|
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. Tarver, 369
Supreme Judicial Court of Massachusetts,
Argued
Decided
John P. White, Jr.,
Thomas F. Reardon, Asst. Dist. Atty. (Sandra L. Hamlin, Asst. Dist. Atty., with
him), for the Commonwealth.
Before [369
HENNESSEY, Justice.
The
defendant was tried before a Superior Court judge with jury on indictments
charging him with the crimes of murder, kidnapping, indecent assault and
battery on a child under the age of fourteen, and carnal knowledge and abuse of
a female child, one Theresa, a six‑year old girl. He was found guilty as to all the indictments
after a trial subject to G.L. c. 278, ss 33A‑‑33G. He was sentenced to death on the charge of
murder in the first degree; ([FN1]) to life imprisonment on the charge of
carnal abuse (to be served from and after the sentence imposed on the murder
charge); and to terms of years as to the other two indictments (to be served
consecutively from and after the sentences previously imposed). The case is before us on the defendant's
assignments of alleged error by the trial judge.
The
defendant argues that there was error in the denial of his motion to suppress
from evidence certain hair samples taken from him after his arrest; in the
admission in evidence of photographs, allegedly inflammatory, of the body of
the deceased child; in the denial of his motion to strike certain expert
testimony concerning microscopic comparison of hair samples of the defendant
with hair removed from the clothing of the decedent; in the admission in
evidence of a death certificate containing the word 'homicide'; in the
introduction of in‑court identification testimony, allegedly
constitutionally impermissible, by the ten‑year old brother of Theresa;
in the denial of his motion to inspect grand jury minutes; in the denial of his
motions for directed verdicts of not guilty as to the charges of indecent
assault and battery on a child under fourteen and carnal abuse of a female
child; and in the [369 Mass. 305] imposition of the death penalty,
contrary to the principles of the Federal and State Constitutions.
There was
evidence that Theresa went to see a movie at the Roxbury Cinema on
We
conclude that there was no error, except in the imposition of the death
penalty, and that the judgments are to be affirmed as modified to require the
imposition of a sentence of life imprisonment in lieu of the sentence of death.
[1] 1.
Samples of the defendant's hair were snipped from his head, chest, and
pubic area. The defendant's motion to
suppress these samples was denied by the trial judge after an evidentiary
hearing. The samples, together with
expert testimony concerning comparison with hair taken from the clothing of the
victim, were admitted in evidence. The
defendant, correctly we believe does not contend that there is any violation of
the Fifth Amendment or Sixth Amendment to the United States Constitution. Rather, he makes the argument that the hair
samples were taken from him in violation of the Fourth Amendment in that an
unreasonable search and seizure were involved.
See Schmerber v. California, 384 U.S. 757, 766‑‑772, 86 S.Ct.
1826, 16 L.Ed.2d 908 (1966). There was
no error.
The judge
made findings of fact at the hearing on the motion to suppress the hair
samples. He found, in part, that the
crimes involved in the instant indictments occurred on April 26, 1970, and that
Officer Daley of the Boston police department, homicide unit, on April 27,
1970, received detailed descriptions of the assailant from Theresa's two
brothers. ([FN2]) Officer Daley at that time (April 27, 1970)
was also aware of the fact that a sexual
[369 Mass. 306] assault had been
made against a young girl named Nadene on February 8, 1970. That assault took place in the same
neighborhood from which Theresa had disappeared. The descriptions of the assailant in both
cases were such that the police were of opinion that the assailant was the same
in both cases, and further that the assailant was the defendant, Frank
Tarver. Indictments in the case
involving Nadene were returned against the defendant on the first Monday of
November, 1970.
Late in
November, 1970, the Boston police learned that the defendant was being held in
custody in north Las Vegas, Nevada, on an unrelated charge. Officers Daley and O'Malley went to Las
Vegas, and rendition proceedings were then commenced for the return of the
defendant to Massachusetts. As a result
of these proceedings, the defendant was brought back to Boston in the custody
of the officers. The hair samples were
taken promptly on his arrival at a Boston police station, in what we conclude
was a valid search incident to a lawful arrest.
