Com. v. Wood

• Decision Date: 31 August 1994
• Docket Number: No. 93-P-900,93-P-900
• Citation: 638 N.E.2d 1372,37 Mass.App.Ct. 917
• Parties: COMMONWEALTH v. Kevin WOOD.
• Court: Appeals Court of Massachusetts

Page 1372

638 N.E.2d 1372

37 Mass.App.Ct. 917

COMMONWEALTH v. Kevin WOOD.

No. 93-P-900.

Appeals Court of Massachusetts.

Aug. 31, 1994.

Further Appellate Review Denied Nov. 2, 1994.

Charles K. Stephenson, Granby (Raymond D. Buso, Salem, with him), for defendant.

Lila Heideman, Sp. Asst. Dist. Atty., for the Com.

RESCRIPT.

On July 7, 1991, during a fight with the defendant, George Aulson was stabbed to death. Charged with first degree murder and with malicious destruction of property, ¹ the defendant at trial maintained that he had acted in self-defense and that the Aulsons (George, his wife, his brother, and his brother's girlfriend) had initiated the fight because they suspected the defendant had informed the police that George and his wife were cultivating marihuana. Convicted of second degree murder and of malicious destruction of property, the defendant claims numerous errors. We affirm his convictions.

1. Evidentiary matters. On the day prior to the incident, the police executed a search warrant of the victim's residence. The defendant claims that it was error not to permit him to show the extent of what the search uncovered because the quantity of marihuana plants found bore on the seriousness of the Aulsons' grudge. An examination of the record shows that the question of bias was "sufficiently aired," see Commonwealth v. Hicks, 377 Mass. 1, 8, 384 N.E.2d 1206 (1979), Commonwealth v. Piedra, 20 Mass.App.Ct. 155, 156, 478 N.E.2d 1284 (1985), and that the judge could also, in his discretion, determine that the danger of unfair prejudice in setting forth the fruits of the search outweighed their probative value. Commonwealth v. Domaingue, 397 Mass. 693, 699, 493 N.E.2d 841 (1986).

The defendant was permitted to show through an officer in the narcotics division of the Peabody police department that he had provided the officer with information regarding alleged criminal activity by Aulson at the latter's residence, that thereafter the police officer and other members of the Peabody police department had conducted an investigation, including surveillance, of the activities at Aulson's residence, that on July 6, approximately twelve hours before the stabbing, they had executed a search warrant at the victim's residence, and that they were there for several hours and seized evidence "which was, to some degree, consistent" with the defendant's allegations. Another witness testified that, at the hospital, Aulson's wife screamed, "George, you can't die. You have the best marihuana plants in Peabody." Both in his opening and his closing defense counsel argued from the evidence that the Aulsons had a grudge because they thought the defendant had been an informant against them concerning their narcotics activities.

For similar reasons, although it would have been preferable to allow the full testimony, see Commonwealth v. Henson, 394 Mass. 584, 587, 476 N.E.2d 947 (1985), the judge acted within his discretion in determining that the bias of Aulson's brother's girlfriend was sufficiently shown by evidence that she had threatened a witness who testified to the girlfriend's reputation for untruthfulness. Precluding the defendant from bringing out the exact wording of the threat was not error.

The defendant wanted to question the victim's wife to show that, several months after the victim's death, marihuana trafficking charges against her were reduced to marihuana possession and the charges were continued without a finding. Unlike the witness in Commonwealth v. Connor, 392 Mass. 838, 841, 467 N.E.2d 1340 (1984), the victim's widow had no pending charges against her at the time of trial. Even if it was error to exclude such questioning, a matter we do not decide, we consider the error, if any, harmless beyond a reasonable doubt. There was overwhelming evidence that the victim's wife was distraught at the hospital where her dying husband was brought. She testified that she saw the defendant attack her family's van with an axe handle, saw him with a knife fighting with her husband, and saw her husband "thrashing, gurgling, 'Help me. I'm drowning. I love you.' He just, he just, he just was a mess." In view of her anger at the defendant and her obvious motive to convict him, any evidence of bias against him because of past leniency toward her by the prosecution paled by comparison and could not have affected the verdict.

There was no error in excluding evidence that the victim's wife, his brother, and his brother's girlfriend had a history of drug abuse, see Commonwealth v. Adrey, 376 Mass. 747, 752, 383 N.E.2d 1110 (1978), ² or in excluding evidence of G.L. c. 209A orders between the victim's brother and his girlfriend, who lived in the trailer next to the one occupied by the defendant and his girlfriend. Evidence of the animosity between the defendant and the victim's brother was adduced, and the judge could properly consider "violent acts" directed against persons other than the defendant as too remote. See Commonwealth v. Doherty, 23 Mass.App.Ct. 633, 637, 504 N.E.2d 681 (1987).

2. Judge's statement concerning police. In his opening statement, defense counsel repeatedly stated that the Peabody police did not properly investigate the homicide case because of ineptitude and favoritism toward a Commonwealth witness, the victim's brother's girlfriend. After counsel had finished, the judge informed the jury that while they could determine whether the animus or bad feelings against the defendant on the part of George Aulson were relevant to the charges, "the effectiveness of the Peabody police department is not at issue, and I will ask you to bear those distinctions in mind." There was no objection by defense counsel at the time, and the Commonwealth proceeded with its case. The next day, counsel asked for curative instructions to the effect that if the police failed to follow procedures, etc., "then they might infer that this supports the defendant's position of contrivance on the part of the Commonwealth witnesses which the Peabody police chose not to investigate." The request was denied. ³ Although the judge's remark should not have been made, see Commonwealth v. Bowden, 379 Mass. 472, 486, 399 N.E.2d 482 (1980); Commonwealth v. Gilmore, ...