429 Mass. 271 | Mass. | 1999
The defendant, Peter P. Roderick, was convicted of murder in the first degree, on a theory of felony-murder, and two indictments charging armed assault with intent to rob. He appeals from these convictions. We affirm the judgments of the Superior Court.
I
The defendant and an acquaintance, Archie Readus, knocked
According to another resident of the house who spoke with the defendant and Readus while they were seated in the common area, both the defendant and Readus asked him if he had any drugs, and the defendant had one hand inside his jacket as he asked. The resident testified that he told the men that the only person in the house likely to have any drugs was the victim. The defendant testified that, after waiting on the first floor of the house for almost fifteen minutes, he and Readus wondered what had happened to their money and climbed the stairs to the hallway outside the victim’s room. Hearing a noise in the stairway, the woman opened the door between the hall and the stairway to see the defendant and Readus waiting outside. According to her testimony, she protested to Readus that he should go away because the victim did not like other people coming up to his room. She testified that Readus pushed the door open and pushed her down the hallway, beyond the door to the victim’s room. From where she stood, she saw the defendant pull a black handgun from his coat. She saw Readus remain in the hallway outside the victim’s room and heard the victim’s door being broken. She heard the sounds of a scuffle inside the room and heard someone shouting, “give me,” and the victim saying, “me no have.” When she heard a gunshot, she ran down the stairs.
Another man who was inside the victim’s room at the time of the murder also testified for the prosecution. He testified that two men appeared in the doorway, but only one of them, a man with a black handgun, came into the room. That man put the gun to the witness’s neck, shoved him against the wall and
The defendant does not deny that he shot the victim, but his version of the events differs significantly from that of the prosecution witnesses. He testified that he had brought a gun with him to Brockton from his home in Connecticut, but that he had given it to Readus earlier in the day. He claims that when the two men went to the victim’s room, Readus stood in the doorway, demanding drugs and that his money be returned. Readus pulled the gun and entered the room, but the defendant grabbed the gun away from Readus and tried to push him out of the room. The defendant testified that he shot the victim when he saw the victim coming at him “full speed” with a machete in his hand.
n
Before trial, the defendant moved in limine to exclude evidence of his prior convictions, including a conviction for possession of a firearm. The judge ordered that this evidence should be excluded.
On cross-examination of the defendant, the prosecutor asked about the gun used to shoot the victim and then asked, “It’s not the first time you’ve carried a firearm, is it?” The court sustained the defense’s objection to this question, whereupon the prosecutor continued to inquire how the defendant had obtained the gun and why he had carried it with him on the day of the shooting. The defendant answered that “the gun was available and it was cheap. And I made a mistake, and I bought it.” The prosecutor then asked again, “So you’re saying this is the first time you’ve ever carried a gun?” Over the defense’s objection, the judge allowed this question, and the defendant answered, “This is the first time I ever carried a gun? Yes.” In response to further questions, the defendant testified that he did not know how to use the gun because he had never fired it and had bought it already loaded. With the judge’s permission, the prosecution then introduced evidence of the gun possession conviction.
The defendant’s primary argument on appeal is that the judge committed reversible error by permitting the Commonwealth to introduce evidence of the gun possession conviction despite the judge’s exclusion of that evidence on the motion in limine. He
Evidence of prior convictions may not be admitted as evidence of a propensity to commit a crime, see Commonwealth v. Trapp, 396 Mass. 202, 206 (1985), S.C., 423 Mass. 356, cert. denied, 519 U.S. 1045 (1996), but may be admitted to impeach the defendant’s credibility as a witness, so long as its prejudicial effect does not outweigh its probative value. See Commonwealth v. Carter, ante 266 (1999). More specifically, it may be admitted to rebut specific portions of the defendant’s testimony. See Commonwealth v. Bembury, 406 Mass. 552, 561-562 (1990). Whether such evidence, otherwise admissible, would be unduly prejudicial is a determination left to the trial judge’s discretion. See Commonwealth v. Maguire, 392 Mass. 466, 467-470 (1984).
In this case, the trial judge was well within his discretion in excluding evidence of the prior convictions on the motion in limine, but he also would have been within his discretion to admit it. Thus, introduction of the convictions for impeachment purposes clearly would not have been erroneous in the absence of the judge’s initial decision to exclude them, on which the defendant says he relied in choosing to testify at his trial. The question therefore remains whether either the prosecutor’s actions in inquiring about the defendant’s experience with guns or the judge’s decision to permit the introduction of the gun possession conviction was reversible enror in light of the order on the motion in limine.
Where the trial judge has ordered that certain evidence should not be admitted, the prosecutor should not ask a question that will inevitably lead to the introduction of that evidence. But that did not happen here. Asking whether the defendant had ever before carried or used a firearm would not necessarily lead to an inquiry into the defendant’s prior convictions. The defendant could have answered truthfully that he had carried a firearm in the past, and, in light of the judge’s order, the prosecutor would have had to leave it at that. Possessing and carrying a gun may be done lawfully, and testimony that the defendant had possessed a gun would not automatically lead the jury to believe that he had been convicted of doing so illegally. Therefore, the prosecutor’s question was not in violation of the
Rebuttal evidence has been permitted in circumstances very similar to those in this case. In Commonwealth v. Bembury, supra, the prosecution introduced evidence that the defendant had been convicted in 1969 of unlawfully carrying a firearm. This court held that introduction of that evidence was proper because it “directly contradicted [the defendant’s] testimony and suggested its falsity.” Id. at 562. Moreover, the gun possession charge was not so similar to the indictment charging murder in the first degree that there was any significant likelihood that the jury would confuse evidence of the conviction for evidence of the defendant’s propensity to commit the crime. See id. at 561. As in Bembury, the introduction of evidence of the defendant’s convictions was not improper.
m
The defendant also argues that the judge erred in denying his motion for required findings of not guilty, asserting that no reasonable trier of fact could have found beyond a reasonable doubt that the defendant was guilty of felony-murder. He contends that there was no reliable identification of the
There was no error in the denial of the defendant’s motion. “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be ... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318 (1979). Because the motion for required findings of not guilty was made at the close of the prosecution’s case, in considering whether the judge properly denied the motion, this court may consider only the evidence presented by the Commonwealth. See Commonwealth v. Borans, 379 Mass. 117, 134 (1979), and cases cited. On the evidence presented by the prosecution, the jury reasonably could have found both that the defendant was the shooter and that the defendant possessed the requisite intent.
