Commonwealth v. NolanCommonwealth v. Nolan
The defendant appeals from his conviction of murder in the first degree on the theory of deliberate premeditation. He chаllenges (1) the denial of his motion to dismiss on double jeopardy grounds, (2) the admission of a witness’s rec
The jury could have found the following. On May 31, 1990, the victim, Claude E. Stewart, was fatally shot at the comer of Ditson and Josephine Streets in the Dorchester section of Boston. The shooter had emerged with two other men from a vehicle driven by Marilyn McClure. Testifying under a grant of immunity, she identified the defendant as one of three men in her vehicle. He was wearing a hat, and all three were armed. In a reсorded statement to the police, the admission of which the defendant challenges, McClure said that the defendant had identified thе victim, saying, “Well, there he is. There he goes right there.” The three men left the vehicle. She heard shots. Two men reentered the vehicle directly; McClure picked up the defendant down the street. One witness said that the shooter was a tall man wearing a hat. McClure said, in hеr recorded statement, that all three men smelled the powder from their gun barrels and that they were not certain whether they had hit thе victim. The victim was killed by a bullet from a nine millimeter handgun. The police recovered fifteen spent shell casings from that gun at the scene.
1. Five days before the trial commenced at which the defendant was found guilty, a Superior Court judge granted a mistrial on the same indictment on the motion of the defendant. The defendant asserts that the second trial judge erred in denying his motion to dismiss based on double jeopardy grounds. He claims that the first trial judge provoked him into moving for a mistrial. '
If a defendant has moved successfully for a mistrial, he waives аny double jeopardy challenge to a retrial unless the judge or the prosecutor intentionally provoked the defendant intо moving for a mistrial. United States v. Aguilar-Aranceta,
The defendant does not make out a case of intentional provocation, such as bad faith conduct or overreaching, by the first trial judge. Marilyn McClure was the оnly witness at the first trial. Her testimony was not as complete as her statement to the police. The prosecutor was unsuccеssful in getting her to refresh her memory. The judge made a suggestion to the prosecutor as to how to proceed, to which defense counsel objected. When the trial continued, the prosecutor sought to lay a foundation for admission of McClure’s recorded statement to the police. A further colloquy between defense counsel and the judge led the judge to inquire whether defense counsel thought that the judge was assisting the prosecution or siding with the prosecutor. Although defense counsel denied that that was his position, the judge said that he would declare a mistrial if defense counsel moved for it. Defense counsel consulted with his client and moved fоr a mistrial.
There is no indication that the judge intended to provoke the defendant into moving for a mistrial. Neither judicial bad faith nor overreaching appears in the record. The judge extended the option of a mistrial to the defendant and, after consultatiоn with counsel, the defendant elected to accept the offer. The defendant seems to be “trying to fault the judge for an effоrt to be fair to him.” Commonwealth v. Patten,
2. Over objection, the Commonwealth was permitted to introduce the tape recording of McClure’s June 3, 1990, statement to the police. The Commonwealth correctly argues that the statement was admissible, in the judge’s discretion, as past recollection recorded, an established hearsay exception.
A memorandum or recording may be admissible under this exception if (1) the witness has no revivable recollection of the subject, (2) the witness had firsthand knowledge of the facts recorded, (3) the witness can testify that the statement was truthful when made, and (4) the recording was made when the events were fresh in her memory. See Commonwealth v. Bookman,
The defendant does not challenge the admissibility of the recording on any other ground. McClure’s statement was recorded four days after the killing. She testified that what she said in the recording was true to the best of her ability at the time of the recording. The judge did not abuse his discretion in admitting McClure’s recorded statement.
3. The evidence warranted the submission of the case to the jury on the theory that the defendant was either the principal or a joint venturer in the killing. For this reason, the failure of defense counsel either to seek a jury instruction limiting thе theory of his guilt or to obtain separate jury determinations on the two alternative bases for determining his guilt of deliberately premeditated murder did not prejudice the defendant, much less cause a substantial likelihood of a miscarriage of justice. The jury did not havе to be unanimous in concluding that the defendant was either the principal or the joint venturer. See Commonwealth v. Cowels,
4. The judge’s instruction describing all threе prongs of malice, although only the intention to kill is relevant to a charge of premeditated murder in the first degree, did not create a substantial likelihood of a miscarriage of justice. His instruction on deliberate premeditation was correct and required that the jury find, beyond a reasonable doubt, an intention to kill before they could find deliberate premeditation warranting a verdict of guilty of murder in the first degree. See Commonwealth v. DiBenedetto, ante 414, 425 (1998); Commonwealth v. Johnson,
Judgment affirmed.