The defendant was tried on an indictment charging the first degree murder of one Bruce Jordan. The jury returned a verdict of guilty of manslaughter. The case is before us on the defendant’s appeal under G. L. c. 278, §§ 33A-33G. Error is alleged in the exclusion of certain evidence and in the trial judge’s charge to the jury.
There was evidence from which the jury could have found the following. The decedent was a tenant in an apartment building owned by the defendant in Lawrence, Massachusetts. On December 4, 1971, he gave the defendant a rent check dated December 11, 1971. On the afternoon of Sunday, December 12, the decedent telephoned the defendant at his home in New Hampshire to inform him that he intended to leave for New Jersey the following day and that he had found a friend who would take over the apartment. The defendant expressed objection. Early that evening the defendant’s son, who had been at the premises in Lawrence, talked with his father and informed him that the decedent’s friend appeared to be moving his belongings into the apartment. Shortly thereafter the defendant decided to go to the apartment building himself.
The defendant testified that he took his .25 caliber Colt semi-automatic pistol with him, that the weapon was loaded, that there was a bullet in the chamber, and that the safety was off. He further testified that he always carried his gun in that fashion and that he always took the weapon with him whenever he went to his Lawrence buildings. Upon his arrival the defendant knocked on the decedent’s door, received no reply, and entered briefly. No one was present in the apartment. The defendant then went to a neighbor’s apartment to wait for the decedent to return.
Upon the decedent’s return the defendant went to the apartment and was let in. In the apartment at this time were Lorenzo Rosado, Annette Demers, and the decedent.
The defendant further testified that at this point Rosado was seated on a couch about three feet to his side and that they were separated by a coffee table; and that he saw Rosado pull a knife from his pocket and begin to rise from the couch. The defendant then took the pistol from his pocket and either struck or attempted to strike the decedent’s (not Rosado’s) head with it. The defendant and the decedent then wrestled for the gun and both ended up on the floor. The defendant retained control of the weapon. As the decedent was kneeling above the defendant the gun went off, killing the decedent. Rosado left the apartment to notify the police. Rosado and Demers denied that Rosado had had a knife; no knife was found.
1. The defendant first assigns as error the trial judge’s exclusion of the defendant’s testimony concerning his belief, and the basis therefor, as to the reliability of the safety mechanism on his gun.
At the trial Officer McGuinness, a firearms expert called by the Commonwealth, testified that the safety on the pistol was located on the left side of the frame just below the slide and that it operated to lock the trigger. The defendant testified in his own behalf and was asked on direct examination why the safety mechanism was off when he produced the gun from his pocket. The question was excluded, and the defendant excepted. Defense counsel’s offer of proof indicated that the defendant would testify that the dealer who sold him the gun had “told him that the safety was not reliable and that he should not depend on it.” The excluded evidence was offered not for its truth, but rather
Our opinion is that the evidence concerning the gun dealer’s representations was rightly excluded. While the excluded testimony was not hearsay, as it was not offered for the truth of the facts stated, it was not relevant. Defense counsel’s offer of proof did not show that the safety mechanism was inoperative. Its import was that the safety was not necessarily foolproof. In other words, the offer tended to show that it would be unwise for one carrying such a loaded gun to depend entirely on the safety (switched to the “on” position) to prevent its discharge. But where, as here, the safety had been set in the “off’ position the question of its reliability was no longer relevant.
The defendant did, in fact, testify later that his state of mind concerning the safety of the weapon had been that he could rely on the gun seller’s instructions. 1 He added further that the safety had been off when he had purchased the gun and that he had not in any way changed the condition of the weapon until the incident in the decedent’s apartment. Thus the gist of the proffered testimony was in fact received in evidence.
2. The defendant’s second assignment of error is that the trial judge “compounded the error” complained of in the first assignment of error by charging the jury to focus their attention on the defendant’s conduct in carrying the weapon in the condition heretofore described. The only argument on this point in the defendant’s brief is an unamplified reiteration of the assignment of error. This falls far short of the requirements of Appeals Court Rules 1:13 and 1:15 (1) (d). Such a reiteration is not a substitute
3. The defendant testified that, as a result of a conversation between him and a neighbor of the decedent which occurred while the defendant was waiting for the decedent to return to his apartment, he had formed a belief concerning the decedent. Neither the defendant nor the neighbor was permitted to testify as to the substance of such belief. The defendant offered to prove that the neighbor had told him “that decedent was selling dope,” and offered the testimony to show the defendant’s state of mind and to impeach a prosecution witness. 2 The judge excluded the proffered testimony as immaterial, and the defendant saved an exception upon which he bases his third assignment of error. The defendant argues that this testimony is relevant to the issue of self defense in that it could have been found that such a belief tended to put the defendant in fear of serious bodily injury and thereby justified the production of the gun.
