Com. v. McCambridge, 96-P-1174

Citation690 N.E.2d 470,44 Mass.App.Ct. 285
Decision Date13 February 1998
Docket NumberNo. 96-P-1174,96-P-1174
PartiesCOMMONWEALTH v. John M. McCAMBRIDGE.
CourtAppeals Court of Massachusetts

Robert L. Sheketoff, Boston, for defendant.

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. 1 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 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 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 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. 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...

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21 cases
  • McCambridge v. Hall
    • United States
    • U.S. Court of Appeals — First Circuit
    • 27 Agosto 2002
    ...years. We describe the facts pertinent to the grounds of decision as they were found by the state court, Commonwealth v. McCambridge, 44 Mass.App.Ct. 285, 690 N.E.2d 470 (1998), fleshed out by other facts contained in the record and consistent with the state court findings. We are bound to ......
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    • United States
    • Court of Appeal of Michigan — District of US
    • 28 Mayo 2009
    ...to the felon-in-possession statute, the defendant could proffer the affirmative defense of necessity); Commonwealth v. McCambridge, 44 Mass. App. 285, 291, 690 N.E.2d 470 (1998) (recognizing necessity defense); Ex parte Taylor, 636 So.2d 1246, 1247 (Ala., 1993) (recognizing that self-defens......
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    • 23 Octubre 2001
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    • U.S. District Court — District of Massachusetts
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