COMMONWEALTH vs. THEODORE NEAL WATKINS.

ABRAMS, J. Pursuant to G. L. c. 278, Sections 33A-33G, the defendant Theodore Neal Watkins appeals his convictions for the murder in the first degree and the kidnapping of Eddie keen. Watkins argues no assignments of error. [Note 1] Instead, he claims that we should grant relief under G. L. c. 278, Section 33E, for either of two reasons: (1) that the trial judge erroneously instructed the jury concerning the concept of "reasonable doubt," or (2) that the judge failed to charge the jury that the testimony of an

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accomplice must be scrutinized with care. We conclude that there is no error and that there is no reason to exercise our powers under G. L. c. 278, Section 33E.

We summarize the facts. Shortly after 6 P.M. on November 17, 1975, Theresa Nelson and the defendant's brother Larry Watkins (L. Watkins) were walking along Dudley Street in the Roxbury section of Boston. [Note 2] There they encountered Keen, who stopped his car and asked Nelson if she wanted a ride. Nelson said she did and she entered the front seat of Keen's car. L. Watkins then came forward, entered the car and sat in the back seat.

About five minutes later, L. Watkins pulled out a gun and ordered Keen to stop the car. Keen did so, and L. Watkins asked whether he had any money. When Keen said that he had no money, L. Watkins told Nelson to "frisk" Keen. She did so, and removed his wallet.

L. Watkins and Keen then got out of the car. L. Watkins opened the trunk of the car and ordered Keen to get inside. After Keen entered the trunk, L. Watkins closed the lid.

L. Watkins and Nelson then drove the car to the defendant's home. After Nelson told the defendant that his brother was outside and had a man in the trunk of the car, the defendant came outside and got into the car with Nelson and his brother.

As the group drove through Roxbury, L. Watkins and the defendant decided to kill Keen. They drove the car to Lakeview Avenue in Newton. There, they stopped the car, and the two brothers went to the rear of the car and opened the trunk.

After the trunk was opened, Keen was shot once in the head. [Note 3] Theodore Watkins and L. Watkins then threw

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Keen's body into some leaves near the side of the road. The men returned to the car and drove away. The defendant then fled from Massachusetts.

The jury found the defendant guilty of kidnapping and murder in the first degree. [Note 4] The judge sentenced him to life imprisonment for murder and to a concurrent term of from five to ten years' imprisonment for kidnapping.

1. The Charge to the Jury Concerning Reasonable Doubt.

The defendant asserts that the judge erroneously defined "reasonable doubt" in his charge to the jury. [Note 5] The

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defendant maintains that the judge's definition of reasonable doubt "permitted the jury to convict or acquit [him] on the basis of information incapable of verification."

To determine whether a definition of reasonable doubt accurately conveys the meaning of the term, it is necessary to consider the charge as a whole. See, e.g., Commonwealth v. Grace, 376 Mass. 499, 501 (1978); Commonwealth v. Bjorkman, 364 Mass. 297, 308 (1973); Commonwealth v. Pettie, 363 Mass. 836, 843 (1973). Here, the charge, taken as a whole, reveals no error.

In his charge to the jury concerning reasonable doubt, the judge's language cannot be construed "as in any way diluting the Commonwealth's burden of proving the case beyond a reasonable doubt." Commonwealth v. Gilday, 367 Mass. 474, 498 (1975). The charge properly emphasized the moral certainty, as opposed to a mathematical certainty, which we have consistently held to be a proper definition of the Commonwealth's burden. [Note 6] See, e.g., id. at 497-498; Commonwealth v. Bjorkman, supra at 307-308 & n.8; Commonwealth v. Madeiros, 255 Mass. 304, 307-308 (1926); Commonwealth v. Webster, 5 Cush. 295, 320 (1850).

2. The Failure to Charge the Jury Concerning Accomplice Testimony.

The defendant argues that the judge erred in failing to instruct the jury that the testimony of Nelson should be

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scrutinized with care because Nelson was an accomplice to the crime. [Note 7] He claims that Nelson's testimony was uncorroborated and that his conviction on the uncorroborated testimony of an accomplice, in the absence of a cautionary instruction by the judge, denied him due process of law.

