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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
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Commonwealth v. McCambridge,
44 Mass.App.Ct. 285 (1998)
Appeals Court of Massachusetts,
No. 96‑P‑1174.
Argued
Decided
Robert L. Sheketoff,
Linda M. Poulos, Assistant
District Attorney (James J. Larkin, Assistant District Attorney, with her) for
the Commonwealth.
Before ARMSTRONG, PORADA
and LENK, JJ.
PORADA, Justice.
A grand
jury returned indictments against the defendant for murder in the first degree,
unlawful possession of a firearm, and various motor vehicle offenses. The indictments arose out of a single vehicle
crash following which the defendant was found behind the driver's wheel of the
vehicle and the body of Richard Doyle was found outside the vehicle under the
rear wheel on the driver's side with two bullet holes in him. A jury in the Superior Court found the
defendant guilty of so much of the murder indictment as charged voluntary
manslaughter and guilty of all the other charges except for one of the motor
vehicle offenses. (FN1) On appeal from the defendant's convictions
for manslaughter and illegal possession of a firearm, the defendant argues that
his convictions should be reversed on the grounds that the judge erred in
denying his motion to suppress physical evidence, in failing to instruct the
jury on the defense of necessity, and in failing to mark for identification the
victim's criminal record. We affirm the
conviction for manslaughter and reverse the conviction for illegal possession
of a firearm.
We
summarize the pertinent evidence presented to the jury. A State police officer in the early morning
hours observed a van driving erratically on the Southeast Expressway. As the officer pursued the van, he saw the
van swerve in the breakdown lane, hit the right shoulder cement curbing and
then fishtail to the left across the expressway into the concrete Jersey
barrier. After hitting the barrier, the
van went up in the air, flipped over and landed on the driver's side of the van. The officer found the defendant, bleeding, in
the driver's area of the van and Doyle, who was not breathing, under the left
rear wheel of the car. As the defendant
was being removed from the van and placed in an ambulance, a gun fell out of
his jacket pocket. The gun, a .32
caliber double barrel derringer pistol, was picked up by one of the ambulance
attendants and given to one of the State troopers at the scene. Doyle, who was the man found lying underneath
the wheel, was transported to the Boston City Hospital, where he was pronounced
dead. A bullet hole in his right cheek
was discovered by hospital personnel at that time. Doyle's blood alcohol level tested at .22
percent at the hospital.
An autopsy
of Doyle's body was performed by the associate medical examiner of Suffolk
County. The medical examiner found
evidence of numerous abrasions and two gunshot wounds [44 Mass.App.Ct. 287] on Doyle's body. Although
he could not say whether the abrasions occurred post mortem or pre mortem, he
was of the opinion that the two gunshot wounds occurred prior to Doyle's
death. He opined that the first gunshot
wound was to Doyle's right cheek and would have resulted in a lot of
bleeding; the second gunshot entered
Doyle's back and would have resulted in death quickly. He also opined that the decedent had suffered
a blow to the head with a linear object consistent with the use of a "billy club" found in the van. The examiner attributed Doyle's death to the
multiple gunshot wounds.
A
ballistics expert testified that the bullets which were removed from Doyle's
body were fired by the derringer pistol recovered from the defendant and that
the gun had to be cocked each time the weapon was fired and had a trigger pull
of between thirteen and sixteen pounds of pressure. The ballistician also testified about a 9
mm. Smith and Wesson semiautomatic
pistol that was recovered from the van after the accident: the hammer of the gun was cocked, the safety
was off, and there was one live cartridge in the chamber and seven live
cartridges in the magazine. He further
testified that if one pulled the trigger, the gun would have fired.
A forensic
chemist at the State police crime laboratory who had examined the van, the
victim's clothes and the defendant's clothes testified as to the results of her
examination. She found the victim's
blood running down the driver's side door and in blood spatters that traveled
in a downward and outward direction on the door. She was of the opinion that for this pattern
to have been generated and remained in that fashion, the blood would have had
to remain undisturbed for a period of a minimum of five to a maximum of fifteen
minutes. She also found a pool of the
defendant's blood under the driver's seat.
