COMMONWEALTH vs. ERNAN FIGUEROA.

MCHUGH, J. Following a street-corner argument late on the night of May 15, 1996, Miguel Reyes shot and killed Vannaroth Ouk. Reyes's friend, the defendant, Ernan Figueroa, his own pistol drawn and cocked, was standing nearby when the shooting occurred. The defendant was thereafter indicted for Ouk's murder, see G. L. c. 265, § 1, on a joint venture theory, and for possession of a firearm. See G. L. c. 269, § 10(a). Following trial, he was convicted of involuntary manslaughter and of the firearms charge. On appeal, the defendant principally argues that statements he made to police should have been suppressed, that certain photographs were insufficiently authenticated and should have been excluded, and that the judge erroneously instructed the jury that the Commonwealth was not required to prove the absence of an "accidental" shooting in order to prove involuntary manslaughter. [Note 1] There was no error in the judge's careful handling of the trial and we therefore affirm.

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Much of the factual detail is most helpfully recited in the context of the alleged errors about which the defendant complains. By way of overview, however, witnesses testified at trial that a group of people, many of whom belonged to the Boston Red Dragons (BRD), a street gang, were standing and sitting on the porch of 56 Sumner Street in Revere late on the evening of May 15. The defendant and Reyes, witnesses said, came out of a nearby house at 47- 49 Sumner Street and approached the group. The two men began exchanging words with the group and the words quickly mushroomed into argument. The victim, Ouk, approached Reyes. Reyes and Ouk then moved into the middle of Sumner Street, arguing as they went.

As Reyes and Ouk stood in the street "almost face to face," Reyes drew his gun. Visibly unarmed, Ouk threw his hands in the air and said, "Shoot me motherfucker if you're going to shoot me." Although witnesses varied slightly in their descriptions of what happened next, the essence of their testimony was that Reyes swung or punched at Ouk with the pistol he was holding. As he did, he discharged the weapon, firing a single shot into Ouk's chest.

While the mid-street confrontation between Ouk and Reyes progressed, the defendant stood to one side of the group, near a fence along the porch. One witness testified to hearing a gun cock in the defendant's vicinity. Another testified to seeing the defendant point a pistol toward the porch. When police later recovered from beneath a nearby trash can what the Commonwealth claimed was the defendant's pistol, they found it cocked with a round in the chamber.

1. Motion to suppress. The defendant's first claim of error focuses on the trial judge's denial of his motion to suppress certain statements he made to police. He claims that police obtained those statements in violation of his right to counsel

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and that he made the statements involuntarily. The trial judge, on factual findings the defendant does not challenge, rightly denied his motion.

The judge's factual findings are to the following effect. The grand jury returned the indictments against the defendant in June of 1996. By then, however, the defendant had disappeared from the local scene. In 1998, local authorities learned that the defendant had been arrested and jailed in New York for an unrelated offense. After appropriate process issued, Revere police Detective John Goodwin and State police Trooper Michael Conti were sent to New York to pick him up and return him to Massachusetts. [Note 2]

The two officers drove the defendant from the Coxsackie Correctional Institute in Fishkill, New York, to Massachusetts on June 19, 1998, in a rented automobile. [Note 3] The trip to Massachusetts lasted about three and one-half to four hours. Conti drove and Goodwin sat in the back seat with the defendant. Throughout the trip, the defendant, although "cuffed and shackled," engaged in what the trial judge found was "congenial conversation" with Goodwin. At no point before or during the ride did the officers give the defendant a Miranda warning.

Along with a series of immaterial topics, the defendant and Goodwin discussed the defendant's whereabouts while a fugitive. That discussion took what the judge found was the form of questions by the defendant followed by Goodwin's responses and follow-up questions. [Note 4] During the conversation, the defendant asked if there were still a lot of Chinese in Revere and Detective Goodwin responded, "Cambodians." The

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defendant asked about the BRD and said that, before the shooting, the BRD had been harassing him in the apartment where he had been staying with his girlfriend, and that they had broken windows, had been shooting a shotgun in a nearby alleyway, and had been "messing with us."

