*1 v. Lawrence. Commonwealth vs. Frank Lawrence. December March 1989. Norfolk. Hennessey, Lynch, & Present: C.J., Abrams, Nolan, O’Connor, JJ. Practice, Criminal, jury Law. Grand proceedings, Homicide. Common Plea, Argument by prosecutor, Reopening jurors, Examination Evidence, evidence, jury, Instmctions to Voluntariness of statement. confessions, Exculpatory, Photograph, Admissions and Consciousness Law, guilt. Admissions confessions. Probable Constitutional Intoxication. Malice. Cause. Cass, (1984), gave holding court’s decision, liability criminal would attach notice after the date of J., killing of a viable fetus. concur- to the unlawful [383-384] Abrams, ring. case, grand heard establish ample
In a murder where the arrest, identity to establish cause for his probable the defendant’s correctly the indictments was denied. the defendant’s motion to dismiss [384-385] heard a a criminal defendant’s statements judge suppress who motion knowingly and intel-
correctly voluntarily, concluded that the defendant statements, rights making before ligently waived his constitutional provided cause for arrest. probable which [385-387] to exclude trial exercised his discretion judge properly At a criminal others, person that a committed offered to show evidence of crimes charged, crimes where other than defendant committed too remote in concluding that the other offenses were was warranted in charged, crimes factually, and too relation to the time dissimilar value. probative have [387-388] case, court’s year tried more than one before this
The record of a murder Young, rule announced Commonwealth v. prospective to an indi- that the defendant was entitled did demonstrate vidual voir dire of jurors on the issue racial bias. [388] stated explicitly never degree In first murder case in which defendant to his an there was no merit willing plea to offer that was “Alford” right plea accepted. have [388-389] contention that he had a such photographs admission of was no error a murder trial in There discovered, and an body, appeared as it when depicting one victim’s body. victim’s of the other autopsy photograph [389-390] Commonwealth v. Lawrence. *2 the,victim’s
The evidence at a murder trial was prove sufficient to death homicide, awas that it was the defendant who killed the victim and her fetus, and that the killer knew the victim pregnant. was [390-391] Nothing closing argument in the prosecutor’s degree a first murder trial
warranted reversal of the defendant’s conviction. [391-393] trial, In the circumstances of criminal the refusal the judge of to allow witness, the defendant to reopen his case in order to an present additional after closing arguments but the charge jury, before did not infringe right the defendant’s present to witnesses in his own behalf. [393] At a murder judge’s trial the instructions the jury, entirety, to viewed in their respect guilt, atrocity consciousness of extreme cruelty,
burden proof of were other proper; aspects of the instructions created no miscarriage substantial likelihood of a justice. of [393-397] found and returned in the Court De- Indictments Superior on October partment Irwin, John J.
Pretrial motions were Jr., J.; heard Charles Grabau, J.; M. and James F. McHugh, J. The cases tried Graham, before Robert Malcolm J.
Kevin J. Reddington for the defendant. Glennon, Martin
Stephanie Assistant District for Attorney, the Commonwealth. 16, 1986, J. On December
Lynch, convicted the jury defendant, Lawrence, Frank of murder in the first of degree a sixteen (victim). old year girl The defendant was also con- victed of the involuntary manslaughter twenty-seven week old male fetus that the victim was He was carrying. sentenced to the life sentence on the mandatory murder convic- tion and to a term of from to ten eight on the years involuntary conviction manslaughter to be served from and after the life sentence.
