|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
Supreme Judicial Court of Massachusetts,
Argued
Decided
[405
Sharon B. Soffer, Asst. Dist. Atty., for Com.
Before [405
[405
The
defendant, Richard S. Freiberg, appeals from his conviction of murder in the
first degree on the basis of extreme atrocity or cruelty. He also appeals from the denial of his motion
for a new trial. (FN1) He asserts numerous claims of error, each of
which we address below. We affirm the
conviction. Also, we affirm the denial
of his motion for a new trial.
We recite
in summary form the evidence put before the jury.
On the
morning of
[405
The
defendant and the victim remained in the kitchen; Hurley and Lincoln repaired to the adjoining
living room. After about fifteen
minutes, the defendant came into the living room with a worried look on his
face. He asked Lincoln and Hurley to go
upstairs. They had not heard any
untoward noises, but, as they were leaving the living room, Lincoln heard,
coming from the kitchen, a series of short, sharp breaths, as if someone were
about to vomit. Lincoln asked the defendant if anything was wrong, to
which the defendant responded, "No, no, no, no, just go
upstairs." Hurley and Lincoln went
upstairs to the bedroom of the defendant's brother.
About
fifteen minutes later, the defendant came upstairs and slowly pushed the
bedroom door open. He asked Lincoln to
follow him. The defendant said that Lisa
Margil was dead. He explained, "I
went over to the table, I picked up my bag and turned around and she spun
around and fell down and hit her head next to the stove and split her head open
and her brains are all over the floor."
The
defendant and Lincoln went to the kitchen where the victim was on her knees
next to the stove, breathing quickly.
Blood was splattered in front of her and was flowing out from between her
legs. White brain matter was oozing from
the back of her head. Lincoln urged the
defendant to call an ambulance. The
defendant refused, saying that he had three warrants out for his arrest. The defendant persuaded Lincoln to go
upstairs again. The defendant asked
Lincoln to put the victim's body in his automobile and to leave it on some
nearby abandoned railroad tracks.
Lincoln refused, and again urged the defendant to call an ambulance.
When the
defendant was about to tell Hurley what had happened in the kitchen, Lincoln
ran downstairs and out to his automobile. [405 Mass. 286] The defendant pursued
Lincoln, got in the passenger's seat, and turned off the ignition. Lincoln again told the defendant to call an
ambulance. The defendant refused and got
out of Lincoln's automobile. Lincoln
drove away. Hurley left the defendant's
home shortly thereafter.
Lincoln
proceeded to a nearby gasoline station where he telephoned the emergency 911
number, told the operator to send an ambulance to the defendant's house
immediately, and described the nature of the victim's injuries. The 911 operator called the defendant's
telephone number in order to help him administer assistance to the injured
person. The defendant answered the phone
and cancelled the ambulance, falsely stating that "[s]he just walked up
and left.... I tried to stop her and she
just ran away."
The
defendant placed a large green garbage bag over the head and torso of the
victim, carried her out to his backyard, and dropped her in a large hole. The defendant dropped a large rock in the
hole and shovelled dirt into it, completely covering the body. The defendant then returned to the house. The burial was observed by Mac Brodie, an
employee of the Boston Edison Company, from the vantage point of an aerial lift
bucket truck where he was transferring wires to a new utility pole. Brodie sent a fellow worker to get a police
officer. The officer arrived and began
to dig away the dirt from the burial area.
He saw the victim's legs. The
victim started to move; it was clear
that she was still alive. The police
officer, Brodie, and his fellow worker dug furiously until they got the victim
out. They observed that the victim's
head had been split open and that portions of her brain were spilling out. She was breathing hard, gasping for air, but
appeared to be unconscious. When an
emergency medical technician, who arrived soon thereafter, pinched the victim
to determine whether she could feel pain, the victim responded by moaning. The victim was taken to the Faulkner
Hospital, where she died within a few hours.
Several
police officers arrived at the scene.
The defendant was found in the basement of his home and was taken to the
back porch, where Brodie positively identified him as the man whom he had seen
burying the victim.
[405 Mass. 287] Dr. Leonard Atkins conducted an autopsy. He testified at trial that the victim's
injuries were consistent with her head being banged against the kitchen stove
with a "very severe degree of force." Dr. Atkins also testified that the injuries
were caused by more than one blow to the head, assuming that they were not
caused by a "pattern‑type instrument." He testified that the injuries could not
have been caused by someone falling against a metal stove or against a
floor. The blows to the head, which
probably rendered the victim unconscious, were the cause of the victim's
death.
[1] 1. Mental impairment. The defendant contends that Commonwealth v. Grey, 399 Mass. 469,
505 N.E.2d 171 (1987), which was decided two weeks after the jury reached their
verdict in this case, entitles the defendant to a new trial. In
Grey, we concluded that "we should permit the jury to consider
evidence of mental impairment at the time of the crime" in determining
whether the defendant had malice aforethought, in that he specifically intended
to kill or to cause grievous bodily harm to the victim. Id. at 470‑471, 505
N.E.2d 171. Even assuming, without
deciding, that Grey applies
retroactively to this case, we hold that the lack of a Grey charge did not create a substantial likelihood of a
miscarriage of justice under G.L. c. 278, § 33E (1986 ed.). (FN2)
The
defendant's behavior did not manifest signs of intoxication or mental
impairment triggered by intoxication. See Commonwealth v. Griffith, 404 Mass.
256, 260, 534 N.E.2d 1153 (1989). Just
before the killing, the defendant's speech was not slurred, and he did not
stumble. Shortly after the attack, the
defendant had the presence of mind to cancel the ambulance, falsely stating to
the 911 operator that the victim was not seriously injured and that she had
gone home. The defendant then carried
the still‑living victim's body to a hole in his backyard and buried her
there. The defendant then hid in his
basement and, after being found by the police, did not have trouble walking up
the narrow basement staircase.
[405 Mass. 288] In addition, the judge did not foreclose the jury from
considering the effect of alcohol or drugs on the malice element. Cf.