On the passenger side of the vehicle, she found embedded in the broken
windshield hair and tissue consistent with that of the defendant's hair and
tissue. She also found glass fragments
from the windshield in the defendant's jacket but none on Doyle's clothes. On the passenger's side sliding door there
were traces of blood consistent with that of Doyle's blood as well as fibers
consistent with those taken from a maroon sweater worn by Doyle.
Her
examination of the defendant's and Doyle's clothing revealed the
following. She found Doyle's blood on
the seat and front leg of the defendant's jeans; on the right shoulder and [44 Mass.App.Ct. 288] right cuff of the defendant's Sportsmaster
jacket and the right sleeve and right pocket of the defendant's brown
jacket. She found the defendant's blood
on the defendant's brown jacket, his sweater, and his jacket, as well as on the
rear view mirror and the passenger side dashboard. She also found Doyle's blood on his own
clothing but none of the defendant's blood.
Based on her findings, the forensic expert opined that at the time the
decedent was shot he was in the driver's seat of the van, but that at the time
of the accident the defendant was probably in the driver's seat area and Doyle
near the sliding passenger door. She
also opined that the gunshot wound to the victim's back was fired from a
distance of three feet or greater.
The
defendant testified that Doyle and he were friends and that he went out
drinking with him on occasion. He
testified that, on the night in question, the two of them had been drinking at
a cafe in Cambridge and they left the cafe together. Upon leaving, the defendant got into the
passenger's side of Doyle's van and Doyle into the driver's seat. The defendant asked Doyle to give him a ride
to his former wife's house. Doyle then
left the van to make a phone call. Upon
his return, Doyle told the defendant that he had to go to Quincy where he had a
customer for a gun. With that statement,
Doyle reached under his seat and took the derringer pistol out of a bag and
threw it onto the dashboard. The
defendant asked Doyle to take him home first but Doyle continued to drive
without heeding the defendant's request.
The defendant got angry and told Doyle that he was drunk, was crazy and
to let him out of the van. When Doyle
would not let him out of the van, the defendant "blew his stack" and
called Doyle a name which implied that Doyle had molested a child, an
accusation which when made by the defendant to Doyle in the past had enraged
Doyle. With that comment, Doyle pulled
out a gun from his waist band, the 9 mm.
Smith and Wesson pistol. The
defendant grabbed the victim's arm, pushed it down, and grabbed the derringer
from the dashboard. The defendant told
Doyle to "back off." The
defendant then saw Doyle "pop" the Smith and Wesson, so he shot Doyle
with the derringer pistol and had no memory of anything else until he woke up
in the hospital.
A forensic
expert presented by the defendant testified that when the van flipped over, the
person in the driver's seat could be propelled out the passenger's side sliding
door from the force of the impact and the shape of the console. He also testified[44 Mass.App.Ct. 289] that a person who received a wound from the derringer could
nevertheless remain conscious and active, and possibly become even more
aggressive.
Based on
the evidence presented, the Commonwealth argued to the jury that the defendant
had shot Doyle sometime after they left the cafe together and that at the time
of the accident the defendant was driving Doyle's van in order to dump the
body. The defendant argued to the jury
that Doyle was driving the van at the time of the accident and that Doyle and
the defendant got into a struggle in the van during which the defendant shot
Doyle in self‑defense.
We now
address the defendant's arguments.
[1][2][3]
1. Motion to suppress. The defendant argues that the judge erred in
denying his motion to suppress physical evidence, namely the derringer pistol
and the defendant's clothing, because she relied upon evidence which was not
part of the record. The judge found that
the gun fell out of the defendant's clothing as he was being placed in an
ambulance and the emergency medical technician turned it over to the
police. In doing so, the judge relied
upon a police report which was attached to defense counsel's affidavit in
support of the defendant's motion to suppress but which was not introduced in
evidence at the hearing on the motion.
