Com. v. Zukoski

• Citation: 370 Mass. 23,345 N.E.2d 690
• Parties: COMMONWEALTH v. John B. ZUKOSKI.
• Decision Date: 02 April 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 690

345 N.E.2d 690

370 Mass. 23

COMMONWEALTH

v. John B. ZUKOSKI.

Supreme Judicial Court of Massachusetts, Essex.

Argued Jan. 5, 1976.

Decided April 2, 1976.

Susan J. Baronoff, Cambridge, for defendant.

Robert J. O'Sullivan, Asst. Dist. Atty., for the Commonwealth.

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

WILKINS, Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from a conviction of murder in the second degree. The victim, a woman in her middle forties, was kicked to death on South Lawrence Common one night in early September 1970. That night the defendant admitted, first to an acquaintance and then to the police, that he had been with the woman but claimed that they had been 'jumped' by three people he could not identify. The next afternoon, after questioning, the defendant changed his story and told the police that he had punched the victim when she threw a glass at him, admitting that he kicked her more than once after she fell to the ground. At his trial, giving a third version of the events of that night, the defendant testified that he struck the victim accidentally when he swung at a glass which she threw at him; that she fell when he hit her; and that a companion, one Smith. thereafter repeatedly kicked the woman, while the defendant tried to stop him.

Additional facts involved with the various issues argued by the defendant will be set forth as those points are considered. There as no error.

1. The defendant asserts that the judge should have instructed the jury that they could find that defendant guilty of the lesser included offense of assault and battery. The defendant relies on his testimony at trial that the victim threw a glass at him; that he swung at the glass and not at her, but hit her in the face; and that he did not thereafter touch her. The defendant contends that, if the jury believed this testimony, they could have found him guilty of no more than assault and battery and that the judge should have given them the opportunity to do so. An instruction on assault and battery must be given if the evidence would warrant a finding that a defendant charged with murder was guilty of that lesser included offense. Commonwealth v. Curry, --- Mass. ---, ---, ^a 330 N.E.2d 819 (1975). See Commonwealth v. Hogg, 365 Mass. 290, ---, ^b 311 N.E.2d 63 (1974); Commonwealth v. McKay, 363 Mass. 220, 228, 294 N.E.2d 213 (1973).

The evidence on which the defendant relies does not support his claim that assault and battery was a permissible jury finding. The defendant does not claim that there was evidence that he hit the victim intentionally when he struck at the glass she threw at him. He does suggest, however, that his act of swinging at the glass and hitting the victim could have been found to be an assault and battery as 'the intentional doing of a wanton or grossly negligent act causing personal injury to another.' Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633, 634 (1931); Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211, 218 (1967). The act of swinging in apparent self-defense at the glass which was thrown at him does not constitute wanton or reckless conduct. There was no 'high degree of likelihood that substantial harm (would) result to another' from the defendant's conduct. Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (1944). See Commonwealth v. McCauley, 355 Mass. 554, 560, 246 N.E.2d 425 (1969); Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211 (1967). If the jury had believed the defendant's testimony, the only verdict they could have returned, even as to assault and battery, was a verdict of not guilty. Commonwealth v. Curry, --- Mass. ---, ---, ^c 330 N.E.2d 819.

2. The defendant next claims that the judge should have instructed the jury that the defendant could not be found guilty on the basis of any acts the defendant attributed to Smith, unless they found 'that the defendant was acting with a common criminal purpose, and that . . . (Smith's act) was a natural or necessary consequence of the common criminal purpose.'

The defendant contends that the jury should have had such an instruction to guard against their concluding that the defendant was responsible for Smith's kicking of the victim. If the jury believed the defendant's account of the incident, there was no logical basis for them to assume that the defendant was criminally responsible for Smith's acts. Indeed, the defendant testified that he tried unsuccessfully to stop Smith from kicking the victim. The prosecution did not attempt to prove a joint enterprise or to argue that the jury could believe the defendant's story and still convict him. A reasonable jury would not have found the defendant guilty on the theory, which was not suggested to them that the defendant was responsible for what he testified Smith did. In these circumstances, a warning instruction concerning joint enterprise was not required. Cf. Commonwealth v. Benders,361 Mass. 704, 707--708, 282 N.E.2d 405 (1972), where the issue of joint venture was the principal contested issue and the charge did not present clearly the distinction between participation and mere presence.