Commonwealth v. Glass, 401 Mass. 799, 810, 519 N.E.2d 1311 (1988).
[2][3] We
reject the defendant's argument that he is entitled to present, at a new trial,
evidence from two psychiatrists that the defendant allegedly was suffering from
an "impulse control disorder" at the time of the killing. The defendant concedes that this evidence was
not newly discovered and admits that he made a conscious strategic decision not
to introduce it at the trial. The
defendant may not, after losing on one theory, retry his case on an alternate
theory on which admissible, highly relevant evidence was available to him at
the time of the trial. See Commonwealth v. Brown, 378 Mass. 165,
170, 390 N.E.2d 1107 (1979).
[4] 2. Extreme atrocity or cruelty. The defendant urges us to add a new intent
element to the crime of murder by extreme atrocity or cruelty.
We have
recently considered, and rejected, the suggestion that we transform the legal
standard for that crime to include an element of intent to inflict
extraordinary pain or suffering. Commonwealth v. Sinnott, 399 Mass. 863,
879, 507 N.E.2d 699 (1987). Commonwealth v. Cunneen, 389 Mass. 216,
227‑229, 449 N.E.2d 658 (1983). In Cunneen, supra at 227, 449 N.E.2d 658,
we stated that "[w]e adhere to our view that proof of malice aforethought
is the only requisite mental intent for a conviction of murder in the first
degree based on murder committed with extreme atrocity or cruelty." We decline the invitation to reconsider our
recent decisions on this point.
3. Vagueness. The defendant challenges the
constitutionality of G.L. c. 265, § 1, claiming that the phrase "extreme
atrocity or cruelty" is vague and thus violates due process as guaranteed
by the Fourteenth Amendment of the United States Constitution and art. 10 of the
Massachusetts Declaration of Rights.
[5]
"A law is void for vagueness if persons 'of common intelligence must
necessarily guess at its meaning and differ as to its application.'
Smith v. Goguen, 415 U.S. 566, 572 n. 8 [94 S.Ct. 1242, 1247 n. 8,
39 L.Ed.2d 605] (1974), quoting Connally
v. General Constr. Co., 269 U.S. [405
Mass. 289] 385, 391 [46 S.Ct. 126,
127, 70 L.Ed. 322] (1926). Vague laws
violate due process because individuals do not receive fair notice of the
conduct proscribed by a statute,
Papachristou v. Jacksonville, 405 U.S. 156, 162 [92 S.Ct. 839, 843, 31
L.Ed.2d 110] (1972), and because vague laws that do not limit the exercise of
discretion by officials engender the possibility of arbitrary and
discriminatory enforcement, Grayned v.
Rockford, 408 U.S. 104, 108‑109 & n. 4 [92 S.Ct. 2294, 2298‑2299
& n. 4, 33 L.Ed.2d 222] (1972)." Caswell v. Licensing Comm'n for Brockton,
387 Mass. 864, 873, 444 N.E.2d 922 (1983).
[6] We
already have held that "our definition of extreme atrocity or cruelty
provides satisfactory warning to potential defendants."
Commonwealth v. Glass, supra 401 Mass. at 805, 519 N.E.2d 1311. See
Commonwealth v. Eisen, 358 Mass. 740, 747, 267 N.E.2d 229 (1971);
Commonwealth v. Satterfield, 362 Mass. 78, 82‑83, 284 N.E.2d
216 (1972). The defendant rightly
concedes that, in determining whether a statute is unconstitutionally vague, we
may consider limiting judicial constructions which have been employed in its
interpretation. See Kolender v. Lawson, 461 U.S. 352, 355, 103 S.Ct. 1855, 1857, 75
L.Ed.2d 903 (1983); Caswell, supra 387 Mass. at 873 n. 6, 444
N.E.2d 922.
The phrase
"extreme atrocity or cruelty," when considered in light of over a
century of judicial interpretation, provides meaningful guidance to juries in
their consideration whether to find a defendant guilty of first degree murder
on that ground. Juries take into account
a number of factors in deciding whether a murder was committed with
"extreme atrocity or cruelty," namely, "indifference to or
taking pleasure in the victim's suffering, consciousness and degree of
suffering of the victim, extent of physical injuries, number of blows, manner
and force with which delivered, instrument employed, and disproportion between
the means needed to cause death and those employed." Commonwealth v. Cunneen, supra
389 Mass. at 227, 449 N.E.2d 658.
We have
stated that "[t]he final determination of whether extreme atrocity or
cruelty exists ... must be decided by the jury, who, as the repository of the
community's conscience, can best determine when the mode of inflicting death is
so shocking as to amount to extreme atrocity or cruelty."
Commonwealth v. Connolly, 356 Mass. 617, 628, 255 N.E.2d 191, cert.
denied, 400 U.S. 843, 91 S.Ct. 87, 93, 27 L.Ed.2d 79 (1970).
Commonwealth v. Lacy, 371 Mass. 363, 367‑368, 358 N.E.2d 419
(1976). While the jury serve as the
"community's [405 Mass. 290] conscience," they nonetheless
consider the aforementioned factors in determining whether a murder was
committed with extreme atrocity or cruelty.
Additionally, the standard has been further limited by our permitting
the jury to consider the effect of mental impairment or intoxication on the
defendant's ability to commit the murder with extreme atrocity or cruelty.
Commonwealth v. Perry, 385 Mass. 639, 433 N.E.2d 446 (1982).
Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927 (1980). We have stated recently that "it is
[not] constitutionally improper to permit a jury, in effect, to decide an
aspect of a murderer's sentence by determining the degree of atrocity or
cruelty in the murderer's conduct, at least where the possibility of a sentence
of death is not at issue." Commonwealth v. Glass, supra. General Laws c. 265, § 1, as construed, is
not vague.
[7] 4. Sufficiency of the evidence. The defendant argues that the evidence does
not support a finding of extreme atrocity or cruelty, and that his motions for
a required finding of not guilty should have been granted. We disagree.
