Commonwealth v. Graham

Citation727 NE 2d 51,431 Mass. 282
CourtUnited States State Supreme Judicial Court of Massachusetts
Decision Date04 January 2000


Dana Alan Curhan for the defendant.

Catherine B. Sullivan Ledwidge, Assistant District Attorney (John P. Letourneau, Assistant District Attorney, with her) for the Commonwealth.


The defendant appeals from his conviction of murder in the first degree on the theory of extreme atrocity or cruelty for killing the victim with an arrow fired from a crossbow the defendant kept in the trunk of his automobile. The arrow used was designed to kill big game such as bear, elk, antelope, deer, and boar by promoting rapid bleeding.1 The defendant through counsel raises two issues on appeal: (1) he is entitled to a new trial because the trial judge provided jurors with a recording of only a supplemental jury charge; and (2) the judge committed reversible error by admitting in evidence four crossbows, found at the defendant's house, that were unrelated to the murder. The defendant also raises an additional issue, pro se, that he was deprived of effective assistance of counsel because (a) counsel did not move to dismiss the grand jury indictment, and (b) counsel failed to offer evidence of the victim's criminal record as part of the defendant's claim of self-defense. In addition, through counsel, he also asks that we exercise our power pursuant to G. L. c. 278, § 33E, and either overturn his conviction, or reduce the verdict. We see no reason to exercise our power under G. L. c. 278, § 33E, and affirm his conviction.

1. Facts and procedural history. Viewing the facts in the light most favorable to the Commonwealth, Commonwealth v. Coonan, 428 Mass. 823, 824 (1999), the jury were warranted in finding the following facts. Commonwealth v. Stewart, 398 Mass. 535, 536 (1986). On February 20, 1994, the victim and his passenger were traveling from work in the southbound highspeed lane of Route 95 when a driver in a vehicle came up behind them and flashed his high beams apparently indicating that the victim should move over so the vehicle could pass.2 The victim did not immediately pull over, so the driver continued to flash the high beams. When the victim did pull over to allow the vehicle to pass, the victim flashed his high beams back at the vehicle as it sped away.

According to the defendant's own testimony, after observing the victim's behavior just described, the defendant decided to give the victim "a taste of his own medicine." The defendant got behind the victim's automobile, put on his high beams, and "chase[d]" it for some fourteen miles.3 The two automobiles changed lanes several times and, at one point, the victim hit his brakes and abruptly slowed down. Finally, the victim pulled to the side of the road and, instead of just driving on, the defendant decided to pull over also.4

The victim and his passenger left their automobile and walked toward the defendant's automobile. The defendant also left his automobile, removed a crossbow from his trunk, and loaded an arrow onto it. The defendant also disengaged the safety on the crossbow while the victim and the passenger were approaching. As the victim approached the defendant, he asked, "What the hell do you think you're doing?" Almost immediately, the passenger heard "an air noise," which was the sound of the crossbow being fired. The defendant gave no warning to the victim and the passenger prior to firing the crossbow.

The victim was conscious long enough to tell the passenger he was shot and to walk back toward his automobile, where he began to stagger. The passenger drove the victim to a hospital where the victim died as a result of significant blood loss and hypothermia. The arrow had entered the victim's right chest area and caused a two-inch laceration to the front wall of a major artery that runs from the heart to the armpit.

The defendant's posttrial motion for a required finding of not guilty and a new trial was denied by the judge.

2. Tape recording of supplemental jury instructions. The defendant argues that he is entitled to a new trial because the judge, in response to a specific question from the jury, provided the jury with a recording of only the supplemental instructions instead of a recording of the entire instructions as required by Commonwealth v. Baseler, 419 Mass. 500, 506 (1995).5 The defendant argues that, by providing a recording of only the supplemental instructions, the judge created a risk that the jury would downplay the prosecution's burden of proof.

