Com. v. Chasson

Citation383 Mass. 183,423 N.E.2d 306
PartiesCOMMONWEALTH v. Leroy CHASSON.
Decision Date18 March 1981
CourtUnited States State Supreme Judicial Court of Massachusetts

Robert L. Sheketoff, Boston, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

WILKINS, Justice.

The defendant appeals from his conviction of murder in the first degree of one Paul Melody and his conviction of assault and battery by means of a dangerous weapon, on one Robert Hayward. We affirm the convictions, and, as to the murder conviction, we have performed our duty under G.L. c. 278, § 33E, and conclude that neither a new trial is warranted nor the entry of a verdict of a lesser degree of guilt.

We outline the evidence in general. The defendant stabbed Melody and Hayward in Pageant Park in Quincy on a warm night in August, 1977. There were a number of people in their twenties present at a gathering in the park, where they were drinking beer or other alcoholic beverages. One of these people was Kevin Racette against whom the defendant had a grievance. The defendant, driven there by a friend, came to the park and spoke with some members of the group. He left and returned about twenty minutes later. The defendant drew Racette aside and hit him in the face. A scuffle developed. The defendant had a knife in his hand, and there was evidence that would have warranted the jury to conclude that the defendant arrived at the park with that knife. Several witnesses saw the defendant "punch" Melody, who it soon became apparent had received the serious cuts from which he died shortly afterward. The defendant stabbed Hayward twice in the kidney area when Hayward attempted to intervene. The defendant was driven away from the park. He was arrested in Maine a week later. A knife was found near where he was arrested.

The defendant testified at considerable variance with this evidence. He admitted that he returned to the park to attack Racette but claimed that he did not bring a knife with him. He said that, after he punched Racette, people came after him and that, in the melee, he picked up a knife from the ground and tried to defend himself. He said that he had the knife in his hand when he got into the car to leave the park but that, as the car backed out of the parking lot, he threw the knife out of the window.

With this brief background, we consider the various points raised by the defendant's appeal, which has been brought through counsel other than his trial counsel. Some of the points argued were the subject of objection below. Others were not.

1. The judge did not abuse his discretion in permitting the victim's mother to testify. At the defendant's request, the judge held a bench conference to determine what the witness was to testify about. Her testimony covers less than three pages of the transcript and no prejudice appears in that testimony apart from the possible prejudice produced by reason of the witness being the victim's mother. The defendant did not object to any question on the ground of relevancy or materiality. The Commonwealth was entitled to introduce relevant evidence through this witness, even though none of her testimony was essential to the Commonwealth's case. See Commonwealth v. Chung, 378 Mass. 451, --- n.1 a, 392 N.E.2d 1015 (1979); Commonwealth v. Nassar, 354 Mass. 249, 257-258, 237 N.E.2d 39 (1968), cert. denied, 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969). Testimony from a victim's close relative might have a prejudicial effect on the jury. The judge was well aware of that risk and controlled the scope of the prosecutor's questions. Where the testimony of a close relative is redundant and of minimum materiality and where there is a reasonable prospect that the jury would be prejudiced, we would find no fault with a determination to exclude such evidence. It is, of course, within the power of prosecutors to avoid the possibility of prejudice simply by not presenting the witness. Here, however, the judge did not abuse his discretion in permitting Melody's mother to testify.

2. The claim that, in his opening to the jury, the prosecutor acted improperly in stating certain anticipated testimony is without substance. There was no exception taken on this point at any time, and it is presented to us for consideration pursuant to our duty under G.L. c. 278, § 33E. The record, expanded on motion of the Commonwealth, shows that the prosecutor was fully warranted in anticipating the witness's testimony as he did. It is true that the witness did not testify as expected. However, the defendant himself admitted to making substantially the same statement as it was expected the witness would attribute to the defendant.

3. The defendant claims reversible error in the exclusion from evidence of two knives. The first was a small steak knife found sticking into the underside of the pavilion roof at Pageant Field, approximately two and a half weeks after the stabbings. The second was a folding jackknife with a corrosion spotted blade found close to a month and a half after the stabbings, lying against the edge of the raised cement floor of the pavilion area. Tests revealed traces of either human or animal blood on the steak knife and no blood traces on the jackknife.

