Commonwealth v. McCambridge
690 N.E.2d 470, 44 Mass. App. Ct. 285, 1998 Mass. App. LEXIS 41 (1998)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The defense of necessity applies to a charge of unlawful possession of a firearm if the defendant faced a clear and imminent danger, reasonably expected their action to abate the danger, had no effective legal alternative, and the legislature has not precluded the defense. Evidence seized by private parties not acting as agents of the police is not subject to constitutional suppression.
Facts:
- A State police officer observed a van driving erratically on the Southeast Expressway in the early morning hours and pursued it.
- The van swerved, hit a cement curbing, fishtailed across the expressway, struck a concrete Jersey barrier, flipped over, and landed on its driver's side.
- The officer found the bleeding defendant in the driver's area of the van and Richard Doyle, who was not breathing, underneath the left rear wheel.
- As the defendant was being removed from the van and placed in an ambulance, a .32 caliber double-barrelled derringer pistol fell out of his jacket pocket.
- An ambulance attendant picked up the derringer pistol and handed it to one of the State troopers at the scene.
- An autopsy of Richard Doyle revealed two gunshot wounds (one to the right cheek, one to the back) and a blow to the head consistent with a 'billy club,' with his death attributed to the gunshots.
- Ballistics experts determined the derringer pistol recovered from the defendant fired the bullets found in Doyle, and a 9 millimeter semiautomatic pistol was also found cocked and loaded in the van.
- The defendant testified that he and Doyle had been drinking, and during an argument, Doyle pulled out the 9 millimeter pistol, prompting the defendant to grab the derringer from the dashboard and shoot Doyle in self-defense.
Procedural Posture:
- A grand jury returned indictments against the defendant for murder in the first degree, unlawful possession of a firearm, and various motor vehicle offenses.
- A jury in the Superior Court found the defendant guilty of so much of the murder indictment as charged voluntary manslaughter and guilty of all other charges except for one motor vehicle offense.
- The defendant appealed his convictions for manslaughter and illegal possession of a firearm to the Appeals Court of Massachusetts, arguing that the judge erred in denying his motion to suppress physical evidence, in failing to instruct the jury on the defense of necessity, and in failing to mark for identification the victim’s criminal record.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
1. Does the defense of necessity apply to the charge of unlawful possession of a firearm when the defendant claims to have taken the weapon from an aggressor in self-defense during a clear and imminent danger, and no effective legal alternative was available? 2. Did the trial court err in denying the defendant's motion to suppress a firearm that fell from his clothing while being transported by ambulance attendants who then turned it over to police? 3. Was the admission of the defendant's clothing, seized without probable cause for murder, harmless error given other compelling evidence and the conviction for voluntary manslaughter?
Opinions:
Majority - Porada, J.
1. Yes, the defense of necessity should have been instructed to the jury for the unlawful possession of a firearm charge, requiring reversal of that conviction. Viewing the evidence in the light most favorable to the defendant, there was sufficient evidence to raise the issue: the defendant faced a clear and imminent danger when Doyle pulled a gun, his action of taking and using the derringer could reasonably be expected to abate that danger, and there was no assuredly effective legal alternative (such as attempting to wrestle the gun from Doyle, who had then cocked his weapon). Therefore, the judge's denial of the instruction was error. (Citing Commonwealth v. Hutchins, 410 Mass. 726 (1991), and Commonwealth v. Lindsey, 396 Mass. 840 (1986)). 2. No, the trial judge did not err in denying the motion to suppress the derringer pistol. The defendant failed to demonstrate that a "search and seizure" in the constitutional sense by police occurred. The gun fell from the defendant's clothing while he was being placed in an ambulance, and an ambulance attendant, acting as a private party and not as an agent of the police, subsequently turned it over to the police. There is no violation of the Fourth Amendment or Article 14 when evidence is seized by private parties and then given to the police. (Citing Commonwealth v. Jung, 420 Mass. 675 (1995), and Commonwealth v. Berry, 420 Mass. 95 (1995)). 3. No, the admission of the defendant's clothing, even if arguably seized unlawfully, constituted harmless error beyond a reasonable doubt. The clothing primarily showed Doyle's blood on the defendant's attire, which was of minimal consequence given the defendant's own admission of fighting with Doyle and shooting him, and other evidence supporting a struggle in the van. Given the strong body of other evidence and the conviction for voluntary manslaughter, the introduction of the clothing did not prejudice the defendant. (Citing Commonwealth v. Appleby, 358 Mass. 407 (1970), and Commonwealth v. Daggett, 416 Mass. 347 (1993)). Regarding the failure to mark Doyle’s criminal record for identification, the court found no error because the defendant did not object or request it be marked at trial. Furthermore, there was no prejudice as the defendant was aware of the record, and the jury, by convicting him of manslaughter, evidently credited his testimony about the struggle being precipitated by his remark concerning child abuse, which the record would have supported. (Citing Commonwealth v. Tucceri, 412 Mass. 401 (1992)).
Analysis:
This case clarifies the application of the necessity defense to statutory firearm possession offenses, emphasizing that a defendant may temporarily possess a weapon if faced with an immediate threat and lacking effective legal alternatives. It also reinforces the established principle that evidence obtained by private individuals acting independently of law enforcement is not subject to Fourth Amendment exclusion. The finding of harmless error for the clothing seizure highlights the difficulty in overturning convictions based on improperly admitted evidence when overwhelming other evidence supports the verdict, especially for lesser offenses like manslaughter, suggesting that such errors must be truly impactful to warrant reversal.
