The defendant was convicted of manslaughter on an indictment charging him with murder in the first degree. The defendant shot the victim during a struggle in a lounge in West Springfield. He contended that he had acted reasonably in self-defense. He appealed and we transferred the defendant’s appeals to this court on our own motion.
The first of the two issues that the defendant argues on appeal concerns the trial judge’s exclusion of a portion of the grand jury testimony of a prosecution witness, testimony which the defendant says indicates that the victim had at least partial possession of the gun during the struggle. The second issue arises because the evidence warranted submission to the jury of the possibility of a verdict of either voluntary or involuntary manslaughter, but the verdict slip, over the defendant’s objection, simply listed manslaughter as a possible verdict without requiring the jury to designate the type of manslaughter. There was no error, but for the future, in situations like this, not only should a judge instruct the jury that they must be unanimous as to the theory of manslaughter on which they rely, but the verdict slip also should list the alternative manslaughter options.
1. The defendant asserts that the judge erred in denying him the right to present a portion of the grand jury testimony of a prosecution witness, both to impeach the witness and as substantive proof. The defendant contends that this evidence would have greatly strengthened his claim that he acted in self-defense when he shot the victim during the tussle. To understand this argument, we must summarize the trial testimony of Lee Albitz and a portion of his grand jury testimony.
Albitz, a friend of the victim Blaze Brennan and a prosecution witness, testified at trial that he was with Brennan in the West Springfield lounge on the day of the shooting. Albitz was with Brennan at one end of the bar, speaking with another friend, when he had heard a loud explosion. Brennan told the defendant, who was at the other end of the bar, to stop it. The defendant said, “What are you going to do about it?” Albitz saw that the defendant had a gun. The defendant fired a shot into the ceiling or the wall in Brennan’s direction. Brennan then walked to the end of the bar where the defendant was. Albitz further testified that as the defendant was drawing his gun, Brennan grabbed the defendant’s wrist with
On cross-examination, defense counsel pursued a statement that Albitz had given to the grand jury. Albitz agreed that he had told the grand jury that Brennan grabbed the defendant’s hand and not his wrist. Defense counsel then wanted to introduce the following statement that Albitz volunteered at the conclusion of his grand jury testimony: “I am convinced that [the defendant] used the recoil from the pistol to break the gun free from [the victim] before the last two shots were fired, but that’s my opinion.” Albitz testified at trial that the opinion he stated to the grand jury was not based on his observation of Brennan and the defendant at the time Brennan was shot. The judge excluded the evidence.
Albitz’s excluded grand jury testimony was not inconsistent with anything to which he had testified at trial. Albitz’s grand jury statement does not provide “some indication that the fact was different” from something he testified to at trial. See Commonwealth v. Hesketh,
Albitz’s excluded grand jury testimony also was not admissible as probative evidence under the principles expressed in
2. The defendant contends that the judge erred in giving the jury a verdict slip that listed manslaughter generally as a possible verdict, instead of listing voluntary manslaughter and involuntary manslaughter as separate options. The judge instructed the jury that their verdict had to be unanimous on each indictment, and the jury affirmed that their manslaughter verdict was unanimous. The defendant did not request the judge to instruct the jury more specifically concerning a manslaughter verdict. The defendant rather objected to the form of the verdict slip after the judge had charged the jury.
The question before us is not whether the evidence would warrant a finding of guilty on either manslaughter theory. Cf. Commonwealth v. Fickett,
We have never held that a general verdict of guilty of manslaughter may not properly be received, where each theoiy of manslaughter is presented to the jury. In other words, we have not required that the jury identify the theory on which they arrived at their unanimous manslaughter verdict. We have held, however, that, where there is evidence of separate incidents, each of which could warrant a guilty verdict, the jury must be instructed that specific unanimity is required at least as to one incident. See Commonwealth v. Conefrey,
The judge did not err in declining to break out the option of a manslaughter verdict on the verdict slip into two components — voluntary and involuntary. Although the elements of voluntary and involuntary manslaughter are different, each involves an unlawful killing without malice. General verdicts have been common in Massachusetts where the evidence has warranted a conviction of a crime on more than one factual basis. See, e.g., Commonwealth v. Devlin,
We shall, however, do here what we did with respect to murder in the first degree (where alternative theories of guilt are viable) and direct prospectively that, in a case where the evidence would warrant a guilty verdict of manslaughter or
Judgments affirmed.
Notes
Defense counsel did not advert to the Daye case in arguing for the admission of Albitz’s grand jury statement, nor did he ask for an appropriate voir dire to show that the conditions of the Daye opinion were met and that the statement was, therefore, admissible. See Commonwealth v. Daye, supra at 74 n.21. We have, nevertheless, treated this issue as if defense counsel offered Albitz’s grand jury statement for more than impeachment purposes.