In convictions,1 his challenging the defendant contends that there was error in the denial of his motion to dismiss recognize We because the defendant was convicted of the lesser crime involuntary fetus, of manslaughter in the death appeal a direct (1986 ed.), However, § under G. L. c. 33E does not lie. in the interests judicial efficiency, and because most of the issues raised relate appeal on convictions, to both we will not bifurcate the appeals and thus we decide v. Lawrence. murder the fetus and
indictment ruling charging was of common law a viable fetus a human being purposes homicide; error the denial of motion dismiss there was the evidence submitted to grand the indictments because law; it was error to deny was insufficient as matter he made the execution statements during his motion to suppress was to exclude at his it error search warrant apartment; evidence; he denied a fair was “third-party culprit” proffered failure conduct a voir dire of trial due to the trial it an abuse of for the each discretion juror; prospective an to a reduced plea trial to refuse accept Alford2 *3 in were allowed that certain improperly charge; photographs evidence; of not should his motion for required findings guilty allowed; argument closing have been the prosecutor’s parts the defend erred in refusing permit were improper; and several his after closing argument; ant to case reopen were in error. Finally jury charge aspects in the first degree, to the conviction murder regard effect of the errors alleged defendant claims that the combined reversal, trial, a or a reduction in the new warrants either under L. to our review G. of guilt pursuant power degree from (1986 ed.). § this recitation c. 33E It apparent His brief error are numerous. that the defendant’s claims of on the this attack little for comprehensive pro offers support evidence, ignores brief misconstrues the below. The ceedings court, and makes of this recent misapplies precedent claims are required. claims of error where specific generalized and short, is a “cut that the brief paste” In it would appear from materials pro constructed prepared creation primarily We of this court. It not meet the standards below. does ceedings We reject defendant’s claims. examine each of the nevertheless the convictions. affirm of the defendant’s arguments each along manslaughter conviction with challenges the defendant’s challenges to the murder conviction. Alford, In United Alford, U.S. 2North Carolina circumstances, defendant’s a in certain Supreme Court held States . . . unwilling though the defendant “is even guilty is constitutional plea Id. at 37. the crime.” constituting in the acts participation to admit his We state as much of the evidence as to under- is necessary 25, 1985, stand the defendant’s claims. On principal September a a worker on roof of commercial single-story building an industrial on noticed the victim’s park Stoughton body ten feet from the The worker ground building. telephoned who a Stoughton observed police, responded. police down, with the victim’s badly decomposed body, face wrists bound beneath the together buttocks bruised body in what to be geometric appeared patterns.
Items at the found scene included the following: pocket- sweater; book; cord; a white pink jacket; earring; pierced a leather belt with geometric a brown knife case or patterns; sheath; wallet; a blue and red cloth and a Two ballpoint pen. unused condom and one condom packages empty package found in the jacket wallet contained a pockets. driver’s license and other identification to the defendant. belonging Suarez,
Doctor examiner, Donald an associate medical per- formed the testified that he autopsies. He identified the sixteen old victim dental year through records. He was of the opinion that the belt found at the scene caused the on the bruising victim’s He buttocks. testified a full revealed body X-ray no metal or other material inside the foreign victim’s body. *4 Examination other organs showed no evidence of injury disease. He also testified that the victim was and pregnant, her abdomen was distended” consistent with a “quite gestation of between and period twenty-seven weeks. thirty Due to the advanced Dr. Suarez unable was decomposition, However, determine exact cause of death. he opined homicide, a death was since there was no evidence suicide, accidental, that the death was or from natural causes. Although some traces of cocaine were it found the body, was his that neither the opinion victim nor the fetus died as result of a drug overdose. Dr. Suarez also testified high degree in the victim’s throat could decomposition area have been caused the throat’s been cut. As to the having fetus, he testified that the male normally configured weighed two and approximately one-half ofwas pounds approxi weeks’ mately twenty-seven He concluded that the gestation. death, viable, was was alive at the time of the victim’s fetus as a result of the victim’s death.3 and died from lack oxygen that, when the defendant The defendant’s roommate testified in a out on he was knife sheath wearing went September belt; his that when he returned home at 1:30 on approximately he had robbed. and said been At a.m. upset appeared his not his sheath. She also testified that time he had knife but one at the scene was similar to the owned by the sheath found the defendant. local
The defendant called the police department report 3 a.m. The defendant told responding about robbery had been stolen. He officer that his wallet and knife police without men rather version of robbery related a improbable belt, or sheath. The officer the loss of his pen, police tioning did not believe the and to story the defendant that he told later when he got story straight.4 telephone 27, 1985, executed a search warrant On police September a Klein brand where seized they at the defendant’s apartment, the mattress and the box a black from between knife in sheath another knife bed.5 also seized They on the defendant’s spring bureau, and a of blood-stained corduroy from his pair pants. testified that the stains inside the A State forensic chemist and on the tested corduroy pants defendant’s automobile posi- O O human blood. The victim had blood. type tive for type The defendant has A blood. type July, daughter in had last seen her 3The victim’s mother testified that she five that the victim was She also testified pregnancy apparent. and her was mother pounds. The victim’s weighed 110 to 115 approximately feet tall and getting healthy, good spirits, the victim was also testified that baby. ready to have report companies called various credit the defendant Subsequently, the theft of his credit cards. testified that assigned identification to firearms police A State officer *5 from underneath of the knife seized microscopic conducted a examination he body. He near the victim’s the sheath found the defendant’s mattress and with the knife the knife were consistent the marks found on opined that body. He found near the victim’s having in the brown sheath been carried fit into apartment also the defendant’s seized from testified the.knife in, markings consistent did not contain the sheath it was but that sheath having carried the knife.
