The conviction of each of the brothers Young, Dion and Frank, on the charge of murder in the second degree 2 was the outcome of a series of events that began with a brawl near a 7-Eleven convenience store in Hyannis on June 26, 1990, and ended three weeks later at a birthday party in Barnstable where Anthony Edwards (Tony) was shot dead.
Each brother claims that his motion for a required finding of not guilty should have been allowed and that prejudicial errors were committed in certain other respects. We shall discuss the motions first, summing up the evidence most favorable to the Commonwealth (culled from the testimony of twenty-nine witnesses), see
Commonwealth
v.
Latimore,
1. The events of June 26. According to one witness, a regular Barnstable crowd, along with other young men from Harwich and Mashpee, hung out at the North Street 7-Eleven in Barnstable during the summer of 1990. For a reason no one clearly remembered, perhaps too trifling to recall, a fist fight broke out which eventually engaged Dion, Frank, and their friends on one side, and Tony and his friends on the other side. The State police arrived. Tony started to leave the area when Frank, coming up on Tony from behind, struck him on the head with a plank of wood, bringing him to the ground. Frank and Dion then ran off together, with Dion threatening, “Next time it’s going to be bullets. Next time it’s going to be bullets.”
2. The shooting episode. The testimony on the events surrounding the shooting was terse and to the point. About one week after the brawl and approximately two weeks before the party, which began in the early morning hours of July 15, 1990, Luther Culberson, a friend of Frank, test-fired a .25 caliber handgun into the air. Sparks emerged from the weapon, and Culberson gave the gun to Frank to be cleaned. Frank did not return the gun.
About one week before the party, Dion arranged for Tanya Bass, the mother of his child who was then living in Mississippi and about to come to Massachusetts, to bring a handgun that Dion had previously left with her. When Bass arrived in Massachusetts, Dion took the gun from her and did not return it. Bass identified the weapon she brought to Dion. It was a .22 caliber handgun. A ballistics expert later testified this handgun was consistent with the weapon that fired the projectile recovered from Tony’s body.
On the day of the party a friend of Dion who had a firearms identification card, at Dion’s request, purchased a box of ammunition and gave it to Dion. That afternoon Dion was seen cleaning a handgun. That evening, before the party, the friend visited with Dion. While he was there, Dion fired the weapon into the air.
Dion and Frank did not arrive at the birthday party together. Culberson and Frank arrived around 12:15 a.m., left within a short time, and returned around 1:15 a.m. Dion was there, along with some of the friends of the brothers. Tony arrived after Dion but before Frank.
There were signs of trouble before Frank returned to the party. In the basement of the house where the partygoers had gathered, a friend of Tony put his arm around Dion and told him that Frank had a problem because he hit Tony in the head with a stick. The friend urged Dion and others to stay out of it so that Frank and Tony could settle the dispute. Tony, who heard the conversation, was “wild” and “out of control.” (The autopsy showed he had a blood alcohol level of .13 and fifty micrograms of cocaine in his bloodstream at the time of death.) Jumping up and down, Tony said, “Tell them, Muskie [Tony’s friend]. Tell them, Muskie, or I will.” About this time, Frank arrived, and Dion went over to his. brother and talked with him. He said to Frank, “Come on, man. Let’s do this.” Frank put his hand up underneath his shirt and said to Culberson, “Come on, Tip [Culberson’s nickname].” Culberson said, “No, man, he’s [i.e., Tony] my cousin. I’m not going.”
At this point Tony walked up to Dion and Frank, and said to Frank, “What’s up Nitty [Frank’s nickname]? You got a piece? You got a piece? You got a knife? You’re going to need it. You’re going to need it.” Frank stood his ground, and Tony went on: “I’m ready. Come on. I’m ready. Let’s go.” Frank said, “No, I don’t want to fight with you, Tony. Just leave me alone.” Tony pressed on: “Come on, Frank. Let’s go outside, just me and you. I’m ready. Let’s go outside right now.” While Tony was thus challenging Frank, Dion
Once outside the house, Frank and Dion stood beside each other at the street end of the driveway near the steps of the house, making no effort to leave. Tony came out from behind the house with a stick in his hand, possibly a mop handle. Tony resumed his taunting of Frank: “Frank, you want to hit people with sticks? Fm going to hit you with a stick now.” Frank said, “Tony, Fm telling you to stay away from me, man. Don’t come near me. Just leave me alone.” Tony then swung the stick at Frank, missed him, hitting a tree behind Frank. Frank and Dion jumped back. Dion then stepped in front of his brother, a gunshot was heard, and sparks were seen. Dion had a “black tube” in his hand. The brothers immediately ran from the scene together.
