COMMONWEALTH vs. DONALD S. GRAHAM

LYNCH, J. The defendant appeals from his conviction of murder in the first degree on the theory of extreme atrocity or cruelty for killing the victim with an arrow fired from a crossbow the defendant kept in the trunk of his automobile. The arrow used was designed to kill big game such as bear, elk, antelope, deer, and boar by promoting rapid bleeding [Note 1]. The defendant through counsel raises two issues on appeal: (1) he is entitled to a new trial because the trial judge provided jurors with a recording of only a supplemental jury charge; and (2) the judge committed reversible error by admitting in evidence four crossbows, found at the defendant's house, that were unrelated to the murder. The defendant also raises an additional issue, pro se, that he was deprived of effective assistance of counsel because (a) counsel did not move to dismiss the grand jury indictment, and (b) counsel failed to offer evidence of the 'as part of the defendant's claim of self victim's criminal record defense. In addition, through counsel, he also asks that we exercise our power pursuant to G. L. c. 278, s. 33E, and either overturn his conviction, or reduce the verdict. We see no reason to exercise our power under G. L. c. 278, s. 33E, and affirm his conviction.

1. Facts and procedural history. Viewing the facts in the light most favorable to the Commonwealth, Commonwealth v. Coonan, 428 Mass. 823, 824 (1999), the jury were warranted in finding the following facts. Commonwealth v. Stewart, 398 Mass. 535, 536 (1986). On February 20, 1994, the victim and his passenger were traveling from work in the southbound highspeed lane of Route 95 when a driver in a vehicle came up behind them and flashed his high beams apparently indicating that the victim should move over so the vehicle could pass [Note 2]. The victim did not immediately pull over, so the driver continued to flash the high beams. When the victim did pull over to allow the vehicle to pass, the victim flashed his high beams back at the vehicle as it sped away.

According to the defendant's own testimony, after observing

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the victim's behavior just described, the defendant decided to give the victim "a taste of his own medicine." The defendant got behind the victim's automobile, put on his high beams, and "chase[d]" it for some fourteen miles [Note 3]. The two automobiles changed lanes several times and, at one point, the victim hit his brakes and abruptly slowed down. Finally, the victim pulled to the side of the road and, instead of just driving on, the defendant decided to pull over also [Note 4].

The victim and his passenger left their automobile and walked toward the defendant's automobile. The defendant also left his automobile, removed a crossbow from his hunk, and loaded an arrow onto it. The defendant also disengaged the safety on the crossbow while the victim and the passenger were approaching. As the victim approached the defendant, he asked, "What the hell do you think you're doing?" Almost immediately, the passenger heard "an air noise," which was the sound of the crossbow being fired. The defendant gave no warning to the victim and the passenger prior to firing the crossbow.

The victim was conscious long enough to tell the passenger he was shot and to walk back toward his automobile, where he began to stagger. The passenger drove the victim to a hospital where the victim died as a result of significant blood loss and hypothermia. The arrow had entered the victim's right chest area and caused a two-inch laceration to the front wall of a major artery that runs from the heart to the armpit.

The defendant's posttrial motion for a required finding of not guilty and a new trial was denied by the judge.

2. Tape recording of supplemental jury instructions. The defendant argues that he is entitled to a new trial because the judge, in response to a specific question from the jury, provided the jury with a recording of only the supplemental instructions instead of a recording of the entire 'instructions as required by Commonwealth v. Baseler, 419 Mass. 500, 506 (1995) [Note 5]. The

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defendant argues that, by providing a recording of only the supplemental instructions, the judge created a risk that the jury would downplay the prosecution's burden of proof.

