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SJC-11471
COMMONWEALTH vs. ELBERT NEWSON.
Suffolk. December 5, 2014. - April 14, 2015.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
Homicide. Firearms. Joint Enterprise. Constitutional Law,
Voluntariness of statement, Waiver of constitutional
rights, Fair trial. Evidence, Voluntariness of statement.
Practice, Criminal, Capital case, Motion to suppress,
Voluntariness of statement, Waiver, Instructions to jury.
Indictments found and returned in the Superior Court
Department on December 8, 2008.
A pretrial motion to suppress evidence was heard by
Christine M. McEvoy, J., and the cases were tried before her
Stephen Paul Maidman for the defendant.
Elisabeth Martino, Assistant District Attorney (Julie
Higgins & David J. Fredette, Assistant District Attorneys, with
her) for the Commonwealth.
LENK, J. Thomas Webb was fatally shot on September 15,
2008, while petting a neighbor's dog on a sidewalk outside an
apartment building in Boston. The defendant was arrested a
short time later, after fleeing from police in a vehicle and
2
then on foot. At trial, the Commonwealth did not offer evidence
that the defendant fired the fatal shots. Instead, the
Commonwealth proceeded against the defendant on a theory of
joint venture with the individual who did fire the fatal shots,
and who was in the vehicle with the defendant before the
shooting and during the flight from police. The defendant, in
turn, conceded his presence at the scene of the shooting and his
involvement in the subsequent police chase. He asserted,
however, that he did not know that the shooting was planned, and
that his role was limited to aiding in the escape after the
shooting occurred.
In December, 2011, a Superior Court jury found the
defendant guilty of murder in the first degree on a theory of
extreme atrocity or cruelty. The jury also found the defendant
guilty of one count of possessing a firearm without a license,
and not guilty of another count of possessing a firearm without
a license. The defendant contends on appeal that the trial
judge erred in (1) denying the defendant's motion to suppress
statements that he made to police following his arrest, which
were used to challenge his credibility when he testified at
trial; and (2) declining to instruct the jury on the uncharged
offense of accessory after the fact, which he argues deprived
him of a defense. Because we conclude that there was no error,
3
and our review of the entire record provides no basis to grant
relief under G. L. c. 278, § 33E, we affirm the defendant's
convictions.
1. Background. "We summarize the evidence at trial, in
the light most favorable to the Commonwealth," reserving some
facts for later discussion. Commonwealth v. Deane, 458 Mass.
43, 44 (2010).
Shortly after 9 P.M. on September 15, 2008, two Boston
police officers heard the sound of gunfire. One of the officers
testified that he believed that the gunshots came "from two
different firearms."
Responding to the area from which the gunfire came, the
officers observed a dark Nissan Maxima automobile, with tinted
windows and Rhode Island registration plates, parked in the
middle of Parker Street. A thin African-American man wearing a
white T-shirt ran towards the vehicle's front passenger's side
door and entered. The officers attempted to block the suspect
vehicle using their police cruiser, but the vehicle evaded the
police and drove off.
A chase ensued. While pursuing the suspect vehicle using
their flashing blue lights and sirens, the officers observed an
object thrown out of the vehicle's passenger's side window. A
.45 caliber semiautomatic pistol was later recovered from that
4
spot along the chase route. The suspect vehicle eventually
entered the Academy Homes housing development in Boston and
stopped abruptly, and two individuals stepped out. The person
who stepped from the passenger's side door was again an African-
American man with a thin build wearing a white T-shirt. The
person who emerged from the driver's side door was a shorter
African-American man with a "stocky build," wearing a "dark
sweatshirt" and "dark jeans."
The chase continued on foot, but the police officers lost
sight of both individuals. A short time later, different police
officers, responding to dispatches about the shooting and chase
broadcast over the police radio, observed the defendant emerged
from hedges onto a nearby sidewalk. The defendant was "sweating
profusely" and "gasping for air." He was wearing a red T-shirt
and jeans. A gray hooded sweatshirt was later discovered next
to some bushes and shrubbery near the location where the
defendant was stopped. Approached by the officers, the
defendant indicated that he was coming from the home of his girl
friend, "Pookie."