While the defendant argues correctly that it is the Commonwealth's
burden to prove that a warrantless search falls
within a permissible exception to the warrant requirement and is, therefore,
reasonable, Commonwealth v. Berry,
420 Mass. 95, 105‑106, 648 N.E.2d 732 (1995), it is equally well settled
that that burden only attaches to the Commonwealth after the defendant has first
demonstrated that a "search and seizure" in the constitutional sense
has occurred. Ibid. Here, the judge could properly find
that the defendant failed to do so where the uncontroverted
materials presented to the judge showed only that the gun fell from the
defendant's clothing while he was being placed into an ambulance and the gun
was turned over by the ambulance attendant to the police. There is no violation of the Fourth Amendment
to the United States Constitution and art. 14 of the Massachusetts Declaration
of Rights when evidence is seized by private parties who are not acting as
agents of the police and subsequently turned over to the police.
Commonwealth v. Jung, 420 Mass. 675, 686, 651 N.E.2d 1211
(1995). There was no showing that the
ambulance attendants were acting as agents of the police and, thus, the judge
properly denied [44 Mass.App.Ct. 290]
the defendant's request to suppress as evidence the derringer pistol where the
defendant failed to meet his preliminary burden of demonstrating that a warrantless search and seizure by the police occurred.
Commonwealth v. Berry, 420 Mass. at 105‑106, 648 N.E.2d 732.
[4] The
judge also found that the police had seized the defendant's clothing but that
the seizure was lawful because of exigent circumstances. See
Commonwealth v. Martino, 412 Mass. 267, 276, 588 N.E.2d 651 (1992)
(reasonable belief as to the potential loss or destruction of evidence created
exigent circumstances and warranted warrantless
seizure of evidence). Specifically, the
judge found that "[g]iven the nature of an
emergency room and in particular the BCH there is always a strong likelihood
that the hospital personnel being concerned for the patient may not preserve
evidence found on items such as clothing.
There was a reasonable belief that potential evidence would be lost or
destroyed." The defendant argues
that there was an absence of evidence to support those findings. The Commonwealth counters that even if this
were so the search was nonetheless lawful as a search and seizure incidental to
a lawful arrest. The Commonwealth's
argument ignores the fact that at the time of the seizure, the defendant was
under arrest for operating a motor vehicle while under the influence of liquor,
negligent operation of a motor vehicle, and operating a motor vehicle after his
license had been suspended. The seizure
of his clothing would have had no nexus with those offenses. G.L. c. 276, § 1.
Commonwealth v. Johnson, 413 Mass. 598, 602, 602 N.E.2d 555
(1992). Nor does it appear from the record
produced that at the time of the seizure the police had probable cause to
arrest the defendant for murder.
In any
event, we need not address directly the merits of the defendant's and
Commonwealth's arguments relating to the seizure of the clothing, because we
are convinced that the admission of the defendant's clothing as evidence
constituted harmless error beyond a reasonable doubt. The Commonwealth introduced the defendant's
clothes in evidence through its forensic expert to show that the defendant's
clothes had Doyle's blood on them. In
particular, the Commonwealth relied upon the presence of blood on the
defendant's seat of his pants to show that he was the driver of the van and the
blood on his right pant leg, right sleeve, and cuff to demonstrate that the
defendant either moved Doyle's body or came in contact with it. In light of the fact that the defendant
admitted fighting with [44 Mass.App.Ct. 291]
Doyle in the van and shooting him, and that there was not only other evidence
of a struggle between the two men in the van but also evidence that the
defendant did indeed shoot Doyle in the back as well as in the face and may
have hit him over the head with a baton in the van, the introduction of the
defendant's clothes was of minimal consequence and amounted to no more than
harmless error, particularly since the defendant was convicted of
manslaughter. See Commonwealth v. Appleby, 358 Mass. 407, 414, 265 N.E.2d 485
(1970);
Commonwealth v. Daggett, 416 Mass. 347, 352‑353, 622 N.E.2d
272 (1993). Contrast Commonwealth v. Benoit, 382 Mass. 210, 220, 415 N.E.2d 818 (1981).
2. Defense of necessity. The defendant argues that the judge erred in
refusing to instruct the jury on the defense of necessity in her instructions
on the illegal possession of a firearm.
