378 Mass. 671 (1979), Commonwealth v. Latimore

Citation:378 Mass. 671, 393 N.E.2d 370
Case Date:August 07, 1979
Court:Supreme Judicial Court of Massachusetts

Page 671

378 Mass. 671 (1979)

393 N.E.2d 370




Supreme Judicial Court of Massachusetts, Bristol.

August 7, 1979

Argued April 2, 1979.

[393 N.E.2d 371] Reuben S. Dawkins, Boston, for defendant.

William A. Schroeder, Asst. Dist. Atty., for the Commonwealth.


QUIRICO, Justice.

The defendant Willie R. Latimore was convicted of murder in the first degree for killing Philip Poirier in a fight between the two men at a tavern. On this appeal, the defendant argues that it was error to deny his separate motions for directed verdicts of not guilty, not guilty of murder in the first degree, and not guilty of murder in the second degree. He also argues that error was committed in excluding a certain question on cross-examination. Finally, the defendant seeks relief under

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G.L. c. 278, § 33E. 1 Because the primary issue underlying all of these arguments is whether the verdict of murder in the first degree was contrary to the weight of the evidence, we review the testimony at the trial in some detail.

Certain facts are not in dispute. The homicide took place at a tavern called the Canadian Club (Club) in Taunton on the evening of October 18, 1975. Between approximately 6 and 6:40 P.M., the defendant and his brother, both black, and a white female companion entered the Club, ordered [393 N.E.2d 372] three beers, and sat down in a booth. Six persons, including the owner/bartender Joseph J. Kmiec, witnesses Paul Salamon and two of his friends, and an unidentified couple, were present at the Club when the defendant and his companions arrived. The victim came in soon afterward, and Salamon's friends and the couple left. Except for the defendant and his brother, all of the patrons in the Club that night were white.

Sometime during the evening, the defendant and his brother and their female friend became noisy while playing pool. The bartender told them to keep their voices down because other persons were watching television. Poirier, the eventual victim, approached the defendant and his companions and also told them to be quiet. According to the defendant, Poirier, said, "You heard the bartender say 'Keep the noise down.' " The defendant answered, "You're on the wrong side of the bar to give orders." After this brief, and apparently not very heated, exchange, Poirier returned to the bar and Latimore and his companions returned to their booth and finished their beers. Alma and Edward C. Doherty, who testified for the Commonwealth, came in and sat down between Poirier and Salamon, who were their friends. Soon after, the defendant and his party left the Club.

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Approximately twenty to thirty minutes later, the defendant reentered the Club alone and a fight between him and Poirier began. There is a disagreement, which we will discuss, about how it started. The two men scuffled; they fell to the floor with Poirier on top; then somehow the defendant got free (again, there is dispute as to how) and ran to the door. Salamon threw a barstool at the defendant as he ran out. Meanwhile Poirier got up from the floor and was staggering around, tugging on his shirt. He again fell to the floor, and died from a single stab wound in his left chest. The knife or other weapon that caused the wound had cut through a rib and entered his heart. No knife or other weapon was ever found.

The defendant, who testified at his trial, stated that after leaving the Club for the first time he, his brother, and the woman drove to a package store where, on reaching for his wallet to pay for his purchase, he discovered that it was missing. They then drove to his brother's apartment so that the latter could pick up some medication he was taking, after which they drove back to the Club. The defendant went in, while the other two remained in the car. According to the defendant, his purpose in going back to the Club was "(t)o look for my wallet." 2 The defendant testified that when he entered the Club the second time, he saw the group consisting of Salamon, Poirier, Doherty, and Doherty's wife sitting at the bar. He approached them intending to ask if they had seen his wallet but, "before I could say 'Excuse me,' and start a conversation, Poirier jumped up and said, 'Get out

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of here, you black mother fucker.' " The defendant told Poirier to keep his mouth shut.

Then, according to the defendant's testimony, Poirier punched him in the eye and they began to fight. Eventually they wrestled to the floor, Poirier on top, and Poirier pulled out a knife and tried to stab the defendant. They struggled over the knife, "and the last thing I remember, I flipped him over off me, and I just ran out the door." As he was running, the defendant heard Poirier scream, and he admitted on cross-examination that he thought Poirier might have been stabbed. The defendant testified he never had the knife firmly in his hand and did not have it with him when he ran out of the Club.

Other eyewitness testimony about the fight was given by Kmiec, Salamon, Doherty, [393 N.E.2d 373] and Doherty's wife, all of whom were friends of the victim. None of these witnesses testified to seeing a knife in either party's possession during the fight, and each said he or she did not observe the stabbing. The testimony of each was that, after Latimore reentered the Club, he exchanged words with Poirier. 3 Kmiec and Mrs. Doherty said they did not see who started the actual fighting; Salamon said he heard, but did not see, the defendant hit Poirier and then saw Poirier get "off the stool and grapple( ) with the black male." Doherty testified that the defendant shoved Poirier before Poirier stood up to fight.

During the actual fight, which lasted only a few minutes, Kmiec was working at the other end of the bar. Doherty went to the telephone to call the police, and his wife tried to remain uninvolved by watching television. None of these three witnesses observed the fight closely

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or saw how it ended; they simply reported being aware of the fighting, and then seeing the defendant run out the door and Poirier stagger around clutching his bloody shirt before collapsing. Only Salamon testified in any detail about what occurred. He said that after the two men grappled together Poirier was on top. Then, according to Salamon, Poirier helped the defendant up, saying, "I'm in worse shape than you are." Poirier's shirt was torn. Salamon thought that the fight was over and turned around to get his drink. He then heard Poirier say, "Oh, son of a bitch." When he turned around he saw Poirier, holding his side, start to run around the room, and the defendant going to the door. Salamon threw a stool at the departing defendant and the victim collapsed.

1. Exclusion of question on cross-examination. Before considering the legal implications of this review of the evidence, we address the defendant's claim that the judge's exclusion of a question the defendant sought to ask the witness Kmiec on cross-examination was error. The proposed question was: "Would it surprise (you) to know that (Poirier) had a substantial portion of alcohol in his blood that day?" The pathologist testified that the victim had a .05% Level of blood alcohol at the time of the fight, .10% Being the level at which a driver is presumed to be "under the influence of intoxicating liquor" under the motor vehicle laws. G.L. c. 90, § 24(1)(E ), as amended through St.1974, c. 425. In these circumstances, we cannot say...

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