COMMONWEALTH vs. DANIEL R. ROBERTS.

ABRAMS, J. The defendant, Daniel R. Roberts, appeals from convictions of murder in the first degree, and armed robbery. The defendant alleges error in (1) the denial of his motion to suppress; (2) the judge's evidentiary rulings; and (3) the judge's failure to give an instruction on larceny. The defendant also asks that we exercise our power under G. L. c. 278, Section 33E, and reduce the verdict to a lesser degree of guilt. We affirm the convictions. We decline to exercise our power under G. L. c. 278, Section 33E, in favor of the defendant.

On Tuesday, June 23, 1981, at approximately 10:30 A.M., the victim was found in his apartment bludgeoned to death. The apartment had been ransacked. At about the same time, the defendant was seen driving the victim's automobile in Deerfield, New York. Later that day, the defendant was arrested driving a Mercury Cougar automobile stolen from a third person. The defendant had with him many items of personal property belonging to the victim. The defendant did not deny killing the victim. He claimed that the victim sexually assaulted him and that he killed the victim in self-defense.

There were eight wounds on the victim's head, and his skull was fractured in at least four places. The cause of death was multiple blunt injuries to the head.

1. Motion to suppress. After his arrest, the defendant gave two statements to New York State police. Prior to trial, he moved to suppress the statements as involuntary and because there was no knowing, intelligent, and voluntary waiver of rights protected by the warnings required in Miranda v. Arizona,

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384 U.S. 436 (1966). [Note 1] On appeal, the defendant argues only that because he chose not to answer certain questions during interrogation, the officers should have asked him if he wanted to stop the interrogation. He contends that his refusal to reply to certain questions was a reassertion of his right to silence, and that the failure of the officers to ask him whether he wanted to stop the interrogation requires suppression of his statements. We do not agree.

At the suppression hearing, the judge heard testimony from the defendant as well as from the New York State police officers who questioned him. The judge specifically found that the defendant never indicated that he wanted the interrogation to end. The judge found, as to the defendant's first statement, that the defendant was sober and calm, that "he answered all [the] questions that he chose to answer in a very straightforward manner," and that his refusal to answer some questions indicated that "he was alert, in control, and exercising judgment to protect himself." The judge also found, as to the second statement, that he "never asked that the questioning cease because he was too tired or too high, had a headache or the room was too stuffy to continue talking. At no time did he indicate in any way that he would exercise his privilege and remain silent."

"The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court. In such a situation, where subsidiary findings of fact have been made

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by the trial judge, they will be accepted by this court, and we do not substitute our judgment for [the trial judge's], absent clear error." Commonwealth v. Moon, 380 Mass. 751, 756 (1980). See Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990).

"If a defendant who has initially waived his right to remain silent wishes later to cut off questioning, [ ] he must `indicat[e] in [some] manner' that he is invoking the right he previously waived." Commonwealth v. Bradshaw, 385 Mass. 244, 265 (1982), quoting Miranda v. Arizona, 384 U.S. 436, 473-474 (1966). "For the rule of Miranda regarding the termination of questioning to apply, there must be either an expressed unwillingness to continue or an affirmative request for an attorney" (emphasis supplied). Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984). In view of the judge's findings, which were amply supported by the record, there was no error in the denial of the motion.

2. Evidentiary rulings. Pursuant to G. L. c. 278, Section 33E, the defendant claims that the admission at trial of various items of evidence to which he did not object requires that we reverse his convictions.

a. The New York murder. At the time of the trial in Massachusetts, the defendant had been convicted in New York for the murder of the owner of the Mercury Cougar, who was a seventy-five year old woman. The defendant argues that the prosecutor's phrasing of questions to the New York police in terms of "the homicide in Boston" (a procedure agreed to at trial); the questions to the victim's daughter, "What was [your mother's] address?" and "What was your mother's name?"; the absence of the New York victim from the trial; the fact that the New York victim did not call the police; the number of experienced, high-ranking New York officers involved in the investigation; and the fact that some of the New York officers did not know of the homicide in Boston, injected into the trial a substantial amount of evidence that the defendant murdered the owner of the Mercury Cougar. We do not agree.