The defendant was handcuffed and taken to the homicide unit
at Boston police headquarters. When detectives first approached
the defendant seeking to interview him, he became ill and
vomited. The defendant smelled of alcohol, and it was clear to
5
Detective Dennis Harris, the interviewing detective, that the
defendant had been drinking. Indeed, during the interview, the
defendant stated several times that he was "drunk," was feeling
"nice," and was "totaled from the junk." He also indicated that
he was "nauseous" and that his "stomach [was] bubbling."
Nevertheless, Harris testified that the defendant was not
"stumbling or staggering" and "walked unassisted . . . into the
interview room," and that during the interview the defendant
appeared nervous but alert. During the course of the interview,
which lasted approximately two hours and twenty minutes, the
defendant took two breaks, was permitted to use the telephone
and the bathroom facilities, and was provided water and snacks.
At the beginning of the interview, Harris read the
defendant the Miranda warnings, see Miranda v. Arizona, 384 U.S.
436, 444 (1966), and the defendant initialed and signed a form
confirming that the warnings had been given. The defendant also
consented to have the interview electronically recorded, as
urged by this court in Commonwealth v. DiGiambattista, 442 Mass.
423 (2004). When the defendant asked near the beginning of the
interview whether he was "being arrested," however, Harris
responded, "No," indicating, "this is just an interview at this
point."
Throughout the interview, the defendant continued to assert
6
that he had no involvement in either the shooting or the police
chase, and had been with his girl friend "Pookie" prior to his
arrest. He stated that "Pookie" resided in the Academy Homes
housing development. He could not, however, give her address,
full name, or telephone number, and could not say definitively
how long he had been with her prior to being stopped by the
police.
At no point during the interview did the defendant make an
inculpatory statement. After Harris repeatedly exhorted the
defendant to provide any information that he might have about
the shooting and the police chase, the defendant asked if he
could leave. Harris indicated that the defendant could not
leave, because he was under arrest for possessing marijuana that
had been found on his person when he was stopped by police.1
After Harris urged the defendant once more to tell him anything
that he knew about the shooting, the defendant invoked his right
to counsel, and the interview concluded.
During the second break in the interview, the detectives
took the defendant's clothing and provided him with other
clothes to wear. The detectives also took swabbings from the
1
The defendant's arrest occurred several months before
voters of the Commonwealth adopted, via ballot referendum, "An
Act establishing a sensible state marihuana policy," which
decriminalized possession of one ounce or less of marijuana.
See G. L. c. 94C, § 32L.
7
defendant's hands to test for gunshot residue. In the right
front pocket of the defendant's jeans the detectives found a
door key to a Nissan Maxima; this key opened the vehicle
abandoned near the Academy Homes housing development following
the police chase. Inside the vehicle police found a cellular
telephone matching a holder carried by the defendant when he was
arrested. During the police interview, however, the defendant
had indicated that he had left his telephone with his mother
that day. Forensic examination of the vehicle's contents also
identified several objects with the defendant's fingerprints.
These included a .38 caliber revolver, which was found on the
floor of the front passenger area and contained two of the
defendant's fingerprints, along with the fingerprint of Richard
Allen, a friend of the defendant. Neither the defendant's nor
Allen's fingerprints, however, were found on the .45 caliber
pistol that police had seen thrown from the suspect vehicle
during the pursuit. Instead, forensic examination of that
pistol revealed the fingerprint of another individual, Michael
Gaines.
