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Commonwealth v. Suffolk.2/13/1998
November 7, 1997.
Constitutional Law, Search and seizure. Search and Seizure, Exigent circumstances. Error, Harmless. Necessity. Firearms. Practice, Criminal , Instructions to jury, Exhibits. Homicide.
Indictments found and returned in the Superior Court Department on November 30, 1993.
A grand jury returned indictments against the defendant for murder in the first degree, unlawful possession of a firearm, and various motor vehicle offenses. The indictments arose out of a single vehicle crash following which the defendant was found behind the driver's wheel of the vehicle and the body of Richard Doyle was found outside the vehicle under the rear wheel on the driver's side with two bullet holes in him. A jury in the Superior Court found the defendant guilty of so much of the murder indictment as charged voluntary manslaughter and guilty of all the other charges except for one of the motor vehicle offenses. On appeal from the defendant's convictions for manslaughter and illegal possession of a firearm, the defendant argues that his convictions should be reversed on the grounds that the Judge erred in denying his motion to suppress physical evidence, in failing to instruct the jury on the defense of necessity, and in failing to mark for identification the victim's criminal record. We affirm the conviction for manslaughter and reverse the conviction for illegal possession of a firearm.
We summarize the pertinent evidence presented to the jury. A State police officer in the early morning hours observed a van driving erratically on the Southeast Expressway. As the officer pursued the van, he saw the van swerve in the breakdown lane, hit the right shoulder cement curbing and then fishtail to the left across the expressway into the concrete Jersey barrier. After hitting the barrier, the van went up in the air, flipped over and landed on the driver's side of the van. The officer found the defendant, bleeding, in the driver's area of the van and Doyle, who was not breathing, under the left rear wheel of the car. As the defendant was being removed from the van and placed in an ambulance, a gun fell out of his jacket pocket. The gun, a .32 caliber double barrel derringer pistol, was picked up by one of the ambulance attendants and given to one of the State troopers at the scene. Doyle, who was the man found lying underneath the wheel, was transported to the Boston City Hospital, where he was pronounced dead. A bullet hole in his right cheek was discovered by hospital personnel at that time. Doyle's blood alcohol level tested at .22 percent at the hospital.
An autopsy of Doyle's body was performed by the associate medical examiner of Suffolk County. The medical examiner found evidence of numerous abrasions and two gunshot wounds on Doyle's body. Although he could not say whether the abrasions occurred post mortem or pre mortem, he was of the opinion that the two gunshot wounds occurred prior to Doyle's death. He opined that the first gunshot wound was to Doyle's right cheek and would have resulted in a lot of bleeding; the second gunshot entered Doyle's back and would have resulted in death quickly. He also opined that the decedent had suffered a blow to the head with a linear object consistent with the use of a "billy club" found in the van. The examiner attributed Doyle's death to the multiple gunshot wounds.
A ballistics expert testified that the bullets which were removed from Doyle's body were fired by the derringer pistol recovered from the defendant and that the gun had to be cocked each time the weapon was fired and had a trigger pull of between thirteen and sixteen pounds of pressure. The ballistician also testified about a 9 mm. Smith and Wes
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