Com. v. Nolan

• Decision Date: 01 June 1998
• Citation: 427 Mass. 541,694 N.E.2d 350
• Parties: COMMONWEALTH v. Willard NOLAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 350

694 N.E.2d 350

427 Mass. 541

COMMONWEALTH v. Willard NOLAN.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 7, 1998.

Decided June 1, 1998.

Stephen Neyman, Boston, for defendant.

John P. Zanini, Assistant District Attorney, for Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, FRIED and MARSHALL, JJ.

WILKINS, Chief Justice.

The defendant appeals from his conviction of murder in the first degree on the theory of deliberate premeditation. He challenges (1) the denial of his motion for a mistrial, (2) the admission of a witness's recorded statement given to the police, admitted as past recollection recorded, (3) his counsel's failure to request separate verdicts as to his guilt as a principal and as a joint venturer, and (4) his counsel's failure to object to the judge's instruction on malice in conjunction with his instruction on deliberate premeditation. He also seeks relief pursuant to G.L. c. 278, § 33E. There was no reversible error. Relief pursuant to G.L. c. 278, § 33E, is not warranted.

The jury could have found the following. On May 31, 1990, the victim, Claude E. Stewart, was fatally shot at the corner of Ditson and Josephine Streets in the Dorchester section of Boston. The shooter had emerged with two other men from a vehicle driven by Marilyn McClure. Testifying under a grant of immunity, she identified the defendant as one of three men in her vehicle. He was wearing a hat, and all three were armed. In a recorded statement to the police, the admission of which the defendant challenges, McClure said that the defendant had identified the victim, saying, "Well, there he is. There he goes right there." The three men left the vehicle. She heard shots. Two men reentered the vehicle directly; McClure picked up the defendant down the street. One witness said that the shooter was a tall man wearing a hat. McClure said, in her recorded statement, that all three men smelled the powder from their gun barrels and that they were not certain whether they had hit the victim. The victim was killed by a bullet from a nine millimeter handgun. The police recovered fifteen spent shell casings from that gun at the scene.

1. Five days before the trial commenced at which the defendant was found guilty, a Superior Court judge granted a mistrial on the same indictment on the motion of the defendant. The defendant asserts that the second trial judge erred in denying his motion to dismiss based on double jeopardy grounds. He claims that the first trial judge provoked him into moving for a new trial.

If a defendant has moved successfully for a mistrial, he waives any double jeopardy challenge to a retrial unless the judge or the prosecutor intentionally provoked the defendant into moving for a mistrial. United States v. Aguilar-Aranceta, 957 F.2d 18, 21-22 (1st Cir.1992). Most of our cases have involved alleged goading by the prosecution. See, e.g., Donavan v. Commonwealth, 426 Mass. 13, 14-16, 685 N.E.2d 1164 (1997); Poretta v. Commonwealth, 409 Mass. 763, 765-769, 569 N.E.2d 794 (1991). Judicial misconduct, such as bad faith conduct or overreaching, could support a claim of double jeopardy even if a defendant moved for a mistrial. See Mercedes v. Commonwealth, 405 Mass. 693, 696, 544 N.E.2d 590 (1989); Commonwealth v. Andrews, 403 Mass. 441, 448, 530 N.E.2d 1222 (1988). The judicial misconduct must be intended to provoke the defendant into making such a motion. See Oregon v. Kennedy, 456 U.S. 667, 675-676, 102 S.Ct. 2083, 2089-2090, 72 L.Ed.2d 416 (1982).

The defendant does not make out a case of intentional provocation, such as bad faith conduct or overreaching, by the first trial judge. Marilyn McClure was the only witness at the first trial. Her testimony was not as complete as her statement to the police. The prosecutor was unsuccessful in getting her to refresh her memory. The judge made a suggestion to the prosecutor as to how to proceed, to which defense counsel objected. When the trial continued, the prosecutor sought to lay a foundation for admission of McClure's recorded statement to the police. A further colloquy between defense counsel and the judge led the judge to inquire whether defense counsel thought that the judge was assisting the prosecution or siding with the prosecutor. Although defense counsel denied that that was his position, the judge said that he would declare a mistrial if defense counsel moved for it. Defense counsel consulted with his client and moved for a mistrial.

There is no indication that the judge intended to provoke the defendant into moving for a mistrial. Neither judicial bad faith nor overreaching appears in the record. The judge extended the option of a mistrial to the defendant and, after consultation with counsel, the defendant elected to accept the offer. The defendant seems to be "trying to fault the judge for an effort to be fair to him." Commonwealth v. Patten, 401 Mass. 20, 25, 513 N.E.2d 689 (1987).

2. Over objection, the Commonwealth was permitted to introduce the tape recording of McClure's June 3, 1990, statement to the police. The Commonwealth correctly argues that the statement was admissible, in the judge's discretion, as past recollection recorded, an established hearsay exception.

A memorandum or recording may be admissible under this exception if (1) the witness has no revivable recollection of the subject, (2) the witness had firsthand knowledge of the facts recorded, (3) the witness can testify that the statement was truthful when made, and (4) the recording was made when the events were...