Five shell casings were recovered from the scene of the
shooting. The Commonwealth's ballistics expert testified at
trial that, "to a reasonable degree of ballistic certainty," all
had been shot by the .45 caliber pistol that police had
8
recovered along the chase route.2 Five bullets or bullet casings
were also recovered: one from Ziegler Street, where another
shooting had taken place approximately twenty minutes before the
shooting on Parker Street; two from the victim's body; and two
others from Parker Street. The Commonwealth's ballistics expert
testified, again "to a reasonable degree of ballistic[]
certainty," that all came from the same .45 caliber pistol. No
projectiles were conclusively traced to the .38 caliber
revolver, although there were several projectiles that the
Commonwealth's ballistics expert testified could have come from
the revolver.
The defendant was indicted for murder in the first degree
on the theories of deliberate premeditation and extreme atrocity
or cruelty, and for two counts of carrying a firearm without a
license, based on the .45 caliber pistol and the .38 caliber
revolver. At trial, the Commonwealth did not seek to establish
that the defendant fired any of the shots that killed the
victim. Instead, the Commonwealth contended that the defendant
was responsible because he assisted another individual, whom the
Commonwealth never expressly identified, who carried the .45
caliber pistol and fired the fatal shots.
2
The Commonwealth's ballistics expert's testimony conformed
to the guidelines that this court outlined in Commonwealth v.
Pytou Heang, 458 Mass. 827, 846-849 (2011).
9
The core issue at trial was the defendant's mental state at
the time of the shooting. The Commonwealth offered evidence to
establish the defendant's prior awareness of and intent to
participate in the shooting. The Commonwealth presented
testimony indicating that the same Nissan Maxima had been
involved in an earlier incident of gunfire on Ziegler Street,
supporting the inference that the defendant knew that his
passenger had a gun and that further shooting was planned.
Tests of the swabs taken from the defendant's hands showed
traces of gunshot residue, which the Commonwealth offered as
showing that the defendant had fired the .38 caliber revolver at
some time that evening. Finally, the Commonwealth contended
that the defendant's rapid departure immediately after the
shooting on Parker Street indicated that he was "fully aware of
the plan."
The defense offered an alternative account of the evening's
events. Testifying as the sole defense witness, the defendant
stated that there were actually three individuals in the Nissan
Maxima at the scene of the shooting: Michael Gaines, Richard
Allen, and the defendant. The defendant contended that Gaines
and Allen carried the two firearms and did the shooting, but
that he had no prior awareness of the planned shooting, and that
his role was limited to aiding Allen and Gaines in the escape
10
from police after the fact. The defendant stated that on the
evening of the shooting he had loaned the Nissan Maxima to
Allen, who indicated that he wanted the vehicle to conduct a
drug deal. Allen, now accompanied by Gaines, returned with the
vehicle shortly after 9 P.M. and picked up the defendant.
Gaines moved to the back seat, and the defendant began driving.
Allen asked the defendant to drive to Parker Street to pick up
his girl friend. When they arrived, Allen indicated that the
defendant should make a U-turn and stop, and Gaines got out of
the vehicle. As the defendant was turning to Allen to ask why
Gaines had gotten out, given that it was supposedly Allen's girl
friend that they were going to visit, the defendant heard
gunfire. Allen then jumped out of the vehicle. Both Allen and
Gaines got back into the vehicle once the police arrived. Allen
ordered the defendant, "Drive." The defendant complied, and
police officers arriving on the scene gave chase. When the
defendant stopped the vehicle later in the Academy Homes housing
development, Allen handed the .38 caliber revolver to the
defendant, asking him to throw it in the bushes. The defendant
instead dropped it on the floor of the front passenger area and
fled.
The Commonwealth challenged the defendant's account in a
number of ways. Most importantly for purposes of this appeal,
11
the Commonwealth undermined the defendant's credibility through
the inconsistency between the defendant's recorded interview
with police, which had been introduced in evidence, and his
trial testimony. The defendant admitted that he lied to police
during the interview, fabricating "Pookie" and falsely denying
that he was involved in the police chase. He testified that he
made those statements to police because he was scared and did
not want to "tell on" Allen and Gaines.
