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96-P-1174 Appeals Court




Suffolk. November 7, 1997. -
February 13, 1998.

Present: Armstrong, Porada,
& Lenk, JJ.

Constitutional Law,
Search and seizure. Search and Seizure, Exigent
circumstances. Error, Harmless. Necessity. Firearms.
Practice, Criminal, Instructions to jury,
Exhibits. Homicide.

Indictments found and
returned in the Superior Court Department on November 30, 1993.

Pretrial motions to suppress
evidence were heard by Elizabeth B. Donovan, J., and the
cases were tried before her.

Robert L. Sheketoff for
the defendant.

Linda M. Poulos,
Assistant District Attorney (James J. Larkin, Assistant
District Attorney, with her) for the Commonwealth.

PORADA, J. A grand jury returned indictments
against the defendant for murder in the first degree, unlawful
possession of a firearm, and various motor vehicle offenses. The
indictments arose out of a single vehicle crash following which
the defendant was found behind the driver’s wheel of the vehicle
and the body of Richard Doyle was found outside the vehicle under
the rear wheel on the driver’s side with two bullet holes in him.
A jury in the Superior Court found the defendant guilty of so
much of the murder indictment as charged voluntary manslaughter
and guilty of all the other charges except for one of the motor
vehicle offenses.
[1] On appeal from the defendant’s convictions for
manslaughter and illegal possession of a firearm, the defendant
argues that his convictions should be reversed on the grounds
that the judge erred in denying his motion to suppress physical
evidence, in failing to instruct the jury on the defense of
necessity, and in failing to mark for identification the victim’s
criminal record. We affirm the conviction for manslaughter and
reverse the conviction for illegal possession of a firearm.

We summarize the pertinent evidence presented
to the jury. A State police officer in the early morning hours
observed a van driving erratically on the Southeast Expressway.
As the officer pursued the van, he saw the van swerve in the
breakdown lane, hit the right shoulder cement curbing and then
fishtail to the left across the expressway into the concrete
Jersey barrier. After hitting the barrier, the van went up in the
air, flipped over and landed on the driver’s side of the van. The
officer found the defendant, bleeding, in the driver’s area of
the van and Doyle, who was not breathing, under the left rear
wheel of the car. As the defendant was being removed from the van
and placed in an ambulance, a gun fell out of his jacket pocket.
The gun, a .32 caliber double barrel derringer pistol, was picked
up by one of the ambulance attendants and given to one of the
State troopers at the scene. Doyle, who was the man found lying
underneath the wheel, was transported to the Boston City
Hospital, where he was pronounced dead. A bullet hole in his
right cheek was discovered by hospital personnel at that time.
Doyle’s blood alcohol level tested at .22 percent at the

An autopsy of Doyle’s body was performed by the
associate medical examiner of Suffolk County. The medical
examiner found evidence of numerous abrasions and two gunshot
wounds on Doyle’s body. Although he could not say whether the
abrasions occurred post mortem or pre mortem, he was of the
opinion that the two gunshot wounds occurred prior to Doyle’s
death. He opined that the first gunshot wound was to Doyle’s
right cheek and would have resulted in a lot of bleeding; the
second gunshot entered Doyle’s back and would have resulted in
death quickly. He also opined that the decedent had suffered a
blow to the head with a linear object consistent with the use of
a "billy club" found in the van. The examiner
attributed Doyle’s death to the multiple gunshot wounds.

A ballistics expert testified that the bullets
which were removed from Doyle’s body were fired by the derringer
pistol recovered from the defendant and that the gun had to be
cocked each time the weapon was fired and had a trigger pull of
between thirteen and sixteen pounds of pressure. The ballistician
also testified about a 9 mm. Smith and Wesson semiautomatic
pistol that was recovered from the van after the accident: the
hammer of the gun was cocked, the safety was off, and there was
one live cartridge in the chamber and seven live cartridges in
the magazine. He further testified that if one pulled the
trigger, the gun would have fired.

