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SJC-11471

COMMONWEALTH vs. ELBERT NEWSON.

Suffolk. December 5, 2014. - April 14, 2015.

Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.

Homicide. Firearms. Joint Enterprise. Constitutional Law, 

Voluntariness of statement, Waiver of constitutional 

rights, Fair trial. Evidence, Voluntariness of statement. 

Practice, Criminal, Capital case, Motion to suppress, 

Voluntariness of statement, Waiver, Instructions to jury.

Indictments found and returned in the Superior Court 

Department on December 8, 2008.

A pretrial motion to suppress evidence was heard by 

Christine M. McEvoy, J., and the cases were tried before her

Stephen Paul Maidman for the defendant.

Elisabeth Martino, Assistant District Attorney (Julie 

Higgins & David J. Fredette, Assistant District Attorneys, with 

her) for the Commonwealth.

LENK, J. Thomas Webb was fatally shot on September 15, 

2008, while petting a neighbor's dog on a sidewalk outside an 

apartment building in Boston. The defendant was arrested a 

short time later, after fleeing from police in a vehicle and 
2

then on foot. At trial, the Commonwealth did not offer evidence

that the defendant fired the fatal shots. Instead, the 

Commonwealth proceeded against the defendant on a theory of 

joint venture with the individual who did fire the fatal shots, 

and who was in the vehicle with the defendant before the 

shooting and during the flight from police. The defendant, in 

turn, conceded his presence at the scene of the shooting and his

involvement in the subsequent police chase. He asserted, 

however, that he did not know that the shooting was planned, and 

that his role was limited to aiding in the escape after the 

shooting occurred.

In December, 2011, a Superior Court jury found the 

defendant guilty of murder in the first degree on a theory of

extreme atrocity or cruelty. The jury also found the defendant 

guilty of one count of possessing a firearm without a license,

and not guilty of another count of possessing a firearm without 

a license. The defendant contends on appeal that the trial 

judge erred in (1) denying the defendant's motion to suppress 

statements that he made to police following his arrest, which 

were used to challenge his credibility when he testified at 

trial; and (2) declining to instruct the jury on the uncharged 

offense of accessory after the fact, which he argues deprived 

him of a defense. Because we conclude that there was no error, 
3

and our review of the entire record provides no basis to grant 

relief under G. L. c. 278, § 33E, we affirm the defendant's 

convictions.

1. Background. "We summarize the evidence at trial, in 

the light most favorable to the Commonwealth," reserving some 

facts for later discussion. Commonwealth v. Deane, 458 Mass. 

43, 44 (2010).

Shortly after 9 P.M. on September 15, 2008, two Boston 

police officers heard the sound of gunfire. One of the officers 

testified that he believed that the gunshots came "from two 

different firearms."

Responding to the area from which the gunfire came, the 

officers observed a dark Nissan Maxima automobile, with tinted 

windows and Rhode Island registration plates, parked in the 

middle of Parker Street. A thin African-American man wearing a 

white T-shirt ran towards the vehicle's front passenger's side 

door and entered. The officers attempted to block the suspect 

vehicle using their police cruiser, but the vehicle evaded the 

police and drove off.

A chase ensued. While pursuing the suspect vehicle using

their flashing blue lights and sirens, the officers observed an 

object thrown out of the vehicle's passenger's side window. A

.45 caliber semiautomatic pistol was later recovered from that 
4

spot along the chase route. The suspect vehicle eventually 

entered the Academy Homes housing development in Boston and 

stopped abruptly, and two individuals stepped out. The person 

who stepped from the passenger's side door was again an AfricanAmerican man with a thin build wearing a white T-shirt. The 

person who emerged from the driver's side door was a shorter 

African-American man with a "stocky build," wearing a "dark 

sweatshirt" and "dark jeans."

The chase continued on foot, but the police officers lost 

sight of both individuals. A short time later, different police 

officers, responding to dispatches about the shooting and chase 

broadcast over the police radio, observed the defendant emerged

from hedges onto a nearby sidewalk. The defendant was "sweating 

profusely" and "gasping for air." He was wearing a red T-shirt

and jeans. A gray hooded sweatshirt was later discovered next 

to some bushes and shrubbery near the location where the 

defendant was stopped. Approached by the officers, the 

defendant indicated that he was coming from the home of his girl

friend, "Pookie."

