Com. v. Martinez

• Citation: 393 Mass. 612,473 N.E.2d 167
• Parties: COMMONWEALTH v. Larita Welch MARTINEZ.
• Decision Date: 07 January 1985
• Court: United States State Supreme Judicial Court of Massachusetts

Page 167

473 N.E.2d 167

393 Mass. 612

COMMONWEALTH v. Larita Welch MARTINEZ.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 3, 1984.

Decided Jan. 7, 1985.

Calvin J. Wier, Roxbury, for defendant.

Robert N. Tochka, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

The defendant was convicted of arson, murder in the first degree of two persons who died as a result of the fire, and murder in the second degree of two other persons who also died as a result of the fire. The fire occurred on the night of January 17, 1983, in a three-story tenement house in the Roxbury section of Boston. The defendant and the victims were occupants of the building. We affirm the arson conviction but reverse the murder convictions because the judge did not give a charge on involuntary manslaughter.

1. We consider first the question whether an instruction on involuntary manslaughter should have been given. The Commonwealth presented evidence tending to show that the fire was set deliberately and that the defendant started it by intentionally throwing a lighted newspaper at one of the victims with whom she had often argued during the previous three years. The defendant presented evidence tending to show that the fire started when a quilt accidentally caught fire. This evidence obviously raised a jury question as to whether the defendant was guilty of murder in the first or second degree or not guilty.

The defendant argues that there was evidence that would have warranted a finding that she was guilty of the lesser offense of involuntary manslaughter. She sought an instruction on involuntary manslaughter, and the judge gave the issue careful attention before declining to give such an instruction.

The trial judge should have given an instruction on involuntary manslaughter. As arguably applicable to the facts of this case, "[i]nvoluntary manslaughter is an unlawful homicide, unintentionally caused ... by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct." Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211 (1967). See Commonwealth v. Jones, 382 Mass. 387, 389-390, 416 N.E.2d 502 (1981). It is well established that if, in a murder prosecution, the jury would be warranted in finding the defendant guilty of manslaughter, rather than murder, it is reversible error not to give an instruction on manslaughter. See Commonwealth v. Santo, 375 Mass. 299, 305, 376 N.E.2d 866 (1978); Commonwealth v. McCauley, 355 Mass. 554, 560-562, 246 N.E.2d 425 (1969); Commonwealth v. Campbell, supra, 352 Mass. at 392, 398, 226 N.E.2d 211. Thus, if any view of the evidence will permit a finding that the offense was manslaughter, the judge must charge on manslaughter. Commonwealth v. LePage, 352 Mass. 403, 419, 226 N.E.2d 200 (1967).

There was evidence that the fire started in the cluttered second floor corridor of the tenement house. A witness testified that between 8 P.M. and 9 P.M. the defendant came into her bedroom, picked up some newspaper, lit it in the kitchen, walked back through the bedroom with the lighted newspaper, and entered another room and let the door shut behind her. That room had access directly to the corridor. The defendant returned to the bedroom a few minutes later and sat down with the witness and the defendant's four-year-old son to watch television. About five or ten minutes later the witness detected the fire. A police officer testified that the defendant told him that she threw "a ball of flame in the corridor" of the building.

The jury could have treated this evidence, disregarding other evidence, as showing wanton and reckless conduct which unintentionally caused the death of the four victims of the fire. Certainly, throwing a lighted newspaper in the cluttered corridor of an inhabited building could be reasonably regarded as such a disregard of probable harmful consequences to others as to be wanton or reckless conduct. The fact that, after whatever she did with the lighted newspaper, the defendant returned to the bedroom and sat with her son and the witness for five or ten minutes before the fire was detected could support a conclusion that her conduct was no more than wanton and reckless. Admittedly, the question is a close one and could have been argued in its various details more fully to the trial judge. The jury would have been warranted, however, in simply accepting the defendant's statement that she threw a ball of flame in the corridor. Moreover, the jury could have found that the defendant threw a lighted newspaper at one of the victims intending no more than to frighten or upset the victim. An instruction on involuntary manslaughter was required.

2. The failure to charge the jury on the possibility of a manslaughter verdict requires the...