Commonwealth v. Moses

• Decision Date: 11 January 2002
• Citation: 766 NE 2d 827,436 Mass. 598
• Parties: COMMONWEALTH v. PRINCE MOSES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

436 Mass. 598

766 NE 2d 827

COMMONWEALTH v. PRINCE MOSES.

Supreme Judicial Court of Massachusetts, Suffolk.

January 11, 2002.

April 26, 2002.

Present: MARSHALL, C.J., SPINA, COWIN, SOSMAN, & CORDY, JJ.

Donald A. Harwood for the defendant.

Brian J.S. Cullen, Assistant District Attorney, for the Commonwealth.

SPINA, J.

The defendant, Prince Moses, was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. He also was convicted of unlawful possession of a firearm and unlawful possession of ammunition. On appeal he claims that the trial judge erred by (1) denying his motion for a required finding of not guilty; (2) admitting evidence of the victim's statements as dying declarations; (3) excluding the victim's prior convictions for purposes of impeachment; (4) refusing to instruct on intoxication; and (5) improperly commenting on the evidence in his instructions. The defendant also asks us to revisit the question of the constitutionality of the theory of extreme atrocity or cruelty as the basis for a conviction of murder in the first degree. Finally, he asks us to reduce his convictions under G. L. c. 278, § 33E. We affirm the convictions, and decline to exercise our power under G. L. c. 278, § 33E.

1. Facts. The jury could have found the following facts. On February 5, 1996, Godfrey Jenkins and Kenneth Wallace spent much of the evening at the apartment of Jenkins's sister (Michelle Jenkins) in the Dorchester section of Boston playing video games, listening to music, and drinking beer. Later Jenkins and Wallace decided to go to the defendant's apartment in the Roxbury section of Boston, where Jenkins planned to purchase a "quarter" ($250 worth) of crack cocaine. Wallace had known the defendant for two or three years. Carlos Gonzalez, Michelle's boy friend, drove them. He waited in the car while Jenkins and Wallace went to meet the defendant. Jenkins gave the defendant $250 for a "quarter" of crack cocaine. The defendant said they would have to wait because he needed to page someone.

Wallace and Jenkins waited for the defendant downstairs in a glass enclosed catwalk. After waiting twenty minutes, they returned to the apartment and Jenkins knocked on the door again. The defendant's sister answered the door and told them that the defendant was not there. They returned to the catwalk and continued to wait. After another twenty minutes they tried, unsuccessfully, to page the defendant. They returned to the defendant's apartment and knocked on the door. The defendant's sister answered and told Jenkins that his business with the defendant did not concern her and that he should stop knocking because there were children in the apartment. They returned to the catwalk to wait. Gonzalez eventually grew tired of waiting and left. Wallace and Jenkins again returned to the defendant's apartment and Jenkins knocked on the door. The defendant came to the door and told Wallace and Jenkins to wait downstairs and he would be out.

The defendant had become increasingly upset by Jenkins's insistence. He obtained a semiautomatic .22 caliber pistol from his room, changed his clothes, and said, "He's not going to come here disrespecting my house like that.... I'm gonna take care of him.... I'm going to shoot him." The defendant went to the opposite end of the hallway leading to the catwalk and called to Wallace. As Wallace approached, he saw that the defendant was carrying a .22 caliber Luger pistol that he had previously shown to him. Wallace "froze." The defendant told him to step aside, and raised the gun. On seeing this Jenkins raised his hands and said, "All I want is my money back." He repeated his plea two or three times. The defendant then fired at least seven shots at Jenkins, hitting him four times. Two wounds were potentially fatal.

Wallace ran to his aunt's apartment, which was located nearby. He told his cousin that the defendant had just shot Jenkins, and he telephoned for an ambulance. Police and emergency personnel arrived shortly thereafter and found Jenkins lying in the hallway. He was in pain, frightened, bleeding, and asking for oxygen. An emergency medical technician frisked Jenkins for weapons, but she found none. Jenkins asked her if he were going to die. She told him that it did not look good and that if he had something to say, he should say it. Jenkins said that "Prince" shot him. Jenkins was taken to Boston City Hospital, where he underwent surgery. He died the next day.

At trial, the defendant admitted that he shot Jenkins but claimed that he had acted in self-defense. He said that, after Jenkins brandished a gun in the hallway and attempted to rob him, he in turn pulled his gun.¹ He claimed that Jenkins then started shooting at him and he returned the fire. The defendant claimed that Wallace took Jenkins's gun and they both fled.