The Commonwealth also identified several other factors
that, it contended, undermined the defendant's account. The
Commonwealth pointed out that the two officers involved in the
chase only saw two individuals flee from the Nissan Maxima, not
three; that no witnesses had seen a third person in the vehicle;
and that, when police searched the Nissan Maxima, the front seat
was pushed far back, leaving little room for anyone to sit in
the back seat. The Commonwealth called the jury's attention to
how "conveniently" the defendant's timeline absolved him of
involvement in the earlier Ziegler Street shooting, insofar as
the defendant testified that he was picked up by Allen and
Gaines shortly after 9 P.M., just after the occurrence of the
gunfire on Ziegler Street. Finally, the Commonwealth noted that
the defendant testified that he "wasn't close with" Gaines, and
that Allen, whom the defendant testified was "very close" to
12
him, was deceased at the time of the trial. "So you're saying
the guy who you're not close with and the dead guy are the ones
who did this[?]" the Commonwealth asked in cross-examining the
defendant.
The Commonwealth never offered evidence of a motive for the
shooting. The victim was the youngest of seven siblings. At
the time of his death, he was preparing to begin his final year
of high school.
2. Discussion. a. Admission of the defendant's
statements to police. Before trial, the defendant moved to
suppress the statements made during his police interview. He
argued that he did not knowingly, intelligently, and voluntarily
waive his Miranda rights and that the statements themselves were
not voluntary. In making that argument, he focused on the
alleged "trickery" and "deceit" involved in Harris's initial
assurance that he was not under arrest, when in fact he had been
arrested for possession of marijuana. The defendant also
asserted that he was under the influence of alcohol and drugs
during the interview.
The judge, who was also the trial judge, held a hearing on
the defendant's motion to suppress, at which Harris testified.
Harris stated that he did not learn that the defendant had been
arrested for possession of marijuana until the second break in
13
the interview, which occurred after he had assured the defendant
that he was not under arrest. Harris also acknowledged
witnessing the defendant "thr[o]w up the contents of his stomach
on the floor," and that "[i]t was clear" to Harris that the
defendant "had been drinking," as "[t]here was an odor of
alcohol emanating from him." Harris stated, however, that the
odor was "not . . . strong," that the defendant was not
"stumbling or staggering" and "walked unassisted into the
interview room," and that the defendant did not manifest the
"glassy eyes, slurred speech, . . . or . . . lack of
coordination" characteristic of people under the influence of
alcohol or drugs.
The judge denied the defendant's motion to suppress. The
judge found that the defendant was subjected to custodial
interrogation, and that the Miranda warnings were properly
given. With respect to the validity of the defendant's Miranda
waiver, the judge found that, although the evidence indicated
that the defendant had consumed alcohol and drugs prior to the
interrogation, and vomited shortly before the interview, the
waiver was nevertheless voluntary. The judge credited Harris's
testimony that he "did not observe any outward signs commonly
associated with intoxication." The judge further indicated that
the recording of the interrogation demonstrated that the
14
defendant answered the detective's questions in a "responsive
and coherent manner," was "well aware of his precarious state,"
and provided responses that were "self-serving." With respect
to the general voluntariness of the statements that the
defendant made, the judge observed: "As to trickery and deceit,
the court finds the defendant's claim unclear; there is no
evidence that [the] alleged deceitful statement made by the
[d]etectives was actually false. Even if it were, under the
circumstances of the defendant's interview, it does not amount
to a recognized challenge."
On appeal, the defendant argues that the judge erred in
denying his motion to suppress. Where a defendant challenges
the admission of a statement allegedly resulting from custodial
interrogation, the defendant bears the initial burden of proving
custody. Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). If
the defendant satisfies this initial burden, the burden shifts
to the Commonwealth to prove "a knowing, intelligent, and
voluntary waiver of Miranda rights," Commonwealth v. Murphy, 442
Mass. 485, 492 (2004), and that any statement "was made
voluntarily." Commonwealth v. Tremblay, 460 Mass. 199, 206
(2011).
