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Commonwealth v. Suffolk.2/13/1998
acted to preclude the defense by a clear and deliberate choice. The Commonwealth argues, however, that the defendant had an effective legal alternative, namely to wrestle the gun from Doyle. The Commonwealth, however, ignores the fact that the legal alternative must be effective. Based on the defendant's evidence, there was no assurance that an attempt to take the gun away from Doyle would have been effective in light of the fact that Doyle cocked his gun after the defendant pointed a gun at him and told him to back off. In the circumstances presented, we conclude that the issue of the defense of necessity was raised in this case and the Judge should have given a charge to the jury on this defense. See Commonwealth v. Lindsey, 396 Mass. at 843-845 (the Supreme Judicial Court assumed without deciding that an unlicensed temporary possession of a firearm in a public place might be lawful in spite of G. L. c. 269, Section 10, in certain necessitous circumstances).
We do not agree, however, with defendant's conclusory statement that the failure to do so also had a harmful effect on the manslaughter charge. The defendant argues that the jury could have construed the use of an unlawfully possessed firearm as the use of unreasonable or improper force based on the Judge's instructions on self-defense. We have reviewed the Judge's instructions on self-defense, to which the defendant took no objection, and find there was no risk that the jury could have interpreted the Judge's instructions that way.
3. Failure to mark Doyle's criminal record for identification. The defendant requested the trial Judge at the sentencing hearing to mark Doyle's criminal record as an "exhibit." The Judge denied the request and the defendant claims it was error, for the record was necessary to support his claim that the prosecution had withheld exculpatory evidence from him. The defendant claimed that Doyle's record would have supported his claim that Doyle had been convicted of child abuse, which would have corroborated the defendant's testimony at trial that Doyle pulled a gun on him when the defendant called Doyle a name indicating he was a child abuser, which accusation on a prior occasion had prompted Doyle to threaten the defendant's life if he ever accused him of this offense again. While the defendant pressed for the introduction of the victim's criminal record at trial, he did not object when the Judge did not order its production or request that the record be marked for identification. He cannot now be heard to complain that the Judge failed to do so at the sentencing stage.
In any event, assuming without deciding that the prosecutor should have produced the victim's record, there was no prejudice to the defendant because he was aware of the victim's record and was prepared to offer such evidence at trial. Moreover, by convicting the defendant of manslaughter, the jury obviously credited the defendant's testimony that the struggle in the van was precipitated by the defendant's remark about this offense to Doyle. See Commonwealth v. Tucceri, 412 Mass. 401, 412-414 (1992).
The judgment of manslaughter is affirmed. The judgment of the illegal possession of a firearm is reversed, and the verdict is set aside.
So ordered.
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