Commonwealth Lawrence. the course of the search of his the defend- During apartment, the Forest in ant told the that he had been at Brockton Spa police 20, and he p.m. p.m. between and 11 on Friday, September from that related a somewhat different version robbery which had given. previously He that he
The defendant testified his own behalf. said visited two establishments on 20 and that drinking September sometime after he was robbed. He testified that he midnight was not in the area where the victim’s had discovered been body and that he had not harmed the victim.
The defendant an individual whose subpoenaed telephone number found on a found slip paper pocketbook near the After the defendant body. moved closing arguments, case, his as the individual reopen had responded The defendant asserted that be subpoena. would testimony relevant because revealed that the witness investigation worked in the same industrial where the had been park body found. The denied the defendant’s motion to reopen.
Pretrial Motions.
The defendant filed motions to dismiss the indict- pretrial ments, to statements made and to suppress deter- police, mine the admissibility evidence. These motions third-party were heard different Court. judges Superior
1. Motions to Dismiss the Indictments. a. Homicide viable The defendant filed a motion fetus. to dismiss the indictment him with the murder of the charging fetus, (1) that: arguing Massachusetts should not recognize viable as a fetus human for the of the common being purpose murder, law crime (2) if court rules viable fetus is considered a human of common being purposes murder, law should not be ruling retroactively. applied defendant does not that the fetus was viable.6 dispute Cass,
In Commonwealth v. we held that the “infliction of in the injuries resulting prenatal 6Because concerning viability, there was no not decide dispute we need it is homicide to cause the death of a nonviable fetus. See Common- whether Cass, wealth 807 n.8 *6 404 Mass. born, fetus, or after it is is homicide.”
death of a viable before was whether a viable fetus issue Cass Although precise the term as it was used came within the meaning “person” statute, 90, (b), § c. vehicle homicide G. L. 24G the motor c. see id. at our § as in St. appearing the ancient common law rule that in Cass reasoning rejected be “bom order to be must alive” in protected by person law, and thus is to the common criminal equally applicable that the There we “dominant law crime murder. recognized of ascertain rationale” for the ancient rule was impossibility “the was when the accused committed whether fetus alive ing & n.5, act,” “[mjedi id. the rule because rejected at 806 as to whether science now may competent cal provide proof a defendant’s conduct and alive at time of the fetus was death.” Id. conduct was the cause of at 806. whether his Cass, the defendant cannot claim Given our decision conduct was prohibited.7 he did not have such warning on notice “that our criminal law should The defendant was put at 807. its to viable fetuses.” Id. extend protection grand jury. the evidence Insufficiency presented b. the indictments that his motion to dismiss The defendant claims (1) the evidence denied that: arguing presented was erroneously to the level of cause to probable did not rise grand jury did, arrest, it level of (2) presented even if proof as at least the same level that required should be the grand cause at hearing. probable not review rule been that court will
Our has longstanding the evidence before grand sufficiency the competency O’Dell, jury. this rule general only We have from
and cases cited. departed im- was of the grand jury where the “integrity proceeding 446-447, suf- no evidence id. or where there was paired,” 16, 1984, date of the and the 7The Cass case was August decided on 20, 1985. September conduct here was alleged criminal defendant’s denying this judge’s order us does not include the 8The record before However, the motion agree that parties both because motion dismiss. argued appropriate- briefed and parties and because both have denied denial, as presented. we address the issue ness of the Commonwealth Lawrence. cause to arrest the defendant. Com
ficient to establish probable *7 monwealth McCarthy, Here, it is sufficient that the heard evidence say grand jury ample to establish the defendant’s and to establish probable identity cause arrest him.9 There was no error in the defend denying ant’s motion dismiss the indictments. Motion suppress. The contends that his state- defendant
ments to Robert the execution Trooper Murphy during search warrant were the of an and arrest product illegal he did not waive his knowingly, intelligently, voluntarily constitutional rights. evidence,
After
made the
find
hearing
following
25, 1985,
On
of fact.
ings
September
obtained
Trooper Murphy
a search warrant for
On
the defendant’s apartment.
September
27, 1985,
2:30
and two other
approximately
A.M.,
Murphy
detectives went
to the defendant’s
The defendant
apartment.
came to the door and asked
whether
had
they
come
Murphy
had,
about his wallet.
said
and that the wallet
Murphy
they
had been found a few feet from a
discovered
body
Stoughton.