The defendant was handcuffed and taken to the homicide unit 

at Boston police headquarters. When detectives first approached 

the defendant seeking to interview him, he became ill and 

vomited. The defendant smelled of alcohol, and it was clear to 
5

Detective Dennis Harris, the interviewing detective, that the 

defendant had been drinking. Indeed, during the interview, the 

defendant stated several times that he was "drunk," was feeling 

"nice," and was "totaled from the junk." He also indicated that 

he was "nauseous" and that his "stomach [was] bubbling." 

Nevertheless, Harris testified that the defendant was not 

"stumbling or staggering" and "walked unassisted . . . into the 

interview room," and that during the interview the defendant 

appeared nervous but alert. During the course of the interview, 

which lasted approximately two hours and twenty minutes, the 

defendant took two breaks, was permitted to use the telephone 

and the bathroom facilities, and was provided water and snacks.

At the beginning of the interview, Harris read the 

defendant the Miranda warnings, see Miranda v. Arizona, 384 U.S. 

436, 444 (1966), and the defendant initialed and signed a form 

confirming that the warnings had been given. The defendant also 

consented to have the interview electronically recorded, as 

urged by this court in Commonwealth v. DiGiambattista, 442 Mass. 

423 (2004). When the defendant asked near the beginning of the 

interview whether he was "being arrested," however, Harris 

responded, "No," indicating, "this is just an interview at this 

point."

Throughout the interview, the defendant continued to assert
6

that he had no involvement in either the shooting or the police 

chase, and had been with his girl friend "Pookie" prior to his 

arrest. He stated that "Pookie" resided in the Academy Homes

housing development. He could not, however, give her address, 

full name, or telephone number, and could not say definitively 

how long he had been with her prior to being stopped by the 

police.

At no point during the interview did the defendant make an 

inculpatory statement. After Harris repeatedly exhorted the 

defendant to provide any information that he might have about 

the shooting and the police chase, the defendant asked if he 

could leave. Harris indicated that the defendant could not 

leave, because he was under arrest for possessing marijuana that 

had been found on his person when he was stopped by police.1 

After Harris urged the defendant once more to tell him anything 

that he knew about the shooting, the defendant invoked his right 

to counsel, and the interview concluded.

During the second break in the interview, the detectives 

took the defendant's clothing and provided him with other 

clothes to wear. The detectives also took swabbings from the 

 

1 The defendant's arrest occurred several months before 

voters of the Commonwealth adopted, via ballot referendum, "An 

Act establishing a sensible state marihuana policy," which 

decriminalized possession of one ounce or less of marijuana. 

See G. L. c. 94C, § 32L.
7

defendant's hands to test for gunshot residue. In the right 

front pocket of the defendant's jeans the detectives found a 

door key to a Nissan Maxima; this key opened the vehicle 

abandoned near the Academy Homes housing development following 

the police chase. Inside the vehicle police found a cellular 

telephone matching a holder carried by the defendant when he was 

arrested. During the police interview, however, the defendant 

had indicated that he had left his telephone with his mother 

that day. Forensic examination of the vehicle's contents also 

identified several objects with the defendant's fingerprints. 

These included a .38 caliber revolver, which was found on the 

floor of the front passenger area and contained two of the 

defendant's fingerprints, along with the fingerprint of Richard 

Allen, a friend of the defendant. Neither the defendant's nor 

Allen's fingerprints, however, were found on the .45 caliber 

pistol that police had seen thrown from the suspect vehicle

during the pursuit. Instead, forensic examination of that 

pistol revealed the fingerprint of another individual, Michael 

Gaines.

Five shell casings were recovered from the scene of the 

shooting. The Commonwealth's ballistics expert testified at 

trial that, "to a reasonable degree of ballistic certainty," all 

had been shot by the .45 caliber pistol that police had 
8

recovered along the chase route.

