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September 21, 1977


Bristol. Indictment found and returned in the Superior Court on June 12, 1974. The case was tried before Brogna, J. 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, Wilkins, & Abrams, JJ.


Homicide. Malice. Practice, Criminal, Questioning of witness by Judge, Capital case.

The opinion of the court was delivered by: Abrams

At a trial for murder with a shotgun which had to be "broken open" to be reloaded after firing a single shot, there was no error in the denial of a motion for a mistrial by reason of the Judge's questioning of the only defense witness in an attempt to clarify his testimony as to the actual manner in which the gun had discharged, on which there was conflicting testimony, where the Judge gave an instruction to the jury as to its function in finding facts which overcame any possible prejudice to the defendant from the Judge's questioning. [415-417]

This court in a capital case did not, under G. L. c. 278, § 33E, reduce a verdict of guilty of murder in the second degree to manslaughter where there was evidence that the defendant, after discovering the presence of unknown persons in his home, procured an unloaded shotgun, loaded it, and entered his kitchen, a small area then occupied by several persons, brandished the gun and demanded that the premises be vacated, and that the victim was killed by a shot from that gun. [417-419]

Gilbert Dias (Dias) was indicted for the murder of Gerald Travis, the indictment charging murder in the first degree. The jury returned a verdict of guilty of murder in the second degree. The case, having been subject to G. L. c. 278, §§ 33A-33H, comes here on Dias's appeal. Dias challenges his conviction on the ground that the trial Judge's questioning of a defense witness deprived him of a fair trial. Additionally, Dias urges this court to exercise its extraordinary power under G. L. c. 278, § 33E, to reduce the verdict to manslaughter. We find no error, and affirm the conviction. We decline to grant the relief authorized by c. 278, § 33E.

The relevant facts are summarized.

On the evening of March 15, 1974, the victim Gerald Travis (Travis), accompanied by Russell Greene (Greene), and Fernando Mello (Mello), went to a bar, The Republican Club, in Fall River. There the group met another friend, Thomas Wing (Wing). Each of them consumed several beers. In the course of the evening, the young men traveled to another bar where they continued their beer drinking and socializing until closing time, whereupon they proceeded to a third tavern, which had also closed. Not yet ready to call an end to the evening's activities, Mello's companions accepted his invitation to go to Dias's apartment; Mello, the only member of the group acquainted with Dias, had been staying at his apartment for several days prior to March 15.

Though no one was at home, the group entered the apartment, and, while Mello gave Wing and Greene a tour of the premises, Travis retired to the kitchen and began frying eggs and sausages. In the course of their tour, Mello happened on two shotguns leaning against the bureau in Dias's bedroom and a box of shotgun shells atop the bureau. One of the shotguns, from which the parties agree the fatal shot was fired, was capable of firing only once, and then had to be "broken open" to be reloaded. Although noticing that this gun was unloaded, Mello, wary that his friends might engage in horseplay, hid the gun under a couch in the livingroom and put the bullets in Dias's bureau.

Soon after, Dias returned to his apartment in the company of several friends. Except for Dias, no one in the group arriving was acquainted with any member of Mello's party. Dias appeared upset. According to various accounts, this was because he had lost his wallet, because of the unexplained presence of unknown persons who had placed the kitchen in a state of disarray, or because he could not locate his guns. At any rate, Dias found a gun and shells, loaded the gun, and came into the kitchen. He pointed the gun at Greene, and demanded that the premises be vacated.

There was a conflict in the testimony as to what transpired thereafter. Mello, Greene, and Wing, whose accounts essentially coincided, testified that as Dias entered the kitchen the shotgun was in the "closed" position and the hammer was cocked. Greene pushed the barrel of the shotgun away from his face. At the same time, Travis jumped toward Dias, the lights went out momentarily, and Travis was fatally shot.

Michael Sturgeon (Sturgeon), the only defense witness, was in the group which accompanied Dias to the apartment. *fn1 He testified that as Dias came into the kitchen, the shotgun which he was brandishing was in the "broken" position, and thus could not be fired. According to his version, Travis jumped toward Dias, and, grabbing the shotgun by the barrel, tore it from the defendant's hand. Still holding the barrel, Travis swung the shotgun at Dias, attempting to use the butt end as a club. Dias put ...

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