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July 19, 1977


Middlesex. Indictment found and returned in the Superior Court on August 8, 1973. The case was tried before R. Sullivan, J., and a motion for a new trial was heard by him. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ.


Homicide. Witness, Expert: opinion, qualification. Evidence, Expert witness, Threat, Reputation. Self-Defense. Practice, Criminal, Judicial discretion, Capital case.

The opinion of the court was delivered by: Kaplan

A Judge did not err at a murder trial in allowing a pathologist called by the Commonwealth to testify with respect to the spinning effect on the victim of a gunshot wound nor did he err in excluding the opinion of a ballistician called by the defense on the same subject. [91-92]

Evidence at a murder trial warranted a finding of murder in the second degree. [93]

Upon consideration of the evidence in a case of homicide by shooting, a conviction of second degree murder was reduced to manslaughter in the interest of Justice pursuant to G. L. c. 278, § 33E. [93-95]

On an indictment charging murder in the first degree of Bari Pogoni, a jury found the defendant Bariki S. Seit guilty of murder in the second degree, and he takes his appeal here from the judgment of conviction (and from the denial of his motion for a new trial) pursuant to G. L. c. 278, §§ 33A-33G. We shall conclude that there was no error warranting reversal of the judgment, but that we should exercise our power under § 33E to reduce the verdict to manslaughter.

1. Commonwealth's evidence. The Commonwealth presented evidence that about noon of June 26, 1973, the defendant appeared at the Lynn police station and -- nervous and upset, but speaking in subdued tones -- said he wanted to be locked up, he had just killed his partner. On being patted down, he said the gun was in his car parked outside. An officer accompanied him to the car. A Remington .380 semi-automatic pistol was lying on the front seat; under the seat was a Smith & Wesson, .357 magnum revolver (model 19). The defendant indicated he had used the revolver in the shooting. Walking back to the station, he volunteered that he had done it because his partner had stolen a gun belonging to him (a statement he later repeated to officers inside), and that he had been driving around all morning wanting to kill himself but hadn't been able to get up the courage. While being given his Miranda rights he reiterated that he had done it, he didn't need a lawyer. He also said he had shot his partner four times. On inspection, the revolver was found to contain in the cylinder four spent cartridges and two live rounds; the pistol had one live round in the chamber and five more in the magazine.

Relayed to the Cambridge police was the defendant's further statement that the body was in the "back room" of the place of business, "Barry's Sub Shop" at No. 4 Central Square, Cambridge. Arriving at that location, Cambridge police found the front and rear doors locked, with a key inside the front-door lock. They entered with force, walked the length of the store proper, which appeared undisturbed, and continued into the kitchen which took a turn to the right and opened to a storage area with a rear door to the right. In the kitchen area just beyond the right turn was the victim's body, lying face down, right cheek to the floor, head toward the storage space.

The pathologist who performed the autopsy found two gunshot wounds: a flesh wound about 3.5 centimeters above the right eye-brow, entrance-exit holes less than one inch apart, not involving bone or brain, but with some surrounding abrasion and contusion; a mortal wound caused by a bullet entering the back of the neck and exiting from the left upper neck just below the jaw, perforating in its course the cervical spine and lacerating the left carotid artery.

The wound at the right forehead must have been inflicted before the wound through the neck. From the former wound itself, the pathologist could not say which end of the channel in the forehead the bullet had entered, and thus he could not Judge whether the weapon had been discharged with the victim facing or turned away from it. The witness was asked by the prosecution to take into account the fact (testified to by others) that spent projectiles and lead fragments had been recovered from the storage area; he then said he thought the bullet had entered the forehead area from the rear. But the witness retreated from that statement in light of his clear opinion that the first gunshot was not disabling and the victim could have made bodily movements, including turning motions, in an interval between the superficial and the fatal shots. As to the discolorations around the forehead wound, the witness thought they were caused by the fall, although conceding that the bullet might have caused or contributed to it; and he took a similar view of the cause of a slight hemorrhaging within the victim's head on the left side, *fn1 probably a "contrecoup" phenomenon.

The storage area at the rear yielded a spent projectile imbedded in a syrup container, another nearby in a case of tonic cans, and lead fragments in two other places. A Commonwealth ballistics expert identified the projectiles as .38 special caliber bullets -- the same caliber as the live rounds and spent cartridges found in the revolver removed from the car -- and thought them consistent with having been fired from that revolver, but said positive attribution was not possible. The fragments were too small to warrant an opinion. On cross-examination the defense put questions to the witness about the velocity at the muzzle, and at eight to ten feet from the barrel, of bullets fired from the revolver, as well as about the capability for penetration of bullets so fired. (The witness thought the muzzle velocity was over 630 feet per second.) But the Judge, over the defendant's exception, stopped this line of questions (the witness having indicated briefly that the questions implicated a number of variables).

2. Evidence for the defense. As already suggested by the concern whether the victim was facing the defendant when the first wound was suffered, the defendant claimed he was acting in self-defense and took the stand to give lengthy testimony on the point as follows. The victim was a fellow Albanian whom the defendant met in his native village in 1941, when the defendant was ten years old and the victim about twenty-one. A friendship developed. In later years the men were separately involved in clandestine activities related to the Communist takeover or control of the country. Arriving in the United States in 1956, the defendant worked in restaurants, aspiring to own his own place. There was a renewal of friendship on the victim's visits after 1961 to this country from Canada, from which he emigrated in 1967. When the defendant opened a store near Waterbury, Connecticut, that year, he employed the victim. The venture collapsed. In the fall of 1972 the defendant was operating a store in Arlington, Massachusetts. The victim appeared and said he was in trouble with the law in Waterbury (the incident will be described below); also he feared he might in anger kill a certain ...

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