Com. v. Walker

Decision Date09 December 1983
PartiesCOMMONWEALTH v. Theodore WALKER, Jr.
CourtAppeals Court of Massachusetts

Walter B. Prince, Boston, for defendant.

Newman Flanagan, Dist. Atty., Paul F. Connolly and Ellen M. Donahue, Asst. Dist. Attys., for the Commonwealth.

Before GRANT, KAPLAN and KASS, JJ.

KAPLAN, Justice.

One indictment accused the defendant of the murder in the first degree of Gerald M. Walsh; a second, of an armed assault on Walsh with intent to rob. Three indictments charged the defendant with armed robberies in other incidents (the respective victims were Theodore Rush, Kenneth Parris, and Robert Coveney). There was a sixth indictment for carrying a firearm. All these offenses were stated to have been committed on July 26, 1981. Upon trial to a Suffolk County jury, the defendant was convicted of murder in the second degree on the murder indictment, and convicted also on each of the other indictments, and sentenced as indicated in the margin. 1

1. The jury could find on the evidence that the defendant with an accomplice, Jonathan Kirkland (not jointly tried), was on a continuous criminal rampage during the early morning hours of July 26. 2 In the company of Kirkland, the defendant robbed Rush, at gunpoint, of a Cadillac car. This occurred on Mt. Pleasant Avenue in the Roxbury area of Boston. With Kirkland in the passenger seat, the defendant drove in the stolen car to an Amoco gas station on Washington Street near Chilcott Place, Jamaica Plain. When Walsh, the station attendant, recognizing that this was a holdup, turned and ran, Kirkland, to whom the gun was passed, killed Walsh instantly with a shot to the back. The two drove to an all-night variety store called "Odds and Ends" on Blue Hill Avenue, near Wales Street, Dorchester. After conferring outside, they entered the store. The defendant, who knew and was known by the salesman Parris, made a purchase and left the store; Kirkland, then, wielding the gun, relieved Parris of the contents of the cash register. Then followed a robbery of Fox's Gulf station on Blue Hill Avenue near Babson Street, Mattapan, in which the gun was first displayed to Coveney by the defendant, and then by Kirkland. By this time the police were on the prowl. A cruiser located the Cadillac moving around Woodrow Avenue and Norfolk Street, Dorchester, and followed it on Norfolk Street toward Codman Square, then up Washington Street, and left on Aspinwall Road, where the defendant and Kirkland abandoned the car and fled. One of the officers pursued the defendant but lost him on Rosedale Street. Later the same morning the defendant and Kirkland were apprehended and brought to the District 2 police station. After Miranda warnings the defendant made a statement, unrecorded, then a second statement, inscribed on tape.

2. The judge in his instructions defined murder in the two degrees--with malice aforethought, premeditated, and the same, unpremeditated. Although the watershed case of Commonwealth v. Matchett, 386 Mass. 492, 508, 436 N.E.2d 400 (1982), had already been decided shortly before the trial, the judge defined felony murder in the conventional style: If a killing was shown to have occurred during the commission of a felony punishable by life imprisonment--armed robbery or attempted armed robbery (both described)--the jury could return a verdict of murder in the first degree. If the felony was of a kind not so punishable--unarmed robbery or attempted unarmed robbery, armed or unarmed assault with intent to rob, larceny or attempted larceny of an amount exceeding one hundred dollars (all described)--the verdict could be murder in the second degree. 3 The judge also charged on carrying a firearm and, in the usual terms, about joint enterprise.

It will be apparent that parts of the instructions were out of harmony with the Matchett case on felony murder. According to Matchett, if a killing occurred in the course of a felony which could be committed without inherent risk to life--unarmed robbery or attempted unarmed robbery, unarmed assault with intent to rob, larceny over one hundred dollars, committed or attempted--felony murder could be predicated only if it was shown that the person was acting with conscious disregard of risk to life. See also Commonwealth v. Moran, 387 Mass. 644, 650-651, 442 N.E.2d 399 (1982). And we have to add that, although the instruction on joint enterprise followed the familiar pattern, it did not, as applied to the crimes which involved the use of a weapon, lay the stress called for by Commonwealth v. Watson, 388 Mass. 536, 544, 447 N.E.2d 1182 (1983), on the requirement for accessorial responsibility that the person, who did not himself use a weapon, shall have known that his partner had the weapon which that partner in fact used.

