Com. v. Coleman

• Decision Date: 30 January 1975
• Parties: COMMONWEALTH v. Frank COLEMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 407

322 N.E.2d 407

366 Mass. 705

COMMONWEALTH v. Frank COLEMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1974.

Decided Jan. 30, 1975.

Timothy J. Wilton, Cummington, for defendant.

Frances M. Burns, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

Tried by a Suffolk County jury upon an indictment for first degree murder, the defendant was found guilty of murder in the second degree and sentenced to imprisonment for life. On this appeal subject to G.L. c. 278, §§ 33A--33G, assignments of error upon timely objections attack the trial judge's denial of motions for production of grand jury minutes and for a directed verdict. The defendant also assigns error upon various rulings and instructions at trial, and upon parts of the prosecutor's closing argument to the jury, but no exceptions were taken at the time. It is the defendant's present submission that the very failure of his then counsel to object goes part of the way to establish that he was deprived of effective assistance of counsel, and he urges us so to find on the whole record. We are also asked in the interest of justice under our § 33E power to reverse for a new trial or to direct entry of a judgment of guilty of manslaughter in lieu of the present judgment. We first summarize the evidence.

On the evening of June 18, 1971, an all night card game got under way on the third floor of the defendant's house in Roxbury. Such games took place every weekend. The four-room third floor was nearly exclusively given over to these games, the other two floors being used as living quarters. The defendant testified that the games were his 'concession'; he took his cut from the pot. On the particular night the number of players varied from time to time but there were about eight. There was some drinking; apparently the defendant was sober but the victim, Anderson ('Baybra') Walker, may have been affected by alcohol. In the early morning of June 19, the defendant left to pick up his wife. He returned to find a commotion. Anderson Walker (hereafter Walker) had been accused of cheating by one of the players, Henry Lee. Perhaps $20 was at issue. Walker got up to attack Lee and in the ensuing fracas Walker was grabbed by his brother T. C. Walker and a number of other players and restrained from striking Lee. The defendant, entering at this point, joined in subduing, Walker. There was a fierce struggle, for Walker was enraged, but apart from some testimony that Lee drew a knife, it appears that weapons were not used. The fight moved to a sideroom off the gambling room. There, in much confusion, the defendant was punched in the nose by Walker, and blood flowed. The defendant left the fray and went into the third floor bathroom to wash up. Several minutes later, Walker, calmed down by T. C. Walker, returned with him to the gambling room to resume play. The defendant was then in the third floor bathroom or kitchen. After several more minutes, but before the game could fully resume, Walker got up and went toward the kitchen. He was unarmed then as previously.

The layout now becomes relevent. The gambling room, dominated by the gambling table, is at the front of the third floor; off to one side is the room into which the fight had spilled. At the left rear corner of the gambling room there is an open doorway through which one passes after perhaps two steps to the left front corner of the kitchen. Immediately to one's left there is a sink at the left wall of the kitchen and a stove further along near that wall. In the center of the kitchen is a table. The rear wall has two windows with a small table between, on which stands a coffee pot. At the rear right corner of the kitchen (diagonally opposite the entry from the gambling room) is an open doorway leading immediately to a back staircase. Alongside the right wall is a couch. Near the right corner of the front wall of the kitchen is a door opening on a bathroom that apparently occupies a narrow space between the rear wall of the gambling room and the front wall of the kitchen.

As Walker stepped into the kitchen, he said--this is according to T. C. Walker, who was sitting at the gambling table near the doorway to the kitchen--'Frank, I had no quarrel with you. What you got? I know you got a little popgun for me. I ain't got no beef with you.' In this version, the defendant answered, 'I'm tired of you all breaking up my games. I make my living this way. Stop, Baybra. Don't come any further. If you do, i'll kill you before death gets to you.' T. C. Walker said he then heard a single shot. He saw Walker, shot in the chest, fall near the sink. The defendant was standing by the coffee pot at the rear wall of the kitchen with a gun in his hand. T. C. Walker said, 'Frank, you didn't have to shoot him. I had quieted him down before it was over. If he lives or dies, I'll get you.'

