COMMONWEALTH vs. GARY EMERSON

LYNCH, J. The defendant was convicted of murder in the first degree under the theories of deliberate premeditation and extreme cruelty or atrocity. He raises three issues on appeal, claiming that (1) the Commonwealth violated a discovery order by failing to disclose material portions of the medical examiner's testimony; (2) the trial judge erred in refusing to instruct the jury on voluntary manslaughter; and (3) the judge erred in not dismissing two jurors. For the reasons stated below we affirm his conviction and conclude there is no reason to exercise our power under G. L. c. 278, s. 33E.

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1. Facts. On March 20, 1996, the decomposing body of the victim was found in her Boston apartment. The cause of death was strangulation by ligature. She had sustained several blows to the head and multiple lacerations, including a severed earlobe. There also was a pink "tank top" pulled up near the victim's neck. At trial, the medical examiner said that the tank top was consistent with the ligature that caused her death. The defendant was the last person known to have seen the victim alive.

When the police searched the victim's apartment, they did not find a murder weapon. The police did find, among other items, a blood-stained paper towel "rolled up in such a manner [that] it indicated that it had perhaps been placed over a finger that had been cut." A drop of blood was found on the victim's back, which when tested matched the defendant's blood type and deoxyribonucleic acid (DNA).

At his home in Swansea, the defendant attempted to commit suicide [Note 1]. When he regained consciousness on March 20, 1996, he called for emergency help and was taken to a hospital. He had a crushing injury to the tip of one of his fingers, requiring amputation. He told the hospital staff that an automobile door had slammed on his finger.

The defendant and the victim at one time had a "dating" relationship. In the course of that relationship the victim had obtained a protective order against the defendant, but did not renew it.

On March 18, 1996, the defendant, the victim, and a friend were at the victim's apartment for the afternoon smoking crack cocaine. At some point in the evening, the friend left the victim's apartment. As he was leaving, the victim told him that she was going to ask the defendant to leave also. At approximately 8 P.m., the victim's downstairs neighbor heard a loud male voice and banging sounds "like furniture . . . being tossed around." The banging lasted until approximately 11 P.m. Later that night, the neighbor was awakened by "one tremendous bang" that, among other things, shook her windows. The neighbor also heard footsteps in the apartment the next evening, March 19, 1996.

Ten days after the murder the victim's brother was cleaning

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out the victim's apartment and discovered a bloody knife under the sofa. The next day, the victim's brother returned to the apartment. While in the kitchen, he unrolled a mat and discovered a bloody hammer [Note 2]. The police had not found either in their search. The hammer and knife were examined, and showed traces of blood consistent with the blood of the victim on them, but no clear fingerprints.

2. Failure to disclose. The Commonwealth was ordered to divulge to defense counsel the substance of its expert testimony. Mass. R. Crim. P. 14 (a), 378 Mass. 874 (1979). Pursuant to this order the defense received the autopsy report which listed the cause of death as "strangulation by a ligature," but were not told that the medical examiner would testify that the pink tank top found near the victim's neck was consistent with the ligature used to strangle her [Note 3]. During a prior trial which ended in a mistrial the Commonwealth's witness, a detective, testified that the police never found the murder weapon and that "to this day we do not know what type of ligature was used."

The defendant argues that this portion of the medical examiner's testimony was part of the Commonwealth's substantive case against the defendant and should have been disclosed to defense counsel [Note 4]. See Mass. R. Crim. P. 14 (a) (4). The Commonwealth maintains that the opinion was not substantive to the defendant's case and was elicited simply as a response to a hypothetical question.

We do not decide whether the Commonwealth had a duty to disclose this testimony because we conclude that no prejudice arose from its failure to do so.

Even where there has been insufficient disclosure, we look to see "whether, given a timely disclosure, the defense would have been able to prepare and present its case in such a manner

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as to create a reasonable doubt that would not otherwise have existed." Commonwealth v. Baldwin, 385 Mass. 165, 175 (1982), quoting Commonwealth v. Wilson, 381 Mass. 90, 114 (1980). See Commonwealth v. Donovan, 395 Mass. 20, 24 (1985), and cases cited [Note 5]. We look to "the consequences of the delay . . . and . . .ask whether the prosecution's [insufficient disclosure was timely] to allow the defendant 'to make effective use of the evidence in preparing and presenting his case.' " Commonwealth v. Baldwin, supra, quoting Commonwealth v. Wilson, supra.

Here the medical examiner did not say the tank top was the murder weapon, only that it was consistent with the kind of ligature that had been used to strangle the victim. Furthermore, we have said that insufficient disclosure can be mitigated by effective cross-examination of the witness by defense counsel. See Commonwealth v. Baldwin, supra at 176; Commonwealth v. Gilbert, 377 Mass. 887, 895 (1979). Here, defense counsel thoroughly cross-examined the medical examiner. The cross-examination highlighted the speculative nature of the medical examiner's opinion. The medical examiner admitted further that there was no reference to the tank top in the autopsy report, that other items of clothing might have been used as a ligature [Note 6], and that the medical examiner was not stating, with certainty, that the tank top was the murder weapon. The defense also attacked the medical examiner's testimony in closing argument [Note 7]. See Commonwealth v. Adrey, 376 Mass. 747, 755 (1978), citing Commonwealth v. Dabrieo, 370 Mass. 728, 743-744 (1976) (where undisclosed exculpatory testimony turned on witness

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credibility, "ultimate and effective presentation of the evidence to the jury cured any error").

