Commonwealth v. Bishop

963 N.E.2d 88, 461 Mass. 586, 2012 WL 676985, 2012 Mass. LEXIS 126
CourtMassachusetts Supreme Judicial Court
DecidedMarch 5, 2012
StatusPublished
Cited by19 cases

This text of 963 N.E.2d 88 (Commonwealth v. Bishop) 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. Bishop, 963 N.E.2d 88, 461 Mass. 586, 2012 WL 676985, 2012 Mass. LEXIS 126 (Mass. 2012).

Opinion

Gants, J.

On the morning of August 2, 2005, the defendant, Walter R. Bishop, was driving his wife to a train station in Brockton when his Chevrolet Blazer vehicle was blocked on a one-way street by an Isuzu Trooper vehicle, driven by the victim, Sandro Andrade, and he exchanged angry words with the victim. While returning to his home, the defendant saw the Isuzu Trooper parked on Main Street in Brockton. The defendant drove past the vehicle, took a left turn into a parking lot, turned around in the parking lot, and reversed his direction on Main Street. He crossed the solid line and, while driving the wrong way in the north-bound lane of Main Street, struck the rear driver’s side door of the Isuzu Trooper as the victim was attempting to remove his young daughter from her car seat. The defendant then put his Blazer in reverse, again struck the rear door of the vehicle, and stopped next to the vehicle. The defendant fired multiple shots through the open driver’s side window of his vehicle. One shot grazed the victim’s skull but another entered his skull and killed him.

The defendant was indicted for murder in the first degree, in violation of G. L. c. 265, § 1, assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b) (where the uninjured child was the alleged victim and the dangerous weapon was the defendant’s vehicle), and unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a). At trial, the defendant argued that he was not criminally responsible for the killing. A jury in the Superior Court convicted the defendant of all the indictments.1

[588]*588The defendant presents five claims on appeal. First, he argues that the judge failed to conduct an appropriate voir dire of the prospective jurors during jury selection regarding their ability to be fair in applying the law regarding criminal responsibility. Second, he claims that his statement to police following his arrest on the day of the killing should have been suppressed because he did not make a knowing and intelligent waiver of his Miranda rights and did not make the statements voluntarily. Third, he claims that the judge erred in admitting a statement the defendant made to another inmate while the defendant was awaiting trial that suggested the defendant held a racial animus. Fourth, he claims that the prosecutor’s closing argument was improper and created a substantial risk of a miscarriage of justice. Fifth, the defendant claims that the judge erred when he instructed the jury that they must consider whether the defendant, “as a result of a mental illness, lacked the capacity to have the intent, knowledge, or state of mind necessary” to prove the crimes charged, and should instead have instructed the jury to consider diminished capacity based on mental impairment. Finally, the defendant argues that we should exercise our authority under G. L. c. 278, § 33E, to reduce the murder verdict to murder in the second degree because “it is more consonant with justice.” For the reasons detailed below, we affirm the convictions and, after a complete review of the record, decline to exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt or order a new trial.

Background. Because the defendant does not challenge the sufficiency of the evidence at trial, we briefly summarize it, viewed in the light most favorable to the Commonwealth, reserving certain details for our analysis of the issues raised on appeal.

After striking the victim’s vehicle and firing multiple shots at him, the defendant drove south on Main Street and turned right on West Chestnut Street. Based on information regarding the Blazer obtained from witnesses to the incident, the police that same morning traveled to the defendant’s home in Brockton, [589]*589which was approximately one mile from the scene of the shooting. They saw in the driveway a Blazer that had “fresh damage” on the driver’s side, including a paint transfer that appeared to match the color of the Trooper, and a blood spatter on the driver’s side rear wheel well. Earlier that morning, at approximately 7:45 a.m., minutes after the shooting, a neighbor of the defendant saw him wiping off the driver’s side door of the Blazer.

Police officers asked the defendant to speak with them at the police station, and he agreed. After waiving his Miranda rights and agreeing that the interview could be electronically recorded, the defendant told Brockton Detective Joseph Cummings and State Trooper Diane Lilly that he drove his wife that morning to the train station to catch the 7:37 train to Boston and drove home alone. He said that, when a Brockton police officer came to his house later that morning, he told the police officer that he had guns in his home and that his license to carry had expired. He gave the police officers the keys to his gun cabinet and they looked at his guns.2 Although he admitted that Detective Cummings had earlier told him that “there was a shooting and they said that my car was involved,” he said that he wanted “to know what’s going on” and that he had “the feeling that something’s wrong, big time.” He said, “I don’t know what’s going on. Pm getting real nervous and real scared.”

The defendant denied getting into an accident but did recall that, when he drove by the area across from the car wash, he saw twelve to fourteen people milling outside.3 When the defendant was told that his vehicle had been involved in a “confrontation” with another vehicle, that paint on his vehicle matched the paint from the victim’s vehicle, that there was a shooting in which someone was hurt, and that his vehicle was “involved,” he responded by saying, “Shit.” When he learned that the victim was dead, he said, “Then I’m up for murder.” He admitted that [590]*590he had been the person driving his vehicle that morning and denied that he had blacked out.

Neither the defendant nor his wife testified at trial, but both spoke with the defense psychiatrists as to what happened on the day of the shooting, and one of the defense psychiatrists, Dr. Roger Gray, testified to what they had told him.4 According to them, the defendant was driving his wife to the train station when the victim blocked their vehicle by backing up in his vehicle on a one-way street. They shouted at each other, and the victim made threatening statements and “shook his finger as if he had a gun.”5 The defendant’s wife was terrified and screamed at the defendant to “get me the heck out of here.” The defendant turned the comer “on two wheels” and reached the train station on time. Although the defendant’s wife usually waited with the defendant in the car until her train arrived at the station, she was apparently so angry with the defendant and so terrified of him “that she just got out of the car and said, ‘Get away from me.’ ”

Dr. Ronald Winfield and Dr. Gray both testified for the defense about the defendant’s mental health. Dr. Winfield testified that ten years before the incident the defendant had been diagnosed with posttraumatic stress syndrome (PTSS) and a major depressive disorder. Dr. Winfield believed the defendant to have a depressive disorder but did not think that the defendant met the medical criteria for either PTSS or major depressive disorder. He also testified that the defendant suffered from chronic obstructive pulmonary disease (COPD), a medical condition that interferes with blood flow to the brain and can interrupt thought [591]

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Bluebook (online)
963 N.E.2d 88, 461 Mass. 586, 2012 WL 676985, 2012 Mass. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bishop-mass-2012.