Com. v. Matchett

Decision Date14 June 1982
Citation386 Mass. 492,436 N.E.2d 400
PartiesCOMMONWEALTH v. Brian K. MATCHETT.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Andrew Good, Boston, for defendant.

Daniel A. Ford, Asst. Dist. Atty., for the Commonwealth.

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

LIACOS, Justice.

Brian K. Matchett, indicted on a charge of murder in the first degree of David T. Colvin, was convicted by a jury of murder in the second degree. Matchett was also convicted on indictments charging him with unlawfully carrying a sawed-off shotgun, a .25 caliber semiautomatic pistol, and a .38 caliber revolver. G.L. c. 269, § 10. The defendant was sentenced to life imprisonment on the conviction for murder and was given concurrent sentences of three to five years for two of the firearms convictions and five to seven years on the sawed-off shotgun conviction. The defendant appealed, and this court ordered, on our own motion, that the appeal be transferred for direct appellate review. 1

Matchett challenges his convictions, claiming that the trial judge erred in (1) instructing the jury that a verdict of murder in the second degree was permissible by application of the felony-murder doctrine; and (2) denying his motion to suppress evidence seized through a warrantless inventory search of his car. We conclude that the firearms convictions should be affirmed and that the murder conviction should be reversed.

We summarize the evidence. In the fall of 1977, the victim in this case, David Colvin, lost $1,500 in a poker game to Arthur Samson. 2 The gambling debt remained unpaid as of February 12, 1979. On that evening Matchett and Samson had dinner with mutual friends in a Boston restaurant. Although they were only slightly acquainted, Samson had heard that Matchett was a war hero, an "expert" in the martial arts, and had a permit to carry guns. At this time, Matchett was employed as a contract courier, delivering various parcels throughout Massachusetts.

Samson testified that, over dinner, he agreed to hire Matchett for $100, plus expenses, to drive him from Boston to Pittsfield later that night. The purpose of the trip was to collect the gambling debt from Colvin. A few weeks prior to February 12, 1979, Colvin had told Samson that he was getting some money together and to come up in a couple of weeks to be paid. No specific date, however, was set for this meeting.

At approximately 9:30 P.M., Samson and Matchett left Boston for Pittsfield in Matchett's station wagon. Matchett's German shepherd dog was in the rear of the wagon. Matchett admitted bringing two guns with him, a revolver which he said he always carried for protection of personal property and a pistol which he was trying to sell. The two men arrived in Pittsfield at approximately 1 A.M. on February 13 and checked into a room, under Samson's name, at the Holiday Inn. Shortly after arrival, Samson called the Pittsfield fire department to obtain directions to the Colvin house. Samson also called the Colvin residence, asked for David, and was told by Ralph Colvin, the victim's father, that David was not home. 3

Matchett and Samson then drove from the Holiday Inn to Colvin's neighborhood and tried to locate the house. Matchett testified that he knocked on various doors in an attempt to locate the Colvin house so that the pair would know the exact location the following day. Ralph Colvin testified that around 3:30 A.M. he was awakened by a station wagon which pulled into his driveway. A man, whom Ralph Colvin identified in court as Matchett, came to the door and stated that he was an airline courier looking for 196 Hungerford Street. 4 When Ralph Colvin informed him that there was no such address, Matchett apologized for getting him up and stated that he needed better directions. Ralph Colvin further testified that at 4:30 A.M. he received a telephone call by someone asking for David, and again stated that David was not at home. That morning Ralph Colvin told David about the telephone calls and testified that David looked "up tight" and "nervous."

At approximately 7 A.M., February 13, 1979, Matchett and Samson arrived at the residence and store of Charles Coppola, an acquaintance of Samson, and asked for Coppola's assistance in locating David Colvin. Coppola called David's brother and explained the problem. Within five minutes David called Coppola and then spoke with Samson. Although the testimony varies somewhat at this point, as to whether Matchett and Samson were still unable to locate Colvin's house, or whether they went there and David was not at home, the pair returned to Coppola's store. According to Coppola, he again called Colvin's house and David told Coppola that he was waiting by his window for Samson and Matchett and that the pair must have gone to the wrong house. Samson testified that on returning to Coppola's store he used a pay phone outside the store and called David again to get better directions.