At some point, the defendant asked whether "Mike" (Miguel Reyes) had been caught. Detective Goodwin said that he had been caught after a car stop in Philadelphia. In response, the defendant said, "That night Mike did his thing and fucked up my life." He continued by saying that he wanted to get on with his life and get his life straightened out. The trial judge found that none of the statements about the "Chinese," the BRD, or "Mike" was made in response to a question by Detective Goodwin. She thus denied the motion to suppress and admitted all of the statements at trial.

The judge was correct. Neither the defendant's Fifth nor his Sixth Amendment rights were violated by admission of the statements because the defendant gave them freely and none was elicited by Detective Goodwin. See Miranda v. Arizona, 384 U.S. 436, 478 (1966) ("Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence"); Commonwealth v. Torres, 424 Mass. 792 , 796-797 (1997). The defendant, not Detective Goodwin, began the conversation in which he made the statements, and there was no evidence that Detective Goodwin coerced or tricked him into making them. See Commonwealth v. Chipman, 418 Mass. 262 , 272-273 (1994); Commonwealth v. Diaz, 422 Mass. 269 , 271 (1996); Commonwealth v. Duguay, 430 Mass. 397 , 401 (1999). As the trial judge rightly concluded, Detective Goodwin's discourse and conduct in reaction to the defendant's questions were not the functional equivalent of interrogation, see Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980), and "[t]he officers were not required to rebuff all attempts by [the defendant] to engage them in conversation and sit in silence for the entirety of the three and one-half to four-hour trip" from New York to Massachusetts.

2. Photographic evidence. The defendant's second claim is that the trial judge erroneously admitted four photographs of the defendant and Reyes holding firearms resembling those

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recovered from the crime scene. [Note 5] The photographs, the defendant claims, were insufficiently authenticated to permit their admission.

Photographs usually are authenticated directly through competent testimony that the scene they show is a fair and accurate representation of something the witness actually saw. See Commonwealth v. Weichell, 390 Mass. 62 , 77 (1983), cert. denied, 465 U.S. 1032 (1984); Commonwealth v. Ames, 410 Mass. 603 , 605 n.3 (1991); Liacos, Massachusetts Evidence § 11.13.1, at 728 (7th ed. 1999). But authenticity also can be established circumstantially by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Proposed Mass.R.Evid. 901(a). See Commonwealth v. Duddie Ford, Inc., 28 Mass. App. Ct. 426 , 435 & n.10 (1990), S.C., 409 Mass. 387 (1991). Moreover, the authenticity of a photograph is a preliminary question of fact for resolution by the trial judge. See Commonwealth v. Ames, supra; Advisory Committee's Note to Proposed Mass.R.Evid. 901(a). In making that preliminary determination, the trial judge, with certain exceptions not here relevant, is not bound by the rules of evidence. See Proposed Mass.R.Evid. 104(a); Liacos, Massachusetts Evidence § 3.9.1, at 89 (7th ed. 1999). Once authenticated sufficiently for admission, remaining questions about a photograph's evidentiary value are for the trier of fact. See Commonwealth v. Jordan, 50 Mass. App. Ct. 369 , 371-372 (2000). All of those principles inhere in the overarching principle that "[t]he admissibility of photographic evidence is left to the discretion of the trial judge, and we will overturn the judge's decision only where a defendant is able to bear the heavy burden of demonstrating an abuse of that discretion." Commonwealth v. Obershaw, 435 Mass. 794 , 803 (2002), quoting from Commonwealth v. Waters, 399 Mass. 708 , 715 (1987). See Commonwealth v. Vizcarrondo, 431 Mass. 360 , 362-363 (2000).