In the
previous section, we listed the factors which a jury may consider in deciding
whether a murder was committed with extreme atrocity or cruelty. Viewing the evidence in a light most
favorable to the Commonwealth, we conclude that sufficient evidence existed for
the jury to find extreme atrocity or cruelty. See
Commonwealth v. Latimore, 378 Mass. 671, 677‑678, 393 N.E.2d 370
(1979).
The
defendant used a "very severe" degree of force in inflicting the
wounds upon the victim. There was
evidence which supported a finding that the defendant had smashed the victim's head
against the kitchen stove three separate times.
(FN3) There was evidence that the
victim was unconscious after the first blows, there was also evidence that she
was gasping for air after receiving the blows and could feel pain after she had
been rescued from the backyard grave.
(FN4) The extent of the victim's [405 Mass. 291] injuries were such that her skull was cracked open, she bled
profusely, and portions of her brain oozed out of her head. The defendant displayed indifference to the victim's
suffering by refusing to call an ambulance, asking his friend to dump her body
on the abandoned railroad tracks, cancelling the ambulance which his friend had
called, placing a garbage bag over the victim's head, and then burying her
while she was still alive. In sum, there
was ample evidence for the jury to find that the defendant committed the murder
with extreme atrocity or cruelty. There
was no error.
5. Peremptory challenges. The defendant argues that the judge's use of
rule 6 of the Rules of the Superior Court (1974) to limit the timing of his use
of peremptory challenges deprived him of equal protection of the laws, due
process of law, and his right to trial by an impartial jury under both State
and Federal Constitutions. We disagree.
The trial
judge required the defendant to exercise his peremptory challenges individually
as to each juror, after he or she was found indifferent, instead of allowing
him to exercise his peremptory challenges after a full jury had been selected. Under rule 6 of the Superior Court (1974),
this procedure was permissible. See Commonwealth v. Barry, 397 Mass. 718,
726, 493 N.E.2d 853 (1986). Rule 6's
requirement that peremptory challenges shall be made only after a full jury has
been found to stand indifferent does not apply to indictments for crimes
punishable by death. We have held that
"the exception in rule 6 for trials on indictments for crimes punishable
by death applies to trials for murder in the first degree." Id.
[8] The
defendant claims that the disparate treatment between capital defendants and
other defendants deprives him of the equal protection of the laws. "[E]qual protection analysis requires
strict scrutiny of a legislative classification only when the classification
impermissibly interferes with the exercise of a fundamental right or operates
to the peculiar disadvantage of a suspect class" (footnote omitted).
Massachusetts Bd. of [405
Mass. 292] Retirement v. Murgia,
427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). Fine
v. Contributory Retirement Appeal Bd., 401 Mass. 639, 641, 518 N.E.2d 1151
(1988). The exception in rule 6 does not
interfere with the exercise of a fundamental right. (FN5)
There is no fundamental right to peremptory challenges under either
Federal or Massachusetts constitutional law. Commonwealth v. Wood, 389 Mass. 552, 559,
451 N.E.2d 714 (1983) (Federal law). Commonwealth v. Reid, 384 Mass. 247, 253‑254,
424 N.E.2d 495 (1981) (State law). See Ross v. Oklahoma, 487 U.S. 81, 108
S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988).
[9]
Nothing in Commonwealth v. Brown, 395
Mass. 604, 481 N.E.2d 469 (1985), or
Commonwealth v. Ptomey, 26 Mass.App.Ct. 491, 529 N.E.2d 400 (1988),
indicates that there is a fundamental right to peremptory challenges. The decisions to reverse the convictions in
those cases were based on the failure of the trial judges to follow the
mandates of rule 6, and on the general principle that rules should be applied
consistently. See Brown, supra 395 Mass. at 606, 481 N.E.2d 469; Ptomey, supra 26 Mass.App.Ct. at 495‑496,
529 N.E.2d 400. The fact that this
court and the Appeals Court will ensure the effective implementation of a
procedural rule does not elevate the content of that rule to the level of a
fundamental right.
We thus
review rule 6 to determine whether it is "rationally related to furthering
a legitimate state interest." Murgia, supra 427 U.S. at 312, 96 S.Ct.
at 2566. See Marshfield Family Skateland, Inc. v. Marshfield, 389 Mass. 436,
446, 450 N.E.2d 605, appeal dismissed, 464 U.S. 987, 104 S.Ct. 475, 78 L.Ed.2d
675 (1983). Under the "rational
basis" test, the rule must be "accorded a presumption of
constitutionality." Pinnick v. Cleary, 360 Mass. 1, 14, 271
N.E.2d 592 (1971). The challenger bears
"an onerous burden of proof in establishing the invalidity of the
[rule]." Marshfield, supra 389 Mass. at 446, 450
N.E.2d 605, quoting Commonwealth v.
Henry's Drywall Co., 366 Mass. 539, 541, 320 N.E.2d 911 (1974). We shall not invalidate the rule "if any
state of facts reasonably may be conceived to justify it." Id. The defendant has failed to meet his burden
of proving that no rational basis for rule 6 exists.
We already
have explained the basis for rule 6's exception. "Because of the many more peremptory
challenges in a capital [405 Mass.
293] case, seating the jury will be
a lengthier process. To help streamline
the process, the juror‑by‑juror method of challenge may be
adopted." Barry, supra 397 Mass. at 725‑726,
493 N.E.2d 853. See Superior Court
Rules, 1954, Annotated 191 (E. Dangel ed. 1954). (FN6)
This justification satisfies the rational basis test under equal
protection analysis.
[10][11]
The defendant has not been deprived of due process of law or of an impartial
jury as guaranteed by the Sixth Amendment to the United States
Constitution. The procedure utilized by
the judge assured the defendant of a fair and impartial trial. The judge interrogated each juror
individually, pursuant to Mass.R.Crim.P. 20(b)(1)‑(2), 378 Mass. 889
(1979). The defendant was entitled to an
unlimited number of challenges for cause.