A forensic chemist at the State police crime
laboratory who had examined the van, the victim’s clothes and the
defendant’s clothes testified as to the results of her
examination. She found the victim’s blood running down the
driver’s side door and in blood spatters that traveled in a
downward and outward direction on the door. She was of the
opinion that for this pattern to have been generated and remained
in that fashion, the blood would have had to remain undisturbed
for a period of a minimum of five to a maximum of fifteen
minutes. She also found a pool of the defendant’s blood under the
driver’s seat. On the passenger side of the vehicle, she found
embedded in the broken windshield hair and tissue consistent with
that of the defendant’s hair and tissue. She also found glass
fragments from the windshield in the defendant’s jacket but none
on Doyle’s clothes. On the passenger’s side sliding door there
were traces of blood consistent with that of Doyle’s blood as
well as fibers consistent with those taken from a maroon sweater
worn by Doyle.

Her examination of the defendant’s and Doyle’s
clothing revealed the following. She found Doyle’s blood on the
seat and right leg of the defendant’s jeans; on the right
shoulder and right cuff of the defendant’s Sportsmaster jacket
and the right sleeve and right pocket of the defendant’s brown
jacket. She found the defendant’s blood on the defendant’s brown
jacket, his sweater, and his jacket, as well as on the rear view
mirror and the passenger side dashboard. She also found Doyle’s
blood on his own clothing but none of the defendant’s blood.
Based on her findings, the forensic expert opined that at the
time the decedent was shot he was in the driver’s seat of the
van, but that at the time of the accident the defendant was
probably in the driver’s seat area and Doyle near the sliding
passenger door. She also opined that the gunshot wound to the
victim’s back was fired from a distance of three feet or greater.

The defendant testified that Doyle and he were
friends and that he went out drinking with him on occasion. He
testified that, on the night in question, the two of them had
been drinking at a cafJ in Cambridge and they left the cafJ
together. Upon leaving, the defendant got into the passenger’s
side of Doyle’s van and Doyle into the driver’s seat. The
defendant asked Doyle to give him a ride to his former wife’s
house. Doyle then left the van to make a phone call. Upon his
return, Doyle told the defendant that he had to go to Quincy
where he had a customer for a gun. With that statement, Doyle
reached under his seat and took the derringer pistol out of a bag
and threw it onto the dashboard. The defendant asked Doyle to
take him home first but Doyle continued to drive without heeding
the defendant’s request. The defendant got angry and told Doyle
that he was drunk, was crazy and to let him out of the van. When
Doyle would not let him out of the van, the defendant "blew
his stack" and called Doyle a name which implied that Doyle
had molested a child, an accusation which when made by the
defendant to Doyle in the past had enraged Doyle. With that
comment, Doyle pulled out a gun from his waist band, the 9 mm.
Smith and Wesson pistol. The defendant grabbed the victim’s arm,
pushed it down, and grabbed the derringer from the dashboard. The
defendant told Doyle to "back off." The defendant then
saw Doyle "pop" the Smith and Wesson, so he shot Doyle
with the derringer pistol and had no memory of anything else
until he woke up in the hospital.

A forensic expert presented by the defendant
testified that when the van flipped over, the person in the
driver’s seat could be propelled out the passenger’s side sliding
door from the force of the impact and the shape of the console.
He also testified that a person who received a wound from the
derringer could nevertheless remain conscious and active, and
possibly become even more aggressive.

Based on the evidence presented, the
Commonwealth argued to the jury that the defendant had shot Doyle
sometime after they left the cafJ together and that at the time
of the accident the defendant was driving Doyle’s van in order to
dump the body. The defendant argued to the jury that Doyle was
driving the van at the time of the accident and that Doyle and
the defendant got into a struggle in the van during which the
defendant shot Doyle in self-defense.

We now address the defendant’s arguments.