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Indeed, the transcript reveals that the judge and the prosecutor took care to prevent the jury from hearing or seeing anything that could indicate that the defendant had killed the owner of the Mercury Cougar. The prosecutor prepared the witnesses from New York and instructed them to avoid any mention of the New York murder. Written statements from the defendant were redacted to avoid any mention of it. Photographs taken by the New York police were sanitized by cutting out parts of the photographs that depicted the weapon used in the New York murder. The judge also asked journalists who were covering the trial not to print information about the events in New York because of its potentially prejudicial impact. To the extent that the defendant's argument is that the Commonwealth should have stipulated to the facts surrounding the defendant's acquisition of the Mercury Cougar, we reject it. The Commonwealth is "not compelled to stipulate." Commonwealth v. Nassar, 351 Mass. 37, 46 (1966). The defendant's argument is frivolous. [Note 2]

b. Evidence of the defendant's attempted escape. The Commonwealth introduced evidence that the defendant attempted to escape on his way to a court appearance. Additionally, a search of the defendant's cell at the Charles Street jail revealed a handcuff key in a jar of cold cream. The defendant concedes that an escape attempt is admissible as evidence of consciousness of guilt. [Note 3] Commonwealth v. Jackson, 391 Mass. 749, 758 (1984). The defendant claims, however, that the evidence of his violent behavior during the escape

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attempt was so prejudicial that it outweighed the probative value of the evidence of the escape. We disagree. "Whether evidence is relevant to prove an issue raised by the pleadings or an incidental material issue and whether the inflammatory nature of the evidence outweighs its probative value are matters for the discretion of the trial judge. This court will accept a trial judge's conclusion except in the case of palpable error. Commonwealth v. Booker, 386 Mass. 466, 469-470 (1982), and cases cited." Commonwealth v. Sawyer, 389 Mass. 686, 700-701 (1983). [Note 4]

c. Evidence indicating that the defendant was a fugitive. The defendant asserts that there is a substantial likelihood of a miscarriage of justice on the conviction of murder in the first degree because the judge admitted evidence suggesting that he was a fugitive from justice. In particular, the defendant argues that the judge should have redacted his statement that he was "thinking about getting away from the State of Oklahoma." We do not agree. That statement is innocuous and in no way implies that the defendant was a fugitive. [Note 5]

The defendant also argues that the fact that he registered under an assumed name at the YMCA prior to the crime should not have been admitted. The defendant is correct. Nevertheless, in light of the fact that the defendant admitted giving the police a false name when arrested, admitted lying to the police, and admitted to "trashing" the victim's apartment,

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the error is nonprejudicial. Certainly as to the conviction of murder in the first degree it does not create a substantial likelihood of a miscarriage of justice.

3. Failure to instruct on larceny. The defendant asks that we reverse his conviction for armed robbery and for only that portion of the conviction of murder in the first degree based on felony murder. [Note 6] He asserts that the judge should have instructed on the lesser-included offense of larceny. The short answer is that the judge raised the issue of a larceny instruction with counsel prior to the instructions, [Note 7] and defense counsel agreed that such an instruction should not be given. "The theory of law on which by assent a case is tried cannot be disregarded when the case comes before an appellate court for review . . . ." Santa Maria v. Trotto, 297 Mass. 442, 447 (1937). See Commonwealth v. Fernette, 398 Mass. 658 (1986). Further, our rule is that "[w]hen the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime" (emphasis supplied). Commonwealth v. Hobbs, 385 Mass. 863, 871 (1982). There was no such request. Indeed, the defendant's trial strategy was to present an all-or-nothing choice to the jury and to claim that he was entitled to a not guilty verdict based on self-defense from a sexual assault.

On appeal, the defendant does not argue that there was error in the judge's instructions on armed robbery or that there was insufficient evidence to permit the jury to infer that the defendant had committed armed robbery. [Note 8] The argument

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on appeal is simply that the jurors might have been "reluctant to acquit simply because they were uncertain whether the defendant formed the intent to steal just after the killing rather than just before." This argument is inconsistent with

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the defendant's trial strategy. The defendant wanted an acquittal, not a conviction of a lesser-included crime. The instructions, now requested after the fact, might have undermined his tactical decision to seek an acquittal on the ground of self-defense. See Commonwealth v. Doucette, 391 Mass. 443, 458 (1984); Reddick v. Commonwealth, 381 Mass. 398, 407 (1980). Last, because it is clear that the jury rejected the defendant's version of the events, there was no substantial risk of a miscarriage of justice for the failure to instruct the jurors on larceny. See Commonwealth v. Oakes, ante 92, 94-95 (1990), quoting Commonwealth v. Pares-Ramirez, 400 Mass. 604, 609 (1987).

4. Relief pursuant to G. L. c. 278, Section 33E. We have reviewed the transcript pursuant to G. L. c. 278, Section 33E. We see no reason for a reduction in the verdict to a verdict of a lesser degree of guilt or for a new trial. [Note 9]

Judgments affirmed.