2 Five bullets or bullet casings 

were also recovered: one from Ziegler Street, where another 

shooting had taken place approximately twenty minutes before the 

shooting on Parker Street; two from the victim's body; and two 

others from Parker Street. The Commonwealth's ballistics expert 

testified, again "to a reasonable degree of ballistic[] 

certainty," that all came from the same .45 caliber pistol. No 

projectiles were conclusively traced to the .38 caliber 

revolver, although there were several projectiles that the 

Commonwealth's ballistics expert testified could have come from 

the revolver.

The defendant was indicted for murder in the first degree 

on the theories of deliberate premeditation and extreme atrocity 

or cruelty, and for two counts of carrying a firearm without a 

license, based on the .45 caliber pistol and the .38 caliber 

revolver. At trial, the Commonwealth did not seek to establish 

that the defendant fired any of the shots that killed the 

victim. Instead, the Commonwealth contended that the defendant 

was responsible because he assisted another individual, whom the 

Commonwealth never expressly identified, who carried the .45 

caliber pistol and fired the fatal shots.

 

2 The Commonwealth's ballistics expert's testimony conformed 

to the guidelines that this court outlined in Commonwealth v. 

Pytou Heang, 458 Mass. 827, 846-849 (2011).
9

The core issue at trial was the defendant's mental state at 

the time of the shooting. The Commonwealth offered evidence to 

establish the defendant's prior awareness of and intent to 

participate in the shooting. The Commonwealth presented

testimony indicating that the same Nissan Maxima had been

involved in an earlier incident of gunfire on Ziegler Street, 

supporting the inference that the defendant knew that his 

passenger had a gun and that further shooting was planned. 

Tests of the swabs taken from the defendant's hands showed 

traces of gunshot residue, which the Commonwealth offered as 

showing that the defendant had fired the .38 caliber revolver at 

some time that evening. Finally, the Commonwealth contended 

that the defendant's rapid departure immediately after the 

shooting on Parker Street indicated that he was "fully aware of 

the plan."

The defense offered an alternative account of the evening's 

events. Testifying as the sole defense witness, the defendant 

stated that there were actually three individuals in the Nissan 

Maxima at the scene of the shooting: Michael Gaines, Richard 

Allen, and the defendant. The defendant contended that Gaines 

and Allen carried the two firearms and did the shooting, but 

that he had no prior awareness of the planned shooting, and that 

his role was limited to aiding Allen and Gaines in the escape
10

from police after the fact. The defendant stated that on the 

evening of the shooting he had loaned the Nissan Maxima to 

Allen, who indicated that he wanted the vehicle to conduct a 

drug deal. Allen, now accompanied by Gaines, returned with the 

vehicle shortly after 9 P.M. and picked up the defendant. 

Gaines moved to the back seat, and the defendant began driving. 

Allen asked the defendant to drive to Parker Street to pick up 

his girl friend. When they arrived, Allen indicated that the 

defendant should make a U-turn and stop, and Gaines got out of 

the vehicle. As the defendant was turning to Allen to ask why 

Gaines had gotten out, given that it was supposedly Allen's girl 

friend that they were going to visit, the defendant heard 

gunfire. Allen then jumped out of the vehicle. Both Allen and 

Gaines got back into the vehicle once the police arrived. Allen

ordered the defendant, "Drive." The defendant complied, and 

police officers arriving on the scene gave chase. When the 

defendant stopped the vehicle later in the Academy Homes housing 

development, Allen handed the .38 caliber revolver to the 

defendant, asking him to throw it in the bushes. The defendant

instead dropped it on the floor of the front passenger area and 

fled.

The Commonwealth challenged the defendant's account in a 

number of ways. Most importantly for purposes of this appeal, 
11

the Commonwealth undermined the defendant's credibility through 

the inconsistency between the defendant's recorded interview 

with police, which had been introduced in evidence, and his 

trial testimony. The defendant admitted that he lied to police 

during the interview, fabricating "Pookie" and falsely denying 

that he was involved in the police chase. He testified that he 

made those statements to police because he was scared and did 

not want to "tell on" Allen and Gaines.