At this
the defendant was advised of his
point,
under
rights
Arizona,
Miranda
The defendant had trouble and exhibited walking signs that he had been The defendant coherent drinking. appeared believed that the defendant understood Miranda and Murphy rights. at the kitchen table while and the defendant spoke
Murphy The defendant the other officers were searching apartment. 20,1985. he had been robbed on told how September Murphy the defend- After the seized a knife from underneath police as some including corduroy ant’s mattress as well clothing, bloodstained, believed he which to be Murphy pants appeared The defendant was had cause to arrest the defendant. probable and taken to the station booking. then arrested police *8 cause The ruled that the had probable motion judge police statements, seizure of based on his the to arrest the defendant the seizure of the Klein blood-stained and corduroy pants, knife, him which he claimed had been taken from by brand the was also found that questioning the assailant. The judge kitchen, coercive, in the defendant’s own not since it took place duration, and was not in manner threatening was of short under that the defendant was not The also found style. judge calm and or alcohol and the influence of any drugs appeared circumstances,” the judge oriented. Based on the “totality voluntarily, that “the defendant waived rights concluded stated that Although judge and knowingly intelligently.” voluntarily made and the defendant’s statements “were freely was that the defendant while in found custodyhe explicitly took place under arrest until after the questioning placed does That misstatement not require (emphasis supplied). arrest” when defendant was “under Murphy conclusion warrant. to execute the search arrived and the other officers the conclusion command The judge’s subsidiary findings during arrest questioning. the defendant was not under defendant of his Miranda rights advised the fact that Murphy under that the defendant does not mandate the conclusion 333, n.2 Parker, 339 402 Mass. Commonwealth v. arrest. 336, Medeiros, 345-346 (1988). 395 Commonwealth Alicea, 376 Mass. Commonwealth v, Lawrence. Bryant,
Cf. Commonwealth v. 390 Mass. 742 n. 15 (1984). 10 conclude that
We also defendant judge’s finding waived his constitu knowingly, voluntarily, intelligently tional and the that the Commonwealth rights ruling itsmet burden of were free of error.11 proof
3. Motion to admit evidence. “A defendant third-party may that tends introduce evidence to show that another com person motive, intent, mitted the crime or had the opportunity Harris, commit it.” Commonwealth v. 395 Mass. crimes,
(1985) . Evidence of other committed another per son, is if admissible “are so connected closely they point of time and method of as cast doubt operation upon identification of defendant as the who committed person [the] Id., Keizer, the crime.” quoting However, be should not too “[t]he remote in time or too weak in and it should probative quality, be related to facts of the case closely against the defendant.” Harris, Commonwealth v. supra, Commonwealth v. quoting Graziano, 329-330 has considerable discretion in whether determining proffered evidence meets these conditions and thus whether admit the evidence.12 *9 10The determination that Trooper had cause to Murphy probable arrest the amply supported by defendant was finding evidence. Even a interrogation
that an
is “custodial”
not
a finding
tantamount
that the
Bryant,
person being questioned
was under arrest. See Commonwealth 390 Mass.
736-737
11The defendant alludes
argument
to the issue
voluntariness
in his
However,
regarding the
validity
rights.
his waiver of his Miranda
judge
submitted to
amply supports
motion
the conclusion that
the defendant’s
statement
Murphy
voluntary.
Parker,
Callahan,
supra at 340-341. Commonwealth 401 Mass.
Wills,
768, 775-777 (1986).
Commonwealth v.
630-631
398 Mass.
12The defendant
by
raised the issue
limine
pretrial
means of a
motion in
because,
admissible,
than
rather
at trial
if the evidence was deemed
could have the
of compulsory process
benefit
bring
prospective
witnesses
in
testify.
forward
sufficient
time to
did
The Commonwealth
object to this procedure.
