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03/31/78 COMMONWEALTH v. ROBERT MAINS

March 31, 1978

COMMONWEALTH
v.
ROBERT MAINS



Suffolk. Indictment found and returned in the Superior Court on January 17, 1974. The case was tried before R. Sullivan, J., and posttrial motions were heard by Roy, J.

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

SYLLABUS BY THE COURT

Homicide. Practice, Criminal, Exceptions: failure to save exception; Self-defense; Disclosure of statements by witnesses; Assistance of counsel.

The opinion of the court was delivered by: Braucher

At a murder trial, there was no error in the Judge's failure to give an instruction with respect to self-defense where the defendant neither requested such an instruction nor objected to the instructions given and where there was insufficient evidence to raise the issue. [735-736]

There was no merit to a defendant's contention that he was entitled to a new trial on the ground that the prosecutor improperly failed to disclose information about a prosecution witness. [736-738]

Where conduct of the defense counsel at a criminal trial did not deprive the defendant of an otherwise available substantial ground of defense, the defendant was not denied the effective assistance of counsel. [738]

The defendant appeals from his conviction of murder in the first degree and from the denial of his two motions for a new trial. He contends that (1) the trial Judge incorrectly removed from the jury's consideration the issue of self-defense, (2) the prosecutor improperly failed to disclose information about a prosecution witness, and (3) the defendant was denied the effective assistance of counsel. We affirm the conviction.

There was evidence tending to prove the following. On the morning of Tuesday, October 2, 1973, the defendant, the victim and several others were at a construction site in Roxbury. The defendant and the victim argued about a woman, and the defendant said to the victim that "he was going home and he was coming back, and he better have his 'stuff' and make sure his 'stuff' would shoot." The defendant then left, about noon. He returned a little after 2 p.m., said to the victim, "I got my stuff, you got yours?" and shot the victim three times with a .38 caliber revolver. Another man, Lafayette Neal, said, "Stop, don't shoot him no more," and the defendant shot Neal in the hip. A police officer arrived shortly afterward and found the victim lying on the sidewalk with a .22 caliber semi-automatic pistol in his hand. There were eight live rounds of ammunition and there was no evidence that the pistol had been fired. The victim was dead of gunshot wounds on arrival at a hospital at 2:15 p.m.

The defendant testified that he was not at the site in the morning, and had never spoken to the victim. He testified that when he arrived at the site a little after 2 p.m. he walked up to the group of men and said, "How do you feel?" The victim reached into his car and came out with a .22 caliber pistol, and everybody scattered except Neal and the defendant. The defendant pulled a .25 caliber automatic from his belt, but he had no bullets and did not shoot the victim. The defendant was shot in the leg. He left the scene and threw his gun in a field.

After the verdict the defendant moved for a new trial on the grounds that the verdict was against the credible evidence, contrary to law, and against the weight of the credible evidence, and for any just cause. Later successor counsel filed a second motion for a new trial on the grounds of prosecutorial misconduct and denial of effective assistance of counsel. The trial Judge had died, and the motions were heard and denied by a second Judge.

1. Self-defense. The trial Judge did not charge the jury with respect to self-defense. Instead, he said that "there is no question raised here that there was a homicide committed," and that the jury must first determine whether the defendant committed the homicide. In this respect the charge accurately reflected the closing argument on behalf of the defendant, and no exception was taken. The defendant now argues, however, that evidence that the victim reached into his car and came out with a gun in his hand was sufficient to raise the issue of self-defense, that the charge improperly removed from the jury's consideration the issue of the lawfulness of the killing, and that we should exercise our discretion to consider this error despite the absence of an exception. See Commonwealth v. Fields, 371 Mass. 274, 277 (1976). The argument lacks substance except as it relates to a possible issue of self-defense.

The defendant's own testimony provided no basis for a charge on self-defense. Cf. Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975). Nevertheless, if there was evidence in the case warranting a reasonable doubt on the issue, a charge on self-defense would not have been irregular. See Commonwealth v. Bowman, 373 Mass. 760, 767-768 (1977); Commonwealth v. Barton, 367 Mass. 515, 517-518 (1975). But the defendant might well have thought that such a charge, which would have assumed the falsity of his testimony, might have an adverse effect. In these circumstances we do not think the Judge was required, on his own motion, to charge the jury on the basis of a strained view of the evidence. Nor do we think we should relieve the defendant of the result of his own trial tactics.

Moreover, there was insufficient evidence to require an instruction on self-defense even on a request by the defendant. "Before a defendant is entitled to an instruction on self-defence, there must be evidence that he first took advantage of every opportunity to avoid the combat." Commonwealth v. Lacasse, 365 Mass. 271, 273 (1974). The defendant has cited us to no such evidence. His own testimony included a statement that he "couldn't ...


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