The warrant on which the rendition was based arose out of the
indictments concerning Nadene. No
indictments or complaints relating to the crimes against Theresa had as yet
been returned when the hair samples were taken.
The hair samples were in no way related to the investigation of Nadene's
case.
[2] We
accept as true the defendant's statement of a basic principle deriving from the
Fourth Amendment, that as a rule, but with certain recognized exceptions to the
rule, any search or seizure which is accomplished without a valid warrant is
unreasonable and therefore unlawful. See
Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967). The defendant also emphasizes,
in urging that the search and seizure here were unreasonable, that the hair
samples were taken when the defendant was under arrest for an unrelated crime,
was without counsel, and was a prime suspect in the crimes involving Theresa.
[3] The
burden of establishing reasonableness was on the Commonwealth (Chimel v.
California, 395 U.S. 752, [369 Mass.
307] 762, 89 S.Ct. 2034, 23 L.Ed.2d
685 (1969); Commonwealth v. Antobenedetto, ‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ ([FNA]), 315
N.E.2d 530 (1974), and we believe that burden was sustained. We rely generally on the reasoning that a
search incident to a lawful arrest may be valid even though accomplished
without a warrant. Essentially, the
defendant's argument is that the search and seizure were related to the case
involving Theresa, and he was not under arrest for the crimes
against her. Nevertheless, we conclude
that the hair samples were properly taken in a search incident to arrest.
[4] We
recognize that the same Fourth Amendment standards of probable cause are
applicable to arrests as well as to searches.
Giordenello v. United States, 357
U.S. 480, 485‑‑486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). In Davis v. Mississippi, 394 U.S. 721, 89
S.Ct. 1394, 22 L.Ed.2d 676 (1969), where the defendant was briefly detained by
the police for questioning, without probable cause, evidence of his
fingerprints obtained during the detention was excluded as the fruit of an
unlawful arrest. 'Nothing is more clear
than that the Fourth Amendment was meant to prevent wholesale intrusions upon
the personal security of our citizenry, whether these intrusions be termed
'arrests' or 'investigatory detentions.
" Id. at 726‑‑727,
89 S.Ct. at 1397. Compare Commonwealth
v. Bumpus, 362 Mass. 672, 674‑‑677, 290 N.E.2d 167 (1972), judgment
vacated and remanded on other grounds, 411 U.S. 945, 93 S.Ct. 1941, 36 L.Ed.2d
407 (1973), affd. on rehearing 365 Mass. 66, 309 N.E.2d 491 (1974) (where this
court said that evidence obtained involuntarily from a suspect not under arrest
was admissible, since the evidence was procured under a court order issued
after a hearing in which probable cause for arrest of the suspect was shown),
with McGowan, Constitutional Interpretation and Criminal Identification, 12
William & Mary L.Rev. 235, 242‑‑247 (1970).
The
Commonwealth argues that a search has been upheld even where the suspect was
not under arrest (as in Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d
900 (1973), where a search for fingernail scrapings was upheld even though
there was no formal arrest). We do not
consider the Cupp [369 Mass. 308] case, or Schmerber v. California, 384
U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (where a blood sample was taken
to test for alcoholic content) as entirely apposite, because of the exigency
aspect present in those cases, i.e., the likelihood of imminent loss of the
evidence. Rather, we prefer to rest our
reasoning on the fact that the defendant was under valid arrest as to Nadene's
case, and but for that fact could just as appropriately be under arrest as to
Theresa's case, or as to both cases.