the criteria for admissibility. committed at least a month after offenses was ‘third-party’ went for which defendant is charged,” the offense [the] the differences between into considerable detail in explicating in this case. We conclude crimes and the homicide the various in did not abuse his discretion excluding the judge v. Gera evidence. See Commonwealth third-party proffered (1969); Murphy, Commonwealth v. way, Jewett, (1933). Cf. 597-600 Commonwealth v. 562-563 Trial. a voir dire of each
1. Voir dire. The defendant argues in difference race be was mandated juror prospective The defendant’s argument tween the defendant the victim.13 voir dire racial that he was entitled to individual concerning of our decision in Commonwealth v. Young, because prejudice case, that the Young overlooks fact trial, defendant’s an decided more than one after the year for voir dire rule requests nounced a governing prospective we in murder cases. Id. at 398. As racial concerning prejudice and the mere fact that the defendant stated Young, “the does not constitutionally victim are of different races impose race.” Id. at 400. “Nothing voir dire on the issue of mandated awas target in the indicates that the defendant special record bias, was not and the of racial prejudice of racial subject issue in the trial.” Id.14 that the The defendant contends plea. Refusal Alford entertain abused his discretion by declining
trial judge v. Alford, of North Carolina the circumstances guilty plea record fails because the This argument U.S. plea regarding possible reflects that the discussions Alford nature. exploratory purely *10 13 the defendant is white. The victim was black and 14 the was black jurors that victim judge prospective did inform the The they were if pregnant months’ and asked them and was seven approximately the or the or toward either any prejudice “aware of bias in case.” Defendant this 404 389 Mass. 378
Commonwealth Lawrence. that the The record discloses was willing go prosecutor to a of forward with reduced murder guilty plea charge the but second maintained his to reduce degree, unwillingness an the The charge purposes plea.15 prosecutor Alford either or maintained the defendant should admit his guilt have his in court. day
At the no time did defendant state that he was explicitly to enter a but the same time assert his willing guilty plea, case, innocence. In there was no error since “there is no any constitutional the The have matter is right plea accepted. discretionary Commonwealth v. Di wholly judge.” lone, 281, (1982) 385 (no abuse of discretion even if had reject judge plea practice rejecting pleas, Alford where other would have such judges Cf. Com accepted pleas). Watson, monwealth v. (1984); 393 Mass. Common Souza, wealth v. 390 Mass. The defendant Photographs. complains photographs the victim’s as it
depicting when it was body discov- appeared fetus, ered and an which were intro- autopsy photograph trial, duced at were and denied due prejudicial thus him process. did not abuse his discretion determining value
probative photographs outweighed any prejudicial effect.
“The admissibility evidence is a left matter photographic to the sound discretion of bears defendant judge, burden of heavy abuse of that demonstrating discretion.” Glowacki, Commonwealth v. 398 Mass. See Commonwealth v. Richenburg, photographs naked victim with her hands depicting her,
bound beneath that she showing suffered numerous buttocks, on bruises her relevant to unquestionably issue whether the victim had been killed with extreme atrocity See cruelty. Commonwealth v. Com- Richenburg, supra; 15Apparently the prosecutor willing charging to have the indictment murder fetus filed in return for the admission on the defendant’s other indictment. It well prosecutors settled that have substantial discretion entering into and structuring See negotiations. plea Smith, *11 378
390 Lawrence. Commonwealth v. Benoit, v. 429 photo
monwealth the with the medical were also relevant assisting jury graphs he because the testimony examiner’s decomposition, a could not establish cause of death. Commonwealth precise denied, 477 v. Mass. cert. Nadworny, 396 to (1986). The the fetus was relevant U.S. 904 photograph the its and thus the show gestation physical appearance victim’s to a third party. pregnancy dire, he admitted conducted voir photographs judge and excluded the ones found cumulative and found relevant the that the photo and instructed prejudicial, possibly the evidence and “are not were to used analyzing be graphs v. to See Commonwealth sympathy.”16 elicit any designed 673; at Nadworny, supra Commonwealth Richenburg, supra Sielicki, 367; abuse of discretion. There was no The defendant findings. 4. Denial motion required for it the-trial his motion was error for judge deny argues because the evidence was for of not findings guilty required death, the and agency, cause of criminal insufficient prove the fetus. There was assailant’s knowledge presence the on each issue to withstand defendant’s sufficient evidence motion. of death was not death. “The fact that cause