In denying the defendant's motion the judge6 explained that he originally planned to submit to the jury a recording of the entire jury instruction. However, when he gave the instruction, he erred in defining involuntary manslaughter. He reinstructed the jury on involuntary manslaughter, but had second thoughts about sending the recording into the jury deliberation room because it contained both a correct and incorrect instruction on involuntary manslaughter. The jury retired for deliberation without the recording. A few hours later, the jury sent a note to the judge asking him to "explain ... the wording of malice and forethought [sic], and ... in layman's terms, all of the verdicts as we have become confused of the terms [sic] of all the verdicts."7 After conferring with counsel, the judge answered the jury's question. The next day, a few minutes after resuming their deliberation, the jury sent another note to the judge stating, "Some of the jurors would like to be able to read the instructions and definitions of each verdict listed on the [verdict form]. This needs to be clear to them." As no printed copy of his original instructions was available, the judge conferred with counsel and decided to reinstruct the jury on all the substantive offenses and to make a recording of it.8 The judge reinstructed the jury and repeatedly referred to the Commonwealth's burden to prove the elements of each charge beyond a reasonable doubt, and included instruction on self-defense. The judge then told the jurors that all instructions that were not recorded remained in full force, and said that the reason he was not reiterating all the previous instructions was because they had not questioned the other instructions. He also told them to feel free to ask more questions if they arose.9

The defendant claims that he properly raised this issue at trial. In the alternative he argues, citing Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998), and Commonwealth v. Hallet, 427 Mass. 552, 552-555 (1998), that the judge's consideration of the issue in the motion for new trial resurrected the issue for purposes of appellate review. We disagree. The issue was not properly raised at trial,10 nor was it resurrected by the judge in denying the motion because he explicitly stated that he was not permitting "unasserted claims of error to ripen in darkness until what was once easily curable becomes immutably fixed."11 Thus, we review the error under the substantial likelihood of a miscarriage of justice standard.12Commonwealth v. Cruz, 430 Mass. 182, 185 (1999).

We conclude, as did the judge, that there is no substantial likelihood of a miscarriage of justice. The jury were not reluctant to ask questions, yet never expressed confusion about the "beyond a reasonable doubt" standard. The recording submitted reiterated the Commonwealth's burden to prove each element of each offense beyond a reasonable doubt. In summarizing each charge the judge clearly placed the burden of proof on the Commonwealth. Furthermore, we note that the defendant does not argue that the instructions were incorrect.13

3. Crossbow evidence. The defendant argues that the judge committed reversible error in admitting in evidence over his objection four crossbows that were owned by the defendant but not used in the murder. At trial, five plainclothes police officers came into the court room together each bearing a crossbow armed with an arrow. In overruling the defendant's objection, the judge said that, because the officers simply walked in and put them down, it was not unfairly prejudicial. In addition, the judge ruled that the crossbows were relevant to the defendant's knowledge of, and familiarity with, them. "Whether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge ... [and] the judge's determination of these questions will be upheld on appeal absent palpable error." Commonwealth v. Marrero, 427 Mass. 65, 67-68 (1998), quoting Commonwealth v. Valentin, 420 Mass. 263, 270 (1995).

In Commonwealth v. Toro, 395 Mass. 354, 358 (1985), we stated that, "[t]he fact that the defendant had weapons and ammunition of any kind was arguably relevant in that it tended to show that he was acquainted with weapons and was able to use them. Cases here and elsewhere have not, however, viewed the tenuous relevancy of evidence of a person's general acquaintance with weapons as outweighing the likelihood that such evidence will have an impact on the jury unfair to the defendant." See Commonwealth v. West, 357 Mass. 245, 248 (1970), citing Commonwealth v. O'Toole, 326 Mass. 35, 39 (1950) (evidence of weapons unrelated to crime might be prejudicial; no such likelihood found); Commonwealth v. McLaughlin, 352 Mass. 218, 229-230, cert. denied, 389 U.S. 916 (1967).

In this case, it was unnecessary to introduce the crossbows to demonstrate the defendant's familiarity with the weapon because there already was evidence including testimony that the defendant owned five crossbows and photographs of crossbows found in various locations in the defendant's house. However, even if it were error to admit the other crossbows in evidence, no prejudice to the defendant resulted.

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