Argued December 5, 2014.
Indictments found and returned in the Superior Court Department on December 8, 2008.
A pretrial motion to suppress evidence was heard by Christine M. McEvoy, J., and the cases were tried before her.
Stephen Paul Maidman for the defendant.
Elisabeth Martino, Assistant District Attorney ( Julie Higgins & David J. Fredette, Assistant District Attorneys, with her) for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
[27 N.E.3d 1283] Lenk, J.
Thomas Webb was fatally shot on September 15, 2008, while petting a neighbor's dog on a sidewalk outside an apartment building in Boston. The defendant was arrested a short time
later, after fleeing from police in a vehicle and then on foot. At trial, the Commonwealth did not offer evidence that the defendant fired the fatal shots. Instead, the Commonwealth proceeded against the defendant on a theory of joint venture with the individual who did fire the fatal shots, and who was in the vehicle with the defendant before the [27 N.E.3d 1284] shooting and during the flight from police. The defendant, in turn, conceded his presence at the scene of the shooting and his involvement in the subsequent police chase. He asserted, however, that he did not know that the shooting was planned, and that his role was limited to aiding in the escape after the shooting occurred.
In December, 2011, a Superior Court jury found the defendant guilty of murder in the first degree on a theory of extreme atrocity or cruelty. The jury also found the defendant guilty of one count of possessing a firearm without a license, and not guilty of another count of possessing a firearm without a license. The defendant contends on appeal that the trial judge erred in (1) denying the defendant's motion to suppress statements that he made to police following his arrest, which were used to challenge his credibility when he testified at trial; and (2) declining to instruct the jury on the uncharged offense of accessory after the fact, which he argues deprived him of a defense. Because we conclude that there was no error, and our review of the entire record provides no basis to grant relief under G. L. c. 278, § 33E, we affirm the defendant's convictions.
" We summarize the evidence at trial, in the light most favorable to the Commonwealth," reserving some facts for later discussion. Commonwealth
v. Deane, 458 Mass. 43, 44, 934 N.E.2d 794 (2010) .
Shortly after 9 p.m. on September 15, 2008, two Boston police officers heard the sound of gunfire. One of the officers testified that he believed that the gunshots came " from two different firearms."
Responding to the area from which the gunfire came, the officers observed a dark Nissan Maxima automobile, with tinted windows and Rhode Island registration plates, parked in the middle of Parker Street. A thin African-American man wearing a white T-shirt ran towards the vehicle's front passenger's side door and entered. The officers attempted to block the suspect vehicle using their police cruiser, but the vehicle evaded the police and was driven off.
A chase ensued. While pursuing the suspect vehicle using their flashing blue lights and sirens, the officers observed an object
thrown out of the vehicle's passenger's side window. A .45 caliber semiautomatic pistol was later recovered from that spot along the chase route. The suspect vehicle eventually entered the Academy Homes housing development in Boston and stopped abruptly, and two individuals stepped out. The person who stepped from the passenger's side door was again an African-American man with a thin build wearing a white T-shirt. The person who emerged from the driver's side door was a shorter African-American man with a " stocky build," wearing a " dark sweatshirt" and " dark jeans."
The chase continued on foot, but the police officers lost sight of both individuals. A short time later, different police officers, responding to dispatches about the shooting and chase broadcast over the police radio, observed the defendant emerge from hedges onto a nearby sidewalk. The defendant was " sweating profusely" and " gasping for air." He was wearing a red T-shirt and jeans. A gray hooded sweatshirt was later discovered next to some bushes and shrubbery near the location where the defendant was stopped. Approached by the officers, the defendant indicated that he was coming from the home of his girl friend, " Pookie."
The defendant was handcuffed and taken to the homicide unit at Boston police headquarters. When detectives first approached the defendant seeking to interview him, he became ill and vomited. The defendant smelled of alcohol, and it was [27 N.E.3d 1285] clear to Detective Dennis Harris, the interviewing detective, that the defendant had been drinking. Indeed, during the interview, the defendant stated several times that he was " drunk," was feeling " nice," and was " totaled from the junk." He also indicated that he was " nauseous" and that his " stomach [was] bubbling." Nevertheless, Harris testified that the defendant was not " stumbling or staggering" and " walked unassisted ... into the interview room," and that during the interview the defendant appeared nervous but alert. During the course of the interview, which lasted approximately two hours and twenty minutes, the defendant took two breaks, was permitted to use the telephone and the bathroom facilities, and was provided water and snacks.
At the beginning of the interview, Harris read the defendant the Miranda warnings, see Mirandav.Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the defendant initialed and signed a form confirming that the warnings had been given. The defendant also consented to have the interview electronically recorded, as urged by ...