a. Cause of not of itself from the does body preclude ascertainable was by that the victim’s death Commonwealth from proving beyond criminal of the defendant agency violence and the Nadworny, reasonable doubt.” of fact no reasonable trier contention that The defendant’s occurred overlooks fact could find that homicide that the ruled out natural causes opined medical examiner of a homicide. victim died as result it was also sufficient There Agency. b. her fetus. Cf. Common- killed the victim and the defendant who “You are reminded also instructed: charge jury, 16In his sympathy emotion presented generate are not pictures that the but, rather, case.” particular in this determining to assist facts you victims wealth v. at 356. Evidence that the defend- Nadworny, supra ant’s effects and identification were found near the personal *12 that a blood-stained knife was seized from under body, mattress, that a sheath that knife was found near the matching seized from his was stained with body, clothing apartment blood which matched the victim’s there were traces type, automobile, of human blood on the interior of his and the versions of the the defendant told differing alleged robbery his roommate and the warranted the verdicts. police, jury
c. Fetus. The defendant’s that there was no evid- argument ence that the assailant knew the victim was is also pregnant victim, without merit. The who was five feet tall and weighed 110 to 115 was in the third trimester approximately pounds, of her The medical examiner testified that her pregnancy. ab- distended, domen was and at the time the fetus quite weighed This, two and one-half approximately with pounds. coupled the fact that she was found naked with her hands bound in her, front of the reasonable inference that her killer supports of the cognizant pregnancy. 5. The prosecutor’s closing defendant argument. claims that various occurred improprieties during prosecutor’s closing The defendant argument. at trial objected that the pros ecutor’s of sexual allegation was not activity supported by evidence; that it was to comment on the defense improper tactic of reasonable creating doubt by charging inadequate police investigation that it was for the procedures; improper doubt; to comment on what prosecutor constitutes reasonable and that it was to refer to as the conscience improper jurors of the The defendant community.17 that the cumulative argues effect of these remarks warrants reversal. allegedly improper
“The rules are governing prosecutors’ closing arguments clear in We have never criticized a principle. prosecutor for a conviction based on the arguing forcefully ” on inferences that be drawn from the evidence. may reasonably 17Although the defendant timely objection made a to the prosecutor’s closing argument, he did request any any curative instructions on Habarek, the remarks he now claims warrant reversal. See Commonwealth v. 402 Mass. 110-111 & n.2 311, 315 Pontes, (1988), v. 402 Mass. quoting
Commonwealth Kozec, v. 399 Mass. “In re a claim argument, prosecutor’s analyzing improper be of the ‘entire as well argument, marks must viewed light and the evidence instruction as light ” Lamrini, at trial.’ Commonwealth v. Bourgeois, quoting Pontes, 316; Com supra See Commonwealth Dougan, Applying monwealth not warrant we conclude that the remarks do these principles, reversal. defendant the inference that the warranted
The evidence as victim as well having sexual activity engaged *13 wallet, acts.” The defendant’s pen, committed “bizarre was nude. scene and the victim found were at the murder belt took off his inferred that the assailant pants Thus it could be and that with the victim to in sexual activity in order engage items fell out his prosecutor’s his pockets. personal the victim’s buttocks bruises on also the remarks explained consistent with the examiner were which the medical opined The fact that an at the scene. empty on the belt found pattern the found in the jacket wás found pocket condom package that sexual an inference to also supports next a nude body Corriveau, v. occurred. See Commonwealth have may activity Kozec, (1985). Contrast Commonwealth v. Mass. 337 396 at 524. supra de- the concerning remarks
The essence prosecutor’s con- to the defendant trying trial tactics was “that fense’s from their attention away diverting and distract the jury by fuse Shea, 401 v. his the evidence of guilt.” strong that Indeed, conceded the prosecutor 739 more, that but suggested have done should the police perhaps In not convictions. case did preclude the lack of perfect could addition, they instructed the jury explicitly relevant evidence or preserve the failure produce consider tests, doubt a reasonable regarding “as raising or to conduct guilt.” the Defendant’s Lawrence. claim that the
The defendant’s the reference to prosecutor’s as “conscience of the and his comment jury community” what constitutes reasonable doubt were regarding improper also without merit. Because the had to assess whether the extreme or occurred with did killing atrocity cruelty, they speak as Com conscience. See community’s representatives Atkins, monwealth 600-601 defendant’s brief not does misstatement identify any doubt, what constitutes reasonable how prosecutor regarding comments have “trivialized and misstated prosecutor’s may the Commonwealth’s burden of See Mass. R. A. P. proof.” amended, (a) event, as Mass. 919 In any remarks with the def prosecutor’s complied long-standing inition what constitutes reasonable doubt contained in Com Webster, monwealth Cush. case. We Reopening also find refusal
allow the defendant to case his after reopen closing arguments but in order to an prior jury charge additional present did witness violate defendant’s constitutional right witnesses in his own present behalf.
