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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 African-

American 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. Rivera-

Figueroa, 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.
