Commonwealth v. Clark

730 N.E.2d 872, 432 Mass. 1, 2000 Mass. LEXIS 372
CourtMassachusetts Supreme Judicial Court
DecidedJune 29, 2000
StatusPublished
Cited by43 cases

This text of 730 N.E.2d 872 (Commonwealth v. Clark) 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. Clark, 730 N.E.2d 872, 432 Mass. 1, 2000 Mass. LEXIS 372 (Mass. 2000).

Opinion

Abrams, J.

A jury convicted the defendant, David R. Clark, of murder in the first degree based on a theory of deliberate premeditation. The defendant claims error arising from the denial of his pretrial motions. The defendant also alleges that the judge erred in allowing a view of the murder site; in declining to excuse certain jurors for cause; and in failing to instruct the jurors on manslaughter. Further, the defendant claims that a single justice of this court erred in upholding a ruling by the motion judge that evidence that the defendant was on parole at the time the murder took place was admissible. Finally, the defendant urges that we exercise our power under G. L. c. 278, § 33E, to order a new trial. We affirm the conviction of murder in the first degree. We also conclude that there is no basis for ordering a new trial or entry of a lesser degree of guilt pursuant to our power under G. L. c. 278, § 33E.

1. Facts. “We summarize the facts as the jury could have found them in the light most favorable to the Commonwealth, reserving certain facts for discussion in conjunction with other issues.” Commonwealth v. Federici, 427 Mass. 740, 741 (1998), citing Commonwealth v. Sarourt Nom, 426 Mass. 152, 153 (1997). See Commonwealth v. Salemme, 395 Mass. 594, 595 (1985).

A. The exchange of gunshots. On September 2, 1994, Trooper Mark Charbonnier was on patrol on Route 3. At 3:03 a.m., Trooper Charbonnier radioed the State police dispatch office, reporting that he was stopping at a rest area. Shortly thereafter, Trooper Charbonnier, with his police cruiser’s lights flashing, pulled over the defendant’s van. Trooper Charbonnier parked his cruiser behind the van and approached the driver’s side door of the van with his flashlight in his hand.

There was an exchange of gunfire, and both the defendant and Trooper Charbonnier were injured. At 3:13 a.m., Trooper Charbonnier again radioed the dispatch office, reporting that shots had been fired. He requested an ambulance.

B. After the shooting. Off-duty Boston special police Officer [4]*4David Spiers,1 who was watching television in the home of a friend, heard five gunshots. Spiers went to investigate, heading toward a fence that abutted the embankment of Route 3. Using his flashlight, Spiers observed the defendant on the ground, inching toward the fence. Spiers climbed over the fence and asked the defendant if he needed help. The defendant, who had been shot in the head and arm, moaned in response.

At approximately the same time, Trooper Sean Chicoine, who heard Trooper Charbonnier’s radioed report of “shots fired,” arrived in his police cruiser. Trooper Chicoine ran to Trooper Charbonnier, who was lying on the ground behind the van with his gun in his hand. The gun pointed in the direction of the embankment abutting Route 3.

Trooper Charbonnier said, “I have been shot. Get an ambulance.” Trooper Chicoine radioed for assistance. He then began to look in the direction that Trooper Charbonnier’s gun was pointing. Trooper Chicoine saw Spiers’s flashlight and ordered Spiers to freeze. After Spiers satisfactorily identified himself as a Boston special police officer, Trooper Chicoine turned his attention toward the defendant, who was inching toward the fence. Trooper Chicoine ordered the defendant to show both his hands three times before the defendant complied. Then, Trooper Chicoine handcuffed the defendant.

At this time, other law enforcement and medical personnel began to arrive. Officers and personnel from the State, Kingston, Duxbury, and Plymouth police departments and the Kingston fire department arrived. Officer Loren Frost of the Kingston police department arrived in time to assist Trooper Chicoine in handcuffing the defendant. Once the defendant was secured, Trooper Chicoine proceeded down the embankment to check on Trooper Charbonnier. Officer Frost remained with the defendant and asked him whether he was alone. The defendant answered affirmatively. Officer Frost then began to pull the defendant down the embankment, at which point the defendant requested medical attention. Medical personnel treated the defendant and Trooper Charbonnier on the scene. Both were transported to Boston hospitals for treatment. Trooper Charbonnier bled to death from a bullet wound to his abdomen.

C. Evidence linking the defendant to the crime. The bullet [5]*5that killed Trooper Charbonnier was fired by a .32 caliber pistol found eight feet from where the defendant was located when Spiers first saw him. Markings in the vegetation and scattered belongings of the defendant indicated that the defendant had crawled from the location where the murder weapon was found. Deoxyribonucleic acid (DNA) testing revealed that blood found on the murder weapon was consistent with that of the defendant. Bullets from Trooper Charbonnier’s gun were found in the defendant’s head and left arm.2

In addition, a gym bag was found in the defendant’s van containing another gun, two ski masks, and a police badge. To suggest the defendant’s motive, the Commonwealth offered evidence that the defendant had been on parole and that the contents of the bag, if found, would have resulted in the defendant being returned to prison. The defendant previously had vowed never to be returned to prison.

Testimony by acquaintances of the defendant also linked the defendant to the murder weapon. According to a friend whom the defendant had visited earlier that evening, the defendant had taken a gun out of his gym bag and placed it in the left pocket of his pants.3 Fibers found on the murder weapon were consistent with the defendant’s underwear.

2. The defendant’s pretrial motions. A. Change of venue. Because of the massive publicity surrounding the killing of Trooper Charbonnier, the defendant filed a pretrial motion for a change of venue pursuant to Mass. R. Grim. R 37 (b) (1), 378 Mass. 914 (1979). According to the defendant, “[t]he dramatic and sustained publicity concerning the incident and its aftermath,” as well as “the establishment of a roadside shrine [on Route 3] and the prominence of Route 3 as a travel route,” made it impossible to select a fair and impartial jury. The defendant claims that the judge’s denial of his motion for change of venue was prejudicial error. We do not agree.

A judge may, on his or her own motion or on motion of a [6]*6party, order a change of venue where “there exists in the community where the prosecution is pending so great a prejudice against the defendant that he may not there obtain a fair and impartial trial.” Mass. R. Crim. P. 37 (b) (1). See Commonwealth v. Angiulo, 415 Mass. 502, 515 (1993). “The mere existence of pretrial publicity, even if it is extensive, does not constitute a foundation of fact sufficient to require a change of venue.” Commonwealth v. Colon-Cruz, 408 Mass. 533, 551 (1990), and cases cited. See Commonwealth v. Angiulo, supra; Commonwealth v. Turner, 371 Mass. 803, 807 (1977). “A trial judge should exercise his [or her] power to change the venue of a jury trial ‘with great caution and only after a solid foundation of fact has been first established.’ ” Commonwealth v. Colon-Cruz, supra, quoting Commonwealth v. Smith, 357 Mass. 168, 173 (1970), and cases cited. See Commonwealth v. James, 424 Mass. 770, 775 (1997).

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Bluebook (online)
730 N.E.2d 872, 432 Mass. 1, 2000 Mass. LEXIS 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-clark-mass-2000.