In denying the defendant's motion the judge [Note 6] explained that he originally planned to submit to the jury a recording of the entire jury instruction. However, when he gave the instruction, he erred in defining involuntary manslaughter. He reinstructed the jury on involuntary manslaughter, but had second thoughts about sending the recording into the jury deliberation room because it contained both a correct and incorrect instruction on involuntary manslaughter. The jury retired for deliberation without the recording. A few hours later, the jury sent a note to the judge asking him to "explain . . . the wording of malice and forethought [sic], and . . . in layman's terms, all of the verdicts as we have become confused of the terms [sic] of all the verdicts [Note 7]."' After conferring with counsel, the judge answered the jury's question. The next day, a few minutes after resuming their deliberation, the jury sent another note to the judge stating, "Some of the jurors would like to be able to read the instructions and definitions of each verdict listed on the [verdict form]. This needs to be clear to them." As no printed copy of his original instructions was available, the judge conferred with counsel and decided to reinstruct the jury on all the substantive offenses and to make a recording of it [Note 8]. The judge reinstructed the jury and repeatedly referred to the Commonwealth's burden to prove the elements of each charge beyond a reasonable doubt, and included instruction on self-defense. The judge then told the jurors that all instructions that were not recorded remained in full force, and said that the reason he was not reiterating all the previous instructions was

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because they had not questioned the other instructions. He also told them to feel free to ask more questions if they arose [Note 9].

The defendant claims that he properly raised this issue at trial. In the alternative he argues, citing Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998), and Commonwealth v. Hallet, 427 Mass. 552, 552-555 (1998), that the judge's consideration of the issue in the motion for new trial resurrected the issue for purposes of appellate review. We disagree. The issue was not properly raised at trial [Note 10], nor was it

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resurrected by the judge in denying the motion because he explicitly stated that he was not permitting "unasserted claims of error to ripen in darkness until what was once easily curable becomes immutably fixed [Note 11]." Thus, we review the error under the substantial likelihood of a miscarriage of justice standard [Note 12]. Commonwealth v. Cruz, 430 Mass. 182, 185 (1999).

We conclude, as did the judge, that there is no substantial likelihood of a miscarriage of justice. The jury were not reluctant to ask questions, yet never expressed confusion about the "beyond a reasonable doubt" standard. The recording submitted reiterated the Commonwealth's burden to prove each element of each offense beyond a reasonable doubt. In summarizing each charge the judge clearly placed the burden of proof on the Commonwealth. Furthermore, we note that the defendant does not argue that the instructions were incorrect [Note 13].

3. Crossbow evidence. The defendant argues that the judge committed reversible error in admitting in evidence over his objection four crossbows that were owned by the defendant but not used in the murder. At trial, five plainclothes police officers came into the court room together each bearing a crossbow armed with an arrow. In overruling the defendant's objection, the judge said that, because the officers simply walked in and

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put them down, it was not unfairly prejudicial. In addition, the judge ruled that the crossbows were relevant to the defendant's knowledge of, and familiarity with, them. "Whether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge . . . [and] the judge's determination of these questions will be upheld on appeal absent palpable error." Commonwealth v. Marrero, 427 Mass. 65, 67-68 (1998), quoting Commonwealth v. Valentin, 420 Mass. 263, 270 (1995).

In Commonwealth v. Toro, 395 Mass. 354, 358 (1985), we stated that, "[t]he fact that the defendant had weapons and ammunition of any kind was arguably relevant in that it tended to show that he was acquainted with weapons and was able to use them. Cases here and elsewhere have not, however, viewed the tenuous relevancy of evidence of a person's general acquaintance with weapons as outweighing the likelihood that such evidence will have an impact on the jury unfair to the defendant." See Commonwealth v. West, 357 Mass. 245, 248 (1970), citing Commonwealth v. O'Toole, 326 Mass. 35, 39 (1950) (evidence of weapons unrelated to crime might be prejudicial; no such likelihood found); Commonwealth v. McLaughlin, 352 Mass. 218, 229-230, cert. denied, 389 U.S. 916 (1967).

In this case, it was unnecessary to introduce the crossbows to demonstrate the defendant's familiarity with the weapon because there already was evidence including testimony that the defendant owned five crossbows and photographs of crossbows found in various locations in the defendant's house. However, even if it were error to admit the other crossbows in evidence, no prejudice to the defendant resulted.

"An error is nonprejudicial only ' "if we are sure that the error did not influence the jury, or had but very slight effect . . . . But if one cannot say . . . without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected." ' " Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). In this case, there was abundant evidence that the defendant was an archery enthusiast. In addition to the testimony and photographs discussed supra, the defendant himself testified that he had been involved with

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archery since he was thirteen years of age, that he owned five crossbows, and had a target in his backyard. Both the defendant and his wife testified that he would bring crossbows with him on camping trips. Moreover, in his opening, defense counsel said that the defendant had been involved in archery for fortyfive years. In this context, we can say that the presence of the crossbows in the courtroom did not substantially sway the outcome. See Commonwealth v. Flebotte, supra; Commonwealth v. Toro, supra at 358-359 (no prejudice in erroneous admission of weapons other than murder weapon).