Here, the judge correctly determined that the defendant was
subject to custodial interrogation. The admissibility of the
15
defendants' statements at the interview, therefore, turns on
voluntariness. Although the voluntariness of a Miranda waiver
and the voluntariness of a particular statement made during
custodial interrogation "are separate and distinct issues," the
"test" for both is "essentially the same." Commonwealth v.
Edwards, 420 Mass. 666, 670 (1995). "The test for voluntariness
is whether, in light of the totality of the circumstances
surrounding the making of the statement, the will of the
defendant was overborne to the extent that the statement was not
the result of a free and voluntary act. . . . Under this
totality of the circumstances test, [the court] consider[s] all
of the relevant circumstances surrounding the interrogation and
the individual characteristics and conduct of the defendant,"
including "promises or other inducements, conduct of the
defendant, the defendant's age, education, intelligence and
emotional stability, experience with and in the criminal justice
system, physical and mental condition, the initiator of the
discussion of a deal or leniency (whether the defendant or the
police), and the details of the interrogation, including the
recitation of Miranda warnings." Commonwealth v. Tremblay, 460
Mass. at 207 (quotations and citations omitted). The
Commonwealth bears a "particularly heavy burden" because in
Massachusetts voluntariness "must be shown beyond a reasonable
16
doubt." Commonwealth v. Hoyt, 461 Mass. 143, 152 (2011). See
Commonwealth v. Tremblay, supra at 206.
As he did in the proceedings on the motion to suppress, on
appeal, the defendant focuses his voluntariness challenge on
Harris's purportedly false representation that the defendant was
not under arrest. The defendant asserts that he "plainly
attached special significance to the fact that he was not under
arrest when the interrogation began," as evidenced by his
"immediate invocation of his right to counsel upon
learning . . . that he was in fact under arrest." Despite
Harris's testimony, which the judge credited, that he did not
know that the defendant was under arrest for possession of
marijuana at the beginning of the interview, the defendant
argues that Harris should be deemed to have "constructive
knowledge" of the defendant's arrest status, based on the
knowledge of other police officers.
We need not address the validity of the defendant's theory
of "constructive knowledge." We conclude that, even if Harris's
unintentionally false assurance that the defendant was not under
arrest could constitute an instance of "deceit" or "trickery,"
it did not render the defendant's Miranda waiver or statements
involuntary. Although "law enforcement officials must exercise
caution when employing deception or trickery or when giving
17
assurances to a suspect during an interrogation[,] . . . we also
have repeatedly held that such deception or trickery does not
necessarily compel suppression of the confession or admission
but, instead, is one factor to be considered in a totality of
the circumstances analysis." Commonwealth v. Tremblay, 460
Mass. at 208. In particular, we have rejected the contention
that "an officer's use of the standard interrogation tactic of
'minimization,'" by which the officer downplays the severity of
the defendant's situation, "compels the conclusion that a
confession is involuntary." Commonwealth v. DiGiambattista, 442
Mass. at 438-439. Instead, "[a]s always," we assess the effect
of such minimization techniques "as part of the totality of the
circumstances." Id. at 439.
In light of the totality of the circumstances, we do not
believe that the defendant was misled as to the severity of his
situation. He registered throughout the interview that he was
in the homicide division at Boston police headquarters. Far
from minimizing the defendant's suspected conduct, Harris
repeatedly emphasized the seriousness of the incident under
investigation. The detective's remarks throughout the interview
clearly indicated that the defendant was suspected of being
involved in a shooting and subsequent police chase. He stated,
for instance, that "right now we have drama, somebody shot,
18
there's a car chase, there's guns, there's a foot chase, there's
you." Harris's unintentionally false statement concerning the
defendant's arrest status, therefore, did not render the
defendant's waiver or statements involuntary.
The evidence of the defendant's alcohol and drug use does
not alter this conclusion. Although "[s]pecial care must be
taken in assessing a waiver and the voluntariness of the
statements where there is evidence that the defendant was under
the influence of alcohol or drugs[,] [a]n otherwise voluntary
act is not necessarily rendered involuntary simply because an
individual has been drinking or using drugs." Commonwealth v.