Brian Stack testified that he lived directly across the street from the Colvins. At approximately 8:20 A.M. on February 13, Stack met David Colvin outside his house, and Colvin asked him to keep his "eyes and ears open." Shortly thereafter Stack called Colvin and said he had work to do around the house but that Colvin should call him if he had any trouble. At approximately 8:45 A.M. Colvin again called Stack. After this call, Stack looked out his window and saw a station wagon occupied by Matchett, Samson, and the dog pull into the Colvin driveway. The car was driven to the top of the driveway and turned around to face the street. Stack testified that Samson alighted from the car, shook hands with David Colvin while on the porch, and entered the house. Less than a minute later, Matchett got out of the car, looked up and down the street a few times, and entered the house. At this point, Stack pulled his wife's car in front of the Colvin driveway, opened its hood, and pretended to be having car trouble in order to "block off any escape in case there was any trouble." Stack testified that, as he started back across the street, he heard Colvin scream and then heard two shots, a second or two apart, coming from inside the Colvin house. Stack went into his house and made two telephone calls: one was to Colvin's brother at his place of work to report the "trouble"; the second call was to the Colvin house. David Colvin answered the telephone call to the house and whispered, "Brian." Stack then looked out the window and saw Samson and Matchett leaving the Colvin house. According to Stack, the station wagon slammed into his wife's car several times, left the driveway, and headed toward Route 20. Stack then entered the Colvin house and found David lying on the floor of the living room bleeding from the shoulder. Stack then called the police.

Both defendants testified as to what occurred on their arrival at the Colvin residence. Matchett testified that shortly after Samson and Colvin shook hands and entered the house, he got out of his car and was just standing looking around when he heard "loud yells" coming from within the house. Matchett then went into the house armed with his two handguns, one in his right hand jacket pocket and one in his left pants pocket. Matchett entered by the front door and went into the living room where Colvin was sitting in a chair next to a table with a lamp on it. Matchett said, "Hi," to Colvin. There was no reply. After about ten seconds, Colvin said to Matchett, "How would you like this lamp broken over your head?" Colvin jumped up in front of Matchett. Matchett started to draw his handgun out of his right jacket pocket, yelling, "Hold it," at the same time. Matchett testified that Colvin swung his left arm onto Matchett's right hand. At or about the time Matchett was cocking the trigger, "(h)e whipped my arm up, and a round discharged and entered his left shoulder." Matchett testified that the second round must have discharged simultaneously with the first, as he was not aware of it.

According to the testimony of the defendants, Samson left the house quickly and noticed the Stack car was blocking the driveway. Samson made an effort to shift the gears of the Stack car in order to move it. Matchett testified that, after looking at the car in the driveway, he returned inside the house and asked Colvin, "Why"? Colvin replied, "I'm shot, Man. It doesn't matter, I want to die anyways." 5 Matchett then left the house, drove his car down the driveway adjacent to the Stack car, got out of his car, and "moved (the Stack car) in bounces, and slid it approximately three feet to the right." Samson and Matchett then got into Matchett's car and left the driveway, slightly brushing the front fender of the Stack car as they passed.

One of the first officials at the scene was a lieutenant in the Pittsfield fire department. Along with several other firefighters and police officers, he carried Colvin out of the house and into the ambulance. He testified that Colvin told him he had been shot with a .38 caliber hollow point bullet. A police officer at the scene testified that he removed a bullet from the wall of the Colvin living room, located twenty-five and three-quarters inches from the floor.

Two days after the shooting David Colvin died of a gunshot wound to the abdomen. 6 Measurement of the body at the time of death revealed that David Colvin was approximately six feet, four inches tall. His estimated weight was well over 300 pounds.

The trial judge instructed the jury that the defendant could be found guilty of murder in the first or second degree. The judge told the jury that murder in the first degree could be found based on deliberately premeditated malice aforethought or the felony-murder rule, with the underlying felony being an armed assault in a dwelling house with intent to commit a felony. See G.L. c. 265, §§ 1, 18A. A verdict of murder in the...

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