Com. v. Walker

• Citation: 516 N.E.2d 1143,401 Mass. 338
• Parties: COMMONWEALTH v. Milton R. WALKER.
• Decision Date: 17 December 1987
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1143

516 N.E.2d 1143

401 Mass. 338

COMMONWEALTH v. Milton R. WALKER.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 3, 1987.

Decided Dec. 17, 1987.

Willie J. Davis, Boston, for defendant.

Abbe L. Ross, Asst. Dist. Atty., for Com.

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

HENNESSEY, Chief Justice.

The defendant was indicted for the murder of Thomas O'Donnell, armed robbery, and unlawfully carrying a firearm. After trial in the Superior Court, the jury returned verdicts finding the defendant guilty of murder in the first degree and not guilty of the other offenses charged.

The defendant claims error in the trial judge's refusal to grant his motions, made at the close of the Commonwealth's case-in-chief and at the close of all evidence, for a required finding of not guilty on the murder charge. Similarly, the defendant complains of the judge's denial of his motion for a new trial following the verdicts. The basis of this motion was that the guilty verdict was against the weight of the evidence. The defendant also argues that the judge erroneously gave instructions on the law of joint enterprise. ¹ The defendant further claims that the judge abused his discretion in allowing the defendant, who testified at trial, to be impeached with some of his prior criminal convictions. Finally, the defendant urges that we should exercise our power under G.L. c. 278, § 33E (1986 ed.), and reduce the verdict.

We reject the defendant's claims of error. Further, on full consideration of the record, we determine that this is not one of those rare cases where exercise of our power under § 33E to order reduction of the verdict is consonant with justice. We affirm.

1. The Defendant's Motions for a Required Finding of Not Guilty.

The indictment charging murder in the first degree was presented to the jury on both a deliberate premeditation and a felony-murder theory. Because the defendant was found not guilty of armed robbery, the jury must have found he killed the victim with deliberate premeditation. See note 1 supra. The defendant claims that there was insufficient evidence to support a finding of deliberate premeditation, and contends, therefore, that the judge's denial of his motions for a required finding of not guilty of murder in the first degree was erroneous.

As we have often stated, the "standard of review of a denial of a motion for a required finding of not guilty is 'whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury "might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt." ' ... 'The inferences cannot be too remote but "allowable inferences need not be necessary or inescapable." ' " (Citations omitted.) Commonwealth v. Anderson, 396 Mass. 306, 311, 486 N.E.2d 19 (1985). "The evidence must be 'sufficient to satisfy a rational trier of fact of each element of the crime [in this case murder in the first degree] beyond a reasonable doubt.' " Id., quoting Commonwealth v. Basch, 386 Mass. 620, 622, 437 N.E.2d 200 (1982).

The defendant's first motion for a required finding of not guilty was made at the close of the Commonwealth's case-in-chief. See Mass.R.Crim.P. 25(a), 378 Mass. 896 (1978). We review in detail the Commonwealth's evidence. The Commonwealth produced as witnesses a married couple who live near the scene of the victim's shooting in the Jamaica Plain section of Boston. The first witness testified that, at approximately 12:25 P.M. on November 2, 1982, she observed an automobile parked near her house. There were two black men in the front seat and the victim, a white man, was in the passenger side of the back seat. This witness later identified an automobile owned by the mother of the defendant's friend Daryl Diamond as the one she observed. Both witnesses described hearing noises the jury could conclude were a gunshot followed five seconds later by glass breaking. The witnesses also observed the victim stagger away from where the car had been and twice fall. ² The first witness covered the victim with blankets and observed a knife on the ground near him. This witness also observed broken glass on the ground where the automobile had been parked. Neither witness could identify the two men who were in the front seat of the automobile, or provide any particulars on what had occurred in the automobile.