The victim’s female associate testified that she saw the defendant pull a gun out of his coat and go into the room and that she saw Readus remain out in the hall. Another witness testified that only one man entered the room and that it was that man who held the gun. This testimony would have justified the jury in finding, at the end of the Commonwealth’s case, that the defendant was the shooter.
As to the intent to commit armed robbery, a police forensic expert testified that the door to the victim’s room had been broken in and that there was a visible footprint on the door. Several witnesses heard repeated, shouted demands for money after the defendant entered that room. A witness who had spoken with the defendant moments earlier heard the defendant’s voice demanding money. The witness who had been in the room with the victim testified that he was shoved against the wall with a gun to his neck as the demands were made. The jury could reasonably have concluded that the evidence showed beyond a reasonable doubt that the defendant intended to commit armed robbery.
IV
The defendant argues that there were several errors in the judge’s jury instructions, which, individually or in combination, require reversed of his convictions. None of the instructions to which he objects constituted reversible error.
This argument is without merit. The difference between murder and manslaughter is that manslaughter requires no finding of malice. See Commonwealth v. Wade, 428 Mass. 147, 154 (1998). In the felony-murder context, the intent to commit the underlying felony is substituted for the malice aforethought required for murder. See id.; Commonwealth v. Matchett, 386 Mass. 492, 502 (1982). This is known as “constructive malice.” Id. Thus, where the felony-murder rule applies, “[t]o make out a case of murder, the prosecutor need only establish that the defendant committed a homicide while engaged in the commission of a felony.” Id. Manslaughter is a homicide. If the jury had found that the killing would have constituted manslaughter if it had not been committed during the commission of the underlying felony, then, finding the defendant guilty of that felony, they were required to find the defendant guilty of felony-murder in the first degree. Indeed, in a similar case, this court decided that the judge need not give a manslaughter instruction at all, where the felony-murder rule applies. See Commonwealth v. Donovan, 422 Mass. 349, 353-354 (1996).
Second, the defendant objected to an instruction that malice “may be inferred — it does not have to be —■ from the intentional use of a dangerous weapon.” This was a correct statement of the law. See Commonwealth v. Albert, 391 Mass. 853, 860 (1984).
The defendant’s third objection to the jury charge is that it should have included an impairment instruction because of evidence in the record that the defendant had used cocaine on the night of the murder and a statement by one witness that the defendant was acting “paranoid” earlier in the evening. At trial, the defendant neither requested an impairment instruction nor
Fourth, the defendant argues that the judge erred in instructing the jury on the prosecution’s burden of proof with respect to provocation. The correct rule is that, where the evidence has “raise[d] the possibility that the defendant may have acted on reasonable provocation, the Commonwealth must prove, and the jury must find, beyond a reasonable doubt that the defendant did not act on reasonable provocation.” Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998), citing Commonwealth v. Boucher, 403 Mass. 659, 661 (1989). The defendant argues that the language used by the judge gave the jury the impression that they were required to find that the unlawful killing constituted murder unless the presence of provocation was proved beyond a reasonable doubt. The jury instruction in this case combined the correct rule with the incorrect statement of the law that this court found to be prejudicial in Acevedo, supra. Therefore, if a provocation instruction had been required in this case, the confusion that the instruction likely created in the minds of the jurors would have required reversal of the convictions.
In this case, however, the defendant was not entitled to any provocation instruction at all. The provocation instruction given, though erroneous, granted the defendant more protection than the law afforded him, and, therefore, could not have prejudiced him.
Moreover, even if adequate provocation had existed, the erroneous provocation instruction would not, as a matter of law, require reversal of the defendant’s conviction of felony-murder. The provocation defense negates malice, reducing an unlawful killing from murder to manslaughter. See Acevedo, supra at 715-716 (“[mjalice and adequate provocation are mutually exclusive”). Thus, if the jury had found adequate provocation to be present, the effect would have been only that they could not find that the Commonwealth had proved beyond a reasonable doubt the malice element of murder. In a felony-murder case, however, the Commonwealth need not prove the existence of malice. As discussed above, in such a case, the commission of the underlying felony serves as constructive malice. See Matchett, supra at 502. Therefore, even if the claimed provocation had been legally adequate, it would not have prevented the jury from finding the defendant guilty of felony-murder.
V
The defendant argues that this court should exercise its authority under G. L. c. 278, § 33E, to reverse his murder conviction because it was against the weight of the evidence and, as such, was a miscarriage of justice. We have reviewed the whole record. There has been no miscarriage of justice.
Judgments affirmed.
This conclusion is bolstered by the defendant’s prior testimony suggesting that he was a novice when it came to guns. This testimony justifiably led the prosecution to elicit evidence that the defendant in fact knew about guns and how to use them.
The defense requested and received an instruction on self-defense, which was entirely proper and to which the defendant raises no challenge on appeal. Indeed, the instruction on self-defense was more favorable than the defendant deserved because it did not mention the right of the victim to use deadly force without retreating when attacked in his home. See G. L. c. 278, § 8A.