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August 24, 1978


Suffolk. Indictments found and returned in the Superior Court on May 17, 1974. The cases were tried before R. Sullivan, J. The Supreme Judicial Court granted a request for direct appellate review.

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


Homicide. Self-Defense. Evidence, Spontaneous utterance, Presumptions and burden of proof. Practice, Criminal, Instructions to jury.

The opinion of the court was delivered by: Quirico

At a criminal trial, a statement made by an unidentified bystander immediately before the incident on which the indictments were based was admissible as a statement attending the commission of the crime. [206-207]

At a murder trial, there was no error in the Judge's instructions on the subject of self-defense nor was there error in his refusal to give additional instructions requested by the defendant. [208-209]

At a murder trial, the Judge instructed the jury correctly with respect to the burden of proof on the issue of self-defense. [209-211]

These are the defendant's appeals, pursuant to G. L. c. 278, §§ 33A-33G, from his convictions on two indictments returned against him by the grand jury for Suffolk County on May 17, 1974, for crimes allegedly committed on March 22, 1974, in Boston. The first indictment charges the defendant with the murder of Mack Clark (Clark), and the second with an assault on Donald V. Haynes (Haynes) with intent to murder him, the defendant being armed at the time with a dangerous weapon, a handgun. The jury returned verdicts of guilty on both indictments, the murder conviction being in the second degree. The defendant was sentenced to the Massachusetts Correctional Institution at Walpole for life for the murder, and for a concurrent term of eight to ten years for the assault. *fn1

The defendant argues two alleged errors which are based on exceptions saved at the trial. One is the admission in evidence of a statement made by someone other than himself immediately before the incident on which the indictments are based. The second relates to the trial Judge's instructions to the jury on the subject of self-defense. Additionally, the defendant asks that this court, in the exercise of its power under G. L. c. 278, § 33E, vacate the verdict of guilty of murder in the second degree and order a new trial on that indictment, or, in the alternative, that it reduce the verdict to guilty of manslaughter. He contends both that the evidence is insufficient to support the verdict of murder in the second degree, and that the verdict is against the weight of the evidence. *fn2

We hold that there was no error, and that there is no basis to modify the jury verdicts or to grant the defendant any other relief under G. L. c. 278, § 33E.

We summarize the evidence to the extent necessary for the Disposition of these appeals. Prosecution witnesses testified that about March 18, 1974, Haynes purchased four bags of heroin from the defendant for thirty-six dollars. He had purchased drugs from the defendant on numerous occasions. About March 20 the defendant was near the Dudley Street station in the Roxbury area of Boston and had some bags of heroin in his possession. Haynes approached him and complained about the quality of the heroin which the defendant had sold him several days earlier, and asked for the return of his money. The defendant responded that the heroin was good and that he had no money. A scuffle followed during which Haynes took seven bags of heroin away from the defendant.

On March 22, 1974, from about 4 p.m. and until some time later, Haynes, Clark, the latter's brother Stephen Clark, and two or three other friends of Haynes were standing on the sidewalk outside a tavern at the corner of Northampton and Washington Streets. About 4:10 p.m. the defendant drove past the corner in a white Pontiac Grand Prix automobile which was later determined to belong to the co-defendant Mormando. The defendant stopped the car a short distance beyond the corner, got out, walked back to the corner, then returned to the car and drove away. He had no conversation with Haynes at that time. About 4:15 or 4:20 p.m. the Pontiac automobile, with three persons in it, again passed the corner. It stopped beyond the tavern. Shortly thereafter the defendant and a young man walked back toward the corner. The second man has been identified as Jerome McGowan, who shared an apartment with Mormando.

When the defendant and McGowan reached the corner Haynes was talking to Clark. The defendant approached Haynes and told him that McGowan, who was now carrying an axe handle, wanted to talk to him. Haynes turned to McGowan who without speaking started to walk across Northampton Street. When Haynes turned back toward the defendant he heard someone behind him say: "Shoot that m . . . - f . . .!" At that moment the defendant reached behind his back, drew a firearm, lunged at Haynes, and fired a shot. Haynes was hit by the pistol but not by the shot, which instead passed through a coat which he was wearing at the time. The defendant then turned toward Clark, who was seven or eight feet away, and fired a shot at him which resulted in his death. The defendant fled toward the Pontiac automobile, with Haynes and others in pursuit. The co-defendant Mormando, who had remained in the Pontiac automobile, picked the defendant up and left the scene. Mormando was apprehended within several days through information given to the police about the Pontiac automobile. The defendant was traced to the Mormando apartment, where he had changed his blood-stained shirt for one given him by Mormando. The defendant left the apartment before the police arrived and fled to New York. He was later arrested there, and was returned to Boston on September 6, 1974.

The defendant's somewhat different testimony of what happened is as follows. He was a drug user, but had not sold any drugs to Haynes. He had directed Haynes to someone else for the purchase of heroin. Several days before March 22, Haynes and Clark, accompanied by three other men, demanded drugs from him. He told them that he had fifteen bags of heroin which he had just purchased for fifty dollars for use by himself and another person. He refused to give them any of the drugs, whereon Clark held a knife to his neck and took eight bags. Haynes then demanded the rest of the drugs but the defendant refused to ...

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