Commonwealth v. Bush3/4/1998
Homicide. Practice, Criminal, Required finding, Instructions to jury, Voluntariness of statement, Capital case. Evidence, State of mind, Inference, Relevancy and materiality.
Indictments found and returned in the Superior Court Department on January 24, 1992.
The cases were tried before Robert L. Steadman, J.
A jury convicted the defendant on two indictments charging murder in the first degree on the theory of deliberate premeditation. He is represented by his trial counsel on appeal, and he raises issues as to the sufficiency of the Commonwealth's evidence, evidentiary rulings, and the jury instructions. We affirm the convictions. We also conclude that there is no basis to exercise our authority under G. L. c. 278, Section 33E, either to order a new trial or to reduce the verdicts.
We summarize the evidence in the light most favorable to the Commonwealth. The victims, Melvin Bonnett and Christopher Green, were shot and killed in the hallway of an apartment building in Brockton on December 13, 1991. The defendant lived in the building with his girl friend, India Noiles, and her two daughters. Bonnett also lived in the building.
Approximately three weeks before the murders, Noiles "beeped" the defendant on his pager and told him that she was afraid because a friend had said that Bonnett had been pointing at the door to her apartment . The defendant came home and searched the hallways of the apartment building. Finding no one, he assured Noiles, "Don't worry, nobody's going to hurt you." When asked by defense counsel why she had been afraid of Bonnett, Noiles replied that, although she had never had any contact with Bonnett, she knew that Bonnett and the defendant were on opposite sides of a gang.
On the day before the murders, the defendant asked Noiles about a gold chain that he had previously given to her. Noiles had sold the chain, but told the defendant that she had given it to Michael Johnson, her former boy friend and father of her two children. Referring to Johnson, the defendant said to Noiles, "Dog better give me back my chain. I want my chain." Later that night, after Noiles had returned from seeing Johnson, she heard the defendant saying, "Dog better give me my chain. I want my chain. You better get that chain. You better get that chain. I ain't playing."
On the day of the shootings, the defendant returned from Worcester and said to Noiles, "I'm not worried now. I ain't got no problem with Dog now. I'm all right." A short time later, Noiles saw a bullet on the nightstand and asked the defendant about it. He replied, "I only have five of . Give me that."
Later that evening, the defendant, Noiles, and Noiles's daughters visited Noiles's father in the Dorchester section of Boston. Upon their arrival, the defendant refused to get out of the car, saying, "Look at all these detectives and these police around here. It's all right, I'm strapped anyway." When Noiles asked what he meant, the defendant lifted his shirt, and Noiles saw two handguns tucked in the waistband of his pants, one small and dark in color, the other silver.
During the drive back to Brockton, the defendant and Noiles argued about her plans to go out with her girl friends that night. The defendant stopped the car and got out, saying he would walk home. As Noiles began to drive away, she looked back and saw the defendant waving his arms in the air, holding a gun in each hand. She backed the car up and told him to get in. They continued to argue during the rest of the drive.
When they reached their apartment building, Noiles dropped off her two daughters and the defendant, and then continued on to her friend's
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