The Commonwealth produced other evidence in its case in chief. The parties stipulated that the defendant and Diamond took the automobile to a glass replacement shop on the afternoon of November 2, 1982, and had the passenger side window replaced. The Commonwealth also called the medical examiner who performed the autopsy of the victim's body on November 3, 1982. This witness testified that the victim died of a gunshot wound created when a bullet entered through the lower right abdomen and passed in a straight line through the body. In response to a hypothetical question, the medical examiner stated that, if a bullet took this path through a body and became embedded five inches above the bench cushion of an automobile seat, the person shot would have been "seated on the seat." He stated in response to further hypothetical questions that the same bullet path and entry into the back cushion of the rear seat would result if a gun was fired from over the top of the front seat and the victim were leaning in the rear seat. The witness also testified that there were no powder deposits on the victim or his clothing, and, therefore, his opinion was that the gun was fired from at least two feet away.

Another Commonwealth witness testified that she conversed with the defendant and Diamond in the kitchen of Diamond's mother's house at approximately 1 P.M. on November 2, 1982. She observed blood on the defendant's left sleeve and on the record albums he was carrying. When she asked who was bleeding, the defendant stated that he had shot a white man who had threatened him with a knife. The witness further testified that she saw a gun and a small bag of what looked like marihuana on the kitchen table. She stated that she flushed the bag down the toilet on Diamond's instructions. The witness finally testified that she observed, by looking out the kitchen window, the defendant "wiping" the back seat of the automobile.

The Commonwealth's final two witnesses were police officers. One testified that the defendant told him that he was never with Diamond on the day of the shooting. This witness also testified that there was a hole in the back cushion of the automobile's rear seat on the passenger side, five inches above the seat cushion. A matching hole was found in the panel separating the passenger compartment and the trunk, and a bullet slug, as well as upholstery cleaner was recovered from the trunk.

The second officer testified that the defendant told him that he (the defendant) was with Diamond and a third person in the automobile when the victim was shot. The defendant told the officer that he was in the back seat on the driver's side and the victim was next to him on the passenger's side; that Diamond was driving and the third person was next to him; and that they picked the victim up to buy drugs from him. The defendant continued by stating that the third person shot the victim when the victim attempted to escape being robbed by sitting back in the seat, pushing the front seat forward with his feet and breaking the passenger side window with a knife.

We examine the above evidence in the light most favorable to the Commonwealth, Commonwealth v. Anderson, supra 396 Mass. at 311, 486 N.E.2d 19, for the sole purpose of determining whether the evidence was sufficient to warrant the jury's finding that the defendant murdered the victim with deliberate premeditation. See note 1 supra. We conclude that the evidence was sufficient. In his statement to the second police officer, the defendant admitted to being at the scene and involved in an illicit transaction during which the victim was shot. Further, the defendant's statement to the witness at Diamond's mother's house that he shot a white man who threatened him with a knife allowed the jury to conclude that the defendant, and not a third person, shot the victim. The jury were free to disregard the exculpatory portion of this statement. Commonwealth v. Fluker, 377 Mass. 123, 128, 385 N.E.2d 256 (1979). Commonwealth v. Amazeen, 375 Mass. 73, 80 & n. 5, 375 N.E.2d 693 (1978). See Commonwealth v. Clary, 388 Mass. 583, 589, 447 N.E.2d 1217 (1983); Commonwealth v. Holiday, 349 Mass. 126, 129, 206 N.E.2d 691 (1965). ³ The jury could infer that the defendant knew the gun was in the automobile, or that the defendant otherwise had procured the weapon. See Commonwealth v. Latimore, 378 Mass. 671, 678, 393 N.E.2d 370 (1979). The subsequent use of the gun at close range would support a jury finding of deliberate premeditation. See Commonwealth v. Stewart, 398 Mass. 535, 541, 499 N.E.2d 822 (1986). ⁴ In sum, "the proof [at the close of the Commonwealth's case] established circumstances from which the jury could reasonably infer in light of common experience that the defendant intentionally killed the victim after deliberate premeditation." Commonwealth v. Latimore, supra.

The defendant renewed his motion for a required finding of not guilty after presenting his case, which consisted entirely of his own testimony. Because the defendant's evidence may have caused the prosecution's case to deteriorate, the judge was required to consider this motion in light of all the evidence, though again viewing it in the light most favorable to the Commonwealth. See, e.g., Commonwealth v. Basch, 386 Mass. 620, 622 & n. 2, 437 N.E.2d 200 (1982).

The defendant testified that the...