Com. v. Mains

• Decision Date: 31 March 1978
• Citation: 374 N.E.2d 576,374 Mass. 733
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 576

374 N.E.2d 576

374 Mass. 733

COMMONWEALTH v. Robert MAINS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 1978.

Decided March 31, 1978.

Robert L. Sheketoff, Boston (Norman S. Zalkind, Boston, with him), for defendant.

Philip T. Beauchesne, Asst. Dist. Atty. (Joseph Ayoub, Jr., Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

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

BRAUCHER, Justice.

The defendant appeals from his conviction of murder in the first degree and from the denial of his two motions for a new trial. He contends that (1) the trial judge incorrectly removed from the jury's consideration the issue of self-defense, (2) the prosecutor improperly failed to disclose information about a prosecution witness, and (3) the defendant was denied the effective assistance of counsel. We affirm the conviction.

There was evidence tending to prove the following. On the morning of Tuesday, October 2, 1973, the defendant, the victim and several others were at a construction site in Roxbury. The defendant and the victim argued about a woman, and the defendant said to the victim that "he was going home and he was coming back, and he better have his 'stuff' and make sure his 'stuff' would shoot." The defendant then left, about noon. He returned a little after 2 P.M., said to the victim, "I got my stuff, you got yours?" and shot the victim three times with a .38 caliber revolver. Another man, Lafayette Neal, said, "Stop, don't shoot him no more," and the defendant shot Neal in the hip. A police officer arrived shortly afterward and found the victim lying on the sidewalk with a .22 caliber semi-automatic pistol in his hand. There were eight live rounds of ammunition and there was no evidence that the pistol had been fired. The victim was dead of gunshot wounds on arrival at a hospital at 2:15 P.M.

The defendant testified that he was not at the site in the morning, and had never spoken to the victim. He testified that when he arrived at the site a little after 2 P.M. he walked up to the group of men and said, "How do you feel?" The victim reached into his car and came out with a .22 caliber pistol, and everybody scattered except Neal and the defendant. The defendant pulled a .25 caliber automatic from his belt, but he had no bullets and did not shoot the victim. The defendant was shot in the leg. He left the scene and threw his gun in a field.

After the verdict the defendant moved for a new trial on the grounds that the verdict was against the credible evidence, contrary to law, and against the weight of the credible evidence, and for any just cause. Later successor counsel filed a second motion for a new trial on the grounds of prosecutorial misconduct and denial of effective assistance of counsel. The trial judge had died, and the motions were heard and denied by a second judge.

1. Self-defense. The trial judge did not charge the jury with respect to self-defense. Instead, he said that "there is no question raised here that there was a homicide committed," and that the jury must first determine whether the defendant committed the homicide. In this respect the charge accurately reflected the closing argument on behalf of the defendant, and no exception was taken. The defendant now argues, however, that evidence that the victim reached into his car and came out with a gun in his hand was sufficient to raise the issue of self-defense, that the charge improperly removed from the jury's consideration the issue of the lawfulness of the killing, and that we should exercise our discretion to consider this error despite the absence of an exception. See Commonwealth v. Fields, --- Mass. ---, --- ^a, 356 N.E.2d 1211 (1976). The argument lacks substance except as it relates to a possible issue of self-defense.

The defendant's own testimony provided no basis for a charge on self-defense. Cf. Commonwealth v. Vanderpool, 367 Mass. 743, 746, 328 N.E.2d 833 (1975). Nevertheless, if there was evidence in the case warranting a reasonable doubt on the issue, a charge on self-defense would not have been irregular. See Commonwealth v. Bowman, --- Mass. ---, --- - --- ^b, 370 N.E.2d 435 (1977); Commonwealth v. Barton, 367 Mass. 515, 517-518, 326 N.E.2d 885 (1975). But the defendant might well have thought that such a charge, which would have assumed the falsity of his testimony, might have an adverse effect. In these circumstances we do not think the judge was required, on his own motion, to charge the jury on the basis of a strained view of the evidence. Nor do we think we should relieve the defendant of the result of his own trial tactics.

Moreover, there was insufficient evidence to require an instruction on self-defense even on a request by the defendant. "Before a defendant is entitled to an instruction on self-defence, there must be evidence that he first took advantage of every opportunity to avoid the combat." Commonwealth v. Lacasse, 365 Mass. 271, 273, 310 N.E.2d 605, 606 (1974). The defendant has cited us to no such evidence. His own testimony included a statement that he "couldn't run," but in a context which negated self-defense. He was not entitled to an instruction unsupported by evidence.

2. Non-disclosure by the prosecutor. Edward Short was the only witness who testified to the defendant's presence at the site in the morning, or to the defendant's statements about "stuff." On direct examination by the prosecutor, he testified only to the events immediately before, during and after the shooting. On cross-examination by defense counsel, it became apparent that Short had been at the site in the morning, and defense counsel left Short's testimony quite confused as to what happened when. The prosecutor, on redirect examination, straightened out the sequence of events. The resulting testimony was damaging to the defendant, and the prosecutor took full advantage of it in his summation to the jury.

The investigating officer testified at the hearing on the motions for a new trial, and the motion judge made findings, which we summarize. The officer interviewed Short within a few days after the killing, but Short was intoxicated and the interview was of little or no value. The officer again talked to Short on February 7, 1974, some four months after the killing, and made a written report to the prosecutor. Short was then under the influence of liquor, and his statements merely tended to corroborate those of the witness Neal. Shortly before trial the...