Commonwealth vs. Keyma Mack.

LIACOS, C.J. In December, 1993, a Suffolk County jury convicted the defendant, Keyma Mack, of premeditated murder in the first degree. [Note 1] Testimony came from various police

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officers and investigators, as well as four eyewitnesses to the events surrounding the homicide. On the evidence presented, the jury could have found the following: On March 23, 1992, the defendant and a friend arrived outside a row of stores at the intersection of Fuller and Washington Streets in the Dorchester section of Boston. The victim, Christopher Pires, was standing outside the stores with a group of people. Pires approached the defendant and his friend and started a conversation. That conversation degenerated into an argument among them. After a short time, the defendant pulled out a revolver. Brandishing the weapon, he shouted at Pires several times, "You don't think I'm going to shoot you?" Pires turned and ran. The defendant pursued Pires down the street and around a corner, firing three or four shots in Pires's direction. The defendant gained ground on Pires and shot him in the back from only a few feet away. Pires died within a few minutes. [Note 2]

The defendant appealed and asserts these claims of error: (a) the instruction on reasonable doubt was constitutionally defective (b) the failure of the judge to instruct on the offense of manslaughter was reversible error, (c) forcing the defendant to choose between appearing in the confines of a police automobile during a view or not going at all violated the defendant's right to due process, (d) admission of evidence of consciousness of guilt was more prejudicial than probative of the defendant's guilt, and (e) the judge's alleged refusal to allow the defendant to call witnesses on his own behalf violated his right to due process. [Note 3] He also asks us to invoke our power under G. L. c. 278, s. 33E (1994 ed.), to reduce the murder conviction to murder in the second degree. We conclude there

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was no error, and we see no basis under G. L. c. 278, s. 33E, to reduce the murder conviction. Accordingly, we affirm.

1. Request for manslaughter instruction. Trial counsel asked for a jury charge as to involuntary manslaughter, a request the judge rejected. A judge must give such an instruction whenever any view of the evidence would permit such a verdict. Commonwealth v. Sires, 413 Mass. 292, 301 (1992). Counsel contended that the defendant may have only fired the weapon in order to scare the victim.

The evidence, taken most favorably to the defendant, did not support an involuntary manslaughter instruction for the same reasons discussed in Commonwealth v. Sires, supra. After firing a warning shot into the air, the defendant chased the victim down the street, firing several times, all in the direction of the victim. Cf. id. at 303 n.13. Absent some evidence that the defendant's knowledge was impaired, [Note 4] intentionally discharging a firearm in the direction of another person creates a plain and strong likelihood of death. See id. at 303 & nn.12, 14. It can support findings under the third prong of malice and hence murder, but not recklessness and manslaughter. There was no error.

2. Miscellaneous claims. The defendant's other claims need not detain us long.

(a) There was no error in the jury instructions regarding the standard of proof. [Note 5] Appellate counsel complains that the contrast of "absolute" and "mathematical" certainty with "reasonable doubt" lowered the Commonwealth's burden.

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Yet the classic definition found in Commonwealth v. Webster, 5 Cush. 295, 320 (1850), expressly states that the standard of proof is not one of absolute certainty:

"This we take to be proof beyond reasonable doubt; because if the law, which mostly depends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether."

See Victor v. Nebraska, 114 S. Ct. 1239, 1247 (1994) ("beyond a reasonable doubt" is a state of near certitude). We have also noted that the concept of reasonable doubt is not a mathematical one, and the judge was entirely correct in so informing the jury. See Commonwealth v. Rosa, 422 Mass. 18, 28 (1996). We do not require that judges use any particular words to instruct the jury, and here the judge's instruction was an exceptional one. See Commonwealth v. Gagliardi, 418 Mass. 562, 568 n.3 (1994), cert. denied, 115 S. Ct. 753 (1995).

(b) The judge gave the defendant the option of attending the jury's view of the crime scene if the defendant was in a police car and some distance away from the jury. After consultation with trial counsel, the defendant decided not to participate in the view. No objection was lodged. Indeed, a defendant has no right to accompany the jury on their view. See Commonwealth v. Gordon, 422 Mass. 816, 849 (1996), and cases cited. The defendant concedes as much, and we decline the invitation to overrule a long-standing rule.

(c) The defendant was taken into custody when Springfield police arrested him on a warrant relating to a June, 1992, robbery, wholly unconnected with the March killing of Pires in Boston. After voir dire, the judge ruled that some of the defendant's statements to the Springfield police, including the use of a false name, were admissible to show consciousness of guilt. [Note 6] That decision, determining relevance, was within the judge's discretion. See Commonwealth v. Burke, 414 Mass. 252, 260-261 (1993). See also Commonwealth v. Hamilton, 411 Mass. 313, 322 (1991). Which of two crimes caused a defendant to flee or lie is a question going to the weight of the evidence, not its relevance. See Commonwealth v. Burke, supra at 260.

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(d) Finally, there is no merit to the defendant's contention that the judge's refusal to allow him to introduce hearsay evidence violated his right to present a full defense.

We have reviewed the entire record pursuant to our duty under G. L. c. 278, s. 33E. There was no error or reason to reduce the verdict to a lesser degree of guilt.

Judgments affirmed.