T. C. Walker's testimony about the location of the body and as to where the defendant was standing just after the shooting was corroborated by Lee who had been sitting at the gambling table somewhat farther than T. C. Walker from the entrance to the kitchen, had run into the kitchen after the shot, and fled the apartment through the kitchen back stairs. But Lee could not make out the words spoken before the shot; he recalled only something like 'get back' repeated by the defendant, and perhaps a scuffling sound like someone moving. Walker's wife claimed also to have heard 'Go back' but she was downstairs at the time. Jack Bennett, who had been dozing on the couch in the kitchen, could recall nothing, but confirmed T. C. Walker's account of where the body was.

In his testimony the defendant told a different story, evidently disbelieved by the jury, in which he claimed that he shot in self-defense. In his version, he was standing at or in the bathroom door when Walker, standing in the kitchen between the bathroom door and the kitchen entrance, grabbed his arm; the defendant snatched it loose and backed up, backing until he reached the rear wall of the kitchen, ans asking Walker to get back. When Walker kept advancing, the defendant was afraid he would be killed, so he took out his gun and fired, without aiming, solely to scare Walker. Walker fell, said the defendant, not near the sink or entrance, but between the doorway to the gambling room and the bathroom door. The defendant admitted fleeing to Arkansas after the incident, but said he did so because of T. C. Walker's threat to get him; he later returned and gave himself up.

1. Assignments upon timely exceptions. (a) Denial of directed verdict. '(W) here competent evidence has been introduced in support of all the material allegations of an indictment, the weight and sufficiency of such evidence are ordinarily for the jury.' Commonwealth v. Hollis, 170 Mass. 433, 436, 49 N.E. 632, 633 (1898). The defendant says there was insufficient evidence of malice to support a finding of murder, but considering T. C. Walker's testimony about the defendant's statement to Walker,' 'I'm tired of you all breaking up my games,' Walker's disruption of the game and the ensuing fight, the defendant's bloody nose, and the defendant's use of a gun (see Commonwealth v. Kendrick, 351 Mass. 203, 209, 218 N.E.2d 408 (1966); Commonwealth v. Leate, 352 Mass. 452, 456, 225 N.E.2d 921 (1971)), we cannot say the jury were wrong in disbelieving the defendant's assertion that he meant only to frighten Walker. Nor can we say that the jury erred in disbelieving the defendant's testimony about self-defense which was contradicted at critical points, for example, as to where the body lay. The jury's disbelief could also rest on Walker's 'I had no quarrel with you,' on the defendant's failure to call for help or even to rouse Jack Bennett, on the apparent distance between the unarmed Walker and the defendant when the gun was fired, and on the physical difficulties in the defendant's story of retreat, considering the location of the furniture in the room. Although it is argued that the defendant's apprehension was increased by the fact that he had previously lost the sight of an eye, the defendant's active intervention in the original fracas would suggest that he was not afraid of the victim.

(b) Grand jury minutes. There is no merit in the defendant's argument that denial of his demand to see the grand jury minutes deprived him of a constitutional right. At the time of trial, production of these minutes could be had under existing law only on a showing of 'particularized need.' Here no such showing was attempted; indeed the demand was a general one. Whether particularized need could have been shown, we cannot tell. In Commonwealth v. Stewart, --- Mass. ---, ^a 309 N.E.2d 470 (1974), we changed our practice and enlarged the right to production, but that was not because we acknowledged a constitutional right; had we done so, we would have had to consider more carefully whether the change should be only prospective, as we ruled it to be. The Supreme Court's decision on disclosure of grand jury minutes, Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), is not constitutionally grounded.

2. Assignments without supporting exceptions. The defendant asks us to examine alleged errors not excepted to at the time, on a claim that they show on their face ineffective assistance of counsel. In appraising the claim we should not allow casual evasion of the basic rule that errors not ovjected to are waived. Commonwealth v. Stout, 356 Mass. 237, 243, 249 N.E.2d 12 (1969). Ineffective assistance is proved by showing not only serious incompetency of counsel but also resulting loss of substantial grounds of defense, see COMMONWEALTH V. SAFERIAN, --- MASS. ---, 315 N.E.2D 878 (1974)^B and in the present case the showing would have to be made without the usual help of a post-judgment motion developing circumstances...