At the close of the judge's final instructions to the jury, the
defendant requested that the judge give an instruction on the defense of
necessity as it relates to this charge.
The judge denied the request. We
conclude that the instruction should have been given and that reversal of the
conviction for illegal possession of a firearm is required.
[5][6] The
defense of necessity is applicable where (1) the defendant is faced with a
clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that
his action will be effective as the direct cause of abating the danger; (3) there is no legal alternative which will
be effective in abating the danger; and
(4) the Legislature has not acted to preclude the defense by a clear and
deliberate choice regarding the values at issue. Commonwealth v. Hutchins,
410 Mass. 726, 730, 575 N.E.2d 741 (1991).
Here, viewing the evidence in the light most favorable to the defendant, Commonwealth v. Lindsey, 396 Mass. 840,
842, 489 N.E.2d 666 (1986), the evidence was sufficient to raise the issue of a
necessity defense. There is no question
that the defendant was faced with a clear and imminent danger, that the
defendant, if one accepts his testimony as true, could reasonably expect that
his action would abate the danger, and that the Legislature had not acted to
preclude the defense by a clear and deliberate choice. The Commonwealth argues, however, that the
defendant had an effective legal alternative, namely to wrestle the gun from
Doyle. The Commonwealth, however,
ignores the fact that the legal alternative must be effective. Based on the defendant's evidence, there was
no assurance that an attempt to take the gun away from Doyle would [44 Mass.App.Ct.
292] have been effective in light of
the fact that Doyle cocked his gun after the defendant pointed a gun at him and
told him to back off. In the
circumstances presented, we conclude that the issue of the defense of necessity
was raised in this case and the judge should have given a charge to the jury on
this defense. See Commonwealth v. Lindsey, 396 Mass. at 843‑845, 489 N.E.2d
666 (the Supreme Judicial Court assumed without deciding that an unlicensed
temporary possession of a firearm in a public place might be lawful in spite of
G.L. c. 269, § 10[a],
in certain necessitous circumstances).
We do not
agree, however, with defendant's conclusory statement
that the failure to do so also had a harmful effect on the manslaughter
charge. The defendant argues that the
jury could have construed the use of an unlawfully possessed firearm as the use
of unreasonable or improper force based on the judge's instructions on self‑defense. We have reviewed the judge's instructions on
self‑defense, to which the defendant took no objection, and find there
was no risk that the jury could have interpreted the judge's
instructions that way.
[7] 3. Failure to mark Doyle's criminal record for
identification. The defendant
requested the trial judge at the sentencing hearing to mark Doyle's criminal
record as an "exhibit." The
judge denied the request and the defendant claims it was error, for the record
was necessary to support his claim that the prosecution had withheld exculpatory
evidence from him. The defendant claimed
that Doyle's record would have supported his claim that Doyle had been
convicted of child abuse, which would have corroborated the defendant's
testimony at trial that Doyle pulled a gun on him when the defendant called
Doyle a name indicating he was a child abuser, which accusation on a prior
occasion had prompted Doyle to threaten the defendant's life if he ever accused
him of this offense again. While the
defendant pressed for the introduction of the victim's criminal record at
trial, he did not object when the judge did not order its production or request
that the record be marked for identification.
He cannot now be heard to complain that the judge failed to do so at the
sentencing stage.
In any
event, assuming without deciding that the prosecutor should have produced the
victim's record, there was no prejudice to the defendant because he was aware
of the victim's record and was prepared to offer such evidence at trial. More importantly, there was no prejudice to
the defendant. By convicting the
defendant of manslaughter, the [44 Mass.App.Ct. 293]
jury obviously credited the defendant's testimony that the struggle in the van
was precipitated by the defendant's remark about this offense to Doyle. See
Commonwealth v. Tucceri, 412 Mass. 401, 412‑414,
589 N.E.2d 1216 (1992).
The
judgment of manslaughter is affirmed.
The judgment of the illegal possession of a firearm is reversed, and the
verdict is set aside.
So ordered.
(FN1.) The convictions on the motor vehicle
offenses were placed on file.