Silanskas, 433 Mass. 678, 685 (2001), quoting Commonwealth v.
Shipps, 399 Mass. 820, 826 (1987). See Commonwealth v. Murphy,
442 Mass. at 494. Here, Harris testified that the defendant did
not exhibit behavior typically associated with individuals under
the influence of drugs or alcohol, and we defer to the judge's
determination that Harris's testimony was credible. See
Commonwealth v. Tremblay, 460 Mass. at 205 ("Questions of
credibility are the province of the motion judge who had the
opportunity to observe the witnesses"). As to the recording of
the interrogation, with respect to which this court stands "in
the same position as the [motion] judge," Commonwealth v. Novo,
422 Mass. at 266 (citation omitted), our independent review
19
leads us to conclude that the defendant's alcohol and drug
consumption did not render the defendant's conduct at the
interview involuntary. During the interview, the defendant
often repeated the detective's questions before replying; his
answers are coherent and evince a concerted effort to rebut any
involvement in the shooting and subsequent flight.
Finally, pursuant to our obligation under G. L. c. 278,
§ 33E, to review the "whole case," we note that, at several
points during the interrogation, the detective indicated that
the defendant's decision to "leave ugliness alone," by not
explaining his involvement in the shooting, would make him "look
like a cold-blooded monster"; that his "honesty [would be]
gauged by everybody else who listens to what happens here"; and
that "in this business it's all about how forthright you are
with us." We repeatedly have expressed our disapproval of a
"now-or-never" line of interrogation, which seeks to place
pressure on a suspect by suggesting that the suspect's ability
to offer an explanation in some future proceeding is contingent
upon answering the interviewing officer's questions. See, e.g.,
Commonwealth v. Thomas, 469 Mass. 532, 542-543 (2014);
Commonwealth v. Novo, 442 Mass. at 267. We particularly caution
against a line of questioning that incorrectly suggests that a
defendant's decision not to respond to police questioning could
20
be used against the defendant later to challenge his credibility
at trial. See Doyle v. Ohio, 426 U.S. 610, 611 (1976).
Here, however, Harris never expressly stated that the
defendant's silence could be used against him. Furthermore, he
never stated that, by refusing to talk to police, the defendant
would lose his right to testify at trial, cf. Commonwealth v.
Novo, 442 Mass. at 268-269, or that the defendant would be
barred from talking to police in the future if he chose to
remain silent or invoked his right to consult with counsel, cf.
Commonwealth v. Thomas, 469 Mass. at 542. As soon as the
defendant invoked his right to counsel, the interrogation
promptly terminated. In view of the totality of the
circumstances surrounding the defendant's interrogation,
therefore, we conclude that the defendant voluntarily waived his
Miranda rights and that his statements were voluntary.
b. Requested jury instruction on the offense of accessory
after the fact. At trial, the defendant asked the judge to
instruct the jury on the offense of accessory after the fact.
The judge denied the request. Instead, in the course of
instructing the jury on the law of "joint venture or aiding and
abetting,"3 the judge stated: "It is not enough [to find the
3
In Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009), we
"adopt[ed] the language of aiding and abetting rather than joint
21
defendant guilty as an aider and abettor] to show simply that
the defendant aided after the fact with escaping from the scene
or disposing of weapons. The government must prove he shared
the intent or had the intent to commit the crime at the time the
crime was committed." On appeal, the defendant contends that
the judge's decision not to offer a full instruction on the
offense of accessory after the fact deprived him of his right to
present a defense guaranteed under the Sixth and Fourteenth
Amendments to the United States Constitution and the right to a
fair trial under the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution, as well as the cognate
provisions of the Massachusetts Declaration of Rights.
