Com. v. Bertrand

• Decision Date: 25 February 1982
• Citation: 432 N.E.2d 78,385 Mass. 356
• Parties: COMMONWEALTH v. Richard BERTRAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 78

432 N.E.2d 78

385 Mass. 356

COMMONWEALTH v. Richard BERTRAND.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Sept. 15, 1981.

Decided Feb. 25, 1982.

Thomas F. Heffernon, Boston, for defendant.

Phillip L. Weiner, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

The defendant Richard Bertrand was convicted of murder in the second degree. After a hearing, the trial judge denied his motion for a new trial, and we transferred his appeal from that denial to this court on our own motion. His concurrent claim of appeal under G.L. c. 278, § 33E, ¹ raises substantially the same issues as his appeal from the denial of his motion for a new trial. ² We treat both appeals as properly before this court. We have reviewed the entire record, including the transcripts, of the defendant's conviction under G.L. c. 278, § 33E. We find no abuse of discretion in the denial of the defendant's motion, and in addition, no error or injustice warranting the exercise of our powers under G.L. c. 278, § 33E.

On November 3, 1976, the defendant Richard Bertrand, and a codefendant, David Reis, Jr., were indicted for the murder of Joseph "Duke" Rimmer. The trial commenced on January 31, 1977, in the Superior Court for Bristol County. On February 1, 1977, the second day of the trial, Reis pleaded guilty to manslaughter and subsequently became the Commonwealth's chief witness against Bertrand. On February 7, 1977, the jury returned a verdict of guilty of murder in the second degree against Bertrand, who was then sentenced to the Massachusetts Correctional Institution at Walpole for life.

The defendant, in his motion for a new trial, alleged that he was deprived of the effective assistance of counsel and that the judge's charge regarding manslaughter and joint enterprise was inadequate and prejudicial in material respects. Since the inadequacy of the charge regarding joint enterprise has neither been briefed nor argued before us, the defendant has waived that claim of error. Mass.R.A.P. 16(a)(4) as amended, 367 Mass. 921 (1975). Town Taxi Inc. v. Police Comm'r of Boston, 377 Mass. 576, 579, 387 N.E.2d 129 (1979). We have nevertheless considered this issue as part of our G.L. c. 278, § 33E, review and find the defendant's argument without merit.

The facts gleaned from the record are as follows. Bertrand and Reis, both age twenty-one at the time of the murder, had been friends since childhood. At approximately 11 A.M. on September 11, 1976, Bertrand met Rimmer, the victim, at Pidgeon's Cafe, a bar in Fall River. Rimmer, forty-two, was apparently a friend of Bertrand and had called Bertrand that morning to invite him to the bar.

Bertrand, Rimmer, and a third person later travelled to the Morgan Street Cafe, also in Fall River, arriving about 12:30 P.M. Bertrand and Rimmer talked and drank schnapps until 6 P.M. Around 2:30 P.M., the subject of physical strength came up. When Bertrand claimed that he had been lifting weights of 325 pounds, Rimmer suggested that a good test of Bertrand's toughness was to see whether Bertrand could stand up to four of Rimmer's best punches to the stomach. Bertrand agreed. After Bertrand "took his shots," the proprietor of the bar encouraged Bertrand and Rimmer to keep the peace. Bertrand and Rimmer continued talking and drinking until both left the bar.

Reis, who did not like Rimmer, was in the same bar for most of the afternoon. Bertrand told both Reis and Rimmer that he intended to spend the evening at the T-Sans Seafood Hut (T-Sans), another bar in Fall River. The three left the Morgan Street Cafe separately. Although they had reached no specific agreement, all three had arrived at T-Sans by 10:45 P.M.

When Bertrand and a woman companion appeared at T-Sans at approximately 10 P.M., Rimmer was already there. Rimmer told Bertrand that he expected a "tune-up night"; shortly thereafter, Bertrand informed Detective Sergeant Paul Carey of the Fall River police department, who was on special duty at the door of T-Sans, that "me and Duke (Rimmer) might have a fight" that night. According to Bertrand, Sergeant Carey told him to "take it outside."

About 11 P.M., Rimmer, who was seated at a table near the rear door of T-Sans, motioned Bertrand over to his table. Reis had entered through the rear door of the bar a few minutes before and was standing in front of Rimmer's table when Bertrand came over. Rimmer told Bertrand "not to ... take things ... too serious and try to feel like a hero because of taking them four shots ... earlier." Bertrand replied, "Duke, if you want to carry things on, if you want to go at it, we will go out." Rimmer stood up and walked out the back door of T-Sans, preceded by Bertrand and followed by Reis.

