Commonwealth v. Epsom

• Decision Date: 18 February 1987
• Citation: 503 N.E.2d 954,399 Mass. 254
• Parties: COMMONWEALTH vs. ALBERT E. EPSOM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

399 Mass. 254

503 N.E.2d 954

COMMONWEALTH vs. ALBERT E. EPSOM.

Supreme Judicial Court of Massachusetts, Middlesex.

November 4, 1986.

February 18, 1987.

COPYRIGHT MATERIAL OMITTED

Present: HENNESSEY, C.J., WILKINS, NOLAN, LYNCH, & O'CONNOR, JJ.

John H. Cunha, Jr., for the defendant.

Fredric Lee Ellis, Assistant District Attorney, for the Commonwealth.

O'CONNOR, J.

After a jury trial, the defendant was convicted of murder in the first degree, and of unlawfully carrying a firearm. The defendant filed timely claims of appeal. While the appeals were pending in this court, the defendant filed in this court motions for a new trial. Among the grounds in support of the motions was the claim that the defendant had been denied effective assistance of counsel by his trial attorney's dual representation of the defendant and the father of a witness for the Commonwealth.¹ A single justice of this court directed that the motions for a new trial be referred to the trial judge for a hearing on the conflict of interests issue. The judge conducted such a hearing, reported his findings, and, after discussing the relevant legal principles, denied the motions for new trial as to the claim of ineffective assistance of counsel due to dual representation. The defendant appealed.

Although the defendant filed timely claims of appeal from both convictions and from the denial of both motions for a new trial, he has neither argued, nor requested, in his briefs filed in this court, that we should reverse his conviction of unlawfully carrying a firearm. Our discussion, therefore, is limited to the defendant's conviction of murder in the first degree.

The defendant claims that the judge erred by (1) instructing the jury in such a way that the jurors reasonably could have understood that the defendant had the burden of proof on the issue of self-defense; (2) admitting evidence of flight and instructing the jury that they could consider that evidence in deciding the question of guilt; (3) admitting evidence of the failure of three witnesses for the defense to speak with police officers before the trial; and (4) permitting the prosecutor in his jury argument to attack the credibility of the witnesses on the basis of that evidence. The defendant also asserts that he was unconstitutionally deprived of the effective assistance of counsel by his counsel's failure to object at trial to the aforementioned rulings and instructions and by his counsel's simultaneous representation of him and the father of the Commonwealth's witness. Lastly, the defendant asks us to exercise our power under G.L.c. 278, § 33E (1984 ed.), to reduce the verdict of murder in the first degree to murder in the second degree or manslaughter. We affirm both convictions.²

We recite some of the evidence presented to the jury. On March 19, 1983, at approximately 12:30 A.M. or 1:00 A.M., up to fifteen members of the Centaurs motorcycle club were present at the Press Box Pub in Waltham. Nearly all the Centaurs wore black leather vests with the club's insignia on the back. Some wore wristbands with spikes and black leather gloves with the fingers cut off. One had a belt with a hunting knife case attached. The Centaurs wore beards and had long hair, and were large men, weighing "a good two hundred pounds"; some, perhaps, weighed as much as three hundred pounds.

The defendant entered the bar accompanied by another man and three women. After an oral exchange between the defendant and the barmaid, the barmaid said that she intended to call the police, and the defendant told her to "go ahead." The defendant and one of the Centaurs, Robert Ferrazzani, exchanged epithets, and Ferrazzani then charged the defendant. Ferrazzani tripped in the process and ended up face down on the floor at the defendant's feet. The defendant then held Ferrazzani on the floor. At this point someone hit the defendant on the side of the head with a bottle. The defendant's companion, Thomas Hutton, stepped toward the person with the bottle but several of the Centaurs grabbed him, pulled him into a booth, and punched him. Someone hit Hutton and a bystander with a bottle.

The defendant told Ferrazzani that he would let him up if he would stop fighting. The defendant released Ferrazzani and went with his companions to the door, where he turned and asked if he were leaving as a friend. Ferrazzani replied, "You came in as a fat fucking pig and you're leaving as a fat fucking pig." The defendant walked out and four of the Centaurs, including the victim, James Wilson, followed him.

Outside, there were several people on the sidewalk including four to six Centaurs. Hutton told his female companions to get into their nearby car. The defendant spun around and picked up a firearm that had fallen from his person to the ground. He placed the gun in his belt, raised both hands, and said, "It's away, it's away," or "It's back in my holster." One of the Centaurs told the defendant that none of them had guns, that none of them wanted trouble, and that they just wanted to go home. Other Centaurs were yelling at the defendant and Hutton.