4. Ineffective assistance of counsel claims. In capital cases, we review an ineffective assistance of counsel claim under the substantial likelihood of a miscarriage of justice standard, which is more favorable to the defendant. G. L. c. 278, s. 33E. See Commonwealth v. Niemic, 427 Mass. 718, 726 (1998); Commonwealth v. Parker, 420 Mass. 242, 246 & n.5 (1995), and cases cited. We look to see whether there was an error in the course of the trial and, if there was, "whether that error was likely to have influenced the jury's conclusion." Id., quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992).

(a) Alleged grand jury impairment. The defendant argues, pro se, that the grand jury process was tainted, yet his counsel did not move to dismiss the indictment, thus depriving him of his right to effective assistance of counsel under both the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights [Note 14]. The defendant apparently contends that the grand jury testimony of the State trooper, in which the trooper read from his report the passenger's statement about the incident, impaired the grand jury process. The defendant makes three claims of inconsistent statements on the part of the passenger contained in the trooper's report: (1) the passenger's claim that the defendant never said a word before he shot the victim; (2) the passenger's claim that he retrieved the arrow from the victim's vehicle; and (3) the passenger's claim about being able to see from the angle at which he was standing. The defendant also claims that the trooper read the passenger's claim that the victim was not a "hot head" or violent when the Commonwealth should have known that the victim had been convicted of rape of a child. In addition, he

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contends that the trooper failed to inform the grand jury that, after several hours of trying to treat the victim, the hospital ran out of blood products.

The fact that trial counsel did not move to dismiss the indictment based on these alleged errors does not create a substantial likelihood of a miscarriage of justice because the defendant has not met the showing required to demonstrate grand jury impairment. In Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986), we stated that, in a claim for impairment of a grand jury, the defendant must show "that false or deceptive evidence was given to the grand jury knowingly and for the purpose of obtaining an indictment . . . [and] that the presentation of the false or deceptive evidence probably influenced the grand jury's determination to hand up an indictment" (emphasis added). Even if some inconsistencies exist in this testimony, there is nothing from which we could properly conclude that the statements were false or deceptive and knowingly introduced to the grand jury. In addition, the grand jury heard the trooper read both the defendant's own statement where he admitted shooting the victim, and the defendant's wife's statement where she stated that she did not hear any words exchanged. This evidence diminishes the impact of the trooper's testimony [Note 15].

Finally, the defendant's claim that the grand jury should have been told that the hospital ran out of blood products after several hours of treating the victim is without merit. There was evidence that the victim would not have survived even if more blood products were available. However, even assuming, arguendo, that more blood products would have helped the victim, actions on the part of medical personnel do not excuse the person inflicting the injuries. See Commonwealth v. Williams, 399 Mass. 60, 64 (1987), and cases cited ("a jury would not be warranted in considering evidence that the victim's wounds were negligently treated unless there also was evidence that the treatment was the only cause of the victim's death"). But see Commonwealth v. Niemic, supra at 727 (defense of reckless medical care permissible).

(b) Failure to offer evidence of the victim's criminal record.

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The defendant also argues, pro se, that his trial counsel was ineffective in failing to offer evidence of the victim's criminal record to support the defendant's claim of self-defense [Note 16]. Under Massachusetts law, in cases involving self-defense, evidence of a victim's violent character is only admissible if the defendant shows that he knew of the victim's violent nature prior to the incident. See P.J. Liacos, Massachusetts Evidence s. 4.4.3, at 137 (7th ed. 1999). See also Commonwealth v. Benjamin, 430 Mass. 673, 678 (2000); Commonwealth v. Edmonds, 365 Mass. 496, 501 (1974); Commonwealth v. Rubin, 318 Mass. 587, 588 (1945), and cases cited; Commonwealth v. Kamishlian, 21 Mass. App. Ct. 931, 933 (1985) [Note 17].

5. G. L. c. 278, s. 33E, claims. We have reviewed the complete record. We find no reason, to alter. the verdict.

Judgment affirmed.