When ruling that the photographs were admissible in this case, the trial judge had before her the defendant's affidavit saying

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that the photographs came from film he gave to a woman named Katissa Perez to have developed [Note 6]; Revere police Detective Theodore Michalski's testimony that he obtained the photographs from the owner of a photo shop who had called him two days before the shooting to say that she had received from "Kathy," of 49 Sumner Street, the film containing the images from which she made the prints in question; the results of a police investigation showing that "Kathy" was Katissa Perez; direct evidence from trial witnesses that Reyes and the defendant were together on the night of the shooting; and pistols recovered near the scene of the shooting that resembled those shown in the photographs. Together that was sufficient circumstantial authentication of the accuracy of the photographs to allow their admission, and the judge did not abuse her discretion in admitting them.

3. Jury instructions. Finally, the defendant challenges the trial judge's instruction, over his objection, that the Commonwealth did not have to prove the absence of an accident in order for the jury to convict him of involuntary manslaughter. He also claims that the judge should have allowed his request for an instruction to the opposite effect, i.e., that to prove involuntary manslaughter, the Commonwealth was required to prove that the killing was no accident. Even when the evidence is viewed, as it must be, in the light most favorable to the defendant, see Commonwealth v. Squailia, 429 Mass. 101 , 109 (1999), and even recognizing that in cases where the issue is fairly raised, "the judge, at least on request, is obliged to charge the jury that the Commonwealth has the burden to prove beyond a reasonable doubt that the shooting was not accidental," Commonwealth v. Palmariello, 392 Mass. 126 , 145 (1984), an accident instruction was not warranted by the evidence and the trial judge's instruction on the subject was not error. [Note 7]

In our criminal jurisprudence, "accident" is an exculpatory

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concept. See Commonwealth v. McLaughlin, 431 Mass. 506 , 514 n.7 (2000) ("justification" or "excuse" for criminal conduct "includes, among other things, accident, mistake, self-defense, and defense of another"); Nolan & Sartorio, Criminal Law § 687, at 723 (3d ed. 2001) ("If an act is caused by accident, it cannot be criminal"). But our decisions use the term in two different senses and our opinions have not always found it necessary to distinguish between them. See, e.g., Commonwealth v. Talkowski, 33 Mass. App. Ct. 720 , 725-727 & n.7 (1992); Commonwealth v. Knight, 37 Mass. App. Ct. 92 , 104-105 & n.7 (1994); Commonwealth v. Niland, 45 Mass. App. Ct. 526 , 532-533 (1998).

In the first of the two senses, the term "accident" is a label for the unintended consequences of a defendant's act. See Massachusetts Superior Court Criminal Practice Jury Instructions § 3.13 (1999) (Accidental events are "unexpected happening[s] that occur[] without intention or design on the defendant's part. [They are] sudden unexpected event[s] that take[] place without the defendant's intending [them]"). See also Commonwealth v. Ferguson, 30 Mass. App. Ct. 580 , 582 n.1 (1991), citing Model Jury Instructions for Use in the District Court, Instruction 6:09 (1988 ed. & Supp. 1989). When used in that sense, the focus is on the consequences of the defendant's act. The unintended nature of those consequences is exculpatory if and to the extent that conviction of a particular crime requires the Commonwealth to prove that the consequences were intended. See, e.g., Commonwealth v. Lussier, 333 Mass. 83 , 92-93 (1955); Lannon v. Commonwealth, 379 Mass. 786 , 790 (1980) ("[m]alice is not present . . . where a gun discharged accidentally"); Commonwealth v. Robinson, 382 Mass. 189 , 203 (1981); Commonwealth v. Zezima, 387 Mass. 748 , 756 (1982) ("proof of malice depend[s] on proof of the absence of accident").