Of primary
importance is our conclusion that the police had probable cause to believe, at
the time they took the hair samples, that the defendant was guilty of the
kidnapping and murder of Theresa. Thus,
although the defendant was not under arrest for those crimes and indeed no
complaint had issued against him as to those crimes, the police were not
engaged in a catchall or random proceeding in hopes of involving the defendant
in as yet unknown crimes; rather they were purposefully pursuing the investigation
of specific crimes as to which strong evidence against the defendant was known
to them. Cf. Terry v. Ohio, 392 U.S. 1,
30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Probable
cause was made out by an unusually detailed description provided to the police
by Theresa's two brothers at the time of her disappearance. They described the man who asked them to buy
Pall Mall cigarettes in a nearby store, and who was with Theresa when they last
saw her as they entered the store. Their
description correlated in remarkable detail with the appearance and
characteristics of the defendant as the police observed him when they took him
in custody in north Las Vegas. There was
even further corroboration when the police considered other evidence as to the
defendant's appearance, as stated by friends and relatives, on the day of
Theresa's disappearance.
As of the
time of the taking of the hair samples, some of the known facts which tended to
relate the defendant to Theresa's case were that the defendant resided in the
precise neighborhood from which Theresa disappeared; [369 Mass. 309] that he
left Boston for north Las Vegas within a few days after she
disappeared, and (at the very least) failed to return to Boston or notify
authorities when he became aware that he was being sought in connection with
Theresa's case; that he sometimes smoked Pall Mall cigarettes; that he met the
description of the suspect sought in a recent sexual assault on a young girl in
the same neighborhood from which Theresa disappeared; that he met the
description supplied by her two brothers with respect to his hairline, a scar
near his right eye, his height, a small goatee, a limp in one leg, and other
particulars.
Thus the
existence of probable cause as to Theresa's case is important to our conclusion
that the search and seizure here were not unreasonable. It is not crucial that the defendant was not
under arrest for the crimes against Theresa, since it seems clear (from
specific police testimony) that the police would have proceeded just as aggressively
to procure his arrest in Theresa's case if he were not already in custody on a
warrant in Nadene's case. Further, the
search and seizure were made promptly on the defendant's arrival in custody in
Boston. Compare Stoner v. California,
376 U.S. 483, 486‑‑487, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) with
United States v. Edwards, 415 U.S. 800, 810, 94 S.Ct 1234, 39 L.Ed.2d 771
(1974) (Stewart, J., dissenting).
If the
hair samples had been relevant as to Nadene's case there is no doubt that the
search would be valid as routinely incident to a lawful arrest, just as an
identifying procedure such as fingerprinting would be appropriate. It would not be supportive of the true
purposes of the Fourth Amendment for this court to hold that the search was
unreasonable merely because the arrest was made in the name of Nadene's case,
since there was simultaneously known to the arresting police at least equally
strong evidence implicating the defendant in Theresa's case.
[5] In
concluding that the taking of the hair samples was not unreasonable within the
meaning of the Fourth Amendment, we consider, in addition to the existence of [369 Mass. 310] probable cause, that the taking of the hair samples was not an
unreasonable bodily intrusion, if it was a bodily intrusion at all. United States v. D'Amico, 408 F.2d 331, 333
(2d Cir. 1969) (head hair). Brent v.
White, 398 F.2d 503, 505 (5th Cir. 1968), cert. den. 393 U.S. 1123, 89 S.Ct.
998, 22 L.Ed.2d 130 (1969) (scraping of penis held not an intrusion of the body
surface). See United States v. Cox, 428
F.2d 683, 687‑‑688 (7th Cir. 1970), cert. den. 400 U.S. 881, 91
S.Ct. 127, 27 L.Ed.2d 120 (1970) (head hair).
See also United States v. Edwards, 415 U.S. 800, 802, 94 S.Ct. 1234, 39
L.Ed.2d 771 (1974) (clothing); United States v. Mara, 410 U.S. 19, 22, 93 S.Ct.