3. The defendant did not object to the relevant instructions. Thus the question on this appeal is whether the record discloses "a substantial risk of a miscarriage of justice" within the policy of Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967); and see, e.g., Commonwealth v. Boiselle, 16 Mass.App. 393, 399, 451 N.E.2d 1178 (1983). Compare Commonwealth v. Silva, 388 Mass. 495, 505-506, 447 N.E.2d 646 (1983) (failure to object to lack of Matchett instruction; conviction upheld; no injustice in light of the proof). Not only is there no likelihood of a miscarriage; it appears with very high probability that the conviction of murder in the second degree, which is the conviction here contested, was rendered on lines consistent with the Matchett and Watson decisions. Compare Commonwealth v. Hennessey, 17 Mass.App. 160, --- - ---, 456 N.E.2d 1146, 1148-1150 (1983).

The victim Rush identified the defendant as the man who confronted him with a gun as he sat in the Cadillac car, and the jury must be taken to have found beyond a reasonable doubt that this was the fact as an ingredient of their verdict convicting the defendant of the armed robbery of Rush. (They disbelieved the defendant's statement at District 2 that Kirkland had already stolen the car before he and Kirkland first confederated.) From the armed robbery the partners went to the Amoco station and their activities there were found by the jury to constitute the commission by the defendant of an armed assault with intent to rob. It could be readily inferred that the defendant, who wielded the gun against Rush, had it still in his possession during the next criminal event; 4 and we have, further, the defendant's statement to the interrogating officer at District 2 that he, the driver of the car, passed his gun to Kirkland, who then fired at the victim through the open...

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6 cases
  • Com. v. Silva, 86-722
    • United States
    • Appeals Court of Massachusetts
    • 26 Febrero 1988
    ...784-785, 448 N.E.2d 740 (1983); Commonwealth v. Carter, 396 Mass. 234, 234-235, 484 N.E.2d 1340 (1985); Commonwealth v. Walker, 17 Mass.App.Ct. 194, 196-197, 457 N.E.2d 638 (1983).7 The Supreme Judicial Court did not decide whether the underlying crime of kidnapping is inherently dangerous ......
  • Com. v. Padgett, 96-P-1900
    • United States
    • Appeals Court of Massachusetts
    • 3 Marzo 1998
    ...515 N.E.2d 1191. See Commonwealth v. Simmons, 417 Mass. 60, 70-71, 627 N.E.2d 917 (1994) (armed robbery); Commonwealth v. Walker, 17 Mass.App.Ct. 194, 198, 457 N.E.2d 638 (1983) (armed assault). As to the house breaks, see note 4, supra, where we indicated, in a slightly different context, ......
  • Com. v. Iacono
    • United States
    • Appeals Court of Massachusetts
    • 17 Mayo 1985
    ...Mass. 632, 634-635, 467 N.E.2d 188 (1984); Commonwealth v. Brown, 394 Mass. 510, 516, 476 N.E.2d 580 (1985); Commonwealth v. Walker, 17 Mass.App. 194, 197-198, 457 N.E.2d 638 (1983). Compare Commonwealth v. Hennessey, 17 Mass.App. 160, 163-165, 456 N.E.2d 1146 (1983). He mentioned a gun in ......
  • Com. v. Parham
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 23 Enero 1984
    ...v. Moran, 387 Mass. 644, 442 N.E.2d 399 [1982]; Commonwealth v. Matchett, 386 Mass. 492, 436 N.E.2d 400 [1982]; Commonwealth v. Walker, 17 Mass.App. 194, 457 N.E.2d 638 [1983] ), these cases do not aid him. Watson comes closest to supporting the defendant's position because we held there th......
  • Request a trial to view additional results

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