1. Motion to suppress. The defendant
argues that the judge erred in denying his motion to suppress
physical evidence, namely the derringer pistol and the
defendant’s clothing, because she relied upon evidence which was
not part of the record. The judge found that the gun fell out of
the defendant’s clothing as he was being placed in an ambulance
and the emergency medical technician turned it over to the
police. In doing so, the judge relied upon a police report which
was attached to defense counsel’s affidavit in support of the
defendant’s motion to suppress but which was not introduced in
evidence at the hearing on the motion. While the defendant argues
correctly that it is the Commonwealth’s burden to prove that a
warrantless search falls within a permissible exception to the
warrant requirement and is, therefore, reasonable, Commonwealth
v. Berry, 420 Mass. 95, 105-106 (1995), it is equally well
settled that that burden only attaches to the Commonwealth after
the defendant has first demonstrated that a "search and
seizure" in the constitutional sense has occurred. Ibid.
Here, the judge could properly find that the defendant failed to
do so where the uncontroverted materials presented to the judge
showed only that the gun fell from the defendant’s clothing while
he was being placed in an ambulance and the gun was turned over
by the ambulance attendant to the police. There is no violation
of the Fourth Amendment to the United States Constitution and
art. 14 of the Massachusetts Declaration of Rights when evidence
is seized by private parties who are not acting as agents of the
police and subsequently turned over to the police. Commonwealth
v. Jung, 420 Mass. 675, 686 (1995). There was no showing
that the ambulance attendants were acting as agents of the police
and, thus, the judge properly denied the defendant’s request to
suppress as evidence the derringer pistol where the defendant
failed to meet his preliminary burden of demonstrating that a
warrantless search and seizure by the police occurred. Commonwealth
v. Berry, 420 Mass. at 105-106.

The judge also found that the police had seized
the defendant’s clothing but that the seizure was lawful because
of exigent circumstances. See Commonwealth v. Martino,
412 Mass. 267, 276 (1992) (reasonable belief as to the potential
loss or destruction of evidence created exigent circumstances and
warranted warrantless seizure of evidence). Specifically, the
judge found that "[g]iven the nature of an emergency room
and in particular the BCH there is always a strong likelihood
that the hospital personnel being concerned for the patient may
not preserve evidence found on items such as clothing. There was
a reasonable belief that potential evidence would be lost or
destroyed." The defendant argues that there was an absence
of evidence to support those findings. The Commonwealth counters
that even if this were so the search was nonetheless lawful as a
search and seizure incidental to a lawful arrest. The
Commonwealth’s argument ignores the fact that at the time of the
seizure, the defendant was under arrest for operating a motor
vehicle while under the influence of liquor, negligent operation
of a motor vehicle, and operating a motor vehicle after his
license had been suspended. The seizure of his clothing would
have had no nexus with those offenses. G. L. c. 276, § 1. Commonwealth
v. Johnson, 413 Mass. 598, 602 (1992). Nor does it appear
from the record produced that at the time of the seizure the
police had probable cause to arrest the defendant for murder.

In any event, we need not address directly the
merits of the defendant’s and Commonwealth’s arguments relating
to the seizure of the clothing, because we are convinced that the
admission of the defendant’s clothing as evidence constituted
harmless error beyond a reasonable doubt. The Commonwealth
introduced the defendant’s clothes in evidence through its
forensic expert to show that the defendant’s clothes had Doyle’s
blood on them. In particular, the Commonwealth relied upon the
presence of blood on the defendant’s seat of his pants to show
that he was the driver of the van and the blood on his right pant
leg, right sleeve, and cuff to demonstrate that the defendant
either moved Doyle’s body or came in contact with it. In light of
the fact that the defendant admitted fighting with Doyle in the
van and shooting him, and that there was not only other evidence
of a struggle between the two men in the van but also evidence
that the defendant did indeed shoot Doyle in the back as well as
in the face and may have hit him over the head with a baton in
the van, the introduction of the defendant’s clothes was of
minimal consequence and amounted to no more than harmless error,
particularly since the defendant was convicted of manslaughter.
See Commonwealth v. Appleby, 358 Mass. 407, 414
(1970); Commonwealth v. Daggett, 416 Mass. 347,
352-353 (1993). Contrast Commonwealth v. Benoit,
382 Mass. 210, 220 (1981).