Pursuant to Mass.R.Crim.P. 20(c)‑(d), the defendant was granted
sixteen peremptory challenges, each of which he could use after a prospective
juror was found by the judge to stand indifferent. The procedure granted to the defendant
satisfied due process principles. See Ross v. Oklahoma, supra. Additionally, the exception in rule 6 did
not deprive the defendant of an impartial jury under the Sixth Amendment. The Supreme Court recently has stated: "[W]e reject the notion that the loss of
a peremptory challenge constitutes a violation of the constitutional right to
an impartial jury. We have long
recognized that peremptory challenges are not of constitutional
dimension.... They are a means to achieve
the end of an impartial jury. So long as
the jury that sits is impartial, the fact that the defendant had to use a
peremptory challenge to achieve that result does not mean the Sixth Amendment
was violated." (Citations omitted.) Id.
108 S.Ct. at 2278. Because there has
been no showing that the jury was not impartial, the defendant was not deprived
of his right to an impartial jury. There
was no error.
6. Identification. The defendant claims that the judge
erroneously denied his motion to suppress Brodie's pretrial and trial
identification of the defendant. We
disagree.
[405 Mass. 294] The judge made the following findings of fact. Brodie, an employee of the Boston Edison
Company, was working on an overhead utility pole near 461 LaGrange Street on a
bright sunny day. Brodie observed a man
carrying a body from the house to a hole in the backyard, dropping the body
into the hole and walking back to the house.
Two to three minutes later, the man reappeared from the house with a
shovel, walked to the hole, and stood facing Brodie. He dropped a rock into the hole and shoveled
dirt into it. When finished, he returned
to the house.
Brodie,
who uses no visual aids and has 20/15 vision, and who was approximately 120 to
125 feet from the burial site, had an unobstructed view of the man's face for
four to five seconds before the defendant first went into the house, then for
three to four minutes while he shovelled dirt into the hole.
After the
victim was extracted from the hole, Brodie described the man he had seen as a
white male with red hair, approximately twenty years of age, five feet ten
inches tall, with a husky build, shirtless, wearing white sneakers and
jeans. Brodie could not describe the
man's face but said that he would know him if he saw him. Brodie was asked by the police to remain at
the scene to help to identify any suspect discovered. Brodie believed that the man was still in the
house. He overheard a radio report that
a suspect was found in the basement of the house. About an hour after observing the man burying
the victim, Brodie positively identified the defendant as the man he had
seen. At the time of the identification,
the defendant was on the back porch, handcuffed, with several police officers
standing near him.
Later, at
a probable cause hearing, Brodie also positively identified the defendant as
the man he had seen burying the victim.
At the time, the defendant was in a prisoner's dock, handcuffed and
manacled.
[12][13]
In the absence of clear error, we are bound by the judge's findings of fact.
Commonwealth v. Correia, 381 Mass. 65, 76, 407 N.E.2d 1216
(1980). While we must undertake an
independent examination of the ultimate conclusions of law reached by the
judge, we view these conclusions "with particular respect." Id. The [405
Mass. 295] judge concluded that the
defendant failed to meet his burden of showing that the identifications were
unnecessarily suggestive. See Commonwealth v. Toney, 385 Mass. 575,
586, 433 N.E.2d 425 (1982). We agree.
While one‑on‑one
confrontations are not encouraged, they are also not subject to a rule of per
se exclusion. "We have repeatedly
held that due process rights are not violated when police arrange a one‑on‑one
confrontation between the victim and a suspect promptly after a criminal event
occurs." Commonwealth v. Williams, 399 Mass. 60,
67, 503 N.E.2d 1 (1987), quoting
Commonwealth v. Harris, 395 Mass. 296, 299, 479 N.E.2d 690 (1985). It is immaterial that the identifying witness
is not also a victim. Id.
We find no error in the judge's findings that the showup was not
unnecessarily suggestive.
[14] We
also reject the defendant's challenge of the judge's denial of his motion to
suppress the identification at the probable cause hearing. While "a degree of suggestiveness
inheres in any identification of a suspect who is isolated in a court room ...
such isolation does not, in itself, render the identification impermissibly
suggestive." Commonwealth v. Napolitano, 378 Mass.
599, 604, 393 N.E.2d 338 (1979). See Commonwealth v. Dickerson, 372 Mass.
783, 791, 364 N.E.2d 1052 (1977).
[15] In
addition, even if the identification at the probable cause hearing can be
considered suggestive, the Commonwealth met its burden of proving that Brodie's
"identification ha[d] a source independent of the suggestive
confrontation." Commonwealth v. Correia, supra 381 Mass.
at 78, 407 N.E.2d 1216, quoting
Commonwealth v. Botelho, 369 Mass. 860, 868, 343 N.E.2d 876 (1976). Brodie, who has excellent vision, observed
the defendant for more than three minutes on a clear, sunny day, with an
unobstructed view. He provided an
accurate, detailed description of the defendant before identifying him, within
approximately one hour of his observations.
See Commonwealth v. Bodden,
391 Mass. 356, 361, 461 N.E.2d 803 (1984).
"It follows that the in‑court identification was not tainted
and that its admission in evidence was not error." Commonwealth v. Williams, supra
399 Mass. at 68, 503 N.E.2d 1.
7. Search and seizure. The defendant asserts that the judge erred
in denying the defendant's motion to suppress evidence [405 Mass. 296]
obtained during a search of the defendant's home. We hold that there was no error.
Detective
William J. Cannon submitted an affidavit to a magistrate at the West Roxbury
District Court in support of his application for a search warrant at 3 to 3:15
P.M. on May 14, 1986. (FN7) The magistrate issued a search warrant based
on this affidavit at approximately 3:15 P.M.
The warrant listed "blood‑‑clothing‑‑or any
other instrument used in crime" in the space immediately preceding that
which called for the items to be sought.