The defendant recognizes, however, that "[i]t has long been the general rule in this Commonwealth that a defendant may be convicted on the uncorroborated testimony of an accomplice," [Note 8] and the judge is not required to give a cautionary instruction to the jury. Commonwealth v. DeBrosky, 363 Mass. 718, 729 (1973). See, e.g., Commonwealth v. Flynn, 362 Mass. 455, 467 (1972); Commonwealth v. French, 357 Mass. 356, 397 (1970), judgments vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936 (1972); Commonwealth v. Taber, 350 Mass. 186, 187 (1966); Commonwealth v. Leger, 264 Mass. 217, 220 (1928); Commonwealth v. Phelps, 192 Mass. 591, 595 (1906).

The defendant, however, argues that the failure of the judge to charge the jury that they should carefully scrutinize accomplice testimony "is now [a question] of constitutional proportion," and "was a violation of the defendant's right to due process of law." We disagree.

In Caminetti v. United States, 242 U.S. 470, 495 (1917), the Supreme Court rejected the proposition that the testimony of an accomplice must be corroborated in order to support a criminal conviction. See United States v.

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DeLarosa, 450 F.2d 1057, 1060 (3d Cir. 1971), cert. denied sub nom. Baskin v. United States, 405 U.S. 927 (1972); Garner v. Oklahoma, 430 F. Supp. 692, 696 (W.D. Okla. 1975), aff'd sub nom. Bromley v. Crisp, 561 F.2d 1351, 1358 (10th Cir. 1977), cert. denied, 435 U.S. 908 (1978). Similarly, a jury instruction that accomplice testimony must be carefully scrutinized is not constitutionally required. Grieco v. Meachum, 533 F.2d 713, 721 (1st Cir.), cert. denied sub nom. Cassesso v. Meachum, 429 U.S. 858 (1976). See United States v. Wright, 573 F.2d 681, 685 (1st Cir.), cert. denied, 436 U.S. 949 (1978); United States v. House, 471 F.2d 886, 888 (1st Cir. 1973).

The defendant also asks that we reconsider the Massachusetts rule concerning jury instructions on uncorroborated accomplice testimony as a matter of State law. Assuming Nelson to be an accomplice, her testimony was corroborated in a variety of ways. Hence there is no occasion for us to reconsider our rule.

Nelson testified that Keen was killed by a single shot. She described the area as "way out in a white neighborhood," with a hill and traffic on one side of the street and trees on the other. She testified the shot was fired between 7 P.M. and 8 P.M. on November 17.

Keen's body was found in an area of Newton matching Nelson's description. A resident of that area of Newton heard a single shot fired at approximately 7:45 P.M. on November 17, and then heard a car drive away.

The medical examiner found the cause of death to be a single gunshot wound. He further testified that in his opinion Keen could have lived for up to thirty minutes after he was shot. Blood was found in the trunk of the car as well as on the leaves where Keen's body was found. This evidence tends to corroborate Nelson's testimony that the killing occurred in Newton and that Keen was still alive when his body was thrown into the leaves. [Note 9]

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Nelson testified that on the night of the killing Keen was wearing a jacket. Keen was seen wearing a corduroy jacket when he left work and was still wearing the corduroy jacket when his body was found. Moreover, Nelson's testimony that Keen was in the trunk of the car was corroborated by finding one of Keen's shoes in the trunk of the car.

Prior to the defendant's trial, Nelson had been convicted and sentenced for armed robbery and kidnapping. [Note 10] She was not, therefore, an immunized witness, the corroboration necessary to support the testimony of an immunized accomplice may relate to the commission of the crime, and need not directly connect the defendant to the crime. See Commonwealth v. Turner, 371 Mass. 803, 812 (1977); Commonwealth v. Turner, 371 Mass. 803, 812 (1977); Commonwealth v. DeBrosky, 363 Mass. 718, 730 (1973); G. L. c. 233, Section 20I. See generally, 7 J. Wigmore, Evidence Section 2059, at 424 (Chadbourn rev. 1978) (The thrust of the immunity statute is that "[t]he important thing is, not how our trust is restored, but whether it is restored at all" [emphasis in original]). In our view, Nelson's testimony was amply corroborated.

3. Review Under G. L. c. 278, Section 33E.

Pursuant to G. L. c. 278, Section 33E, we have reviewed the entire case for consideration of the law and the evidence. [Note 11] We find no reason to order a new trial or to direct a verdict of a lesser degree of guilt.

Judgments affirmed.