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January 13, 1994


Berkshire. Indictments found and returned in the Superior Court Department on September 12, 1988. The case was tried before William W. Simons, J., and a motion for a new trial was considered by him.

Further appellate review denied on February 28, 1994 at Present: Smith, Fine, & Ireland, JJ.

The opinion of the court was delivered by: Smith

Homicide. Joint Enterprise. Practice, Criminal, Instructions to jury, Argument by prosecutor, Deliberation of jury, Interrogation of jurors, New trial. Evidence, Photograph. Jury and Jurors.

SMITH, J. The defendant, David A. Talbot, and another individual, Patrick M. Burke, were indicted for the crimes of murder in the first degree and larceny of a motor vehicle. They were tried separately. A jury convicted Burke on both indictments. *fn1 In a later trial the defendant was convicted by a jury of murder in the second degree and larceny of a motor vehicle. On appeal, the defendant has raised several issues, which we discuss below.

1. Denials of the defendant's motions for required findings of not guilty. At the close of the Commonwealth's case and again at the close of all the evidence, the defendant moved for required findings of not guilty on both indictments. On appeal, he claims the Judge's denial of these motions was error.

"The essential question in evaluating the denial of a motion for a required finding of not guilty is whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury 'might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.' Commonwealth v. Vellucci, 284 Mass. 443, 445, 187 N.E. 909 (1933)." Commonwealth v. Stewart, 411 Mass. 345, 349-350, 582 N.E.2d 514 (1991), quoting from Commonwealth v. Clary, 388 Mass. 583, 588-589, 447 N.E.2d 1217 (1983). We consider the state of the evidence, in the light most favorable to the Commonwealth, at the close of the Commonwealth's case and at the close of all the evidence. Commonwealth v. Anderson, 396 Mass. 306, 311, 486 N.E.2d 19 (1985). Commonwealth v. Cordle, 412 Mass. 172, 173, 587 N.E.2d 1372 (1992).

We summarize in some detail the evidence presented by the Commonwealth in its case-in-chief. Early in the evening of August 30, 1988, the victim left her home in Dalton, driving her automobile, a light blue A.M.C. Spirit, and taking her license and a ten dollar bill in her pocketbook. She also owned a small pocket knife.

Later that evening, the victim appeared at a bar in Pittsfield where she spent some time talking with a regular customer. At about 11:00 P.M., the defendant and Burke entered the bar. Burke sat an the stool beside the victim; the defendant sat next to Burke. Burke engaged her in conversation. The bartender overheard him tell the victim that he liked her. At some time, the defendant told the bartender that they were out of money; the bartender bought both of them a beer. The two men had four or five beers each. After the bartender announced "last call" at about 12:45 A.M., she noticed that the victim, the defendant, and Burke had left the bar. All three were sober, according to the bartender. The victim was not seen alive again.

Between 2:00 and 3:00 A.M. on August 31, the defendant and Burke arrived unannounced at the West Springfield apartment of a relative of the defendant. The two men did not appear to be "drunk." The defendant had on a shirt and jeans, and was wearing cowboy boots. Burke was dressed similarly but was wearing sneakers. Burke's jeans were ripped around the knees. While at his relative's house the defendant borrowed money and a shirt from him. When asked where he had been, the defendant replied that he and Burke had been in a fight with a man in Springfield.

After leaving West Springfield that morning, the defendant and Burke drove to Leominster in the victim's automobile to the home of Karen Mayfield, looking for Jean Broughey, a friend of Burke. They arrived at the Mayfield house at about 9:00 A.M. The defendant was wearing a new pair of dark blue jeans, a dungaree shirt and gray cowboy boots. Burke was disheveled, wearing a white sweat shirt, torn dungarees and sneakers. Mayfield noticed that there were blood stains on Burke's jeans. When Mayfield commented to Burke on how bad he looked, the defendant replied: "At least I had the decency to change."

Mayfield accompanied the defendant and Burke to Broughey's house. They arrived at about 10:00 A.M. In response to questions from Broughey about where they had obtained the automobile they were driving, the defendant and Burke gave several contradictory answers, none of which made reference to the victim. They said that they had bought the vehicle for $50, that it belonged to the defendant's girlfriend, and then that it belonged to her daughter. Finally, the defendant stated that they had taken the automobile, while hitchhiking, from a man whom they stabbed and a woman whom they had thrown out of the car. When Broughey asked Burke if he could do something like that, the defendant said: "He couldn't, but I could."

Later that day, the defendant, Burke, Broughey, and Mayfield drove to Marlborough to the home of Robert Wallace. En route, both Mayfield and Broughey noticed blood on the windshield. The defendant took a sponge, moistened it with vodka, and wiped the blood off the windshield, saying: "Well, we have to get rid of this."

At the Wallace home, the group drank vodka that Broughey had brought from her house. At one point, unbeknownst to the others, Burke left the Wallace home in the victim's automobile. He was stopped by the police while walking along a street and placed in protective custody because he appeared to be intoxicated. Broughey and Wallace's wife went to the Marlborough police department to bring him home. Burke informed them that he had lost the automobile, which still contained Broughey's purse and the defendant's boots. Later, after an argument with Burke, Broughey and Mayfield left the Wallaces'.

As a result of a telephone conversation, Irene Hillard, a friend of the defendant, picked up the defendant and Burke in Marlborough and drove them to her home in Pittsfield where they stayed for the next few days. During that time, Hillard's daughter asked Burke about cuts he had on his hands. Burke told her that he had left a girl in some woods and also threw a knife into the woods. During that same period, the defendant called Broughey and told her to report to the police that her pocketbook had been stolen. Broughey told him that she was afraid of both Burke and him and did not want to talk to them anymore.

On Saturday, September 3, 1988, at about 11:30 A.M., the Marlborough police found the victim's automobile, parked upon a sidewalk in that town. In the automobile were Broughey's missing purse and the defendant's cowboy boots. The police noticed dry bloodstains on the passenger side and also in the rear of the hatchback. The automobile was towed to the police station where it was examined by a police chemist and a fingerprint expert.

The chemist found blood stains on the automobile's exterior, along the passenger side from the windshield to the hatchback. She found blood stains throughout the interior of the vehicle. The chemist noted that the seats had been wiped off, but blood had soaked into the foam padding of the seat.

The defendant's boots, found in the automobile, also had blood on them. The blood was type A, the same blood group as the victim's. The defendant had type B blood; Burke had type A. Other items of evidence removed from the victim's car tested positive for type A blood as well. The defendant's palm print was found ...

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