Com. v. Lowe

• Decision Date: 09 February 1984
• Citation: 391 Mass. 97,461 N.E.2d 192
• Parties: COMMONWEALTH v. Darcy LOWE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 192

461 N.E.2d 192

391 Mass. 97

COMMONWEALTH v. Darcy LOWE.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Oct. 3, 1983.

Decided Feb. 9, 1984.

Willie J. Davis, Boston (Mary D. Gearin, Boston, with him), for defendant.

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

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

The defendant was convicted by a jury on June 8, 1981, of murder in the second degree. He was sentenced to life imprisonment at the Massachusetts Correctional Institution at Walpole. On June 10, 1981, he moved for a required finding of not guilty after discharge of jury, or for a new trial. The trial judge denied this motion after a hearing. On appeal from this denial and from his conviction, the Appeals Court concluded that the judge's refusal, in the circumstances of the case, to give the instructions requested by the defendant on accident made a new trial necessary. Accordingly, it ordered that the judgment be reversed and the verdict set aside. Commonwealth v. Lowe, 15 Mass.App. 262, 444 N.E.2d 1314 (1983).

Both parties petitioned this court for further appellate review. We granted both petitions. We conclude that the evidence which was presented at trial was sufficient to support a verdict of guilty of murder in the second degree, and that there is no basis on which to reverse the conviction.

We note first a procedural question raised by the Commonwealth about the defendant's motion for a required finding of not guilty after discharge of jury. ¹ At the close of the Commonwealth's evidence on June 5, 1981, the defendant moved for a required finding of not guilty. The offense charged in the indictment was murder. Under the indictment the defendant could have been found guilty of the included offenses of murder in the second degree and manslaughter. See Commonwealth v. Burke, 342 Mass. 144, 146, 172 N.E.2d 605 (1961). The defendant's motion was consequently a motion for a required finding of not guilty of any of the crimes of murder in the first degree, murder in the second degree, or manslaughter. In his argument before the judge in support of this motion, however, the defendant's counsel stated: "I will save the Court's time and submit that the motion as drafted should really be confined to the issue of murder in the first degree. I would think that as a matter of law, the jury could find manslaughter and possibly second-degree murder but the additional element of premeditation which is required for first-degree murder is lacking, I think, from the evidence." The rest of his argument and the Commonwealth's argument were confined to the issue of the sufficiency of the evidence to support a finding of murder in the first degree. The judge entered a finding of not guilty on so much of the indictment as charged murder in the first degree. The Commonwealth suggests that the above-quoted statement by the defendant's counsel precluded a posttrial motion as to the lesser included offenses.

The Commonwealth fails, however, to cite any authority or give any reason in support of its contention. The Commonwealth has not complied with the requirements of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Defense counsel's statement clearly withdrew from the judge's consideration the defendant's motion in so far as it related to the charges of murder in the second degree and manslaughter. Neither party has briefed the issue whether the withdrawal of this portion of the defendant's June 5 motion before it could be ruled on by the judge precluded the defendant from moving on June 10 for a required finding of not guilty as to murder in the second degree after discharge of the jury. The parties have briefed the substantive question of the sufficiency of the evidence to sustain the verdict of guilty of murder in the second degree. Thus, we shall assume, arguendo, that this issue is properly before us.

We summarize the evidence most favorable to the Commonwealth. Early on the morning of Saturday, October 25, 1980, the Quincy police, answering a call, found Mary Beth Graziano, age nineteen, lying dead on the floor of her bedroom at the front of her second floor Quincy apartment. She lay on her back with a single bullet hole in her chest. A single .22 caliber discharged cartridge casing was found on the bedroom rug, but the weapon which fired it was never discovered. There was no sign of a struggle. On the floor near Graziano was a woman's purse with a wallet protruding from it. In a side pocket of the wallet was a $50 bill folded in quarters. No other money was found in the wallet.

