Com. v. Bourgeois

• Citation: 404 Mass. 61,533 N.E.2d 638
• Parties: COMMONWEALTH v. Glenn L. BOURGEOIS.
• Decision Date: 08 February 1989
• Court: United States State Supreme Judicial Court of Massachusetts

Page 638

533 N.E.2d 638

404 Mass. 61

COMMONWEALTH v. Glenn L. BOURGEOIS.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Nov. 9, 1988.

Decided Feb. 8, 1989.

Robert P. Snell, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

Represented by new counsel on appeal, the defendant challenges his convictions of murder in the first degree, armed robbery, armed assault in a dwelling house, assault and battery of a victim over sixty-five years of age by means of a dangerous weapon (G.L. c. 265, § 15A [1986 ed.] ), and three charges of assault with intent to murder while armed with a dangerous weapon (G.L. c. 265, § 18[b ] [1986 ed.] ).

The indictments arose out of the following circumstances. On September 19, 1983, the defendant and one Fernette, whose convictions on substantially similar charges were upheld in Commonwealth v. Fernette, 398 Mass. 658, 500 N.E.2d 1290 (1986), robbed Hollis Jackson, age seventy-five, at his home in Middleborough. The victim was shot twice, once in the mouth and once in the back. The two robbers fled. Jackson obtained help from neighbors; the police were called. The police pursued the robbers, who fled in the victim's automobile. During the course of the pursuit, shots were fired at the pursuing police. Each robber was apprehended. The victim died of one of the gunshot wounds on October 20, 1983.

We sustain the defendant's various convictions, and, as to the murder conviction, we see no ground for providing relief under G.L. c. 278, § 33E. We recite additional facts bearing on the issues as we discuss them.

1. The defendant argues that the judge erred in excluding evidence from a State police officer and corroborating witness that the victim, in his hospital bed, had failed to identify a photograph of the defendant, Bourgeois, in an array held eight days after the shooting, although (as the jury heard) the victim did select Fernette's photograph from a different group of photographs. He argues that exclusion of evidence of the victim's failure to identify a photograph of the defendant violates his constitutional rights of compulsory process and due process. See Crane v. Kentucky, 476 U.S. 683, 690-691, 106 S.Ct. 2142, 2146-47, 90 L.Ed.2d 636 (1986); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d1019 (1967). ¹ If the victim had made a positive identification of the defendant, that fact would not in the circumstances have been admissible. See Commonwealth v. Daye, 393 Mass. 55, 60-62, 469 N.E.2d 483 (1984).

The defendant's claim lacks persuasive force because there is no evidence on the record of this trial that the victim had such an opportunity to view the defendant as would have permitted the victim to identify the defendant. The victim's house was dark immediately after the shooting, particularly in the bedroom where the victim apparently had been tied up for a long time. We reject the defendant's attempt to rely on evidence in the case against Fernette concerning the victim's opportunity to observe the robbers. See Commonwealth v. Fernette, 398 Mass. 658, 660-661, 500 N.E.2d 1290 (1986). There was, moreover, no offer of proof concerning the similarity or dissimilarity of the picture of the defendant and his appearance on the day of the crime.

No common law rule of evidence, such as a hearsay exception, provides an indication of the reliability of the excluded identification evidence, nor is there any separate assurance of the evidence's trustworthiness. See Ohio v. Roberts, 448 U.S. 56, 73, 100 S.Ct. 2531, 2542, 65 L.Ed.2d 597 (1980). Because this is not a case in which hearsay evidence was used against the defendant, the defendant's constitutional right to confrontation was not impaired by the judge's ruling. To decide this appeal it is sufficient to say that, on this record, there has been no showing that the victim's nonidentification of the defendant was exculpatory.

2. We reject the defendant's argument that he was entitled to a required finding of not guilty on the charge of deliberately premeditated murder. Applying the appropriate standard (see Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 [1979] ), we have no difficulty in concluding that a finding of premeditation, beyond a reasonable doubt, was warranted on the evidence. The facts that the victim was shot twice and that Fernette and the defendant carried loaded handguns, coupled with fair inferences from the circumstances of the shooting, support a finding of sufficient reflection to constitute deliberately premeditated murder. "[E]ven if the defendant were not the person who fired the fatal shot, there was ample evidence which, if believed, justified the jurors in convicting the defendant of deliberately premeditated murder on the basis of joint enterprise." Commonwealth v. Fernette, 398 Mass. 658, 669, 500 N.E.2d 1290 (1986).

3. In a challenge whose underpinnings are neither fully apparent nor based on a precise objection at trial, the defendant argues that the judge charged the jury erroneously when he told them that the conscious disregard of risk to human life essential to a felony-murder conviction could be presumed from the nature of the underlying felonies. The judge did err in telling the jury that the crime of unarmed robbery was inherently dangerous to human life. Commonwealth v. Moran, 387 Mass. 644, 651, 442 N.E.2d 399 (1982) ("Unarmed robbery is not inherently dangerous to human life"). Here, however, the defendant was found guilty of both armed robbery and armed assault in a dwelling house, as to which the judge gave proper instructions. The error concerning unarmed robbery was, therefore, not prejudicial.

The felonies of which the defendant was convicted are inherently dangerous to human life. See Commonwealth v. Currie, 388 Mass. 776, 785-786, 448 N.E.2d 740 (1983). Once such a felony and a homicide in the course of the commission of that felony are proven, the intent to commit the underlying felony is, in effect, substituted for the malice aforethought otherwise necessary to support a verdict of guilty of murder in the first degree. Commonwealth v. Moran, 387 Mass. 644, 649, 442 N.E.2d 399 (1982). Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982).

The judge adequately charged the jury that the defendant could not be liable as an accessory to either armed robbery or felony-murder, if armed robbery or armed assault were the underlying felony, unless the defendant knew that his accomplice had a weapon. See Commonwealth v. Watson, 388 Mass. 536, 543-545, 447 N.E.2d 1182 (1983), S.C., 393 Mass. 297, 471 N.E.2d 88 (1984). No Matchett type of instruction was even needed as to these felonies. Commonwealth v. Currie, supra 388 Mass. at 786, 448 N.E.2d 740.

4. The defendant advances a challenge, not supported by an objection at trial, to the judge's charge on assault with intent to murder which is similar in substance to a challenge that was successful in Commonwealth v. Fernette, supra 398 Mass. at 671, 500 N.E.2d 1290. The judge's charge in the Fernette case failed to advise the jury that the Commonwealth had to prove that the defendant harbored a specific intent to kill and that proof of malice alone would not be sufficient to convict the defendant of assault with intent to murder. Id. See Commonwealth v. Henson, 394 Mass. 584, 591, 476 N.E.2d 947 (1985). We reversed Fernette's convictions of assault with...