Prior to
the search pursuant to this warrant, police officers had entered the house at
approximately 2:30 P.M. The judge found
that exigent circumstances existed which justified the police officers'
warrantless entry. (FN8) The judge found that no property was seized
during the first entry and that no observations made in the first entry were
used in Cannon's affidavit in support of his application for a warrant. The exigent entry was terminated
"sometime before 3:00 p.m."
Pursuant
to the warrant, the police entered the house at approximately 3:15 P.M. and
discovered the defendant lying [405
Mass. 297] under the cellar
stairs. The police searched all of the
rooms, the cellar, attic, hallways, closets, and other storage areas in the
house. Property seized during the search
included samples of reddish brown stains from the kitchen floor in front of the
stove, from a bag in the kitchen closet, and from the kitchen sink disposal
inlet; a mop with reddish brown
stains; a flower pot with reddish brown
stains; a hair from the top of the
kitchen stove; and a pair of eyeglasses
found in the kitchen closet. The police
took photographs of bloodstained areas in the kitchen.
The police
retained a green trash bag which was removed from the body of the victim after
she was retrieved from the hole. A pair
of blue jeans with reddish brown stains was taken from the defendant after he
was charged and booked at the Area B police station.
a. Exigent circumstances. The defendant claims that the initial
warrantless search of the house was not justified by any exigent
circumstances. Since the judge found
that no evidence was seized during this entry and that the affidavit was not
based on it, there is no merit to this claim.
(FN9)
b. Probable cause. The defendant claims that the affidavit (see
note 9 supra ) did not establish the
probable cause which is required before a magistrate may issue a search
warrant. We disagree.
[16][17]
The strict requirements of reliability which govern an analysis of an anonymous
informant's trustworthiness are relaxed with respect to named and identified
sources.
Commonwealth[405 Mass. 298]
v. Burt, 393 Mass. 703, 710, 473 N.E.2d 683 (1985). See
Commonwealth v. Atchue, 393 Mass. 343, 347‑348, 471 N.E.2d 91
(1984). The affidavit named Mac Brodie
and identified him as an employee of the Boston Edison Company. "A serious charge ... when volunteered
by an identified party ... carries with it indicia of reliability of the
informant." Commonwealth v. Atchue, supra at 347, 471
N.E.2d 91, quoting United States v.
Wilson, 479 F.2d 936, 940 (7th Cir.1973).
The
affidavit made clear that the basis of Brodie's detailed information was his
personal observation of the backyard burial.
See Commonwealth v. Burt, supra. See
Commonwealth v. Valdez, 402 Mass. 65, 70, 521 N.E.2d 381 (1988). In addition, the discovery of the grave by
the police, and their extrication of the victim, corroborated Brodie's
observations, further establishing probable cause. See
Commonwealth v. Burt, supra 393 Mass. at 711, 473 N.E.2d 683.
c. Particularity. The defendant argues that the warrant did
not identify adequately the items to be seized.
We disagree.
The Fourth
Amendment to the United States Constitution requires that warrants
"particularly describ[e] the place to be searched, and the persons or
things to be seized." Article 14 of
the Massachusetts Declaration of Rights requires warrants to be
"accompanied with a special designation of the persons or objects of
search, arrest, or seizure."
General Laws c. 276, § 2, provides that search warrants "shall
particularly describe the property or articles to be searched for."
The
particularity requirement serves as a safeguard against general exploratory
rummaging by the police through a person's belongings. See
Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29
L.Ed.2d 564 (1971); Stanford v. Texas, 379 U.S. 476, 481‑485,
85 S.Ct. 506, 509‑512, 13 L.Ed.2d 431 (1965); Marron v. United States,
275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). "[I]t both defines and limits the scope
of the search and seizure, thereby protecting individuals from general
searches, which was the vice of the pre‑Revolution writs of
assistance." Commonwealth v. Pope, 354 Mass. 625, 629,
241 N.E.2d 848 (1968). "[T]he
degree of specificity required when describing the goods to be seized may
necessarily vary according to the circumstances and type of items
involved." United States v. Johnson, 541 F.2d 1311,
1314 (8th Cir.1976).
[405 Mass. 299] [18] The police applied for the warrant immediately after
discovering the body of the victim in the rear yard of the house to be
searched. The police officers did not
know what instrument had caused the victim's severe head wounds. Under these circumstances, the police could
not be expected to describe with detailed precision the items to be seized when
the exact characteristics of those items were not known to them. See
State v. Hodges, 43 Or.App. 547, 603 P.2d 1205 (1979); United States v. Robinson,
287 F.Supp. 245 (N.D.Ind.1968). To hold
otherwise would unreasonably thwart the ability of the police to investigate a
crime immediately after its occurrence.
This case
is distinguishable from Commonwealth v.
Taylor, 383 Mass. 272, 418 N.E.2d 1226 (1981), where we held that a warrant
authorizing a search for "antique jewelry" in a jewelry store did not
meet the particularity requirement. Id. at 275, 418 N.E.2d 1226. In
Taylor, unlike this case, "the particularization was available but was
not used in the warrant." Id. at 276, 418 N.E.2d 1226. The fact that the warrant listed blood and
clothing made it reasonably clear that the "instrumentalities" sought
were related to a crime of violence. The
police officers in this case properly limited the scope of their search to the weapons
used to inflict the victim's head injuries and to blood resulting from those
injuries. Under the circumstances, the
constitutional requirements were satisfied.
[19] d. Miscellaneous search and seizure issues. (1) The police, during the search, took
photographs of areas where blood was found, including the stove area and the
kitchen closet. Since the police were legally
on the premises, it was permissible for them to take these photographs. See
Commonwealth v. Young, 382 Mass. 448, 459, 416 N.E.2d 944 (1981).
[20] (2)
The seizure of the defendant's bloodstained jeans did not violate the
defendant's constitutional rights. The
police took the defendant's jeans after he had been arrested and had been taken
to the police station. "Once a
defendant has been arrested and is in custody, clothing that constitutes
evidence may be taken from him." Commonwealth v. Gliniewicz, 398 Mass.
744, 750, 500 N.E.2d 1324 (1986).
