Com. v. Harris

• Decision Date: 24 August 1978
• Citation: 376 Mass. 201,380 N.E.2d 642
• Parties: COMMONWEALTH v. Ronnie M. HARRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 642

380 N.E.2d 642

376 Mass. 201

COMMONWEALTH v. Ronnie M. HARRIS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 3, 1978.

Decided Aug. 24, 1978.

Harvey M. Pullman, Roxbury, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.

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

QUIRICO, Justice.

These are the defendant's appeals, pursuant to G.L. c. 278, §§ 33A-33G, from his convictions on two indictments returned against him by the grand jury for Suffolk County on May 17, 1974, for crimes allegedly committed on March 22, 1974, in Boston. The first indictment charges the defendant with the murder of Mack Clark (Clark), and the second with an assault on Donald V. Haynes (Haynes) with intent to murder him, the defendant being armed at the time with a dangerous weapon, a handgun. The jury returned verdicts of guilty on both indictments, the murder conviction being in the second degree. The defendant was sentenced to the Massachusetts Correctional Institution at Walpole for life for the murder, and for a concurrent term of eight to ten years for the assault. ¹

The defendant argues two alleged errors which are based on exceptions saved at the trial. One is the admission in evidence of a statement made by someone other than himself immediately before the incident on which the indictments are based. The second relates to the trial judge's instructions to the jury on the subject of self-defense. Additionally, the defendant asks that this court, in the exercise of its power under G.L. c. 278, § 33E, vacate the verdict of guilty of murder in the second degree and order a new trial on that indictment, or, in the alternative, that it reduce the verdict to guilty of manslaughter. He contends both that the evidence is insufficient to support the verdict of murder in the second degree, and that the verdict is against the weight of the evidence. ²

We hold that there was no error, and that there is no basis to modify the jury verdicts or to grant the defendant any other relief under G.L. c. 278, § 33E.

We summarize the evidence to the extent necessary for the disposition of these appeals. Prosecution witnesses testified that about March 18, 1974, Haynes purchased four bags of heroin from the defendant for thirty-six dollars. He had purchased drugs from the defendant on numerous occasions. About March 20 the defendant was near the Dudley Street station in the Roxbury area of Boston and had some bags of heroin in his possession. Haynes approached him and complained about the quality of the heroin which the defendant had sold him several days earlier, and asked for the return of his money. The defendant responded that the heroin was good and that he had no money. A scuffle followed during which Haynes took seven bags of heroin away from the defendant.

On March 22, 1974, from about 4 P.M. and until some time later, Haynes, Clark, the latter's brother Stephen Clark, and two or three other friends of Haynes were standing on the sidewalk outside a tavern at the corner of Northampton and Washington Streets. About 4:10 P.M. the defendant drove past the corner in a white Pontiac Grand Prix automobile which was later determined to belong to the codefendant Mormando. The defendant stopped the car a short distance beyond the corner, got out, walked back to the corner, then returned to the car and drove away. He had no conversation with Haynes at that time. About 4:15 or 4:20 P.M. the Pontiac automobile, with three persons in it, again passed the corner. It stopped beyond the tavern. Shortly thereafter the defendant and a young man walked back toward the corner. The second man has been identified as Jerome McGowan, who shared an apartment with Mormando.

When the defendant and McGowan reached the corner Haynes was talking to Clark. The defendant approached Haynes and told him that McGowan, who was now carrying an axe handle, wanted to talk to him. Haynes turned to McGowan who without speaking started to walk across Northampton Street. When Haynes turned back toward the defendant he heard someone behind him say: "Shoot that m...-f...!" At that moment the defendant reached behind his back, drew a firearm, lunged at Haynes, and fired a shot. Haynes was hit by the pistol but not by the shot, which instead passed through a coat which he was wearing at the time. The defendant then turned toward Clark, who was seven or eight feet away, and fired a shot at him which resulted in his death. The defendant fled toward the Pontiac automobile, with Haynes and others in pursuit. The codefendant Mormando, who had remained in the Pontiac automobile, picked the defendant up and left the scene. Mormando was apprehended within several days through information given to the police about the Pontiac automobile. The defendant was traced to the Mormando apartment, where he had changed his blood-stained shirt for one given him by Mormando. The defendant left the apartment before the police arrived and fled to New York. He was later arrested there, and was returned to Boston on September 6, 1974.

