Com. v. Walden

• Decision Date: 30 May 1980
• Citation: 380 Mass. 724,405 N.E.2d 939
• Parties: COMMONWEALTH v. Larry WALDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 939

405 N.E.2d 939

380 Mass. 724

COMMONWEALTH v. Larry WALDEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 7, 1980.

Decided May 30, 1980.

Stephen Hrones, Boston, for defendant.

Sharon D. Meyers, Legal Asst. to the Dist. Atty. (Michael J. Traft, Asst. Dist. Atty., with her) for the Commonwealth.

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

WILKINS, Justice.

The defendant was convicted of murder in the first degree of a father and a son. He was also convicted of breaking and entering a dwelling house in the daytime with intent to commit larceny and to put a person therein in fear. He received concurrent life sentences on the murder convictions, and a concurrent sentence on the breaking and entering conviction.

The defendant argues four issues and urges that, if the convictions of murder in the first degree are not reversed, this court should exercise its power and duty under G.L. c. 278, § 33E, to direct the entry of verdicts of a lesser degree of guilt. We affirm the convictions and see no basis for reducing the verdicts on the murder convictions.

1. The defendant argues that the judge erred in declining to instruct the jury on a possible verdict of manslaughter. The defendant's counsel, who is not his counsel on appeal, requested such an instruction only in general terms, without specifying whether the request related to voluntary or involuntary manslaughter, or both. Nor did he state the theory on which he believed an instruction was required. ¹ We conclude that there was no prejudicial error in the failure to give a manslaughter instruction.

In support of his argument, the defendant relies on the testimony of his former girlfriend, who testified for the Commonwealth concerning inculpatory statements that she said the defendant made to her. We summarize this witness's testimony concerning the defendant's statements to her. The defendant went downstairs from the apartment where he lived and, intending to steal money, entered the victims' apartment which he thought was unoccupied. The younger victim, the son, was there watching television. The son told the defendant that he was going to call the police. The defendant replied, "Wait a minute, no. I will just leave." The son said, "No," grabbed the defendant, and "pulled him back." They started fighting. The son scratched the defendant on the face. When the son grabbed the telephone to call the police, the defendant strangled the son "with the telephone." While the defendant was strangling the son, the victim's father walked in, carrying grocery bags. The father went to aid his son, who was already on the floor. The father hit the defendant. They fought. The defendant used Kung Fu and karate to knock the father down, but he got back up three or four times. The defendant had something in his hand, but he did not tell the witness what it was. He stabbed the father "around his neck." After stabbing the father several times, the defendant "just went off on him." He did not enter the apartment intending to kill the victims. He killed them because he did not want to go back to jail. The defendant asked his girlfriend to say he was with her at the time of the crimes.

A medical examiner testified that he found a telephone extension cord tied around the son's neck and bruises on his head and neck, some of which were consistent with manual strangulation. The son died of asphyxiation due to strangulation. The medical examiner testified further that the father appeared to be about eighty-four-years old. The father died of numerous stab wounds on his neck; he had other wounds and bruises elsewhere on his body.

It is well established that, if any view of the evidence in a case would permit a finding of manslaughter rather than murder, a manslaughter charge should be given. See Commonwealth v. Johnson, --- Mass. ---, --- ^a, 396 N.E.2d 974 (1979); Commonwealth v. Burke, --- Mass. ---, --- ^b, 382 N.E.2d 192 (1978). The defendant here testified and denied involvement in the crimes. However, the fact that a defendant in a murder case asserts an alibi, and thus in effect argues that the evidence of his involvement was false, does not relieve the judge from giving a manslaughter charge, on request, where the evidence would warrant a conviction of that lesser crime. See Commonwealth v. LeBlanc, 373 Mass. 478, 491, 367 N.E.2d 846 (1977) (propriety of refusal to give manslaughter charge considered where defendant claimed an alibi); Commonwealth v. Caine, 366 Mass. 366, 374, 318 N.E.2d 901 (1974) (same). On the other hand, a judge need not charge on an hypothesis not supported by evidence. Commonwealth v. Johnson, supra --- Mass. at --- ^c, 396 N.E.2d 974. Commonwealth v. Costa, 360 Mass. 177, 184, 274 N.E.2d 802 (1971). Indeed, it would be error to give a charge on manslaughter without some supporting evidence of the commission of that crime. Commonwealth v. Caine, supra 366 Mass. at 375, 318 N.E.2d 901. Commonwealth v. Rembiszewski, 363 Mass. 311, 321, 293 N.E.2d 919 (1973).