Then, the defendant pulled his gun from his belt, stated "I don't care if there's twenty of you; I'm not afraid of nobody," waved the gun back and forth, and fired a shot into the sidewalk. After the shot, the victim said "Get the fuck out of here." The defendant then said, "Fuck you," and shot the victim in the arm. The defendant turned to his left, kicked one of the Centaurs in the groin, and then turned back to his right and shot the victim again. He shot the victim a third time. The fatal shot entered the victim's chest.

We begin our discussion of the issues raised by the defendant with the defendant's assertion that the judge improperly instructed the jury on self-defense. "A defendant is entitled to have the jury at his trial instructed on the law relating to self-defense if the evidence, viewed in its light most favorable to him, is sufficient to raise the issue." Commonwealth v. Harrington, 379 Mass. 446, 450 (1980), citing Commonwealth v. Monico, 373 Mass. 298, 299 (1977). In order to raise the issue, there must be evidence of an overt act against the defendant constituting an assault or threat, Commonwealth v. Doucette, 391 Mass. 443, 453-454 (1984); Commonwealth v. Shaffer, 367 Mass. 508, 514-515 (1975), sufficient to place the defendant in actual and reasonable apprehension of grievous bodily harm or death. Commonwealth v. Kendrick, 351 Mass. 203, 211 (1966). Commonwealth v. Houston, 332 Mass. 687, 690 (1955). Moreover, there must be evidence that the defendant "availed himself of all proper means to avoid physical combat before resorting to the use of deadly force." Commonwealth v. Harrington, supra at 450. Commonwealth v. DeCaro, 359 Mass. 388, 390 (1971).

In our recitation of the evidence, in keeping with our case law, we have been careful to include all the evidence which, viewed in its light most favorable to the defendant, might raise the issue of self-defense. We are satisfied that the evidence was insufficient to raise that issue. The only evidence of an assault against the defendant related to events inside the pub. There was no evidence that the defendant was assaulted or threatened outside the pub, or that the entire series of events, including those within the pub, caused the defendant to be without reasonable means of escape and to be actually and reasonably in fear of grievous bodily harm or death when he shot the victim. Therefore, the defendant was not entitled to a jury instruction on self-defense, and it is unnecessary for us to review the instruction that was given.

We turn to the defendant's claims that the judge erred in admitting evidence of his flight following the shooting, and in instructing the jury that they could consider that evidence on the question of the defendant's guilt. The contested evidence was that the defendant fled to New Jersey after the incidents at the pub, and that a search of his hotel room revealed newspaper articles concerning the shooting and the search for the defendant. The defendant appears to contend that, although that evidence would have been admissible had the defendant denied shooting the victim, it was not admissible here because evidence of consciousness of guilt does not tend to show malice or premeditation or lack of self-defense, and those were the only live issues at trial. The defendant cites Commonwealth v. Lowe, 391 Mass. 97, 108 n. 6, cert. denied, 469 U.S. 840 (1984), in support of his position. We reject the defendant's argument. Evidence of flight is admissible to prove consciousness of guilt, Commonwealth v. Toney, 385 Mass. 575, 583 (1982), and consciousness of guilt, together with other evidence, may establish guilt. Commonwealth v. Porter, 384 Mass. 647, 653 (1981). The defendant's reliance on Commonwealth v. Lowe, supra at 108 n. 6, is misplaced. In that case, we said that "consciousness of guilt evidence, while relevant to the issue whether a criminal homicide was committed, is not evidence of malice aforethought." Id. Thus, while consciousness of guilt evidence cannot be used to prove that a criminal homicide was murder rather than manslaughter, it is admissible, as here, on the question whether a criminal homicide had been committed. See Commonwealth v. Blaikie, 375 Mass. 601, 605-606 (1978). Homicide in the legitimate exercise of self-defense is not criminal. Therefore, evidence of flight was properly admitted on the self-defense issue even though, as things turned out, there was insufficient evidence of self-defense to warrant submission of that issue to the jury. Furthermore, the judge's instructions concerning the evidence of flight were correct. The judge complied fully with our recommendations in Commonwealth v. Toney, supra at 585 n. 6. The defendant's only criticism of the instructions in this regard tracks his argument, which we have rejected, that the evidence of flight was...