2. Motion for a required finding. The defendant argues that the evidence was insufficient as matter of law to sustain a conviction for murder on a theory of extreme atrocity or cruelty, and that his motion for a required finding of not guilty should have been allowed. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). He contends that, because there was no evidence "that the defendant tortured, maimed, or took pleasure in the [decedent's] death or in his pain," the judge erred in submitting the case to the jury on a theory of extreme atrocity or cruelty. The relevant inquiry, however, is whether there exists one or more of the factors we identified in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983).

Here, there was evidence to support a number of the Cunneen factors, including "extent of physical injuries, number of blows, ... and disproportion between the means needed to cause death and those employed." Id. After Jenkins, who was not armed, raised his arms in a gesture of surrender and said that he only wanted his money returned, the defendant shot at him seven times, hitting him four times. Two wounds were potentially fatal. The evidence was sufficient to prove a "significant disproportion between the means necessary to cause death and those used, as well as a significant number of extensive wounds." Commonwealth v. Patterson, 432 Mass. 767, 773-774 (2000). Cf. Commonwealth v. Little, 431 Mass. 782, 783, 785 (2000) (that defendant fired seven shots from semiautomatic handgun in rapid succession at victim was sufficient to support malice necessary under theory of extreme atrocity or cruelty). The motion for a required finding of not guilty was properly denied.

3. Dying declaration evidence. The defendant claims that the judge erred by admitting as a dying declaration Jenkins's statement identifying the defendant as his assailant. Specifically, the judge admitted, over the defendant's objection, Jenkins's statement to the emergency medical technician that "Prince" had shot him. The defendant argues that there was an inadequate foundation to suggest that Jenkins believed at the time that he was going to die imminently and that he died shortly thereafter. See Commonwealth v. Key, 381 Mass. 19, 22-23 (1980); P.J. Liacos, Massachusetts Evidence § 8.6, at 486-488 (7th ed. 1999).

A victim's belief that death is impending may be inferred from the nature of the victim's injury and the victim's conduct. See Commonwealth v. Niemic, 427 Mass. 718, 724 (1998). Jenkins had been shot four times shortly before making the statement. Two bullets had pierced his chest, one of which had lodged in his spine. When police and emergency personnel arrived, he was "very frightened," grimacing in pain, bleeding, and asking for oxygen. He asked a treating emergency medical technician if he were going to die. She told him that "it didn't look too good" for him. In the circumstances, it was not error for the judge to find that Jenkins believed at the time he made the statements that death was imminent. See Commonwealth v. Key, supra at 25. That Jenkins initially may have responded well to treatment and did not die until the next day does not require a different result. See Commonwealth v. Niemic, supra at 723-724.

4. Impeachment evidence. The defendant claims that, because Jenkins's dying declaration was admitted, he was entitled to impeach that testimony with Jenkins's prior convictions of assault and battery and violation of a protective order, and the judge erred by precluding him from doing so. The defendant relies on Commonwealth v. Sellon, 380 Mass. 220, 224 n.6 (1980), quoting 3A J. Wigmore, Evidence § 884 (Chadburn rev. 1970), where we stated: "Where an exception to the hearsay rule allows the admission of a statement by an out-of-court declarant, this statement is subject `to impeachment in the appropriate ways.'"

It was error to deny the defendant the opportunity to impeach Jenkins's credibility by evidence that would have been admissible if Jenkins had testified, namely, evidence of his prior convictions. See Proposed Mass. R. Evid. 806.² See also Commonwealth v. Mahar, 430 Mass. 643, 648-650 (2000); Commonwealth v. Pina, 430 Mass. 66, 74-77 (1999). The error, however, was harmless. The evidence that the defendant sought to discredit went to the question of the identity of Jenkins's shooter. Jenkins's dying declaration was merely cumulative of Wallace's testimony, and the defendant conceded the point by testifying that he shot Jenkins in self-defense.

5. Failure to instruct on voluntary intoxication. The judge refused to instruct the jury on voluntary intoxication, as requested by defense counsel. The defendant argues that this was error, pointing to evidence that the defendant had been drinking and smoking marijuana on the night in question. "An instruction on voluntary intoxication is not required absent evidence of `debilitating intoxication.'" Commonwealth v. Chaleumphong, 434 Mass. 70, 78 (2001), quoting Commonwealth v. Erdely, 430 Mass. 149, 152 (1999). No evidence was introduced to demonstrate how much...