The defendant argued for the admissibility of the knives on the ground that they supported the theory that the defendant did not use a knife already in his possession at the time of the stabbings but that he picked up a knife which fell to the ground during the fight and later threw it out of the car as he was leaving the park. He also argued that the knives supported the theory that there were knives present during the incident other than the one the defendant wielded. After an extensive voir dire, the judge ruled that the knives were inadmissible.

The evidence at the voir dire showed that, soon after the stabbings, police conducted three separate searches of the pavilion area where the two knives were later found. The third search in particular was exhaustive, involving ten or twelve police officers and thirty to forty assistants who swept the area three times in a closely knit formation in search of a knife or other sharp instrument. In none of the searches was any knife found. Additional evidence indicated that the pavilion was a picnic area and was used by large numbers of people in the late summer.

Whether evidence is legally relevant is a question which is generally left to the discretion of the trial judge. Commonwealth v. Watkins, 375 Mass. 472, 491, 379 N.E.2d 1040 (1978). Commonwealth v. Burke, 339 Mass. 521, 533-534, 159 N.E.2d 856 (1959). W.B. Leach & P.J. Liacos, Massachusetts Evidence 283 (4th ed. 1967). The proximity to the crime in point of time is an element which the judge in his discretion may consider in viewing the probative value of evidence. Commonwealth v. Watkins, supra. Aldrich v. Aldrich, 215 Mass. 164, 168, 102 N.E.2d 487 (1913). Commonwealth v. Berger, --- Mass.App. ---, --- b, 398 N.E.2d 505 (1980).

The defendant offered no evidence linking the particular knives to the stabbing incident other than their presence in the park two and a half weeks and a month and a half, respectively, after the stabbings. We think that this lack of linking evidence, together with what was in the circumstances a significant passage of time, provided sufficient grounds for the judge in his discretion to exclude them as lacking probative value.

4. There was no error in the exclusion of questions asked on cross-examination of three Commonwealth witnesses. In two instances, the subject was adequately developed in other questioning. In the third instance, the witness was asked whether she had a conversation, just before the victims were stabbed, about what she thought might happen. The relevancy of what she thought or what was said about what she thought was not apparent, and defense counsel made no attempt to make it apparent. The judge did not abuse his discretion in excluding these three questions.

5. There is no merit to the defendant's claim that the judge's charge on self-defense was inadequate. He contends that the judge should have made explicit reference to specific facts on which the defendant based his self-defense argument. The judge is not bound to instruct in the exact language of particular requests for instructions. Commonwealth v. Edmonds, 365 Mass. 496, 506, 313 N.E.2d 429 (1974). He need not instruct on every subsidiary fact and possible inference. Commonwealth v. Therrien, 371 Mass. 203, 206, 355 N.E.2d 913 (1976). Reading the instructions as a whole, they were not misleading, and they fairly permitted the jury to consider the defendant's self-defense contention. Commonwealth v. Shaffer, 367 Mass. 508, 513, 326 N.E.2d 880 (1975). Commonwealth v. Benders, 361 Mass. 704, 707, 282 N.E.2d 405 (1972).

6. The defendant challenges the adequacy of the judge's charge on deliberate premeditation. Because there was no objection to the charge in this respect, we consider the matter only under G.L. c. 278, § 33E. There was no error in any event. Deliberate premeditation was clearly set forth as a separate element which had to be proved in addition to malice aforethought in order to support a verdict of murder in the first degree. The judge's definition of deliberate premeditation as "the prior formation of a purpose to kill" was consistent with other formulations in our opinions. See Commonwealth v. Blaikie, 375 Mass. 601, 605, 378 N.E.2d 1361 (1978); Commonwealth v. McLaughlin, 352 Mass. 218, 230, 224 N.E.2d 444, cert. denied, 389 U.S. 916, 88 S.Ct. 250, 19 L.Ed.2d 268 (1967). We have never required that any specific form of words be spoken. 1

7. The defendant argues that the judge's charge eliminated intent as an ingredient of the offense by creating a conclusive presumption that the defendant intended to kill with malice aforethought and...

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