774, 35 L.Ed.2d 99 (1973) (handwriting exemplars); United States v. Dionisio,
410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplars). Cf. People v. Bracomonte, 15 Cal.3d 394, 404‑‑405,
124 Cal.Rptr. 528, 540 P.2d 624 (1975) (forced ingestion of emetic solution
held violative of the Fourth Amendment); Rochin v. California, 342 U.S. 165, 72
S.Ct. 205, 96 L.Ed. 183 (1952).
2. The defendant also argues that certain expert
testimony concerning the hair samples of the defendant should not have been
received in evidence. This testimony
resulted from microscopic comparison of the hair samples with hair taken from
and near the victim's body. The thrust
of the defense argument is that the analysis was not such as to permit
identification of the hair found on and near the body; concededly the expert at
best could have eliminated the defendant as a suspect, if that result had
conformed to the facts.
[6][7][8]
The qualifications and competence of the witness to testify were as in most
cases, to be decided in the discretion of the trial judge. Commonwealth v. Devlin, 365 Mass. 149, ‑‑‑,
310 N.E.2d 353 (1974), and cases cited.
([FNC]) It was sufficiently shown in the record that the use of
microscopic examination has been generally accepted by the community of
scientists involved. See Commonwealth v.
Fatalo, 346 Mass. 266, 269, 191 N.E.2d 479 (1963); Commonwealth v. Lykus, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ([FND]) 327 N.E.2d 671
(1975). The expert opinions were relevant;
it was sufficient that the opinions served, it accepted by the jury, to exclude
large classes of persons from consideration as the source of the hairs found on [369 Mass. 311] and near the victim's body.
we find no merit in the contention of the defendant that, because of the
limited nature of the conclusions which the expert was willing to reach, the
evidence should have been admitted only if it served to exclude the defendant
from consideration. Nor can it be said
that the trial judge was required to rule that only the technique of 'Neutron
Activation Analysis,' now suggested by the defendant, would have been adequate
in this case. There is nothing properly
before us to show that this technique is scientifically acceptable; even if
this process were established as acceptable it is improbable that we would for
that reason conclude that the more limited studies and opinions of the expert
here were not admissible.
3. The defendant argues that the in‑court
identification of the defendant by the witness Richard, a brother of Theresa,
was impermissibly tainted and should have been excluded. The defendant emphasizes that a period of
eight months elapsed between the date of the offense and the date the witness
viewed a lineup, ([FN3]) at which he stated that the defendant 'look(ed) like'
the man he had observed in the company of his sister on the day she
disappeared. In the interim, photographs
of other men had been shown to him, and on one occasion he had picked out the
defendant from photographs of two men shown to him. Further, the suggestion is that the questions
put to the witness which led to the in‑court identification were leading
and confusing.
We of
course examine the totality of circumstances to ascertain whether the in‑court
identification was tainted by proceedings 'so unnecessarily suggestive and
conducive to irreparable mistaken identification that . . . (the [369 Mass. 312] accused) was denied due process of law.' Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct.
1967, 1972, 18 L.Ed.2d 1199 (1967).
Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1877, 32 L.Ed.2d 411
(1972). Neil v. Biggers, 409 U.S. 188,
196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
([FN4]) In light of this
totality, and despite the defendant's emphasis on some (only) of the relevant
factors, we conclude that there was no prohibition, constitutional or
otherwise, against the admission of the identification testimony.
[9] We
consider the due process question with the principles of United States v. Wade,
388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) in mind. ([FN5]) We recognize that eight months
elapsed between the time of the offense and the lineup confrontation, and that
this is an important negative factor.
Neil v. Biggers, 409 U.S. at 201, 93 S.Ct. 375 (1972). So also are the facts that the witness Richard
was only eight years old at the time of the offenses and ten years old at the
time of the trial, and that there was evidence that the defendant was the only
bald man, with a facial scar, in the lineup.