An autopsy revealed that a .22 caliber bullet had entered Graziano's left chest five centimeters to the left of her mid-breastbone line. Death was due to cardiovascular collapse and shock secondary to a gunshot wound of the great vessels of the heart. From the pattern of unburned gunpowder around the place where the bullet entered the body, it could be inferred that the gun was fired at a distance of between one and two feet away. In the opinion of the Commonwealth's firearms and ballistics expert, if a woman of Graziano's height were holding a .22 caliber handgun in her right hand one to two feet from her body, she could not discharge it in such a way that the bullet would enter her left chest at a thirty degree angle going from her left to her right side. Graziano's mother testified that her daughter was right-handed. ² The Commonwealth's expert in forensic science concluded, from the amount of antimony and barium found on Graziano's left hand, that she either discharged a firearm with that hand or had that hand in close proximity to a discharging firearm. ³ The autopsy was performed on October 25, 1980, the day Graziano died. On October 26, 1980, a State trooper who took fingerprints from Graziano's body observed a large black and blue area on the upper portion of her right cheek.

Shortly before Graziano's body was discovered, a neighbor in an adjoining apartment heard a commotion and a loud argument in Graziano's apartment. She could distinguish a male and a female voice in this argument but could not make out any words. She then heard a gunshot. After the gunshot the voices ceased. A neighbor who lived in the apartment directly beneath heard "a report" and within three minutes thereafter heard someone coming down the stairs with a great rush. He testified that he looked out the window and saw the defendant leap over three steps leading from the piazza of the apartment house and run down the walk to the street. There were two cars parked in front of the apartment house. The defendant ran between them around to the passenger side of one of them which was parked with its driver's side to the curb. As he did so, he looked over his shoulder at the upstairs window. He then ran around to the driver's side, got in the car, and drove off in a hurry.

Mary Beth Wasik, asleep in her bedroom at the back of the apartment she shared with Graziano, was awakened by a "big bang." She jumped out of bed and went to her closed bedroom door. Standing there, she heard Graziano say, "Oh, my God," in a very faint voice. She then ran out of her bedroom and out a back door located near her bedroom. As she ran out the back door, she heard Graziano say, "Oh, my God," faintly again. She ran down the stairs. She then ran to a neighbor's apartment and asked the neighbor to call the police.

Both Wasik and Natalie Morris, who was a bartender at the Narcissus, a Kenmore Square club frequented by the defendant and by Graziano, testified that the defendant and Graziano had been boy friend and girl friend, but that the relationship had become less close. Wasik testified that both she and Graziano had moved to Quincy from Vermont in July, 1980. Graziano met the defendant that same month and fell "head over heels for him." Wasik saw the defendant at the apartment five or six times between July and October, 1980, and the defendant stayed overnight with Graziano. About a month before Graziano died, the relationship changed. The defendant came over less often, Graziano did not talk about him much anymore, and she began seeing someone else. The last time Wasik saw the defendant was about a month before Graziano died.

The Thursday night prior to her death, Graziano went out with Wendy Brooks. They went first to the Narcissus. Wendy Brooks met the defendant briefly there. The defendant and Graziano had a conversation together for about one-half hour out of Brooks's hearing. Brooks, Morris, and Graziano then left the Narcissus together. The defendant did not accompany them, and Brooks did not see him again that night. Brooks last saw Graziano at about 4 or 4:30 A.M., Friday morning, when Graziano left the after-hours place to which she and Brooks had gone. Graziano left with a man whom Brooks did not know.

At about 12 P.M. Friday or 12:30 A.M. Saturday, Natalie Morris and Graziano went to a birthday party at the Cache club in Boston. Mary Beth Wasik joined them there later. Neither Morris nor Wasik noticed anything unusual about Graziano's face. Morris specifically stated that she did not remember seeing any marks or bruises on it. Both Morris and Wasik went home at about 2 A.M. when the club closed. When Morris last saw her, Graziano was standing outside the Cache club. Neither Morris nor Wasik saw the defendant that evening.

According to the testimony of the doorman at the Narcissus club, the defendant was at that club from about 11 P.M. Friday until shortly after 2 A.M. Saturday. At about 2 A.M. Graziano, appearing distressed, knocked on the club's locked door and asked for the defendant. The doorman let her in. She and the defendant left the club, a moment apart, at about 2:10 A.M.

At about 6:50 A.M., two Quincy police officers in a cruiser noticed Graziano and the defendant in an automobile. The defendant was driving. Graziano was sitting very close to the defendant, kissing him....