9 Mass. App. Ct. 814 | Mass. App. Ct. | 1980
The defendant was convicted of voluntary manslaughter upon an indictment charging murder and has appealed. He argues five issues which we consider seriatim. 1. The judge’s instructions on intent provided an ample basis for the jury to return a verdict of not guilty if they should believe the defendant’s testimony that “everything just went blank” before the stabbing. The judge instructed the jury fully on the Commonwealth’s burden of proof with regard to intent and the claim of self defense. Compare Commonwealth v. Stokes, 374 Mass. 583, 592 (1978). 2. It was not error to exclude testimony by a witness who had worked with the victim as a meat cutter at a supermarket that a knife similar to the murder weapon might have been missing from the supermarket or to exclude the witness’s own knife, which was offered for the jury to compare with the murder weapon. It was within the judge’s discretion to determine the relevance of the victim’s access approximately one year before the stabbing to a knife similar to the murder weapon, and the gap in time was a factor to be considered in viewing the probative value of the testimony. See and contrast Commonwealth v. Watkins, 375 Mass. 472, 491 (1978); Commonwealth v. Russell, 2 Mass. App. Ct. 293, 295 (1974) (cases dealing with defendant’s access to weapon). The refusal to admit a knife similar to the murder weapon was also within the judge’s discretion. See Commonwealth v. Ellis, 373 Mass. 1, 7 (1977). The foregoing issues are raised against a backdrop of undisputed evidence that knives of the same brand and type were used by the victim in his work at the supermarket; that knives were missing while the victim worked there; and, more significantly, testimony that the victim owned the murder weapon and that it was kept in his pantry. 3. There is no merit to the defendant’s contention that the jury were precluded from making a fair and calm evaluation of the evidence because of supposedly prejudicial remarks by the prosecutor and the judge made during the trial. Having examined the instances complained of by the defendant and the conduct of the trial as a whole, we find that many of the remarks were appropriate and that, if any were
Judgment affirmed.