Com. v. Vanderpool

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before TAURO; TAURO
• Citation: 367 Mass. 743,328 N.E.2d 833
• Parties: COMMONWEALTH v. Clifford F. VANDERPOOL, Third.
• Decision Date: 14 May 1975

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328 N.E.2d 833 367 Mass. 743 COMMONWEALTH
v.
Clifford F. VANDERPOOL, Third. Supreme Judicial Court of Massachusetts, Hampden. Argued March 3, 1975.
Decided May 14, 1975.

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Margaret D. McGaughey, Boston, for defendant.

William W. Teahan, Jr., Sp. Asst. Dist. Atty., for Commonwealth.

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

TAURO, Chief Justice.

The defendant was convicted of murder in the first degree and appeals pursuant to G.L. c. 278, [367 Mass. 744] §§ 33A--33G. He contends that the trial judge erred (1) in not instructing the jury that they could find the defendant guilty of manslaughter, (2) in refusing to allow the defendant to explain his behavior following an incident at the trial, and (3) in refusing to sequester the witnesses. He also urges that we exercise our powers under § 33E and reduce his conviction to murder in the second degree or manslaughter. Although we find no legal error, we are convinced that justice will best be served by reducing the conviction to murder in the second degree.

The evidence in this case was conflicting. Based on their verdict, it is apparent that the jury believed the prosecution version of the facts. Briefly, the jury could have found that the defendant and other members of a club, the Octcast Renegades, were involved in an altercation with the victim at a bar early in the afternoon after which the defendant spent the remainder of the day visiting other bars with various members of the club. At some point, he heard a rumor that the victim planned to press criminal charges as a result of the earlier fight, and the defendant and one Antonio Torres went looking for him to determine if the rumor were true. Torres had a gun in his possession, the same gun a member of the club, possibly the defendant, told him to get earlier in the day.

The defendant and Torres proceeded to the National Cafe where the victim was watching a card game in the back room. The defendant entered through the rear door, confronted the victim and asked him if the rumor were true. When the victim admitted that he intended to apply for a warrant for the defendant's arrest, the defendant responded, '(W)e'll get you,' and punched the victim, whereupon two shots were fired, one of them killing the victim.

It is undisputed that Torres actually fired the shots. Torres testified that he was drunk and high on 'acid' and did the shooting at the urging of the defendant, who [367 Mass. 745] yelled, 'Shoot him, Tony, shoot him, Tony.' None of the eyewitnesses to the shooting testified to hearing the defendant's alleged statement, but otherwise their testimony essentially corroborated that of Torres.

The defendant's testimony as to the events on the day of the homicide differed sharply from the testimony of Torres and other witnesses for the prosecution. The defendant claimed that he was no longer a

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member of the Outcast Renegades and that he was in disfavor with members of the club. He testified that he interceded in the earlier fight between the victim and members of the club in order to act as peacemaker.

He stated that he went to the National Cafe alone to get one last drink before going home. On his arrival, he observed the victim and approached him regarding the rumor because of his desire to clear up the matter and prevent further trouble. When the victim stated that he planned to press charges and called the defendant by his brother's name, ¹ an argument ensued. The defendant and the victim swung at each other, but since both were somewhat intoxicated, neither landed any blows. Suddenly, the defendant heard a shot, imagined himself back in Viet Nam ² and fled. He returned home, where he was later questioned and arrested by police.

1. There was no error in the trial judge's refusal to charge the jury on manslaughter. While it is true that '(i)n a homicide case, the trial judge should charge on the issue of manslaughter where any view of the evidence will permit a finding that the offence is manslaughter [367 Mass. 746] and not murder,' Commonwealth v. LePage, 352 Mass. 403, 419, 226 N.E.2d 200, 210 (1967), it is also well settled that the judge may not charge on a hypothesis not supported by the evidence. Commonwealth v. Campbell, 352 Mass. 387, 392, 226 N.E.2d 211 (1967); Commonwealth v. Costa, 360 Mass. 177, 184, 274 N.E.2d 802 (1971); Commonwealth v. Caine, --- Mass. ---, --- ^a, 318 N.E.2d 901 (1974).

In deciding whether a manslaughter instruction is supported by the evidence, all reasonable inferences must be resolved in favor of the defendant. 'The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. . . . However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.' Commonwealth v. Campbell, supra, 352 Mass. at 398, 226 N.E.2d at 219, quoting from People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281 (1951). In this case, however, even accepting the defendant's version of the facts, there was no basis for a charge on either voluntary or involuntary manslaughter.

Voluntary manslaughter is 'a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat.' Commonwealth v. Soaris, 275 Mass. 291, 299, 175 N.E. 491, 494 (1931); Accord, Commonwealth v. Hartford, 346 Mass. 482, 490, 194 N.E.2d 401 (1963); Commonwealth v. Caine, --- Mass. ---, --- ^b, 318 N.E.2d 901 (1974). There is no evidence here from which the jury could have found the defendant guilty of voluntary manslaughter. The evidence is undisputed that both the defendant and the deceased were somewhat intoxicated. Even if the jury had believed that the parties swung at each other, no blows were ever landed, and the situation could not have objectively met the requirements of 'combat,' 'passion' or 'heat of blood.' See Commonwealth v. Leate, 352 Mass. 452, 457--458, 225 N.E.2d 921 (1967). Similarly, the jury could not have found reasonable provocation, as we have often repeated that words alone do not constitute adequate

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provocation. Commonwealth[367 Mass. 747] v. Webster, 5 Cush. 295, 305 (1850); Commonwealth v. Hartford, supra, 346 Mass. at 491, 194 N.E.2d 401; Commonwealth v. Leate, supra, 352 Mass. at 458, 225 N.E.2d 921. Accordingly, there was no error in the judge's refusal to charge the jury on voluntary manslaughter.

Involuntary manslaughter is an unlawful homicide unintentionally caused by an act which constitutes such a...