The defendant's somewhat different testimony of what happened is as follows. He was a drug user, but had not sold any drugs to Haynes. He had directed Haynes to someone else for the purchase of heroin. Several days before March 22, Haynes and Clark, accompanied by three other men, demanded drugs from him. He told them that he had fifteen bags of heroin which he had just purchased for fifty dollars for use by himself and another person. He refused to give them any of the drugs, whereon Clark held a knife to his neck and took eight bags. Haynes then demanded the rest of the drugs but the defendant refused to give them to him. A scuffle followed during which Clark gave Haynes the knife. In the end the defendant was forced to give the rest of the drugs to Haynes.

About 4 P.M., or shortly thereafter, on March 22, Mormando drove the defendant and McGowan to a point a little beyond the corner of Northampton and Washington and stopped to let McGowan out. They then drove a short distance further and the defendant got out. Mormando parked there and remained in the car. After making some intermediate stops the defendant walked toward the corner. On his way he met John Dixon. Dixon told him that Haynes and Clark were at the corner and that he had heard them say that they were going to "get" the defendant. Dixon pulled out a knife and offered it to the defendant, but he refused it. Dixon then offered the defendant a gun, and he also refused that. Nevertheless, Dixon stuck the gun in the defendant's sweater. The defendant then met McGowan and as they walked toward the corner he saw McGowan reach into a doorway and pull out a stick which he carried with him.

When the defendant and McGowan arrived at the corner, Haynes, Clark, Clark's brother Stephen, and a number of other persons were there. Haynes approached the defendant from behind, put his arm around him, and asked for drugs. The defendant attempted to get away from him. McGowan approached, and Haynes asked him what he was going to do with the stick, and McGowan said "nothing." Clark came over and asked McGowan the same question and got the same answer. The stick was an axe handle. Clark tried to take the stick away from McGowan. Haynes then, while continuing to demand drugs, reached into his pocket and pulled out a knife and held it against the defendant's neck. He tried to stab the defendant but another person intervened. The defendant's ear was cut. At this point the defendant pulled the gun out of his pocket and, as the scuffle continued, fell to the ground. From that position he saw Haynes coming at him. He fired the gun at Haynes and Haynes fell down. Then lying on his back the defendant saw Clark coming "over" him with a knife and shot him. He fled down the street, was picked up by Mormando, and was driven away.

Of the many persons who were at or near the corner when the alleged crimes were committed, three gave testimony which supported the version of the victim Haynes, and two gave testimony which supported the version of the defendant.

It is obvious from the above summary of the evidence that the defendant admits that he shot at Haynes and that he shot and killed Clark. He contends, however, that his conduct was legally justified because he was acting in self-defense when he was attacked by Haynes and Clark. It is apparent from the verdicts that the jury did not believe the evidence presented by the defendant and his witnesses relating to self-defense, but rather believed the evidence of the Commonwealth.

We now consider the several grounds on which the defendant seeks relief from this court.

1. Evidentiary question. Shortly before the shooting that resulted in the charges in these cases, Haynes was facing McGowan and talking with him. McGowan left and started to walk across the street. Haynes then turned around and faced the defendant. Haynes testified, over the defendant's objection and exception, that he then heard someone behind him say: "Shoot that m . . . f . . .!" Testimony indicated that it was at about this time that the defendant shot at Haynes and missed him, and then shot and killed Clark. The person who spoke the words was not identified in subsequent testimony, and the statement was not attributed to the defendant.

The trial judge apparently admitted the statement as part of the "res gestae." The defendant argues here that the statement was not admissible under a theory of "res gestae" because it was neither made contemporaneously with nor immediately after the shooting, but before it. He also contends that the evidence does not come within the "spontaneous utterances" exception to the hearsay rule, citing and quoting from 6 J. Wigmore, Evidence § 1745 (Chadbourn rev. 1976). We need not pursue either argument because we conclude that the evidence was properly admitted regardless of whether the reason stated by the...