Commonwealth v. Accetta

664 N.E.2d 830, 422 Mass. 642, 1996 Mass. LEXIS 110
CourtMassachusetts Supreme Judicial Court
DecidedMay 13, 1996
StatusPublished
Cited by19 cases

This text of 664 N.E.2d 830 (Commonwealth v. Accetta) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Accetta, 664 N.E.2d 830, 422 Mass. 642, 1996 Mass. LEXIS 110 (Mass. 1996).

Opinion

Wilkins, J.

The defendant was convicted of manslaughter on an indictment charging him with murder in the first degree. The defendant shot the victim during a struggle in a lounge in West Springfield. He contended that he had acted reasonably in self-defense. He appealed and we transferred the defendant’s appeals to this court on our own motion.

The first of the two issues that the defendant argues on appeal concerns the trial judge’s exclusion of a portion of the grand jury testimony of a prosecution witness, testimony which the defendant says indicates that the victim had at least partial possession of the gun during the struggle. The second issue arises because the evidence warranted submission to the jury of the possibility of a verdict of either voluntary or involuntary manslaughter, but the verdict slip, over the defendant’s objection, simply listed manslaughter as a possible verdict without requiring the jury to designate the type of manslaughter. There was no error, but for the future, in situations like this, not only should a judge instruct the jury that they must be unanimous as to the theory of manslaughter on which they rely, but the verdict slip also should list the alternative manslaughter options.

1. The defendant asserts that the judge erred in denying him the right to present a portion of the grand jury testimony of a prosecution witness, both to impeach the witness and as substantive proof. The defendant contends that this evidence would have greatly strengthened his claim that he acted in self-defense when he shot the victim during the tussle. To understand this argument, we must summarize the trial testimony of Lee Albitz and a portion of his grand jury testimony.

Albitz, a friend of the victim Blaze Brennan and a prosecution witness, testified at trial that he was with Brennan in the West Springfield lounge on the day of the shooting. Albitz was with Brennan at one end of the bar, speaking with another friend, when he had heard a loud explosion. Brennan told the defendant, who was at the other end of the bar, to stop it. The defendant said, “What are you going to do about it?” Albitz saw that the defendant had a gun. The defendant fired a shot into the ceiling or the wall in Brennan’s direction. Brennan then walked to the end of the bar where the defendant was. Albitz further testified that as the defendant was drawing his gun, Brennan grabbed the defendant’s wrist with [644]*644one hand and with his other hand started hitting the defendant. Albitz agreed on direct examination that he had told the grand jury that Brennan had grabbed the defendant’s hand, not his wrist. After Brennan had hit the defendant, twice, they fell out of Albitz’s sight behind the bar. Albitz testified that then four shots were fired. Brennan was fatally wounded.

On cross-examination, defense counsel pursued a statement that Albitz had given to the grand jury. Albitz agreed that he had told the grand jury that Brennan grabbed the defendant’s hand and not his wrist. Defense counsel then wanted to introduce the following statement that Albitz volunteered at the conclusion of his grand jury testimony: “I am convinced that [the defendant] used the recoil from the pistol to break the gun free from [the victim] before the last two shots were fired, but that’s my opinion.” Albitz testified at trial that the opinion he stated to the grand jury was not based on his observation of Brennan and the defendant at the time Brennan was shot. The judge excluded the evidence.

Albitz’s excluded grand jury testimony was not inconsistent with anything to which he had testified at trial. Albitz’s grand jury statement does not provide “some indication that the fact was different” from something he testified to at trial. See Commonwealth v. Hesketh, 386 Mass. 153, 161 (1982). It was, therefore, not admissible as a prior inconsistent statement to impeach Albitz. Albitz testified at trial that Brennan held the defendant’s wrist or arm. Imbedded in Albitz’s statement of opinion to the grand jury is the idea that, because of Brennan’s conduct, the defendant did not have exclusive control of the gun. Even if this conclusion were the product of Albitz’s personal observation (which he said it was not), and even if Albitz’s statement were not an opinion (which he said it was), it is not inconsistent with the evidence at trial that Brennan held the defendant’s wrist or hand. Both the trial evidence and Albitz’s grand jury opinion indicate that the defendant had the gun in his hand, and he could fire it. The judge did not abuse his discretion in excluding Albitz’s statement which was not even indirectly contradictory of his trial testimony. See Commonwealth v. McGowan, 400 Mass. 385, 391 (1987); Commonwealth v. Hesketh, supra.