In case, leave requesting the defendant told reopen the trial individual could that “he had testify Brockton,” been on Street in Spring and “that he could have name given his to a but “that he had prostitute,” never given *14 his name to a woman.” pregnant
A defendant’s constitutional to call not right witnesses is Blaikie, Commonwealth v. absolute. 601, 375 Mass. (1978). witness, refusal to judge’s case to hear a reopen who victim, did not know the and who could recall any details the time concerning or date had been on Spring Street, did not interfere with the defendant’s to establish ability a defense. Id. There was no error. instructions. Jury defendant mounts an attack on the theoretical,
judge’s charge is mostly scant relation- bearing to the actual ship in this case. claims that the proceedings He (a) instructions shifted the burden of on the of issue proof inferences, (b) failed to a include instruction requested the Commonwealth must intent on the matter prove specific (c) failed to include a requested
of extreme or atrocity cruelty, intoxication, (d) the burden of on shifted voluntary instruction malice, (e) failed to include a on the issue of requested proof of two inconsistent instruction regarding proof equally propo- sitions, of (f) an on consciousness charge included improper a on vol- failed to include instruction (g) and guilt, requested we charge of statements. In reviewing judge’s untariness must be determined note that “the of instructions adequacy v. over-all on the Commonwealth of their jury.” light impact Callahan, 627, Commonwealth 401 Mass. quoting Sellon, Because the alleged 231-232 intoxication, malice, inferences, voluntar- errors regarding trial, we review them iness were not raised pursuant properly 33E, § c. to determine whether there to G. L. solely of Common- miscarriage justice. substantial likelihood of Callahan, in its After reviewing charge wealth supra. con- regarding we find that the instructions entirety, judge’s of or and burden extreme cruelty, sciousness guilt, atrocity do other of the instructions and the proof proper, aspects of a justice. not create substantial likelihood miscarriage that the should a. The defendant argues Inferences. inferences, the in order to draw have instructed the jury beyond facts subsidiary must prove No such instruction was required. reasonable doubt. “[T]he be drawn therefrom and the inferences permitted minds of intelli- ordinary ‘of force to bring must be sufficient a reason beyond gence [guilt] sagacity persuasion Latimore, able doubt.’” Furthermore, charge portion states in his brief erroneous the defendant contends which v. Cor- of law. Commonwealth correct propositions entirely riveau, 339-340 See Commonwealth 354-356 v. Nadworny, The defendant atrocity cruelty. argues b. Extreme that, in to convict order should have been instructed extreme on the theory murder in the first degree him of *15 must or the Commonwealth prove atrocity cruelty, was his conduct knowledge defendant had the “subjective cruel such and atrocious.” We an expressly rejected argument Sinnott, 863, (1987). Commonwealth v. 399 Mass.
c. The Voluntary intoxication. requested charge regarding not intoxication was because the voluntary Common required wealth is a reasonable doubt the required beyond prove absence of intoxication. Commonwealth v. Sylvester, 334, (1987). Costello, Mass. 337-338 Commonwealth v. 393, Thus, 404-405 issue was “whether there intoxication enough require judge, sua to instruct the on the effect intox sponte, jury voluntary ication and whether failure to instruct on intoxi voluntary cation in a resulted substantial of a likelihood miscarriage Fano, 296, justice.” Commonwealth v. 400 Mass.
The with the defendant’s claim is that “primary difficulty the defense was not one of intoxication. defendant did not on intoxication as a at rely factor in the mitigating any point Fano, trial.” Commonwealth v. The defendant’s trial supra. “Thus, was that he had strategy do with the nothing killing. there was no notice to the at judge intoxication any point or the defendant’s mental was an issue.” Id. capacity Further more, there was little evidence of the defendant’s intox being offense, icated error, at the time of the and thus “there was no much less a substantial likelihood of a of justice, miscarriage because the did not instruct on issue.” at this Id. 307- 308.18
d. Malice. We have reviewed the malice instruction judge’s and conclude if the judge was imprecise any way, there was no substantial likelihood of a certainly miscarriage fact justice. judge’s reference to the that malice may be inferred from an “intentional use deadly weapon where a victim bound or beaten” was not repeatedly improp er. 358; See Commonwealth v. Nadworny, Common supra Albert, wealth v. 391 Mass. 859-860 18This case does not involve situation where the instruction See, e.g., foreclosed the from considering evidence of intoxication. Parker, (1988); v. 402 Mass. 336-337 Glass, Tevenal, (1988); Commonwealth 809-810 Fano, (1987); Commonwealth 230-231 305-307 *16 378