Although it is true that the question “whether there was reasonable cause to apprehend great bodily harm, and whether the defendant acted under such apprehension, are material issues”
(Commonwealth
v.
Barnacle,
Moreover, the defendant himself apparently paid little regard to that information. The record discloses that he was asked, “After this conversation with Mrs. Levesque what was your attitude about Jordan being in the apartment?” To this the defendant responded, “I didn’t care. He was leaving the following day.” That statement would indicate that the defendant was placed in no greater fear of bodily harm as a result of the conversation in question. We also note that there was no evidence that the decedent in any way acted in a manner which would have warranted the initial assault by the defendant. We are of the opinion that the defendant was not prejudiced by the exclusion of this evidence.
4. The defendant’s fourth assignment of error concerns the exclusion of questions put to Rosado and Demers intended to elicit a showing of bias on their part. The excluded questions dealt with the witnesses’ knowledge of a civil action commenced on behalf of the decedent’s family against the defendant.
With respect to Rosado, at the conclusion of the first day of his testimony, the Commonwealth withdrew its objection to the questions and the following day defense counsel pursued the matter without objection. The defendant’s assignment concerning this witness’ testimony is therefore wholly without merit.
With respect to Demers, defense counsel asked several questions concerning the lawyer representing the family in the civil suit. No objections were made. Counsel then asked a question calling upon the witness to state an inadmissible opinion. 3 The question was properly excluded.
Our opinion is that the trial judge’s refusal to charge on self defense with respect to involuntary manslaughter was entirely proper.
4
The question whether involuntary manslaughter and self defense are mutually exclusive does not seem to have arisen in this Commonwealth. The defendant gives no example of a situation in which self defense could properly arise in connection with involuntary manslaughter, and we are unable to conceive of one. The defendant does not call our attention to, nor have we found, a reported decision in which an instruction on self defense was given,
The defendant at all times material to our decision held to the position that the weapon was not fired intentionally.
5
The defendant’s counsel further represented at a bench
6. The defendant’s sixth and seventh assignments of error assert that the judge’s charge failed to distinguish adequately between the two batteries committed by the defendant and that he erroneously refused the defendant’s request to expand his charge on this matter. The first of the two batteries to which the defendant refers is the use of the gun as a club against the decedent and the second is the discharge of the weapon which resulted in the decedent’s death. The defendant maintains that the jury could have inferred from the instructions given that voluntary manslaughter could be grounded solely upon the first battery when in fact such crime could only have been founded upon the second.
From our review of the charge we find that the judge made clear to the jury that he was referring to the second battery. The very portion of the record to which the defendant’s assignment of error refers us demonstrates that the judge did in fact draw this distinction when he said, “ ‘Every unjustified battery,’ meaning for this purpose killing or shooting, ‘every unjustified battery that results in death is at least manslaughter’ ” (emphasis supplied). We cannot see how the jury could have been misled.
7. Assignments of error Nos. 9, 10, 11 and 15 deal with the judge’s refusal to charge as requested. While the judge did not give the instructions in the form requested, he instructed the jury fully and fairly on the substance of the requests.
Campbell
v.
Shea,
8. Assignment of error No. 13 is based upon facts which the jury would not be warranted in finding on the evidence and was properly refused by the court.
9. The defendant’s request numbered 16 (assignment of 'error No. 12), that the defendant was not required to retreat if he reasonably believed he was under attack with a deadly force, is contrary to the law.
Commonwealth
v.
Leate,
352
Judgment affirmed.-
Notes
The gun seller was called by the Commonwealth and testified that he did not remember instructing the defendant that the safety was unreliable but that he “could have.”
The defendant has not pressed this latter ground in his brief and we consider it waived.
Defendant’s counsel: Have you ever heard of Mr. Struffolino?
The witness: Yes, I have heard of him.
Defendant’s counsel: Who is he?
From our examination of the record, it appears that the judge might well have refused to instruct on self defense with respect to any of the offenses charged, there being no evidence that the defendant, who could be found to have initiated combat, availed himself of the opportunity to retreat.
Commonwealth
v.
Peterson,
Defendant’s counsel: Did you have any intention at the time you put your hand in the pocket to use the gun?