Tony was shot but seemed not to know it. He was asked if he was hit. Tony said, “I don’t know. Let me go check.” He returned to the house where people told him he was shot. An ambulance was called; Tony was helped to go back outside the house where he said he was fainting. Then he collapsed and died. The .22 caliber bullet had perforated the right side of his heart, and perforated or injured his stomach, spleen, liver, left kidney and diaphragm. The wound was of the type that kills in seconds or minutes.
Two witnesses saw Dion, Frank and others running from the party down the road. One witness, parked around the corner, recognized Dion and heard him say, “I got that motherfucker.” Another witness, a relative of Tony, ran after the brothers at a distance of about thirty feet. Frank turned around, pointed his .25 caliber handgun at the witness, and asked, “Who is that?” The witness replied, “It’s Robert, man. You shot my cousin.” Frank said, “No I didn’t. I missed him.”
Frank and Dion returned to their apartment and later went to a friend’s house in Hyannis. They appeared scared and tense. Dion said that “they did something and they was hiding.” They ran to the back bedroom and stayed there until the police arrived to arrest them.
The brothers were brought to the Barnstable house of correction. Both Dion and Frank gave statements to the police. Dion denied that he or Frank shot Tony. Frank admitted that after Tony tried to hit him with the stick he reached into his back pocket, took the safety off the weapon, drew the gun up to waist level, and “offed the trigger” one time. 4
Later, still at the house of correction, a correctional officer, Rodney Lynch, overheard a conversation among the brothers, who were being held in adjacent cells, and Gary Little, who occupied the third of three cells in the cell block. In response to Little’s description of his stabbing a person, Frank said, “Shooting someone is different than stabbing someone.” The conversation turned to the birthday party.
3. Discussion. In support of his motion, Dion argues that the verdict of guilty of murder in the second degree was precluded because the evidence of provocation was sufficient to negate the element of malice.
We start with the recitation of established fundamentals. Malice is an essential element of the crime of murder.
Commonwealth
v.
Colantonio,
There was sufficient evidence for the jury to find beyond a reasonable doubt that Dion intentionally used a deadly weapon and that he shot Tony without legal justification or palliation.
5
He threatened the use of a deadly weapon as he
There was evidence which, if believed, would have permitted a finding either in justification or mitigation of the crime. But the mere introduction of such evidence does not require the conclusion that the inference of malice from the intentional use of a deadly weapon is rebutted as matter of law.
Commonwealth
v.
McInerney,
The denial of Frank’s motion turns on the law of joint venture. As to that, Frank argues that he committed no overt acts in furtherance of Dion’s alleged crime, and there was not sufficient evidence to establish his knowing participation in a criminal joint venture with Dion. In short, Frank argues that he was a mere bystander. 6
The evidence permitted the jury to find that Frank was much more than a bystander — that in fact he acted consciously together with Dion in the intentional use of a deadly weapon against Tony, satisfying the requirements of knowledge and intent.
The jury could have found from the evidence that throughout all the relevant events — from the brawl on June 26 to the arrest of the brothers on July 15 — Dion and Frank acted in unison when they were together and in a precisely parallel fashion when they were separated. They fought together at the brawl on June 26; after Frank hit Tony from behind, Dion supported what Frank did by threatening bullets the
After' the shooting, Frank and Dion fled the scene together. Frank, with Dion’s cooperation, hid their weapons in a red truck, and together they hid from the police until they were arrested. The jury could have found from the evidence that at the climactic moments, as we said in
Commonwealth
v.
Fidler,
4. Frank’s further claim of error. Frank claims that the judge committed reversible error when statements made by Dion, while incarcerated, to Officer Worthington were admitted in evidence without limiting such evidence to the case against Dion. Dion had made two previous postarrest statements to the police; in brief, he denied that he or Frank had a gun or shot Tony. During his second statement to the police, the trooper told Dion that they knew that a .22 caliber gun had been used to kill Tony.