The rear exit from T-Sans could be approached from the inside only through a passageway, which prevented patrons inside the club from witnessing the events that occurred just outside the back door. This door normally was barred by a thirty-inch two-by-four board: the door opened outward, and the board was held against the door by brackets bolted to the door. On this evening, however, the weather was warm and the board was braced against the back door to hold it open. Between the doorsill and the ground were several steps.

At this point, Bertrand's and Reis's accounts diverge. Bertrand testified that as Rimmer lunged toward him from the door, Bertrand turned and struck Rimmer in the face with his fist. Bertrand then charged Rimmer, rammed Rimmer in the chest with his head, knocked Rimmer over backward and fell astraddle of him. As Rimmer, lying on his back, pushed Bertrand's shoulders down and away from Rimmer's chest, Bertrand heard a crack and felt Rimmer go limp. Bertrand looked up to see Reis swinging the board at Rimmer's head for the second time.

Reis, on the other hand, testified that Bertrand swept up the board as Bertrand was descending the steps and, swinging it like a baseball bat, turned and struck Rimmer on the forehead as Rimmer followed Bertrand down the steps. According to Reis, Bertrand then dropped the board. Reis got between them and pushed Bertrand and Rimmer apart; Rimmer fell. Reis then picked up the board and struck Rimmer repeatedly in the head with it, while Bertrand kicked and stomped Rimmer.

Bertrand, who insisted that he hit Rimmer only once and only with his fist, testified that Reis struck him on the wrist with the board as Bertrand was attempting to protect Rimmer from Reis's blows. Sergeant Carey and other officers testified that Bertrand later drew their attention to his bruised wrist; the officers considered the injury minor and Bertrand received no medical treatment.

Sergeant Carey observed Reis drive away from the scene a few minutes after the incident. Bertrand, after asking someone to tell Sergeant Carey that Rimmer was hurt, went home and changed his clothing and shoes. A short time later, at approximately 1:30 A.M. on September 12, 1976, Bertrand returned to T-Sans and admitted to police that he had been fighting with Rimmer. At first, Bertrand gave the officers essentially the same account of the incident that he related at trial, but claimed that Reis was not involved and that Rimmer's assailant was an unidentified member of a local motorcycle club. Bertrand claimed that he had chased the assailant over a fence behind the T-Sans parking lot and had thrown the bloody board after him.

Bertrand pointed out the location of the board and allowed officers to go to his home and take possession of the clothes and shoes he had been wearing during the incident. Forensic examination revealed no blood on Bertrand's clothing; a spot of blood with a blood type corresponding to that of the victim was detected on the heel of one shoe. Rimmer died later that morning of massive skull fractures. Shortly thereafter, Bertrand told police that Reis had inflicted the blows which killed Rimmer.

Bertrand testified that "me and Duke had an agreement ... to go out and have a fight, more or less like two brothers ... fighting." He also testified that "I figured that's what it was coming down to, either he beat me or I beat him, one or the other."

Reis stated that he "never liked Duke. He was a bully." Reis admitted that, while he was beating Rimmer with the board, he did not intend that Rimmer should get up; he did not admit intending to kill Rimmer. There were no witnesses to the encounter other than Reis and Bertrand.

1. The manslaughter charge. The defendant contends that the judge erred in not charging the jury on those factors which could mitigate the offense of murder to that of manslaughter. Specifically, he asserts that the judge should have charged the jurors that if they found that the defendant acted in self-defense but used excessive force, they should find him guilty of voluntary manslaughter. Because the defendant raised no objection at the trial to the judge's failure to instruct on self-defense, the question before this court is whether the charge given created the substantial likelihood of a miscarriage of justice. Commonwealth v. Zaccagnini, --- Mass. ---, Mass.Adv.Sh. (1981) 1202, 1204, 420 N.E.2d 350. Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). We find none.

The judge charged the jury on murder in the first degree, murder in the second degree, manslaughter, ³ and assault and battery. He did not instruct the jury specifically with respect to " 'combat,' 'passion' or 'heat of blood,' " Commonwealth v. Vanderpool, 367 Mass. 743, 746, 328 N.E.2d 833 (1975), factors which, if found to exist, might have mitigated the offense of murder to that of manslaughter. See Commonwealth v. Caine, 366 Mass. 366, 375, 318 N.E.2d 901 (1974); Commonwealth v. Soaris, 275 Mass. 291, 299, 175 N.E. 491 (1931). Nor did the judge instruct the jury on self-defense, either as a factor which might preclude a finding that the victim's death was a...