396 v. Lawrence. The e. inconsistent defendant’s Equally argu- propositions. that was for the not to instruct the ment it error judge jury of inconsistent out evidence arising “that equally propositions trial of in a criminal do not constitute either” presented proof does is without merit since the defendant not identify any to evidence that rise two inconsistent gives equally proposi- tions, with innocence. See Mass. one of which is compatible (a) A. P. instructions the R. 16 regarding innocence and the Commonwealth’s ex- defendant’s presumed of the substance of the clusive burden covered requested proof Wills, See Commonwealth v. 779-780 charge. Toney, In Commonwealth v. f. Consciousness guilt. of to a con we indicated regard the the should instruct sciousness of instruction guilt “judge the (1) not to a defendant on basis that are convict they jury (2) . . . and that of evidence of or concealment alone flight not, such evidence as one of the but need consider may, they (citation the of defendant” factors to tending prove guilt omitted). instructions19 false statements The judge’s regarding as evidence of consciousness of satisfied guilt and concealment substance, of See Com Toney. if not both prongs explicitly, (1988); Common monwealth Lapointe, There was no error. at 370-371. Nadworny, supra wealth that erred The defendant the judge Voluntariness. argues g. disregard any to must they when failed charge to the defendant unless out-of-court statement imputed thing. briefly other jury: “Let me touch on one instructed the law calls type made of evidence of a There has been mention case, statements talking this we’re about false guilt. of In consciousness Now, this action of a knife. knowingly, that are made and concealment However, guilt. of consciousness of may give implied rise to an admission feelings guilt. of by something than may actions be other prompted such Moreover, may, You feelings may people. be in innocent guilt present tending prove one factors such evidence as but need consider guilt of the Defendant. not sufficient standing alone is guilt “Finally, evidence consciousness Defendant, it considered other may but be convict a reasonable guilt beyond if has been established determine the Defendant’s doubt.” reasonable doubt beyond proves was a of a intelligent,
statement volun knowing, product However, waiver his defendant fails to tary rights. point evidence which rendered the voluntariness either any *17 a waiver or his statements “live issue” at trial. See Common 915, (1983); wealth v. Day, 923 Richmond, v. Without a 379 560-561 and without evidence voluntariness indicating proper request as a live there was no likelihood of a miscar issue substantial of from the lack of instruction on the issue. riage justice § Examination under G. L. c. 33E. After reviewing the record in its we find that the entirety, verdict of murder in the first the degree was evidence and conclude supported by Therefore, there has been no of we decline miscarriage justice. § relief under 33E. grant Conclusion . we the
Accordingly, affirm conviction of murder in the first also affirm the of degree conviction involuntary manslaugh- ter. See note supra.
Judgments affirmed. J. I continue (concurring). to adhere to the views Abrams, Cass, the expressed by dissent Commonwealth v. 808 “The the question whether of viable killing
fetus should be crime present separate [in circumstances] is for the as a Legislature matter of wise social id. at policy,” (Wilkins, J., 809 dissenting), constitutional limi subject tations that this court and the United States Court Supreme have “The set. of Commonwealth in public policy determine, creation of crimes is not for court for this but Corbett, v. Legislature.” Commonwealth (1940). Nevertheless, the Cass is the law this Commonw case ealth.1 I therefore concur. determine, As far I can as South only Carolina is the other State which has extended case law the definition homicide to include a viable Horne,
fetus. See State Superior Keeler S.C. 444 Compare
Commonwealth Lawrence. to his arguments The defendant makes three respect First, conviction for the death of fetus. argues does a fetus as a human Massachusetts law not recognize being law of murder. for the common crime construing purposes Cass, is incorrect in which This argument light clearly but the vehicular homicide statute also addressed only Cass, Second, at 807. the defendant common law. See supra is to make feticide as if court punishable argues homicide, law it do so because the only should prospectively that such conduct was insufficient notice gave perpetrator merit, as without Cass forbidden. This argument similarly be criminal notice that there would thenceforth gave ample Third, the defend- for feticide these circumstances. liability Wade, Roe v. 410 U.S. precludes ant argues a determination that fetus is human being purposes *18 common law murder. case, Cass, criminalizes well as acts violence
This
as
the
The defendant cannot claim
mother.
against
perpetrated
reasons or that
that his acts were
health
they
performed
or
decision
a
the result of a medical
by pregnant
personal
Thus,
the acts of violence in murdering
pregnant
woman.
or
are
acts
constitutional
by
statutory
woman
not
protected
2
abortion, in
Further,
context of clinical
which
even
law.
Roe
v. Wade
implicated,
permits
the mother’s right
privacy
after the third trimester
abortion
except
State
proscribe
at 164-165.
life
health is in
Id.
danger.
when the mother’s
or
Thus,
contention
Roe v.
does not
the defendant’s
Wade
support
McCall,
(Fla.
Court,
(1970);
Dist.
2 Cal. 3d 619
State
v.