Frank argues that statements of Dion made after his arrest and after the termination of the alleged joint venture were not admissible as against Frank, and he identifies one of Dion’s remarks in his third statement as particularly damaging to Frank’s defense. Following his first two statements to the police, Dion struck up a conversation with Officer Worth-ington in the cell block. When asked by the officer whether he had shot Tony, Dion replied, “I didn’t shoot anyone.” When asked if Frank had shot Tony, Dion replied, “I didn’t shoot him.” Following that exchange, Dion gave his version of events, mainly to the point that after he cleaned his gun it disappeared, and again he said, “I didn’t shoot anyone.” Frank’s argument now is that the jury would likely interpret Dion’s response to the question whether Frank shot Tony (denying that he, Dion, shot Tony) as a statement that Frank had shot Tony.
If we assume (as appears to be the case) that Frank would have been entitled to a limiting instruction with regard to Dion’s postarrest statements, see
Commonwealth
v.
Drew,
The interpretation now given to Dion’s remark must have seemed farfetched to trial counsel. Given the fact that Dion had by then been told that it was a .22 caliber bullet that killed Tony, and that Dion was carrying a .22 caliber weapon, Dion had every reason to insist on denying that he shot Tony. The balance of Dion’s statement to Worthington bears that out. In any event, the test is whether there was a substantial risk of a miscarriage of justice, and we conclude that there was no such risk. The interpretation urged upon us is too strained to have been damaging to Frank. Dion had already asserted in his two previous statements that neither he nor Frank was implicated in the shooting. Further, there was an abundance of evidence that Frank and Dion acted together to protect each other throughout the episodes we have recounted; indeed, Dion interrupted his conversation with Worthington to ask to speak to his brother. The request was granted, and the two brothers talked. The likelihood that the jury would, in these circumstances, construe Dion’s remark — natural enough in the context — as pointing the finger at his brother, is too remote to constitute a substantial risk of miscarriage of justice. 8
5. Dion’s further claims of error. Dion argues that the judge’s main charge covering second degree murder did not discuss provocation (by Tony) offsetting malice, and that the judge’s subsequent discussion of this matter in the course of describing voluntary manslaughter was too late because the jury would infer that the mitigating circumstances did not apply to deliberations of first and second degree murder. There was no error.
After instructing on various preliminary matters appropriate to criminal proceedings, and after his discussion of murder in the first degree and in the second degree, the judge
“intentional killing resulting from a sudden transport of the passions of fear, anger, fright, nervous excitement, or heat of blood, when there is no time to deliberate, and when such passion or heat of blood is produced by adequate and reasonable provocation and without malice, or upon sudden combat that would have been likely to produce in‘an ordinary person an abnormal state of mind and actually did produce such state of mind in either or both of the defendants. The law provides for the crime of manslaughter in recognition of the frailty of human nature. If a person kills another in the heat of passion which is occasioned by adequate and reasonable provocation or in sudden combat, then, even though a person has an intent to kill, the killing is designated manslaughter, not murder, because of the mitigating circumstances. The factor that distinguishes voluntary manslaughter from murder is not an absence of intent, but rather the absence of malice aforethought.”
The judge continued his charge by including a thorough and detailed discussion of self-defense and defense of another, pointing out the distinction between justification and mitigation (but without resorting excessively to that terminology), as well as the Commonwealth’s burden to prove beyond a reasonable doubt that Dion did not act in self-defense or in defense of his brother, or, alternatively, that Dion used excessive force in response to the provocation which, if proven by the Commonwealth, would constitute manslaughter.
In
Commonwealth
v.
Albert,
Commonwealth
v.
Boucher,
Dion also argues that the judge’s supplementary instructions in response to questions from the jury were defective. After a three-day weekend, the jury asked for clarification of the difference between first degree murder and murder in the second degree. They also sought clarification of the difference between deliberate premeditation and malice aforethought. After discussing deliberate premeditation, the judge discussed malice. He said that malice is “[a]n intentional killing of a human being without legal justification or excuse with no extenuating circumstances sufficient in the law to reduce the crime to manslaughter . . . .” He added that malice flows from a wrongful motive, “as distinguished from the frailty of human nature,” and that malice includes any “unexcused” specific intent to kill, or the “unexcused” specific intent to do grievous bodily harm, or the “unexcused” intent to do an act creating a strong likelihood that grievous bodily harm will follow. This was the same language that the judge used in a portion of his original charge.