The Commonwealth also identified several other factors 

that, it contended, undermined the defendant's account. The 

Commonwealth pointed out that the two officers involved in the 

chase only saw two individuals flee from the Nissan Maxima, not 

three; that no witnesses had seen a third person in the vehicle;

and that, when police searched the Nissan Maxima, the front seat 

was pushed far back, leaving little room for anyone to sit in 

the back seat. The Commonwealth called the jury's attention to 

how "conveniently" the defendant's timeline absolved him of 

involvement in the earlier Ziegler Street shooting, insofar as 

the defendant testified that he was picked up by Allen and 

Gaines shortly after 9 P.M., just after the occurrence of the

gunfire on Ziegler Street. Finally, the Commonwealth noted that 

the defendant testified that he "wasn't close with" Gaines, and 

that Allen, whom the defendant testified was "very close" to 
12

him, was deceased at the time of the trial. "So you're saying 

the guy who you're not close with and the dead guy are the ones 

who did this[?]" the Commonwealth asked in cross-examining the 

defendant.

The Commonwealth never offered evidence of a motive for the 

shooting. The victim was the youngest of seven siblings. At 

the time of his death, he was preparing to begin his final year 

of high school.

2. Discussion. a. Admission of the defendant's 

statements to police. Before trial, the defendant moved to 

suppress the statements made during his police interview. He 

argued that he did not knowingly, intelligently, and voluntarily 

waive his Miranda rights and that the statements themselves were 

not voluntary. In making that argument, he focused on the 

alleged "trickery" and "deceit" involved in Harris's initial 

assurance that he was not under arrest, when in fact he had been 

arrested for possession of marijuana. The defendant also 

asserted that he was under the influence of alcohol and drugs 

during the interview.

The judge, who was also the trial judge, held a hearing on 

the defendant's motion to suppress, at which Harris testified. 

Harris stated that he did not learn that the defendant had been 

arrested for possession of marijuana until the second break in 
13

the interview, which occurred after he had assured the defendant 

that he was not under arrest. Harris also acknowledged 

witnessing the defendant "thr[o]w up the contents of his stomach 

on the floor," and that "[i]t was clear" to Harris that the 

defendant "had been drinking," as "[t]here was an odor of 

alcohol emanating from him." Harris stated, however, that the 

odor was "not . . . strong," that the defendant was not 

"stumbling or staggering" and "walked unassisted into the 

interview room," and that the defendant did not manifest the 

"glassy eyes, slurred speech, . . . or . . . lack of 

coordination" characteristic of people under the influence of 

alcohol or drugs.

The judge denied the defendant's motion to suppress. The 

judge found that the defendant was subjected to custodial 

interrogation, and that the Miranda warnings were properly 

given. With respect to the validity of the defendant's Miranda

waiver, the judge found that, although the evidence indicated 

that the defendant had consumed alcohol and drugs prior to the 

interrogation, and vomited shortly before the interview, the 

waiver was nevertheless voluntary. The judge credited Harris's 

testimony that he "did not observe any outward signs commonly 

associated with intoxication." The judge further indicated that 

the recording of the interrogation demonstrated that the 
14

defendant answered the detective's questions in a "responsive 

and coherent manner," was "well aware of his precarious state," 

and provided responses that were "self-serving." With respect 

to the general voluntariness of the statements that the 

defendant made, the judge observed: "As to trickery and deceit, 

the court finds the defendant's claim unclear; there is no 

evidence that [the] alleged deceitful statement made by the 

[d]etectives was actually false. Even if it were, under the 

circumstances of the defendant's interview, it does not amount 

to a recognized challenge."

On appeal, the defendant argues that the judge erred in 

denying his motion to suppress. Where a defendant challenges 

the admission of a statement allegedly resulting from custodial 

interrogation, the defendant bears the initial burden of proving 

custody. Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). If 

the defendant satisfies this initial burden, the burden shifts 

to the Commonwealth to prove "a knowing, intelligent, and 

voluntary waiver of Miranda rights," Commonwealth v. Murphy, 442 

Mass. 485, 492 (2004), and that any statement "was made 

voluntarily." Commonwealth v. Tremblay, 460 Mass. 199, 206 

(2011).