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). The defendant asserts that there was evidence of sudden combat that could have been found to have provoked a "perturbation of mind" resulting in a killing without malice. See Commonwealth v. Peters, 372 Mass. 319, 324, 361 N.E.2d 1277 (1977); Commonwealth v. Kendrick, 351 Mass. 203, 212, 218 N.E.2d 408 (1966). He points to evidence of the struggle with the son in support of his claim of sudden combat and argues that his use of a knife on the father also could have been the result of the heat of sudden combat. See Commonwealth v. Jones, 366 Mass. 805, 809, 323 N.E.2d 726 (1975).

There was no evidence that raised a reasonable doubt whether the defendant formed an intent to kill in a transport of passion or in the heat of blood, "with the result that the homicide (was) unlawful but, the element of malice being missing, the crime (might be) mitigated from murder to manslaughter." Commonwealth v. Kendrick, supra 351 Mass. at 212, 218 N.E.2d at 414. There may indeed have been "combat," in the limited sense that struggles occurred in which blows were exchanged. However, physical contact between a defendant and a victim is not always sufficient to warrant a manslaughter instruction, even when the victim initiated the contact. See Commonwealth v. Rembiszewski, 363 Mass. 311, 321, 293 N.E.2d 919, 926 (1973) ("It is an extravagant suggestion that scratches (inflicted by the victim on the defendant's face) could serve as provocation for a malice-free but ferocious attack by the defendant with a deadly instrument"). There must be evidence that would warrant a reasonable doubt that something happened which would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint, and that what happened actually did produce such a state of mind in the defendant. See Commonwealth v. Rooney, 365 Mass. 484, 494-495, 313 N.E.2d 105 (1974), and cases cited. There was no such evidence in this case.

As to the eighty-four-year old father, the evidence raises no rational possibility of provocation justifying the use of deadly force as a response in the heat of passion on sudden combat. There was evidence that, when the father discovered the defendant strangling his son, the father began "hitting him and banging back at him." If these blows presented any threat of serious harm to the defendant, their effect had passed when the defendant knocked the father down several times. See Commonwealth v. Zukoski, 370 Mass. 23, 29, 345 N.E.2d 690 (1976). Although the witness testified that the defendant said he "just went off on him," and could not remember thereafter exactly what happened (testimony that might warrant an inference that the defendant acted in the heat of passion), this only occurred after the defendant had already stabbed the father several times.

As to the son, the defendant relies on evidence that the son prevented the defendant from leaving the apartment and struck the first blow in the struggle which ensued. Thereafter the evidence leaves the circumstances to pure surmise. In the absence of any evidence as to the circumstances of the struggle, no reasonable doubt was raised as to whether the defendant reacted on reasonable provocation. The jury could not be permitted merely to speculate on whether the defendant in the course of the struggle might have been roused to the heat of passion. ²

The defendant also argues that a manslaughter charge was warranted because the jury could have found on the evidence that he acted in self-defense but used excessive force. See Commonwealth v. Kendrick, 351 Mass. 203, 211-212, 218 N.E.2d 408 (1966), where this theory of voluntary manslaughter is discussed. However, as to neither the son nor the father does the evidence raise a reasonable doubt that the defendant "had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force." Commonwealth v. Harrington, --- Mass. ---, --- ^d, 399 N.E.2d 475, 479 (1980). ³

The defendant argues further that a charge on involuntary manslaughter was required by the evidence, as to the death of the son. ⁴ A consideration of the evidence shows that the jury would not have been warranted in concluding that the son's death was "unintentionally caused by an act which constitute(d) such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct." Commonwealth v. Vanderpool, 367 Mass. 743, 747, 328 N.E.2d 833, 836 (1975). On no view of the evidence could the jury rationally have found that the...