Com. v. Evans

• Decision Date: 16 September 1983
• Citation: 454 N.E.2d 458,390 Mass. 144
• Parties: COMMONWEALTH v. Arnold EVANS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 458

454 N.E.2d 458

390 Mass. 144

COMMONWEALTH v. Arnold EVANS.

Supreme Judicial Court of Massachusetts Middlesex.

Argued May 2, 1983.

Decided Sept. 16, 1983.

Mark B. Schmidt, Boston, for defendant.

Charles J. Hely, Sp. Asst. Atty. Gen., for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant, Arnold Evans, was convicted by a jury of murder in the first degree of Edward T. Bigham, III, of armed assault with intent to rob Bigham and Marian Ryan, and assault and battery by means of a dangerous weapon on Ryan. The judge sentenced the defendant to a term of life imprisonment on the murder conviction, to two terms of from nineteen to twenty years on the conviction of armed assault with intent to rob, and to a term of from nine to ten years on the conviction of assault and battery. All sentences were ordered to be served concurrently.

On appeal to this court, the defendant argues error in the trial judge's failure to instruct the jury (1) on manslaughter, (2) that the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, and (3) with regard to the voluntariness of the defendant's confession. The defendant also argues that we should exercise our powers under G.L. c. 278, § 33E, and order a new trial of the first degree murder indictment. We reject all the defendant's contentions. Accordingly, the judgments are affirmed.

Ryan gave the following testimony. On October 2, 1980, at approximately 1 A.M., Bigham and Ryan, both assistant district attorneys in the Northern District, were sitting in Bigham's disabled Volkswagen automobile at the side of the eastbound lane of Memorial Drive, Cambridge, near the Massachusetts Institute of Technology (M.I.T.) boathouse. A man approached the driver's side of Bigham's car, and asked for the time. Just as Bigham began to answer, a second man yanked open Ryan's passenger side door and grabbed her upper arm with both hands. Ryan clung to her seat as the second man tried to pull her out of the car. Bigham yelled, "No, you sons of bitches, no." Reaching over with his right hand, Bigham grabbed the back of Ryan's head and pushed her down.

When Ryan first turned toward Bigham, his door was shut, but as she went down, the door was opened. Ryan could see the back of Bigham's right shoulder and his back as he held her head down; she thought Bigham was going to get out of the vehicle. Ryan then heard a loud explosion which sounded as though it were right above her head and to her left. She saw a burst of light and felt something that was burning land on her face. Bigham still was at least partially in the vehicle.

Thereafter Ryan could not see or hear for a few moments. Then she observed that Bigham was no longer in the automobile. She saw a large car located behind the Volkswagen back up with its lights off, pull out rapidly onto Memorial Drive, and turn around. Ryan then saw Bigham suddenly stand in the street outside the Volkswagen. He mouthed the words, "I'm shot," and fell to the ground. Bigham bled profusely. Ryan ran to find help and ultimately had the police notified. After the police arrived, Bigham and Ryan were taken to Cambridge City Hospital where Bigham was pronounced dead at 2:03 A.M.

Henry McLendon offered the following testimony. In October, 1980, he lived with Gregory Williams and Edwin Phoenix in Dorchester. McLendon owned a Buick Electra 225 automobile, which was silver with a black top. McLendon borrowed from Phoenix a small .22 magnum pistol because McLendon was planning to commit a robbery that night. The gun was loaded when he left the apartment. McLendon went to a housing project where he met the defendant and Alvin Carter. The defendant, McLendon, and Carter left together in McLendon's car and drove around various sections of Boston looking for someone to rob. During the ride, McLendon showed the gun to the defendant and gave it to him. They stopped near the M.I.T. boathouse at around 1 A.M., and they left the car "[t]o make a robbery." The defendant approached a green automobile to ask for a "light" and "to check it out." He then rejoined Carter and McLendon. The green automobile by then had driven away. They smoked some marihuana and then saw a Volkswagen further up the road. They entered McLendon's car and drove up behind the Volkswagen.

McLendon testified that they saw a man and a woman in the Volkswagen and that they discussed a plan for a robbery. McLendon was to wait in the car and be ready to drive away. The defendant, who still had the gun, would approach from the driver's side where the man was seated. Carter would approach from the passenger side by the woman. According to the plan, the defendant and Carter were to act simultaneously and open both doors. All three knew the gun was loaded.