"[W]here a judge refuses to give . . . an instruction [on
the defendant's theory of the defense], it is reversible error
only if the requested instruction [1] was substantially correct;
[2] was not substantively covered in the jury charge; and
[3] concerns an important issue such that the failure to give
the instruction seriously impaired the defendant's ability to
present a given defense." Commonwealth v. Deane, 458 Mass. 43,
venture." We have, however, continued to refer to the theory of
"joint venture" in our case law, see, e.g., Commonwealth v.
Britt, 465 Mass. 87, 98 (2013), and the judge's instructions
here corresponded to the appropriate instructions for aiding and
abetting that we have articulated. See Commonwealth v. Zanetti,
supra at 470-471 (Appendix).
22
59 n.15 (2010), citing United States v. Gibson, 726 F.2d 869,
874 (1st Cir.), cert. denied, 466 U.S. 960 (1984). The Federal
circuit courts are split on the question whether a trial judge
commits reversible error by declining to give an instruction on
the offense of accessory after the fact. The United States
Court of Appeals for the Eighth Circuit has held that such a
refusal constitutes error. See United States v. Brown, 33 F.3d
1002, 1003-1004 (8th Cir. 1994). The court reasoned that, where
the government does not charge a defendant as an accessory after
the fact, "the accessory after the fact theory functions as a
defense" because one "cannot be both the offender and the
accessory after the fact for the same offense." Id. at 1004.
The United States Court of Appeals for the First Circuit, by
contrast, rejected this approach. See United States v. Rivera-
Figueroa, 149 F.3d 1, 6-7 (1st Cir. 1998). The court observed
that "[t]o give the jury an additional set of elements for an
uncharged crime that is not a lesser included offense, and of
which the defendant seemingly cannot be convicted, seems to us a
recipe for confusion." Id. at 7. Rather, the court held that,
"[w]here appropriate, the court can properly explain to the jury
that the defendant's theory of the case is that he merely
assisted in covering up the crime but did not participate in its
commission," thereby reconciling the defendant's right to
23
instructions on his theory of the defense without risking juror
confusion. Id.
Our case law employs the approach adopted by the United
States Court of Appeals for the First Circuit. In Commonwealth
v. Talbot, 35 Mass. App. Ct. 766, 777 (1994), the Appeals Court
rejected the defendant's argument that the trial judge erred in
declining to give an accessory after the fact instruction,
observing that "[t]he judge's instructions clearly
established . . . that the defendant could not be found guilty
of murder if his only participation consisted of helping
[another person] dispose of the body and assisting him to leave
the scene." To go beyond that point, by instructing the jury on
the elements of the uncharged accessory after the fact offense,
the court observed, would risk confusing the jury and
"intimating that the jury must accept that theory in order to
acquit him." Id., quoting Commonwealth v. Therrien, 371 Mass.
203, 206 (1976). See Commonwealth v. Deane, 458 Mass. at 59
("The judge could have concluded that charging the jury on a
crime with which the defendant was not charged could serve to
mislead or confuse the jury.").
We adhere to the position articulated in Commonwealth v.
Talbot, supra. Here, as there, the judge's instructions clearly
established that the defendant could not be found guilty of
24
murder if his only participation consisted of aiding another
person after the fact in escaping from the police and disposing
of weapons. Consistent with that instruction, defense counsel
argued in closing that "[w]hat [the defendant] did right after
[the shooting] is terrible, but he's not charged with it," and
that the evidence regarding the defendant's role in the police
pursuit was "only evidence that after the commission of a murder
[the defendant] helped people get away, and that is not murder."
Because the judge's instructions clearly indicated that the
defendant could not be convicted of murder if the jury concluded
that the defendant's role was indeed limited to aiding in the
shooter's escape from police, the judge's refusal to instruct
the jury on the elements of the uncharged offense of accessory
after the fact did not deny the defendant a defense.
c. Review under G. L. c. 278, § 33E. We have reviewed the
entire record and conclude that there is no basis to exercise
our authority pursuant to G. L. c. 278, § 33E, to reduce the
verdict of murder in the first degree or to order a new trial.
Judgments affirmed.