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Commonwealth v. Suffolk.2/13/1998
e lost or destroyed." The defendant argues that there was an absence of evidence to support those findings. The Commonwealth counters that even if this were so the search was nonetheless lawful as a search and seizure incidental to a lawful arrest. The Commonwealth's argument ignores the fact that at the time of the seizure, the defendant was under arrest for operating a motor vehicle while under the influence of liquor, negligent operation of a motor vehicle, and operating a motor vehicle after his license had been suspended. The seizure of his clothing would have had no nexus with those offenses. G. L. c. 276, Section 1. Commonwealth v. Johnson, 413 Mass. 598, 602 (1992). Nor does it appear from the record produced that at the time of the seizure the police had probable cause to arrest the defendant for murder.
In any event, we need not address directly the merits of the defendant's and Commonwealth's arguments relating to the seizure of the clothing, because we are convinced that the admission of the defendant's clothing as evidence constituted harmless error beyond a reasonable doubt. The Commonwealth introduced the defendant's clothes in evidence through its forensic expert to show that the defendant's clothes had Doyle's blood on them. In particular, the Commonwealth relied upon the presence of blood on the defendant's seat of his pants to show that he was the driver of the van and the blood on his right pant leg, right sleeve, and cuff to demonstrate that the defendant either moved Doyle's body or came in contact with it. In light of the fact that the defendant admitted fighting with Doyle in the van and shooting him, and that there was not only other evidence of a struggle between the two men in the van but also evidence that the defendant did indeed shoot Doyle in the back as well as in the face and may have hit him over the head with a baton in the van, the introduction of the defendant's clothes was of minimal consequence and amounted to no more than harmless error, particularly since the defendant was convicted of manslaughter. See Commonwealth v. Appleby, 358 Mass. 407, 414 (1970); Commonwealth v. Daggett, 416 Mass. 347, 352-353 (1993). Contrast Commonwealth v. Benoit, 382 Mass. 210, 220 (1981).
2. Defense of necessity. The defendant argues that the Judge erred in refusing to instruct the jury on the defense of necessity in her instructions on the charge of unlawful possession of a firearm. At the close of the Judge's final instructions to the jury, the defendant requested that the Judge give an instruction on the defense of necessity as it relates to this charge. The Judge denied the request. We conclude that the instruction should have been given and that reversal of the conviction for illegal possession of a firearm is required.
The defense of necessity is applicable where (1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is no legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. Commonwealth v. Hutchins, 410 Mass. 726, 730 (1991). Here, viewing the evidence in the light most favorable to the defendant, Commonwealth v. Lindsey, 396 Mass. 840, 842 (1986), the evidence was sufficient to raise the issue of a necessity defense. There is no question that the defendant was faced with a clear and imminent danger, that the defendant, if one accepts his testimony as true, could reasonably expect that his action would abate the danger, and that the Legislature had not
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