423 Mass. 288 | Mass. | 1996
In December, 1993, a Suffolk County jury convicted the defendant, Keyma Mack, of premeditated murder in the first degree.
The defendant appealed and asserts these claims of error: (a) the instruction on reasonable doubt was constitutionally defective, (b) the failure of the judge to instruct on the offense of manslaughter was reversible error, (c) forcing the defendant to choose between appearing in the confines of a police automobile during a view or not going at all violated the defendant’s right to due process, (d) admission of evidence of consciousness of guilt was more prejudicial than probative of the defendant’s guilt, and (e) the judge’s alleged refusal to allow the defendant to call witnesses on his own behalf violated his right to due process.
1. Request for manslaughter instruction. Trial counsel asked for a jury charge as to involuntary manslaughter,, a request the judge rejected. A judge must give such an instruction whenever any view of the evidence would permit such a verdict. Commonwealth v. Sires, 413 Mass. 292, 301 (1992). Counsel contended that the defendant may have only fired the weapon in order to scare the victim.
The evidence, taken most favorably to the defendant, did not support an involuntary manslaughter instruction for the same reasons discussed in Commonwealth v. Sires, supra. After firing a warning shot into the air, the defendant chased the victim down the street, firing several times, all in the direction of the victim. Cf. id. at 303 n.13. Absent some evidence that the defendant’s knowledge was impaired,
2. Miscellaneous claims. The defendant’s other claims need not detain us long.
(a) There was no error in the jury instructions regarding the standard of proof.
“This we take to be proof beyond reasonable doubt; because if the law, which mostly depends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether.”
See Victor v. Nebraska, 511 U.S. 1, 13-14 (1994) (“beyond a reasonable doubt” is a state of near certitude). We have also noted that the concept of reasonable doubt is not a mathematical one, and the judge was entirely correct in so informing the jury. See Commonwealth v. Rosa, 422 Mass. 18, 28 (1996). We do not require that judges use any particular words to instruct the jury, and here the judge’s instruction was an exceptional one. See Commonwealth v. Gagliardi, 418 Mass. 562, 568 n.3 (1994), cert, denied, 513 U.S. 1091 (1995).
(b) The judge gave the defendant the option of attending the jury’s view of the crime scene if the defendant was in a police car and some distance away from the jury. After consultation with trial counsel, the defendant decided not to participate in the view. No objection was lodged. Indeed, a defendant has no right to accompany the jury on their view. See Commonwealth v. Gordon, 422 Mass. 816, 849 (1996), and cases cited. The defendant concedes as much, and we decline the invitation to overrule a long-standing rule.
(c) The defendant was taken into custody when Springfield police arrested him on a warrant relating to a June, 1992, robbery, wholly unconnected with the March killing of Pires in Boston. After voir dire, the judge ruled that some of the defendant’s statements to the Springfield police, including the use of a false name, were admissible to show consciousness of guilt.
We have reviewed the entire record pursuant to our duty under G. L. c. 278, § 33E. There was no error or reason to reduce the verdict to a lesser degree of guilt.
Judgments affirmed.
The jury also returned guilty verdicts on one indictment charging unlicensed carrying of a firearm, G. L. c. 269, § 10 (a) (1994 ed.), and one indictment charging unlicensed possession of ammunition, G. L. c. 269, § 10 (h) (1994 ed.). We consolidate review of those convictions with our statutorily mandated review of the murder charge. See, e.g., Commonwealth
The judge imposed the mandatory life sentence for the murder conviction and a concurrent sentence of from three to five years on the firearm conviction. The conviction for unlawful possession of ammunition was placed on file with defendant’s consent and is not a part of this appeal.
The defendant offered no evidence in his defense.
As to some of these claims of error, no objection was made; hence, the standard of review (assuming error) would be whether there was a substantial likelihood of a miscarriage of justice. G. L. c. 278, § 33E (1994 ed.). Commonwealth v. Fruchtman, 418 Mass. 8, 20 n.15, cert, denied, 513 U.S. 951 (1994). To simplify matters, we have determined, whether an objection was made or not, there was no error.
There was some evidence that the defendant smoked marihuana shortly before the killing, but no showing that such had any effect on the defendant’s state of mind. See Commonwealth v. Sires, 413 Mass. 292, 301 (1993).
After reciting from Commonwealth v. Webster, 5 Cush. 295, 320 (1850), the judge stated:
“Now, the Commonwealth is not required to prove the case to an absolute certainty. The Commonwealth is not required to prove the case to a mathematical certainty. Mathematical certainty is that level of certainty that you will have if you add two and two and arrive at four. The Commonwealth is not required to prove its case to an absolute or mathematical certainty, but it must prove each and every element of the charge beyond a reasonable doubt.”
The judge excluded evidence that the defendant tried to avoid arrest for unrelated charges by running away from a Springfield police officer.