Here, the judge correctly determined that the defendant was 

subject to custodial interrogation. The admissibility of the 
15

defendants' statements at the interview, therefore, turns on 

voluntariness. Although the voluntariness of a Miranda waiver 

and the voluntariness of a particular statement made during 

custodial interrogation "are separate and distinct issues," the 

"test" for both is "essentially the same." Commonwealth v. 

Edwards, 420 Mass. 666, 670 (1995). "The test for voluntariness 

is whether, in light of the totality of the circumstances 

surrounding the making of the statement, the will of the 

defendant was overborne to the extent that the statement was not 

the result of a free and voluntary act. . . . Under this 

totality of the circumstances test, [the court] consider[s] all 

of the relevant circumstances surrounding the interrogation and 

the individual characteristics and conduct of the defendant," 

including "promises or other inducements, conduct of the 

defendant, the defendant's age, education, intelligence and 

emotional stability, experience with and in the criminal justice 

system, physical and mental condition, the initiator of the 

discussion of a deal or leniency (whether the defendant or the 

police), and the details of the interrogation, including the 

recitation of Miranda warnings." Commonwealth v. Tremblay, 460 

Mass. at 207 (quotations and citations omitted). The 

Commonwealth bears a "particularly heavy burden" because in 

Massachusetts voluntariness "must be shown beyond a reasonable 
16

doubt." Commonwealth v. Hoyt, 461 Mass. 143, 152 (2011). See 

Commonwealth v. Tremblay, supra at 206.

As he did in the proceedings on the motion to suppress, on 

appeal, the defendant focuses his voluntariness challenge on 

Harris's purportedly false representation that the defendant was 

not under arrest. The defendant asserts that he "plainly 

attached special significance to the fact that he was not under 

arrest when the interrogation began," as evidenced by his 

"immediate invocation of his right to counsel upon 

learning . . . that he was in fact under arrest." Despite 

Harris's testimony, which the judge credited, that he did not 

know that the defendant was under arrest for possession of 

marijuana at the beginning of the interview, the defendant 

argues that Harris should be deemed to have "constructive 

knowledge" of the defendant's arrest status, based on the 

knowledge of other police officers.

We need not address the validity of the defendant's theory 

of "constructive knowledge." We conclude that, even if Harris's 

unintentionally false assurance that the defendant was not under 

arrest could constitute an instance of "deceit" or "trickery,"

it did not render the defendant's Miranda waiver or statements 

involuntary. Although "law enforcement officials must exercise 

caution when employing deception or trickery or when giving 
17

assurances to a suspect during an interrogation[,] . . . we also 

have repeatedly held that such deception or trickery does not 

necessarily compel suppression of the confession or admission 

but, instead, is one factor to be considered in a totality of 

the circumstances analysis." Commonwealth v. Tremblay, 460 

Mass. at 208. In particular, we have rejected the contention 

that "an officer's use of the standard interrogation tactic of 

'minimization,'" by which the officer downplays the severity of 

the defendant's situation, "compels the conclusion that a 

confession is involuntary." Commonwealth v. DiGiambattista, 442 

Mass. at 438-439. Instead, "[a]s always," we assess the effect 

of such minimization techniques "as part of the totality of the 

circumstances." Id. at 439.

In light of the totality of the circumstances, we do not 

believe that the defendant was misled as to the severity of his 

situation. He registered throughout the interview that he was 

in the homicide division at Boston police headquarters. Far 

from minimizing the defendant's suspected conduct, Harris 

repeatedly emphasized the seriousness of the incident under 

investigation. The detective's remarks throughout the interview

clearly indicated that the defendant was suspected of being 

involved in a shooting and subsequent police chase. He stated, 

for instance, that "right now we have drama, somebody shot, 
18

there's a car chase, there's guns, there's a foot chase, there's 

you." Harris's unintentionally false statement concerning the 

defendant's arrest status, therefore, did not render the 

defendant's waiver or statements involuntary.

The evidence of the defendant's alcohol and drug use does 

not alter this conclusion. Although "[s]pecial care must be 

taken in assessing a waiver and the voluntariness of the 

statements where there is evidence that the defendant was under 

the influence of alcohol or drugs[,] [a]n otherwise voluntary 

act is not necessarily rendered involuntary simply because an 

individual has been drinking or using drugs." Commonwealth v. 