[21] (3)
The warrant stated on its face, "You are therefore commanded ... to search
for the following property: 461 LaGrange [405 Mass. 300] St. W. Rox. 2 1/2 story white w/blk trim wooden
dwelling." In the immediately
preceding section‑‑the warrant's preamble‑‑the warrant
listed "blood‑‑clothing‑‑or any other instrument
used in crime." This misplacement
does not invalidate the warrant. See Commonwealth v. Truax, 397 Mass. 174,
179‑181, 490 N.E.2d 425 (1986).
The warrant should be "read in a commonsense, not a hypertechnical,
manner." Id. at 180, 490 N.E.2d 425. It is possible, without any great
difficulty, "to determine what premises are to be searched and what items
are sought." Id. at 181, 490 N.E.2d 425.
[22] (4)
The warrant's return stated that the search was conducted at "2:20
p.m." The judge, after a hearing
on this issue, determined that this notation was a "mistake made in
haste," and that the search actually was conducted some time after 3:15
P.M. Although we may independently
review documentary facts, we see no reason to doubt the findings of the judge,
who had the opportunity to weigh the witness's credibility. See
Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980).
The error
in the return does not constitute ground for voiding the otherwise lawful
search.
Commonwealth v. Cromer, 365 Mass. 519, 521 n. 3, 313 N.E.2d 557
(1974).
Commonwealth v. Aldrich, 23 Mass.App.Ct. 157, 161‑162, 499
N.E.2d 856 (1986). "Any requirement
... of an accurate return 'is not closely affiliated with any constitutional
guarantee' [Commonwealth v. Lyons,
397 Mass. 644, 648, 492 N.E.2d 1142 (1986) ] and can have no practical effect
upon a warrant issued on an affidavit clearly establishing probable
cause." Commonwealth v. Aldrich, supra at 162‑163,
499 N.E.2d 856.
8. Motion to dismiss indictment. The defendant claims that certain statements
made before the grand jury warranted dismissal of the indictment. We disagree.
The
Commonwealth presented one witness, Detective William Fogerty, to the grand
jury. During his testimony, Fogerty
stated that when the defendant was questioned in the police station on the
evening of May 14, 1986, he was informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 474,
86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966).
The prosecutor asked Fogerty whether there were "words stated by
Mr. Freiberg thereafter that may be the subject[405 Mass. 301] of a controversy before a superior court
judge." Fogerty replied,
"Yes, sir, I believe so."
(FN10)
[23] The
defendant claims that this indictment tainted the indictment. The judge found the contrary. But, even assuming that these vague remarks
could somehow be construed to indicate that the defendant made inculpatory
statements, "an indictment valid on its face is not subject to challenge
on the ground that the grand jury acted ... on the basis of information
obtained in violation of a defendant's Fifth Amendment privilege against self‑incrimination." United
States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561
(1974), citing Lawn v. United States,
355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). See
Commonwealth v. Santaniello, 369 Mass. 606, 608, 341 N.E.2d 259 (1976).
The defendant
has made no showing that the statements at the grand jury proceeding prejudiced
his ability to obtain a fair trial. Commonwealth v. Hine, 393 Mass. 564, 572,
471 N.E.2d 1342 (1984). The defendant's
claim that the indictment should be dismissed because it was issued solely on
the basis of hearsay evidence is without merit. Commonwealth v. St. Pierre,
377 Mass. 650, 655, 387 N.E.2d 1135 (1979).
Mass.R.Crim.P. 4(c), 378 Mass. 849 (1979).
[24] 9. Scientific tests. The defendant argues that the judge
erroneously denied the defendant's motion to suppress evidence of the results
of scientific testing conducted on the defendant's jeans.
The judge
found the following facts. During the
booking procedure at the station house in West Roxbury, the police seized the
defendant's jeans after noticing red‑brown stains on them. A criminalist at the Boston police crime
laboratory removed and tested a 1/4 inch
by 3/8 inch section of the jeans containing
part of one of the stains. The test
results suggested that the stain was type B human blood, consistent with the [405 Mass. 302] victim's blood type. An
antigen test was inconclusive. The
section tested was destroyed during the course of testing.
The judge
determined that the defendant was not prejudiced by the Commonwealth's
tests. Stains were available for
comparable testing on other portions of the jeans, and the defendant did not
avail himself of the opportunity to perform his own tests. Though the antigen test could no longer be
performed, the Commonwealth's test had been inconclusive. There was no indication in the record of a
claim of culpability on the part of the police.
There was no error. See Commonwealth v. Willie, 400 Mass. 427,
432, 510 N.E.2d 258 (1987). Contrast Commonwealth v. Olszewski, 401 Mass.
749, 755‑756, 519 N.E.2d 587 (1988).
(FN11)
10. Manslaughter. The defendant claims that he was entitled to
an instruction on manslaughter.
"[I]f any view of the evidence will permit a finding that the
offense was manslaughter, the judge must charge on manslaughter."
Commonwealth v. Pitts, 403 Mass. 665, 667, 532 N.E.2d 34 (1989),
quoting Commonwealth v. Garabedian,
399 Mass. 304, 313, 503 N.E.2d 1290 (1987).
[25]
"Voluntary 'manslaughter ... [is] a killing from a sudden transport of
passion or heat of blood, upon a reasonable provocation and without malice, or
upon sudden combat.' " Commonwealth v. Pitts, supra 403 Mass. at
667, 532 N.E.2d 34, quoting Commonwealth
v. Walden, 380 Mass. 724, 727, 405 N.E.2d 939 (1980). There was no evidence presented that would
have warranted a charge on voluntary manslaughter. Neither Lincoln nor Hurley, who were seated
outside of the kitchen either just before or while the defendant hit the
victim's head against the stove, testified to any argument or altercation which
would constitute reasonable provocation or would tend to show that the
defendant had undergone a "sudden transport of passion." The jury may not engage in speculation in
the absence of any evidence of manslaughter. Commonwealth v. Benoit, 389 Mass. 411,
424, 451 N.E.2d 101 (1983).
