Com. v. Grant

• Decision Date: 09 June 1994
• Citation: 418 Mass. 76,634 N.E.2d 565
• Parties: COMMONWEALTH v. Wayne GRANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 565

634 N.E.2d 565

418 Mass. 76

COMMONWEALTH v. Wayne GRANT.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 9, 1994.

Decided June 9, 1994.

John J. Courtney, Medford, for defendant.

Austin J. Freeley, Asst. Dist. Atty. (Mary K. Ames, Asst. Dist. Atty., with him), for Com.

Before LIACOS, ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ. ABRAMS, Justice.

Following a jury trial, the defendant, Wayne Grant, was convicted of murder in the first degree, assault and battery by means of a dangerous weapon, assault with intent to murder while armed, and carrying a handgun without a license. On appeal, the defendant challenges: (1) the judge's denial of his motion to dismiss for failure to comply with Mass.R.Crim.P. 36(d)(3), 378 Mass. 909 (1979); (2) the judge's admission of a witness's statement as an excited utterance; (3) the prosecutor's summation; and (4) the judge's instruction on the Commonwealth's burden of proof. We conclude that there was no reversible error. We also conclude that we should not exercise our power under G.L. c. 278, § 33E (1992 ed.), to order a new trial or to enter a lesser degree of guilt on the conviction for murder in the first degree. We affirm the judgments.

1. The facts. We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). For about one year prior to February, 1988, Gary Bass dealt drugs for the defendant, Wayne Grant (also known as Wade Drayton). At some point during this year, Bass also began to deal drugs for someone else. In late January or early February, 1988, the defendant told Bass to stop selling drugs for the other person. Bass did not do so.

On the afternoon of February 3, 1988, the defendant and another man visited the apartment that Bass shared with Alita Hubbard. Hubbard heard the defendant, whom she knew, yell at Bass for continuing to sell drugs for the other person. Hubbard then went to bed. At approximately 1:15 A.M. on February 4, Hubbard awoke. As she made her way to the kitchen, Hubbard saw the defendant and three other men, all of whom she knew, in the living room. They were being unusually quiet. When Hubbard asked if anything was wrong, she was told, "Shut up." Hubbard noticed that one of the men with the defendant had a revolver in the waist of his pants.

Hubbard went back to the bedroom where she and Bass prepared to "get high." Before they could, however, a bullet whizzed past Hubbard's head. Hubbard immediately screamed and dived to the floor. Hubbard heard a second shot. She then sat up and faced the doorway where she saw the defendant, Wayne Grant, standing alone a few feet away from her. Hubbard felt Bass's body next to her. The defendant pointed a revolver at Hubbard and fired. Struck in the arm, Hubbard "played dead." The defendant then approached the spot where Hubbard and Bass were lying and fired again. An instant later, the defendant fired another shot which made Bass's body jerk. The defendant then departed.

Shortly after the defendant left the apartment, Hubbard sat up and saw Bass laying beside her. He was bleeding from his right ear. Hubbard continuously called Bass' name, heard no response, and then hollered for help. Boston police Officers John McGee and Anthony Pettus arrived at the apartment at approximately 1:45 A.M. Hubbard told the officers that the defendant had shot both Bass and herself.

Hubbard and Bass were taken to Boston City Hospital. Bass was pronounced dead on arrival. ¹ Shortly after her arrival at the hospital, Hubbard was interviewed by Detective Paul J. Murphy. During this interview, Hubbard again identified the defendant as the shooter.

2. The denial of the defendant's motion to dismiss for failure to comply with Mass.R.Crim.P. 36(d). Following the shooting, the defendant fled to New York City, where he was arrested in July, 1988, on an unrelated charge. On November 30, 1988, the defendant was arrested in Baltimore, Maryland, also for an unrelated offense. On or about January 9, 1989, the Commonwealth, pursuant to the Interstate Agreement on Detainers (agreement), St.1965, c. 892, § 1, lodged a detainer against the defendant with the Maryland Division of Correction. See G.L. c. 276, §§ 11-20R (1992 ed.) (Uniform Criminal Rendition Law); Gay, petitioner, 406 Mass. 471, 472-473, 548 N.E.2d 879 (1990); Commonwealth v. Wilson, 399 Mass. 455, 456, 504 N.E.2d 1060 (1987). On January 10, 1989, Maryland authorities filed the detainer against the defendant.

