426 Mass. 582 | Mass. | 1998
The defendant, Alfred Jenks, was convicted of murder in the first degree by deliberate premeditation.
I
There was testimony and physical evidence sufficient to allow the jury to conclude that Jenks took aim and shot at one Leth Delva or others on a crowded dance floor, that his bullets missed everyone on the floor, and that one of them passed through a wall and killed a young woman who was standing in an entrance hall to the dance floor. The Commonwealth’s theory was that Jenks had deliberately sought to kill Delva or others on the dance floor and that he was therefore liable for the killing of the victim on a theory of transferred intent.
The shooting took place at a privately organized dance attended by some 150 people. There were spotty security arrangements designed to prevent the presence of weapons. At one point, Jenks was standing in the entranceway to the dance hall building talking to two women, when Delva sought to get by to enter the building in a manner that Jenks thought was insufficiently respectful. There was a brief exchange of words, at which Jenks pulled his “hoody” down over his head, took a nine millimeter pistol from his waist band and pointed it at Delva. After another brief exchange of words and the intervention of Delva’s cousin, Delva lost sight of Jenks and went inside and upstairs to the dance hall. Jenks was able to enter the building at some later point without paying and without being searched. Once inside he went to the bathroom and showed a man the gun he was carrying, removing and replacing the ammunition clip.
• At some later point Jenks encountered Delva on the dance floor. Jenks took the pistol from his waist, saying, “What’s up now?” Delva immediately backed away. Others intervened, grabbed for the gun, and knocked Jenks to the floor and the gun out of his hand. Jenks was able to retrieve the gun, and as he was getting to his feet fired five shots at the ceiling in rapid succession. The crowd backed off and headed for the exits. After a pause Jenks fired two more bullets, now at chest height,
II
A
Jenks raises two related issues: that it was misleading for the judge to explain the meaning of the second and third prongs of malice when the murder charge was being sent to the jury solely on the basis of deliberate premeditation; and that the judge should have instructed the jury on involuntary manslaughter. Both issues implicate the divergent pictures of what happened on the night of the killing. The Commonwealth’s theory was that, in firing the last two shots, Jenks was holding the gun straight out before him and aiming it at a person or persons in the crowd who were retreating from him and heading for the exits. He was either firing at Delva, whom he had threatened with his gun earlier in the evening, or at those who had just wrestled him to the floor and disarmed him. The defense argued to the jury that the lax security measures had allowed others with guns to be present on the dance floor, that a shot was fired from another gun, and that the fatal shot may have come from some other gun than Jenks’s. The defense introduced testimony by one witness that, during the fight on the dance floor, Jenks had been surrounded by persons who kicked and punched him, and that one of those showed a gun. Jenks asked for and received an instruction on voluntary manslaughter and on self-defense, suggesting, as he did in his closing argument, a theory that when he fired on the dance floor after having been knocked to the ground, Jenks was seeking — reasonably or unreasonably — to protect himself. It is only on appeal that Jenks raises the
Because there was no objection on either ground and the judge charged the jury consistently with defense counsel’s requests at trial, we review these claims to determine if there was a substantial likelihood of a miscarriage of justice. As to the inclusion of second and third prong malice in the charge, we have stated before that it is better to make clear to the jury that “murder in the first degree by reason of deliberate premeditation relates only to the first prong of malice.” Commonwealth v. Diaz, ante 548, 553 (1998). Where only deliberate premeditation is offered to the jury as a basis for murder in the first degree, the inclusion of instructions on second and third prong malice, even if justified for other reasons,
As to the omission of the unrequested charge on involuntary manslaughter, the defendant’s argument fails. No reasonable view of the evidence would have permitted the jury to find “wanton and reckless” conduct rather than actions from which a “plain and strong likelihood” of death would follow. See
B
Jenks’s pro se motion for a new trial raised three issues: that the grand jury indictment had been procured through intentional misstatements by a police witness and the improper mention of Jenks’s record of prior arrests, and that defense counsel was ineffective at trial.
Jenks’s first claim is that in his testimony before the grand jury a police officer misstated the substance of an interview
The second of Jenks’s grand jury claims related to a police officer’s reading Jenks’s own statement, which included a reference to Jenks’s prior arrests, to the grand jury. The judge found that “those portions [of the statement] were inadvertently related to the [glrand [j]ury,” and not “with the intention of obtaining the indictments.” Commonwealth v. Freeman, 407 Mass. 279, 283 (1990). Moreover, the prosecutor promptly cautioned the grand jury to ignore completely the mention of the prior arrests. Finally, the judge very reasonably found that, because Jenks had admitted that he had been carrying a handgun that evening, “it is unlikely that his further admission [of prior arrests on gun and assault and battery charges] would have a significant prejudicial impact that would infect the [g]rand [j]ury proceedings.”
The judge also properly disposed of the ineffective assistance of counsel claim without a hearing. Jenks’s principal complaint was that at trial his counsel did not call one Clovis Legister, the disc jockey at the dance, to testify to what he saw of the altercation on the dance floor. Legister’s testimony might have served to support some aspects of Jenks’s contentions that he fired in self-defense or that he fired wildly and with no intention of hitting anyone. But the judge found that Legister’s statement also contained matter that would have been damaging to Jenks, and that Jenks’s counsel, whom the judge went out of his way to commend, made a reasonable tactical decision to call instead Legister’s fiancée, Laurie Ann Galante, who gave testimony on these matters at least as helpful to Jenks. No substantial issue was raised requiring a hearing.
III
Having reviewed the whole record we conclude that there is no reason to exercise our power under G. L. c. 278, § 33E, to
Judgment affirmed.
Order denying motion for new trial affirmed.
Jenks was also convicted of a related firearms offense. He does not challenge that conviction.
There was an audiotape running during the shooting which recorded the sound of seven shots. Four bullets were recovered from the ceiling or attic, one from chest height in a joist in the wall near the victim, and one, which tested positive for the presence of blood, from near where the victim lay. One bullet apparently traveled through a wall and out of the premises; it was not recovered.
The instruction on all three prongs of malice was justified by the fact that the jury were also charged, as it would be in every murder case, on murder in the second degree. See Commonwealth v. Sires, 413 Mass. 292, 296-297 (1992).
The Commonwealth avers that Jenks filed his notice of appeal from the denial of the new trial motion late. Although it is unclear whether a notice of appeal was ever filed, Jenks did timely file a motion for permission to file his notice of appeal late. On appeal, the Commonwealth neglects to mention that it assented to that motion below, thereby effectively removing any possibility that the motion to file late would not be allowed.