[26]
Similarly, a charge on involuntary manslaughter was not required by the
evidence. There was no evidence that the
victim'sdeath [405 Mass. 303] was "unintentionally caused by
an act which constitute[d] such a disregard of probable harmful consequences to
another as to amount to wanton or reckless conduct." Commonwealth v. Walden, supra,
380 Mass. at 730, 405 N.E.2d 939, quoting
Commonwealth v. Vanderpool, 367 Mass. 743, 747, 328 N.E.2d 833 (1975). Cf. Commonwealth
v. Sheppard, 404 Mass. 774, 777, 537 N.E.2d 583 (1989).
[27] 11.
Charge on intoxication. The
defendant claims that the judge's failure to use the exact language of Commonwealth v. Delle Chiaie, 323 Mass.
615, 617, 84 N.E.2d 7 (1949), in his charge to the jury on intoxication,
constituted reversible error. We
disagree.
The
judge's charge sufficiently apprised the jury that they should consider
evidence of intoxication in determining whether the defendant was capable of
deliberate premeditation. We have never
required that the exact language of Delle
Chiaie be used. At any rate, as the
jury acquitted the defendant of premeditated murder, there could be no
prejudice to the defendant.
[28] 12.
Charge on credibility. We
disagree with the defendant's argument that the judge should have used the
specific language of Commonwealth v.
Snow, 111 Mass. 411, 417 (1873), in his charge on credibility. The judge's charge on credibility adequately
informed the jury of the law on that subject.
(FN12) See Commonwealth v. Perez, 390 Mass. 308, 314, 455 N.E.2d 632 [405 Mass. 304] (1983); Commonwealth v. Clary, 388 Mass. 583,
589, 447 N.E.2d 1217 (1983); Commonwealth v. McInerney, 373 Mass.
136, 143‑144, 365 N.E.2d 815 (1977).
[29] 13.
Evidentiary issues. a. Expert testimony. The defendant challenges the foundation of
an opinion given by Dr. Leonard Atkins, the medical examiner who performed the
autopsy. After examining two exhibits,
namely, photographs of the kitchen stove, Dr. Atkins answered "Yes"
to the following question:
"Directing your attention to the lefthand upper side of the stove
as it's portrayed in [the photographs], are the injuries that you observed on
Lisa Margil consistent with her head being banged against the upper portion of
the lefthand side of that stove?"
The
testimony was admissible. "An
expert who has performed an autopsy may testify that the injuries observed
could have been caused in a particular way or by a specified
instrumentality." Commonwealth v. Pikul, 400 Mass. 550,
554, 511 N.E.2d 336 (1987). The
photographs of the stove, together with the physician's personal observations
of the victim, constituted a sufficient basis for the physician to testify that
the victim's injuries could have been caused by the stove. See
Commonwealth v. Pikul, supra; Commonwealth v. Campbell, 378 Mass. 680, 704,
393 N.E.2d 820 (1979).
[30] b. Motive. The defendant challenges the admissibility
of certain evidence, including evidence of the victim's state of mind, which
the Commonwealth introduced to establish motive. There was testimony that the defendant had
borrowed a large amount of money from the victim, representing to her that it
was to be used to finance a trip they were to take
together. There was also testimony that
the defendant had used the money to purchase a motorcycle without telling the
victim, and that the defendant, the day of the victim's death, had silenced his
friends' discussion of the motorcycle when the victim was present. When asked what he would do if the victim
discovered his purchase, the defendant "said he'd kill her." There was evidence presented that the victim
went to the defendant's home on the day of her death in order to insist that he
return the money. The victim's father
testified that the victim had said, "I won't come back until I get the
money."
[405 Mass. 305] "Although the Commonwealth is not required to prove that a
defendant had a motive for committing a crime, if there is evidence of motive,
that evidence is admissible." Commonwealth v. Borodine, 371 Mass. 1, 8,
353 N.E.2d 649 (1976). There was
sufficient evidence presented for the jury to infer the defendant's motive for
killing the victim. See id.
Cf. Commonwealth v. Olszewski,
401 Mass. 749, 759, 519 N.E.2d 587 (1988).
[31] c. Admission of 911 tape recording. The judge twice allowed the Commonwealth to
play a tape recording of the two 911 telephone calls. The judge allowed the second playing in order
for Hurley to identify the defendant's voice.
The defendant claims that the second playing was prejudicially
inflammatory. "Whether such
evidence was so inflammatory in nature as to outweigh its probative value and
preclude its admission is a question to be determined by the trial judge in the
exercise of his sound discretion." Commonwealth v. Hodge (No. 2), 380 Mass.
858, 863, 406 N.E.2d 1015 (1980), quoting
Commonwealth v. D'Agostino, 344 Mass. 276, 279, 182 N.E.2d 133, cert.
denied, 371 U.S. 852, 83 S.Ct. 90, 9 L.Ed.2d 86 (1962). "[T]he occasions for exclusion on just
that ground have been rare indeed." Commonwealth v. Hodge, supra, quoting Commonwealth v. Chalifoux, 362 Mass.
811, 817, 291 N.E.2d 635 (1973). The
judge did not abuse his discretion.
Because the tapes were admitted in evidence, the jury were free to
listen to them as often as they pleased during deliberations. There was no error.
[32] d. Photographs. The judge did not err in admitting
photographs of the victim's head injuries.
"This court has held without exception in a long line of decisions that
in a case such as the present one, involving an indictment charging murder in
the first degree which is being tried on the basis, among others, that it was
committed 'with extreme atrocity or cruelty,' photographs ... indicating the
force applied and portraying the injuries inflicted may properly be admitted on
the issue of 'extreme atrocity or cruelty.' " Commonwealth v. Bys, 370
Mass. 350, 358, 348 N.E.2d 431 (1976), and cases cited.
14. Section 33E. On review of the entire record and
transcript pursuant to G.L. c. 278, § 33E (1986 ed.), we are not [405 Mass. 306] persuaded that the interests of justice demand a new trial or the
entry of a verdict of a lesser degree of guilt.
