36 Mass. App. Ct. 958 | Mass. App. Ct. | 1994
We deal first with an issue collateral to the trial of the defendant. On the morning of December 15, 1991, an anonymous telephone caller informed the Brockton police that there had been a “shootout” at 14 Curve Street, Brockton (Matos’s address).
Matos also appeals from: (a) the denial of his motion for a required finding of not guilty; (b) the jury instructions on proximate cause; (c) the jury having been instructed on the elements of involuntary manslaughter over his objection; (d) the denial of his request that the Commonwealth be required to refer to him as “the accused” rather than “the defendant” during trial; and (e) the denial of his pretrial motions to suppress inculpa-tory statements.
1. The motion for a required finding of not guilty. Matos offered as a theory of defense that the shooting was either a suicide or, alternatively, an accident and argues that the Commonwealth, at the conclusion of its case, had failed to present evidence that would support a finding that
There was evidence that a witness, Llubere Rodriguez, observed a pistol on Matos’s person the evening of December 14. The same witness testified that on the morning of December 15 he was awakened by the sound of a gunshot, and, when he went into the next room, he saw Matos holding a pistol that looked like the same one the witness had seen the night before. Matos was standing two to three feet away from the victim, who was lying on the floor with a bullet wound in his head. The Commonwealth’s forensic pathologist testified that the wound was not self-inflicted. The manner of death was homicide — the range of fire was “distant,” i.e., the shot was fired from a distance “greater than two to three feet” from the victim’s head. A ballistics expert testified that his tests of the pistol recovered by the police from 41 Clinton Street, Brockton,
2. Jury instructions on proximate cause. The trial judge instructed the jury twice on the issue of proximate cause — once while defining an unlawful killing in the context of first and second degree murder,
“Jury instructions must be construed as a whole to prevent isolated misstatements or omissions from constituting reversible error.” Commonwealth v. Owens, 414 Mass. 595, 607 (1993). See also Commonwealth v. Campbell, 378 Mass. 680, 706 (1979). The proximate cause instructions, taken together, comport with the language required by Commonwealth v. Rhoades, 379 Mass. 810, 823-825 (1980), and Commonwealth v. Askew, 404 Mass. 532, 533-534 (1989), even though the judge used the words “but for” instead of “without which.” There was no error. The case law does not require an instruction that the jury must find that the defendant’s act was a “substantial cause” of the victim’s death. As the judge observed, such an instruction might tend to harm rather than help the defendant.
3. Involuntary manslaughter. Matos argues that it was error to instruct the jury on the elements of involuntary manslaughter after he specifically objected to such an instruction. The trial judge, adverting to Commonwealth v. Martinez, 393 Mass. 612, 613 (1985), observed that a rational
4. Request to be referred to as "the accused.” Matos cites no authority in support of his argument challenging the denial of his motion to be referred to as “the accused” at trial. None appears to exist. Even when the identification of the defendant as the perpetrator of the crime is the critical issue, referring to him as “the defendant” is not improper. Commonwealth v. Brown, 414 Mass. 123, 125-126 (1993). The trial judge gave preliminary instructions that the jury were not to draw any adverse inference from the fact that Matos was referred to as the defendant and did so again at the end of trial. Jurors are presumed to follow the trial judge’s instructions. Commonwealth v. Cameron, 385 Mass. 660, 668 (1982). Commonwealth v. Pope, 406 Mass. 581, 588 (1990).
5. Denial of motion to suppress inculpatory statements. In connection with the motion of Matos to suppress certain pretrial statements, we accept the motion judge’s subsidiary findings of fact absent clear error, Corn-
Judgment affirmed.
The caller was later identified as Maribel Serrano, Matos’s girlfriend. She claimed to have slept through the shooting.
The kidnapping charge was not pursued.
The Clinton Street address was the sometime residence of another occupant of the Curve Street apartment, Daniel Gonzales. There was evidence that Matos had gone to that address after the victim’s death.
There was additional evidence connecting Matos with the crime. After his arrest, at the request of the police, Matos led them to a pistol, which was partially buried in leaves and dirt in a gully behind the building at 41 Clinton Street, Brockton. When questioned by the police, Matos offered conflicting stories regarding the man
The first instruction defined an act that is the proximate cause of death as “an act which, in a natural and continuous sequence, produces the death and without which the death would not have occurred.”
If the jury had believed portions of Matos’s statements to the police, they could have inferred that Matos gave his loaded pistol to the very drunk victim, who shot himself with it.
The evidence at the suppression hearing established that, at the time of his examination at Bridgewater State Hospital, Matos was not mentally retarded or suffering from any mental disease or personality disturbance. In fact, there was evidence that Matos had no communication problems and was possessed of normal intellectual functions.