Silanskas, 433 Mass. 678, 685 (2001), quoting Commonwealth v. 

Shipps, 399 Mass. 820, 826 (1987). See Commonwealth v. Murphy, 

442 Mass. at 494. Here, Harris testified that the defendant did 

not exhibit behavior typically associated with individuals under 

the influence of drugs or alcohol, and we defer to the judge's 

determination that Harris's testimony was credible. See 

Commonwealth v. Tremblay, 460 Mass. at 205 ("Questions of 

credibility are the province of the motion judge who had the 

opportunity to observe the witnesses"). As to the recording of 

the interrogation, with respect to which this court stands "in 

the same position as the [motion] judge," Commonwealth v. Novo, 

422 Mass. at 266 (citation omitted), our independent review 
19

leads us to conclude that the defendant's alcohol and drug 

consumption did not render the defendant's conduct at the 

interview involuntary. During the interview, the defendant 

often repeated the detective's questions before replying; his 

answers are coherent and evince a concerted effort to rebut any 

involvement in the shooting and subsequent flight.

Finally, pursuant to our obligation under G. L. c. 278, 

§ 33E, to review the "whole case," we note that, at several 

points during the interrogation, the detective indicated that 

the defendant's decision to "leave ugliness alone," by not 

explaining his involvement in the shooting, would make him "look 

like a cold-blooded monster"; that his "honesty [would be]

gauged by everybody else who listens to what happens here"; and 

that "in this business it's all about how forthright you are 

with us." We repeatedly have expressed our disapproval of a 

"now-or-never" line of interrogation, which seeks to place 

pressure on a suspect by suggesting that the suspect's ability 

to offer an explanation in some future proceeding is contingent 

upon answering the interviewing officer's questions. See, e.g., 

Commonwealth v. Thomas, 469 Mass. 532, 542-543 (2014); 

Commonwealth v. Novo, 442 Mass. at 267. We particularly caution 

against a line of questioning that incorrectly suggests that a

defendant's decision not to respond to police questioning could 
20

be used against the defendant later to challenge his credibility 

at trial. See Doyle v. Ohio, 426 U.S. 610, 611 (1976).

Here, however, Harris never expressly stated that the 

defendant's silence could be used against him. Furthermore, he 

never stated that, by refusing to talk to police, the defendant 

would lose his right to testify at trial, cf. Commonwealth v. 

Novo, 442 Mass. at 268-269, or that the defendant would be 

barred from talking to police in the future if he chose to 

remain silent or invoked his right to consult with counsel, cf.

Commonwealth v. Thomas, 469 Mass. at 542. As soon as the 

defendant invoked his right to counsel, the interrogation 

promptly terminated. In view of the totality of the 

circumstances surrounding the defendant's interrogation,

therefore, we conclude that the defendant voluntarily waived his 

Miranda rights and that his statements were voluntary.

b. Requested jury instruction on the offense of accessory 

after the fact. At trial, the defendant asked the judge to 

instruct the jury on the offense of accessory after the fact. 

The judge denied the request. Instead, in the course of 

instructing the jury on the law of "joint venture or aiding and 

abetting,"

3 the judge stated: "It is not enough [to find the 

 

3 In Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009), we 

"adopt[ed] the language of aiding and abetting rather than joint 
21

defendant guilty as an aider and abettor] to show simply that 

the defendant aided after the fact with escaping from the scene 

or disposing of weapons. The government must prove he shared 

the intent or had the intent to commit the crime at the time the 

crime was committed." On appeal, the defendant contends that 

the judge's decision not to offer a full instruction on the 

offense of accessory after the fact deprived him of his right to 

present a defense guaranteed under the Sixth and Fourteenth 

Amendments to the United States Constitution and the right to a 

fair trial under the Fifth, Sixth, and Fourteenth Amendments to 

the United States Constitution, as well as the cognate 

provisions of the Massachusetts Declaration of Rights.