On or about November 17, 1989, when the defendant began to serve his sentence at the Roxbury Correctional Institution in Maryland, authorities there notified him of the murder indictment in Massachusetts. At this time, the defendant signed Form I of the agreement (notice of untried indictment, information, or complaint and of right to request disposition) and checked off the box indicating that he did not wish to file for a speedy trial. On or about February 8, 1990, the defendant informed the classification counselor at the Roxbury Correctional Institution that he still did not wish to file for a speedy trial in Massachusetts. On April 26, 1990, a pretransfer hearing was held in Maryland. In July, 1990, the defendant sought and received a habeas corpus hearing. In August, 1990, the defendant was again advised of his right to request a speedy trial, but he declined to make such a request. On October 18, 1990, the defendant was brought back to the Commonwealth. About one hundred days later, on January 30, 1991, the defendant's trial commenced.

Before the trial, the defendant unsuccessfully moved to dismiss the indictments against him on the ground that, by failing to notify him in writing of the charges against him in Massachusetts and of his right to demand a speedy trial, the Commonwealth violated Mass.R.Crim.P. 36(d)(3). On appeal, the defendant claims that the denial of his motion to dismiss constituted reversible error. We disagree.

Rule 36(d)(3) states: "Any person who is detained outside the Commonwealth upon the unexecuted portion of a sentence imposed pursuant to a criminal proceeding, and against whom an untried indictment or complaint is pending within the Commonwealth shall, subsequent to the filing of a detainer, be notified by the prosecutor by mail of such charges and of his right to demand a speedy trial.... If the prosecutor has unreasonably delayed (A) in causing a detainer to be filed with the official having custody of the defendant, or (B) in seeking to obtain the defendant's presence for trial, and the defendant has been prejudiced thereby, the pending charges against the defendant shall be dismissed." The Commonwealth did not mail to the defendant--notice informing him of the charges against him and of his right to demand a speedy trial. However, the Commonwealth did provide such notice to the appropriate Maryland authorities, who, in turn, notified the defendant. Consequently, at all relevant times, the defendant had actual knowledge of his right to demand a speedy trial.

A failure by the Commonwealth to comply precisely with the written notice provision of rule 36(d)(3) does not require a dismissal of the charges against the defendant if the defendant received actual notice of the charges pending against him in Massachusetts and of his right to request a speedy trial. The purpose of the rule is to make certain that the defendant has knowledge of his right to a speedy trial. Because the defendant received actual notice of his right to a speedy trial, the judge correctly denied the defendant's motion to dismiss.

3. The admission of Hubbard's statement under the excited utterance exception to the hearsay rule. The defendant asserts that the trial judge erred in admitting, under the excited utterance exception to the hearsay rule, Detective Murphy's testimony concerning the statements Hubbard made to him approximately one hour after the shooting. We disagree.

The excited utterance exception to the hearsay rule "is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties ... so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection the utterance may be taken as particularly trustworthy ... and may therefore be received as testimony to those facts." Commonwealth v. McLaughlin, 364 Mass. 211, 222, 303 N.E.2d 338 (1973), quoting J. Wigmore, Evidence § 1747 (3d ed. 1940). The test to determine the admissibility of a statement under the excited utterance exception to the hearsay rule is as follows. " 'The utterance must have been [made] before there has been time to contrive and misrepresent.... [T]he statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated.... [T]here can be no definite and fixed limit of time. Each case must depend upon its own circumstances.' ... The trial judge in determining whether an utterance meets the tests of admissibility ought to be given broad discretion.... [O]nly in clear cases ... of an improper exercise of discretion should [the judge's] ruling be revised." Rocco v. Boston-Leader, Inc., 340 Mass. 195, 197, 163 N.E.2d 157 (1960), quoting J. Wigmore, Evidence § 1750 (3d ed. 1940). See Commonwealth v. Burnett, 417 Mass. 740, 743-744, 632 N.E.2d 1206 (1994); Commonwealth v. Crawford, 417 Mass. 358, 362, 629 N.E.2d 1332 (1994); Commonwealth v. McLaughlin, supra 364 Mass. at 223, 303 N.E.2d 338. See also P.J. Liacos, Massachusetts Evidence ...