Carter proceeded to the woman's side of the car, opened the door, bent over and reached in near the woman. At the same time, the defendant went to the driver's side, pulled out the gun and pointed it at the man. McLendon testified that the driver's door was opened and that he saw that the man was half way out of the car.

McLendon saw the defendant step back, "make a stance" and fire. The defendant was two feet from the man when he fired. McLendon testified that the man did not touch or grab the defendant at all. After the defendant shot the man, Carter ran back to McLendon's car but the defendant returned slowly. After the man fell to his knees, the defendant, Carter, and McLendon drove back to Boston.

In the car, the defendant said, "I think he's dead" and "[h]e thought he was going to be a tough guy and he got what he had coming." McLendon testified that the defendant was bragging about the shooting at this time and did not care about it. McLendon and the defendant dropped Carter off on Camden Street in Boston, and then went to the Fenway area where they committed another robbery. McLendon then drove the defendant home, took the gun from him, and brought it back to his apartment. At McLendon's apartment, McLendon, Phoenix, Williams, and George Pettway took the gun apart. Pettway and Williams then took the pieces and threw them away in different areas. The next day, McLendon spoke with the defendant and asked him why he was bragging about the shooting. The defendant answered that he did not care and said, "He thought he was a tough guy and I shot him."

George Finney testified that he and the defendant "knew each other from seeing each other out on the street." In March, 1981, they met in the Suffolk County Court House. They talked about various things and then the defendant told Finney about shooting the assistant district attorney. The defendant said that he approached the Volkswagen, knocked on the man's window and asked him for a light. The man told him to get lost. The defendant then pulled out a gun and asked the man to give up his money. Finney testified that the defendant told him that "[t]he guy refused and he shot the guy" in the chest area. Finney asked the defendant why he had to shoot the man. The defendant said that his ankle was badly bruised or swollen, and that he could not have struggled with the man.

Thomas W. White, a Metropolitan District Commission detective, testified that on January 30, 1981, he and another detective met with McLendon and transported him to the office of the district attorney. The prosecutor promised McLendon that if he cooperated in this case, he would be allowed to plead guilty to manslaughter and the prosecutor would recommend leniency to the court.

Maryland State police Trooper Robert Lankford testified that the defendant was arrested on February 2, 1981, in Maryland by Lankford and his partner Corporal McGee. The officers found him hiding under a bed in a friend's house near Marion, Maryland. The defendant was taken to a State Police station in Princess Anne, Maryland. He was read his Miranda rights in the cruiser and he appeared to understand them. The defendant was again advised of his rights at the station and he signed a form waiving those rights. He then gave Lankford a statement which was tape-recorded. The tape recording was played to the jury.

In the statement, the defendant acknowledged that he had been advised of his constitutional rights and understood them, and that he was giving the statement voluntarily without promises or threats. He also said that earlier on the night of the shooting, a police officer had chased some people for selling marihuana and cocaine. The officer had checked the defendant and when he found nothing on him, the officer punched him in the groin and kicked his ankles. After this incident, the defendant went back to his own house, and lost some money gambling. The defendant was with Alvin Carter and Randy, whose last name he did not know.

Around 1 A.M. or 2 A.M., according to the statement, the defendant, Carter, and Randy drove to Cambridge in Randy's Buick automobile. The defendant had a .22 magnum derringer with him which Randy had brought. In Cambridge, the defendant and the others saw a beige Volkswagen automobile and decided to rob its occupants. The defendant went to the driver's side and Carter went to the passenger side of the car. The defendant said that he had the gun in his hand and he pointed it right at Bigham's face. With the gun pointed at Bigham's face, the defendant demanded Bigham's wallet.

The statement revealed that Carter had grabbed the woman passenger and that Bigham had grabbed her back and pushed her head down to the front of the car. Bigham then grabbed the defendant's hand, kicked open the door, grabbed the defendant's throat, and was struggling with the defendant as he tried to get out of the car. The defendant's statement said that he was struggling with Bigham and that Bigham hit the defendant's hand that held the gun. The defendant had his finger on the trigger and he said that when Bigham hit...