"[W]here a judge refuses to give . . . an instruction [on 

the defendant's theory of the defense], it is reversible error 

only if the requested instruction [1] was substantially correct; 

[2] was not substantively covered in the jury charge; and 

[3] concerns an important issue such that the failure to give 

the instruction seriously impaired the defendant's ability to 

present a given defense." Commonwealth v. Deane, 458 Mass. 43, 

 

venture." We have, however, continued to refer to the theory of 

"joint venture" in our case law, see, e.g., Commonwealth v. 

Britt, 465 Mass. 87, 98 (2013), and the judge's instructions 

here corresponded to the appropriate instructions for aiding and 

abetting that we have articulated. See Commonwealth v. Zanetti, 

supra at 470-471 (Appendix).
22

59 n.15 (2010), citing United States v. Gibson, 726 F.2d 869, 

874 (1st Cir.), cert. denied, 466 U.S. 960 (1984). The Federal 

circuit courts are split on the question whether a trial judge 

commits reversible error by declining to give an instruction on 

the offense of accessory after the fact. The United States 

Court of Appeals for the Eighth Circuit has held that such a 

refusal constitutes error. See United States v. Brown, 33 F.3d 

1002, 1003-1004 (8th Cir. 1994). The court reasoned that, where 

the government does not charge a defendant as an accessory after 

the fact, "the accessory after the fact theory functions as a 

defense" because one "cannot be both the offender and the 

accessory after the fact for the same offense." Id. at 1004. 

The United States Court of Appeals for the First Circuit, by 

contrast, rejected this approach. See United States v. RiveraFigueroa, 149 F.3d 1, 6-7 (1st Cir. 1998). The court observed 

that "[t]o give the jury an additional set of elements for an 

uncharged crime that is not a lesser included offense, and of 

which the defendant seemingly cannot be convicted, seems to us a 

recipe for confusion." Id. at 7. Rather, the court held that, 

"[w]here appropriate, the court can properly explain to the jury 

that the defendant's theory of the case is that he merely 

assisted in covering up the crime but did not participate in its 

commission," thereby reconciling the defendant's right to 
23

instructions on his theory of the defense without risking juror 

confusion. Id.

Our case law employs the approach adopted by the United 

States Court of Appeals for the First Circuit. In Commonwealth

v. Talbot, 35 Mass. App. Ct. 766, 777 (1994), the Appeals Court 

rejected the defendant's argument that the trial judge erred in 

declining to give an accessory after the fact instruction, 

observing that "[t]he judge's instructions clearly 

established . . . that the defendant could not be found guilty 

of murder if his only participation consisted of helping 

[another person] dispose of the body and assisting him to leave 

the scene." To go beyond that point, by instructing the jury on 

the elements of the uncharged accessory after the fact offense, 

the court observed, would risk confusing the jury and

"intimating that the jury must accept that theory in order to 

acquit him." Id., quoting Commonwealth v. Therrien, 371 Mass. 

203, 206 (1976). See Commonwealth v. Deane, 458 Mass. at 59 

("The judge could have concluded that charging the jury on a 

crime with which the defendant was not charged could serve to 

mislead or confuse the jury.").

We adhere to the position articulated in Commonwealth v. 

Talbot, supra. Here, as there, the judge's instructions clearly 

established that the defendant could not be found guilty of 
24

murder if his only participation consisted of aiding another 

person after the fact in escaping from the police and disposing 

of weapons. Consistent with that instruction, defense counsel 

argued in closing that "[w]hat [the defendant] did right after 

[the shooting] is terrible, but he's not charged with it," and 

that the evidence regarding the defendant's role in the police 

pursuit was "only evidence that after the commission of a murder 

[the defendant] helped people get away, and that is not murder." 

Because the judge's instructions clearly indicated that the 

defendant could not be convicted of murder if the jury concluded 

that the defendant's role was indeed limited to aiding in the 

shooter's escape from police, the judge's refusal to instruct 

the jury on the elements of the uncharged offense of accessory 

after the fact did not deny the defendant a defense.

c. Review under G. L. c. 278, § 33E. We have reviewed the 

entire record and conclude that there is no basis to exercise 

our authority pursuant to G. L. c. 278, § 33E, to reduce the 

verdict of murder in the first degree or to order a new trial.

Judgments affirmed.