Albitz’s excluded grand jury testimony also was not admissible as probative evidence under the principles expressed in [645]*645Commonwealth v. Daye, 393 Mass. 55, 65-75 (1984).2 It is clear from Albitz’s trial testimony that he did not see the shots fired and that the opinion he stated to the grand jury was his speculation as to why the defendant first fired the gun during the tussle. Such a speculative opinion concerning what the defendant thought when he first fired the gun during the tussle was not admissible as probative evidence. Moreover, the Daye hearsay exception concerns only prior inconsistent statements, and, as we have said, Albitz’s grand jury testimony provides no indication that any fact was different from what he testified to at trial. Commonwealth v. Daye, supra at 73 n.16.

2. The defendant contends that the judge erred in giving the jury a verdict slip that listed manslaughter generally as a possible verdict, instead of listing voluntary manslaughter and involuntary manslaughter as separate options. The judge instructed the jury that their verdict had to be unanimous on each indictment, and the jury affirmed that their manslaughter verdict was unanimous. The defendant did not request the judge to instruct the jury more specifically concerning a manslaughter verdict. The defendant rather objected to the form of the verdict slip after the judge had charged the jury.

The question before us is not whether the evidence would warrant a finding of guilty on either manslaughter theory. Cf. Commonwealth v. Fickett, 403 Mass. 194, 197 (1988) (insufficiency of evidence to support an alternative theory of guilt requires new trial). It does, as the defendant concedes. Nor does the defendant argue here that the judge’s instruction permitted the jury to find the defendant guilty of manslaughter with less than unanimity as to the theory — voluntary or involuntary manslaughter. The issue is whether, when there are alternative factual circumstances that could justify finding a defendant guilty of a crime, the jury must identify in their verdict the theory on which they found the defendant guilty. The defendant argues that the verdict slip should have dif[646]*646ferentiated between voluntary and involuntary manslaughter to assure that the jury were unanimous in their verdict.

We have never held that a general verdict of guilty of manslaughter may not properly be received, where each theoiy of manslaughter is presented to the jury. In other words, we have not required that the jury identify the theory on which they arrived at their unanimous manslaughter verdict.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

COMMONWEALTH v. ELIAS SANCHEZ.
100 Mass. App. Ct. 644 (Massachusetts Appeals Court, 2022)
Commonwealth v. Inoa
Massachusetts Appeals Court, 2020
Commonwealth v. Casbohm
116 N.E.3d 633 (Massachusetts Appeals Court, 2018)
Commonwealth v. Rollins
18 N.E.3d 670 (Massachusetts Supreme Judicial Court, 2014)
Commonwealth v. Shea
7 N.E.3d 1028 (Massachusetts Supreme Judicial Court, 2014)
Commonwealth v. Arias
939 N.E.2d 1169 (Massachusetts Appeals Court, 2010)
Commonwealth v. Zanetti
910 N.E.2d 869 (Massachusetts Supreme Judicial Court, 2009)
Commonwealth v. Walker
820 N.E.2d 195 (Massachusetts Supreme Judicial Court, 2005)
Commonwealth v. Santos
797 N.E.2d 1191 (Massachusetts Supreme Judicial Court, 2003)
Commonwealth v. Pimental
764 N.E.2d 940 (Massachusetts Appeals Court, 2002)
Commonwealth v. Melton
763 N.E.2d 1092 (Massachusetts Supreme Judicial Court, 2002)
State v. Jones
29 P.3d 351 (Hawaii Supreme Court, 2001)
Commonwealth v. Grandison
741 N.E.2d 25 (Massachusetts Supreme Judicial Court, 2001)
Commonwealth v. Berry
727 N.E.2d 517 (Massachusetts Supreme Judicial Court, 2000)
Commonwealth v. Freeman
712 N.E.2d 1135 (Massachusetts Supreme Judicial Court, 1999)
Commonwealth v. Eakin
685 N.E.2d 1195 (Massachusetts Appeals Court, 1997)
Commonwealth v. Nadal-Ginard
674 N.E.2d 645 (Massachusetts Appeals Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
664 N.E.2d 830, 422 Mass. 642, 1996 Mass. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-accetta-mass-1996.