Judgment affirmed.
Order denying motion for new trial affirmed.
(FN1.) We treat the arguments arising from
this motion in combination with our discussion of the defendant's claims of
error in his direct appeal.
(FN2.)
The defendant did not object to the lack of a Grey charge. See
Commonwealth v. Fano, 400 Mass. 296, 306‑307, 508 N.E.2d 859
(1987).
(FN3.)
We have held that murder by extreme atrocity or cruelty can occur even if the
death results from a single blow. Commonwealth v. Glass, supra 401 Mass. at
803, 519 N.E.2d 1311. Commonwealth v. Golston, 373 Mass. 249,
260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54
L.Ed.2d 788 (1978).
(FN4.)
We note also that "[t]his court has not required suffering by the victim
as an 'indispensable element of the crime of murder with extreme atrocity or cruelty.'
"
Commonwealth v. Garabedian, 399 Mass. 304, 311, 503 N.E.2d 1290
(1987), quoting Commonwealth v. Podlaski,
377 Mass. 339, 348, 385 N.E.2d 1379 (1979).
(FN5.)
The defendant does not argue that capital defendants comprise a "suspect
class."
(FN6.)
Rule 48 of the Rules of the Superior Court (1954) is the predecessor of rule 6
of the Rules of the Superior Court (1974).
(FN7.)
The affidavit provided: "On this
date 5‑14‑86 about 2:40 P.M. Detectives George Bishop and William
Cannon responded to a radio call to 461 LaGrange St. W[est] Rox[bury]. There officers met Mac Brodie ... an Edison
worker. Mac Brodie stated while up the
pole he observed a white man 23 yrs, 5‑10, 175 lb, blue jeans, white
sneaker shirtless drag a body from the house and bury it in the back yard. A freshly dug grave was found and the still
living body of an unknown white female was removed from grave with a severe
head wound unknown what type of weapon was used. A search warrant for the premises of 461
LaGrange St. W[est] R[oxbury] a 2 1/2
story wooden white dwelling with black shutters is requested for search of
dwelling for evidence of blood, weapons [or] fruits of the crime. Home listed to D.R. Freiberg 461 LaGrange St.
W[est] R[oxbury]. Area includes all
pertinents [sic ] attic, cellar and
rooms thereof."
(FN8.) The judge stated that "the police,
having just found a still living woman buried in the backyard of the house,
could have reasonably harbored a genuine concern that additional victims and/or
a dangerous felon might be in the house.
It was reasonable to believe that any delay, resulting from seeking a
warrant prior to entry, would substantially increase the risk of loss or
destruction of evidence. Mr. Brodie's
reliable information provided ample support for a strong belief by the police
that the perpetrator of this particularly brutal crime was still on the
premises, certainly dangerous and quite possibly armed."
(FN9.) We note that we have held, in similar
circumstances, that "when the police come upon the scene of a homicide
they may make a prompt warrantless search of the area to see if there are other
victims or if a killer is still on the premises." Commonwealth v. Young, 382
Mass. 448, 457, 416 N.E.2d 944 (1981), quoting Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57
L.Ed.2d 290 (1978). See Michigan v. Tyler, 436 U.S. 499, 509‑510,
98 S.Ct. 1942, 1949‑1950, 56 L.Ed.2d 486 (1978); Warden v. Hayden, 387 U.S.
294, 298‑299, 87 S.Ct. 1642, 1645‑1646, 18 L.Ed.2d 782 (1967).
See
also Commonwealth v. Forde, 367 Mass.
798, 329 N.E.2d 717 (1975), where we identified a number of factors which tend
to support a finding of exigency. They
include "a showing that the crime was one of violence or that the suspect
was armed, a clear demonstration of probable cause, strong reason to believe
that the suspect was in the dwelling, and a likelihood that the suspect would
escape if not apprehended. Additional
considerations testing the reasonableness of police conduct are whether the
entry is peaceable and whether the entry is in the nighttime." Id.
at 807, 329 N.E.2d 717.
(FN10.) During the police interrogation in
question, the defendant requested the presence of an attorney. A police officer said, "Okay. Just let me inform you that you are being
charged with murder. Okay?" The defendant asked why, and the officer
responded, "Well, because the girl is dead." The defendant stated, "She can't be
dead." The officer described the
victim's injuries, and the defendant responded with certain inculpatory statements. The judge held that this portion of the
interrogation violated the defendant's rights under the principles stated in Miranda v. Arizona, supra, and he
granted the defendant's motion to suppress the statements from being introduced
in evidence at trial.
(FN11.)
Commonwealth v. Gliniewicz, 398 Mass. 744, 500 N.E.2d 1324 (1986), is not
on point. That case involved the failure
of the Commonwealth to meet its obligations under a pretrial conference report
pursuant to Mass.R.Crim.P. 11(a)(2)(A), 378 Mass. 862 (1979).
Commonwealth v. Gliniewicz, supra at 747, 500 N.E.2d 1324. In this case, the testing occurred before
the parties entered into a pretrial agreement.
(FN12.) The judge charged as follows:
"[Y]ou
may have to determine the truthfulness, the credibility, of the various
witnesses who testified before you under oath, because you have to decide the
weight that you wish to accord, that you wish to give to each witness's
testimony. You are the sole judges of
the credibility or the believability of the witnesses. If there's any conflict in the testimony, if
the testimony doesn't jibe, it's your function to resolve the conflict and
determine the truth.... [I]f you
determine that a witness made a statement which is different from the way he testified
in court, you may consider that in evaluating his credibility. You may consider it to be a minor
inconsistency or major inconsistency;
you may use it for whatever value you think it reflects upon his
credibility, his believability....
[Y]ou're not bound by the opinion of an expert; you can believe it or disbelieve it. You can give it whatever weight in your
judgment it is fairly entitled to receive.
You can believe all of it, you can believe some of it, you can believe
none of it. You assess the credibility
of witnesses. That's for all
witnesses."