3. The defendant next argues that certain excluded evidence was admissible to rebut any implication that his testimony that Smith killed the victim was recently contrived. The defendant offered the testimony of two attorneys that several days after his arrest he had named a companion as the one who had killed the victim. The judge properly excluded the evidence.

The long standing, general rule in this Commonwealth is that a witness's prior consistent statement is inadmissible, even there a prior inconsistent statement of the witness has been admitted. Commonwealth v. Tucker, 189 Mass. 457, 479--485, 76 N.E. 127 (1905); Commonwealth v. Jenkins, 10 Gray 485, 488--489 (1858). See K. B. Hughes, Evidence § 236 (1961). As an exception to this general rule, however, a witness's prior consistent statement is admissible where a claim is made that the witness's in-court statement is of recent contrivance or is the product of particular inducements or bias. Commonwealth v. Carroll, 360 Mass. 580, 588--589, 276 N.E.2d 705 (1971); Commonwealth v. Corcoran, 252 Mass. 465, 487--488, 148 N.E. 123 (1925); Walsh v. Wyman Lunch Co., 244 Mass. 407, 409--410, 138 N.E. 389 (1923); Commonwealth v. Retrovitz, 222 Mass. 245, 249--250, 110 N.E. 293 (1915). See Commonwealth v. Jenkins, supra, 10 Gray at 489--490. Unless admissible on some other ground to prove the truth of the facts asserted, such a prior consistent statement is admissible only to show that the witness's in-court testimony is not the product of the asserted inducement or bias or is not recently contrived as claimed. Commonwealth v. Carroll, supra, 360 Mass. at 588, 276 N.E.2d 705. The trial judge has a range of discretion in determining whether a suggestion of recent contrivance exists in the circumstances. Compare Commonwealth v. Caine,--- Mass. ---, ---, ^d 318 N.E.2d 901 (1974); Commonwealth v. Pickles,364 Mass. 395, ---, ^e 305 N.E.2d 107 (1973); Commonwealth v. Carroll,360 Mass. 580, 588 (1971), and Commonwealth v. Heffernan, 350 Mass. 48, 51--52, 213 N.E.2d 399, cert. denied, 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673 (1966) (suggestion of recent contrivance), with Boutillette v. Robbins, 338 Mass. 195, 197--198, 154 N.E.2d 620 (1958); Commonwealth v. Giacomazza, 311 Mass. 456, 467, 42 N.E.2d 506 (1942); Ouellette v. Chapman,284 Mass. 363, 365, 187 N.E. 705 (1933), and Commonwealth v. Tucker,supra, 189 Mass. at 484--485, 76 N.E. 127 (no suggestion of recent contrivance or prior concealment). However, the mere admission of a prior inconsistent statement does not justify a conclusion that a claim of recent contrivance is inherent in the circumstances. Wilson v. Jeffrey, 328 Mass. 192, 194--195, 102 N.E.2d 426 (1951) (prior consistent statement improperly admitted).

Here the defendant wished to show that his testimony that Smith killed the victim was consistent with his statement to attorneys who visited him several days following his arrest. At this time in the trial, two other, inconsistent statements of the defendant were already in evidence: the defendant's first statement to the police that he and the victim had been 'jumped' by three unknown assailants and the defendant's confession. The question of when the defendant first adopted his third explanation of the events of that night was never in issue, expressly or impliedly. The prosecutor established by cross-examination of the defendant that the defendant's testimony was inconsistent with his earlier statements, but he did not raise the question of when, following his earlier statements, the defendant adopted his final explanation. Because the statement to the attorneys was not made prior to the other statements, the exception to the general rule against the admission of prior consistent statements had no application here.

4. The judge was correct in declining to instruct the jury that voluntary manslaughter was a possible verdict. The defendant argues that the facts shown in his written confession to the police permitted a finding of voluntary manslaughter and that an instruction on manslaughter should have been given. Of course, consistent with what we said earlier with respect to assault and battery as a lesser included offense, the jury should be instructed on manslaughter 'where any view of the evidence will permit a finding that the offence is manslaughter and not murder.' Commonwealth v. LePage, 352 Mass. 403, 419, 226 N.E.2d 200, 210 (1967); Commonwealth v. Vanderpool, --- Mass. ---, ---, ^f 328 N.E.2d 833 (1975), and cases cited.

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); Commonwealth...