The defendant points to United States v. Alvarez, 987 F.2d 77, 85-86 (1st Cir.), cert. denied, 510 U.S. 849 (1993), to argue that effective cross-examination is not enough to counter the effects of undisclosed testimony. That case is not persuasive because there, the undisclosed testimony was a statement by one defendant which was the only evidence linking her to the crime. Here, the testimony was only peripherally related to the Commonwealth's theory of the cause of death.

The defendant argues further that, had he known sooner about the medical examiner's opinion, he would have used a different trial tactic. He states that he would have argued that, given the wound on the defendant's finger, if the tank top were used by the defendant, there would have been significant amounts of his blood on the tank top, as well as on the victim's head and shoulders. He maintains that by the time the medical examiner testified, it was too late to make this argument to the jury because the defense had already relied on testimony of several witnesses who stated that the murder weapon had not been found. These arguments appear to overlook the fact that the medical examiner did not state that the tank top was the murder weapon.

It is also significant that defense counsel did not request a continuance so that he would have time to investigate the testimony. "[U]nless the undisclosed evidence is either virtually destructive of the defendant's case . . . or is strongly supportive of innocence . . . defense counsel should, when faced with delayed disclosure situations, seek 'additional time for investigative purposes.' " Commonwealth v. Baldwin, supra at 176-177, quoting Commonwealth v. Cundriff, 382 Mass. 137, 150 (1980), cert. denied, 451 U.S. 973 (1981). See Commonwealth v. Gordon, 422 Mass. 916, 936 (1996).

We conclude that, even if the information should have been disclosed prior to trial, the defendant was not prejudiced by the delay.

3. Voluntary manslaughter instruction. The defendant argues that the judge committed reversible error by refusing to instruct the jury on voluntary manslaughter.

A voluntary manslaughter instruction must be given "if, on 'any view of the evidence,' regardless of the credibility, manslaughter may be found." Commonwealth v. Carrion, 407

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Mass. 263, 266 (1990), quoting Commonwealth v. Pitts, 403 Mass. 665, 667 (1989), and cases cited. The evidence must be viewed in the light most favorable to the defendant. See Commonwealth v. Pierce, 419 Mass. 28, 31 (1994). An instruction need not be given if there is no evidence supporting a finding of manslaughter. See Commonwealth v. Carrion, supra at 267, and cases cited.

Voluntary manslaughter "is [an] unlawful homicide arising not from malice, but . . . in . . . 'sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense.' " Commonwealth v. Carrion, supra at 267, quoting Commonwealth v. Nardone, 406 Mass. 123, 130-131 (1989). "A jury must be able to infer that a reasonable person would have become sufficiently provoked, and that the defendant was in fact provoked." Commonwealth v. Pierce, supra, citing Commonwealth v. Garabedian, 399 Mass. 304, 313 (1987). See Commonwealth v. Seabrooks, 425 Mass. 507, 514 (1997). However, the jury are not "permitted merely to speculate on whether the defendant . . . might have been roused to the heat of passion." Commonwealth v. Carrion, supra at 267, quoting Commonwealth v. Walden, 380 Mass. 724, 727 (1980). Arguments or insults are not enough to establish reasonable provocation. See Commonwealth v. Carrion, supra, quoting Commonwealth v. Zukoski, 370 Mass. 23, 28 (1976), and case cited. "Physical contact between a defendant and a victim is not always sufficient to warrant a manslaughter instruction even when contact was initiated by the victim." Commonwealth v. Pierce, supra at 31, and case cited.

In this case, there was no evidence that warranted the finding that the defendant acted in a sudden heat of passion. The evidence that a neighbor heard a loud male voice she could not identify coming from the victim's apartment and that there were banging noises is obviously insufficient to support such a conclusion.

The defendant points to his injuries, particularly to the injury to his finger which required its amputation. He claims that the jury could have found that the victim attacked the defendant with a hammer, injuring him so severely that he reacted to sudden combat or reasonable provocation. This claim is based on speculation, not evidence. In fact, the defendant told hospital personnel that he slammed his finger in an automobile door, and told police his injuries were self-inflicted.

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The record is similarly devoid of any evidence that the defendant was roused to a sudden heat of passion. No error arose from the judge's refusal to give an instruction on voluntary manslaughter.

4. Juror bias. The defendant argues for the first time on appeal that the judge's failure, sua sponte, to exclude two jurors for cause who had family experience with domestic violence violated his right to an impartial jury under the Sixth Amendment to the United States Constitution and arts. 12 and 29 of the Massachusetts Declaration of Rights.

Not only did the defendant fail to object at trial to these jurors, he told the judge that they were satisfactory.

Juror bias is a question of fact to be determined by the judge. A finding that a juror is impartial will not be overturned on appeal unless the defendant makes a clear showing of abuse of discretion or that the finding was clearly erroneous. See Commonwealth v. Amirault, 399 Mass. 617, 626 (1987). This court follows the Supreme Court standard set out in McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984), and Smith v. Phillips, 455 U.S. 209 (1982). See Commonwealth v. Amirault, supra at 624-625. In order "to obtain a new trial . . . a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." McDonough Power Equip., Inc. v. Greenwood, supra at 556.

The jurors did not attempt to conceal anything nor were they themselves the victims of domestic violence. Furthermore the jurors unequivocally stated that they could be impartial. Commonwealth v. Vann Long, 419 Mass. 798, 804 & n.5 (1995). There is nothing in the decided cases to suggest that, in these circumstances, the judge erred, as a matter of law, in finding these jurors indifferent. See id.; Commonwealth v. Auguste, 414 Mass. 51, 56-58 (1992);

Commonwealth v. Amirault, supra at 626.

Finally, we have reviewed the record and the transcript as required by G. L. c. 278, s. 33E, and conclude that there is no substantial likelihood of a miscarriage of justice.

Judgment affirmed.