When used in the first sense, therefore, an "accident" is not exculpatory if the defendant's intent to bring about what the defendant claims were the unintended consequences of his or

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her act is not an element of the crime for which he or she is on trial. See Commonwealth v. Evans, 390 Mass. 144 , 151-152 (1983) (felony-murder rule makes accidental discharge of a weapon irrelevant because intent to commit the felony, not the killing, provides the requisite malice); Commonwealth v. Griffith, 404 Mass. 256 , 260-261 (1989) (same). Because involuntary manslaughter is a crime that does not involve an intentional killing, Commonwealth v. Catalina, 407 Mass. 779 , 783 (1990), quoting from Commonwealth v. Campbell, 352 Mass. 387 , 397 (1967) (involuntary manslaughter is "an unlawful homicide, unintentionally caused . . . by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct"), accidents in this first sense are not exculpatory. See Lannon v. Commonwealth, 379 Mass. at 790 (judge charged that jury had to consider the crime of involuntary manslaughter if it accepted the defendant's contention that the gun had discharged "accidentally"). Compare Commonwealth v. Clark, 363 Mass. 467 , 471-472 (1973) (involuntary manslaughter instruction would be warranted if the evidence supported a conclusion that the gun was discharged by "accident or wanton or reckless conduct"). [Note 8] Cf. Commonwealth v. Hakala, 22 Mass. App. Ct. 921 , 923 (1986) (in trial on assault and battery by means of a dangerous weapon, charge that Commonwealth must prove defendant was recklessly indifferent that bullet might strike victim gave the defendant the benefit of his claim that shooting was an "accident"). In connection with the charge of involuntary manslaughter, then, the defendant was not entitled to an instruction on accident in the first sense and conviction did not require the Commonwealth to prove its absence.

When used in the second, and more broadly exculpatory, of

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the two senses, the term "accident," although presupposing an unintended result, focuses on the nature of the conduct that produced that result and not simply on the result itself. Sometimes calling this second type of accident a "pure" accident, see Commonwealth v. Palmariello, 392 Mass. at 145 n.4; Commonwealth v. Van Liew, 38 Mass. App. Ct. 934 , 935 (1995), cases use the term to describe an unintentional event occurring through inadvertence, mistake, or negligence. Because proof of involuntary manslaughter requires proof of wanton or reckless conduct, see Commonwealth v. Welansky, 316 Mass. 383 , 399 (1944) ("[t]he essence of wanton or reckless conduct is intentional conduct . . . which . . . involves a high degree of likelihood that substantial harm will result to another"), and because wanton or reckless conduct displays far greater indifference to likely harmful consequences than negligence or even gross negligence, see Commonwealth v. Levesque, 436 Mass. 443 , 451-452 (2002), the concept of accident in this second sense is a defense to a charge of involuntary manslaughter. See Commonwealth v. Bouvier, 316 Mass. 489 , 495-496 (1944) (involuntary manslaughter judgment reversed where evidence would at most support a conclusion that the defendant was negligent and thus "it could not have been found properly that the discharge of the gun was other than accidental"); Commonwealth v. Sellon, 380 Mass. 220 , 231-232 & n.19 (1980) (charge distinguished between negligent or inadvertent conduct and wanton and reckless conduct); Commonwealth v. Depradine, 42 Mass. App. Ct. 401 (1997); Commonwealth v. Niland, 45 Mass. App. Ct. at 533. [Note 9]

The question thus becomes whether the evidence at trial fairly raised the possibility that Reyes shot Ouk unintentionally while engaged in conduct that was neither wanton nor reckless. If so, the defendant was entitled to an instruction on accident in the second sense; if not, no such instruction was required. See

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generally Commonwealth v. Kingston, 46 Mass. App. Ct. 444 , 449-450 & n.10 (1999).

Viewed in the light most favorable to the defendant, the evidence was that Reyes, after pulling from his pocket a loaded revolver equipped neither with a trigger safety nor with another device designed to prevent its discharge, and after hearing Ouk say "shoot me," threw a punch at Ouk with the hand in which he held the pistol while his finger was on the trigger [Note 10] and that the weapon discharged as the punch landed. Even without knowing the consequences, no reasonable person could possibly conclude that such an extraordinarily dangerous act amounted to something less than wanton and reckless conduct. [Note 11] No accident instruction was therefore required. [Note 12]

Judgments affirmed.