967). On the other hand, it is error
to give such an instruction over the defendant's objection where [383 Mass. 514] there is no supporting evidence of the lesser crime. Commonwealth v. Caine,
366 Mass. 366, 375, 318 N.E.2d 901 (1974).
(6)(7) The
defendant presents on appeal a view of the evidence that we cannot recognize
from the proceedings below. Conceding
for the purpose of this argument, that the defendant fired the shotgun, he
claims he did so intending only to injure and not to kill. To buttress his claim, the defendant
represents that, being an experienced military marksman, he knew better than to
use a 20‑gauge shotgun to kill a human being. He also claims, apparently ignoring the
inconsistent claim of expertise, that the victim's chest wounds resulted from a
shot actually aimed at his leg or foot.
In addition, the defendant urges that Janet Brady's testimony evinces an
intent only to "harm" or "take care of" the victim, an
intent which may be ascribed to the defendant.
This theory of the shooting was not presented to the jury; and we
believe that instructions to this effect would only have caused confusion in
the minds of the jurors. A judge is not
required to charge on situations which are merely speculative and unsupported
by the evidence. Commonwealth v. Santo,
375 Mass. 299, 307, 376 N.E.2d 866 (1978).
Compare Commonwealth v. Wallace, 346 Mass. 9, 12‑13, 190 N.E.2d
224 (1963) (pointing loaded gun constituted reckless conduct chargeable as
involuntary manslaughter); Commonwealth v. Atencio,
345 Mass. 627, 629‑631, 189 N.E.2d 223 (1963) (Russian Roulette players
committed involuntary manslaughter), with Commonwealth v. Hicks, 356 Mass. 442,
445, 252 N.E.2d 880 (1969) (deliberate kicking constituted unlawful use of
force for which no involuntary manslaughter direction was required).
(8) 4.
Denial of the motion for a directed verdict.
From our examination of the Commonwealth's evidence in light of the
applicable standard, we are satisfied that the prosecution met its burden to
produce evidence sufficient to warrant the jury's inferences and conviction
beyond a reasonable doubt. Commonwealth
v. Latimore, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, ([FNP])
393 N.E.2d 370 (1979). The
Commonwealth's introduction of the defendant's shotgun and its similarity to
the murder weapon did not create an unduly remote inference of the defendant's [383 Mass. 515] complicity. See
Commonwealth v. Best, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
([FNQ]) 411 N.E.2d 442 (1980) (convincing proof can
consist of probable, if not necessary, inferences). Nor did the facts presented by the
Commonwealth tend to sustain two inconsistent propositions. Contrast Commonwealth v. Fancy, 349 Mass.
196, 200, 207 N.E.2d 276 (1965).
Ballistics evidence, together with the testimony of the self‑claimed
co‑conspirator and other witnesses, made out a prima facie case of murder
which the jury might accept or reject as convincing beyond a reasonable doubt.
5. Review
under G. L. c. 278, s 33E. Although the
defendant has not argued the point, we have performed our duty under G. L. c.
278, s 33E, and have reviewed the entire record and transcript. We conclude that neither a new trial nor a
reduction in the verdict is warranted.
Judgment
affirmed.
(FN1.) Brady was sentenced to fifteen to
twenty years at the Massachusetts Correctional Institution at Framingham. Lee was tried only for murder; the conspiracy
indictment against him was filed on motion of the Commonwealth.
(FNA.) Mass.Adv.Sh. (1980) 1877, 1889 & n.9.
(FNB.) Mass.Adv.Sh. (1980) 1009, 1023.
(FN2.)
We need not discuss the elements of the plain view doctrine further here as
they are not in issue in this case.
Also, the cases cited in the text set forth that doctrine with clarity.
(FNC.) Mass.Adv.Sh. (1979) 710, 715.
(FN3.)
We note that, although the shotgun and shells were inadvertently discovered,
the police had prior information which would indicate a nexus between these
objects and the crime for which the defendant was arrested. Nevertheless, there was no seizure until a
proper search warrant was obtained.
(FND.) Mass.Adv.Sh. (1980) 1411, 1415.
(FNE.) Mass.Adv.Sh. (1980) 1797, 1801‑1802.
(FNF.) Mass.Adv.Sh. (1980) at 1412‑1414.
(FNG.) Mass.Adv.Sh. (1980) 1143, 1154‑1156.
(FNH.) Mass.Adv.Sh. (1980)
415, 421‑422.
(FNI.) Mass.Adv.Sh. (1979)
692, 696‑697.
(FNJ.) Mass.Adv.Sh. (1980)
789, 800.
(FN4.) See our discussion infra as to the
defendant's claim that an involuntary manslaughter instruction should have been
given by the judge.
(FNK.) Mass.Adv.Sh. (1979)
2055, 2062.
(FN5.) Appellate counsel did not represent the
defendant at trial.
(FNL.) Mass.Adv.Sh. (1980)
1899, 1908.
(FNM.) Mass.Adv.Sh. (1980)
2499, 2515.
(FNN.) Mass.Adv.Sh. (1980)
1959, 1966.
(FN6.) The judge included in his charge a view
of the evidence permitting the jury to find assault and battery if the gunshot
wound did not cause death. Such a
finding would be based on causality and not on factors which might mitigate
murder to involuntary manslaughter.
FNo. Mass.Adv.Sh. (1979)
2437.
(FNP.) Mass.Adv.Sh. (1979)
2043, 2051‑2052.
(FNQ.) Mass.Adv.Sh. (1980)
2039, 2049.