2. Defense of necessity. The defendant
argues that the judge erred in refusing to instruct the jury on
the defense of necessity in her instructions on the charge of
unlawful possession of a firearm. At the close of the judge’s
final instructions to the jury, the defendant requested that the
judge give an instruction on the defense of necessity as it
relates to this charge. The judge denied the request. We conclude
that the instruction should have been given and that reversal of
the conviction for illegal possession of a firearm is required.

The defense of necessity is applicable where
reasonably expect that his action will be effective as the direct
which will be effective in abating the danger; and (4) the
Legislature has not acted to preclude the defense by a clear and
deliberate choice regarding the values at issue. Commonwealth
v. Hutchins, 410 Mass. 726, 730 (1991). Here, viewing the
evidence in the light most favorable to the defendant, Commonwealth
v. Lindsey, 396 Mass. 840, 842 (1986), the evidence was
sufficient to raise the issue of a necessity defense. There is no
question that the defendant was faced with a clear and imminent
danger, that the defendant, if one accepts his testimony as true,
could reasonably expect that his action would abate the danger,
and that the Legislature had not acted to preclude the defense by
a clear and deliberate choice. The Commonwealth argues, however,
that the defendant had an effective legal alternative, namely to
wrestle the gun from Doyle. The Commonwealth, however, ignores
the fact that the legal alternative must be effective. Based on
the defendant’s evidence, there was no assurance that an attempt
to take the gun away from Doyle would have been effective in
light of the fact that Doyle cocked his gun after the defendant
pointed a gun at him and told him to back off. In the
circumstances presented, we conclude that the issue of the
defense of necessity was raised in this case and the judge should
have given a charge to the jury on this defense. See Commonwealth
v. Lindsey, 396 Mass. at 843-845 (the Supreme Judicial
Court assumed without deciding that an unlicensed temporary
possession of a firearm in a public place might be lawful in
spite of G. L. c. 269, § 10[a], in certain necessitous

We do not agree, however, with defendant’s
conclusory statement that the failure to do so also had a harmful
effect on the manslaughter charge. The defendant argues that the
jury could have construed the use of an unlawfully possessed
firearm as the use of unreasonable or improper force based on the
judge’s instructions on self-defense. We have reviewed the
judge’s instructions on self-defense, to which the defendant took
no objection, and find there was no risk that the jury could have
interpreted the judge’s instructions that way.

3. Failure to mark Doyle’s criminal record
for identification
. The defendant requested the trial judge
at the sentencing hearing to mark Doyle’s criminal record as an
"exhibit." The judge denied the request and the
defendant claims it was error, for the record was necessary to
support his claim that the prosecution had withheld exculpatory
evidence from him. The defendant claimed that Doyle’s record
would have supported his claim that Doyle had been convicted of
child abuse, which would have corroborated the defendant’s
testimony at trial that Doyle pulled a gun on him when the
defendant called Doyle a name indicating he was a child abuser,
which accusation on a prior occasion had prompted Doyle to
threaten the defendant’s life if he ever accused him of this
offense again. While the defendant pressed for the introduction
of the victim’s criminal record at trial, he did not object when
the judge did not order its production or request that the record
be marked for identification. He cannot now be heard to complain
that the judge failed to do so at the sentencing stage.

In any event, assuming without deciding that
the prosecutor should have produced the victim’s record, there
was no prejudice to the defendant because he was aware of the
victim’s record and was prepared to offer such evidence at trial.
Moreover, by convicting the defendant of manslaughter, the jury
obviously credited the defendant’s testimony that the struggle in
the van was precipitated by the defendant’s remark about this
offense to Doyle. See Commonwealth v. Tucceri, 412
Mass. 401, 412-414 (1992).

The judgment of manslaughter is affirmed. The
judgment of the illegal possession of a firearm is reversed, and
the verdict is set aside.

So ordered.


[1] The convictions on the motor vehicle offenses were
placed on file.

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