Counsel objected, citing the judge’s failure, in his discussion of malice, to reinstruct the jury on the law of manslaughter, including specifically the subjects of provocation, sudden passion, self-defense or defense of another, and acci
There is no merit to this argument. The questions from the jury, as the judge said in open court, revealed a concern with the distinction between first degree murder and second degree murder, suggesting that the jury had rejected self-defense and defense of another. See
Commonwealth
v.
Colantonio,
Dion next claims that a portion of the overheard conversation while Dion and Frank were being held in Barnstable, Frank’s statement that he and Dion went to the party on a “mission,” should have been limited to the case against Frank. There was no objection to the testimony and no limiting instruction requested. If we assume, as we did earlier in connection with a similar argument by Frank, that the judge would have granted a limiting instruction if so requested, the test is whether the evidence erroneously admitted against
Dion argues, too, that the judge erroneously excluded evidence of Dion’s own knowledge of Tony’s propensity for violence. The argument mischaracterizes the evidence, which was as follows. Dion testified that following the brawl and before the party he received two threatening telephone calls from Tony. In the first call, Tony told Dion that “he was going to get us.” In the second telephone call Tony said, “The next time you see us, you better be packing,” meaning, “You better have a gun.” Further on during this direct examination, Dion was asked whether he had had conversations with other people concerning Tony “coming to get you.” Dion replied that he did and that the person was one Darrel Burgo. Counsel asked for the conversation; upon objection by the prosecutor, and following a lengthy sidebar conference, the question was excluded.
Commonwealth
v.
Fontes,
Nevertheless, the exclusion of the evidence worked no prejudice to Dion. As noted above, Dion had already testified to two threatening telephone calls from Tony, and a third threat, this one merely hearsay, was no more than cumulative. See
Commonwealth
v.
Cunningham,
Judgments affirmed.
Notes
Both defendants were also charged with and convicted of illegal possession of a handgun. In his brief Frank specifically indicates that he is not appealing from the weapons charge; Dion also makes no argument directed toward the weapons charge.
The motions were not renewed at the close of all the evidence. The defendants did move to set aside the verdict of guilty of second degree murder, on the ground of insufficiency of the evidence to warrant that verdict. We need not discuss these motions separately, for the Commonwealth’s case did not deteriorate during the presentation of the defendants’ evidence. Compare
Commonwealth
v.
Griffin,
Further on in his statement Frank added that the weapon he used was a .22 caliber handgun, the same weapon that Bass brought to Massachusetts for Dion. Frank also indicated that during the confrontation he had released the safety on the gun, but the officer who received the statement testified that only the .25 caliber handgun had a safety. Thus there is some reason to believe that Frank was trying to protect his brother. Nevertheless, given the testimony that Frank said to the person who followed him immediately after the shooting that he “missed” shooting Tony, the jury was entitled to find that Frank did fire his weapon at Tony, or that he attempted to fire his weapon at Tony.
There was no direct evidence that Dion shot Tony. One witness testified, as noted in the text, that Dion jumped in front of Frank and was seen
Frank also argues that the evidence was not sufficient to warrant Frank’s conviction on a felony-murder theory. We need not consider that argument because the verdict slip gave the jury the option —• in the event of a guilty finding of murder in the second degree — of choosing either
Frank also argues that he withdrew from the joint venture before the shooting, but the evidence did not require the jury to draw such a conclusion.
There was no “Bruton problem.”
Bruton
v.
United States,
We have reviewed the remaining claims with regard to the judge’s instruction. As to the charge on felony-murder, see note 6, supra. As to the judge’s mistake (saying, in the circumstances described, that the verdict must be “guilty” when he plainly meant that the verdict, in those circumstances, must be “not guilty”), the error, taken in the context of the judge’s careful and accurate instructions as a whole, was so obvious as to be harmless. In that respect we note that Dion’s counsel did not object to the judge’s evident mistake.
There is also no merit to Dion’s claim that the discharge of a juror at the conclusion of the trial, before deliberations began, jeopardized his right to a fair trial. The judge properly exercised the discretion authorized by G. L. c. 234A, § 39, and neither defense counsel objected to the juror’s removal. There was no prejudice to Dion, much less a substantial risk of a miscarriage of justice.
Conroy is the opinion Justice Cutter cited for the test announced in Freeman.
The judge apparently relieved Dion of the necessity of making an offer of proof after the question was excluded. We have assumed that if allowed to answer the witness would have testified to a conversation with Tony that would be favorable to Dion — that Tony threatened Dion with some act of violence.