This falls far short of establishing that the lineup was tainted. Even assuming that the pre‑trial
confrontation was suggestive, all criteria considered together support the
judge's ruling allowing the in‑court identification before the jury. Richard had observed the defendant in good
lighting conditions for more than a minute and half under circumstances (the
disappearance of his sister) which very soon thereafter almost certainly tended
to [369 Mass. 313] impress the events on the boy's mind;
he immediately gave a detailed description to the police and this description
later proved to correlate remarkably with the defendant's appearance; he never
wavered in that description; he identified the defendant in the confrontation
at the lineup (where he said the defendant 'look(ed) like' the man he had
seen); he never failed to identify the defendant on any occasion where such an
identification was possible; and he never identified any other person as the
man he had seen, although he confronted a number of other men as possible
suspects, and viewed pictures of others.
[10] The
defendant further objects to the form of the in‑court identification
evidence, contending that the ultimate question calling for identification was
multifarious, leading and confusing to the witness and the jury. It is urged that the question be considered
in light of the fact that the witness was only ten years old. First of all, we note that the defendant's
objection at the trial to the question now in issue was specifically and solely
based, not on the form of the question, as now argued, but on due process
grounds. Furthermore, we conclude that
the meaning of the question, as heard in the context of the examination of the
witness, should have been clear to the witness and the jury. In particular the question followed a series
of answers in which the witness had told the jury that he had identified a man
in the lineup who 'look(ed) like' the man who was present when Theresa
disappeared. The question and answer,
particularly in light of the stated ground of the defendant's objection, were
properly admitted in the judge's discretion.
See Commonwealth v. Harrison, 342 Mass. 279, 286, 173 N.E.2d 87 (1961).
4. The defendant argues that it was error for
the judge to deny the defendant's motions for directed verdicts on two of the
indictments charging, respectively, indecent assault and battery on a child
under the age of fourteen and carnal knowledge and abuse of a female
child. The defendant contends that the
evidence is conjectural as to [369
Mass. 314] one necessary element of
these crimes, in that the evidence does not warrant a conclusion that the
victim was alive when sexual molestation took place.
Implied in
the defendant's argument is the further contention that if he was entitled to a
directed verdict on the carnal abuse indictment, he would also be entitled to a
new trial on the conviction of murder in the first degree. This follows because the judge in his charge
to the jury permitted consideration, as one premise for a verdict of murder in
the first degree, a murder committed 'in the commission or attempted commission
of a crime punishable with death or imprisonment for life.' G.L. c. 265, s 1. He further instructed that carnal abuse of a
female child was such a crime. G.L. c.
265, s 23. It seems clear that the jury,
since they concluded that the defendant was guilty as to all indictments,
reached their verdict of murder in the first degree based on a conclusion that
the defendant raped or attempted to rape the victim. They may well also, of course, have based
their conclusion as to murder in the first degree on the additional ground of
extreme atrocity and cruelty or deliberate premeditation, or both of these
premises, since the judge in his charge treated these as permissible
reasoning. ([FN6])
[369 Mass. 315] [11] We believe that the evidence warranted a conclusion that
Theresa was alive at the time of the sexual attack. It is true that the only medical expert who
testified stated that Theresa was probably unconscious or dead at the
time. However, there was other evidence
which was supportive of the inference that she was alive. It was shown that she was last seen alive in
the company of the defendant; substantial bleeding accompanied the sexual
assault; most important, from expert testimony the jury could properly infer
that certain hairs found in the interior of the clothing of the victim had been
forcibly removed from the defendant's head and pubic area. The jury could also consider this evidence in
light of reasoning that the killing was for the purpose of concealing the rape
and was done during the rape. See
Commonwealth v. Osman, 284 Mass. 421, 425, 188 N.E. 226 (1933).
[12] We
conclude also that, as to murder in the first degree, we should base the result
on a second ground. We hold, for the
first time in this Commonwealth, with reference to the murder indictment, that
it is inconsequential in a case of this kind that the death of the victim
preceded the sexual attack. ([FN7]) Other courts have so held. See People v. Quicke, 61 Cal.2d 155, 158‑‑159,
37 Cal.Rptr. 617, 390 P.2d 393 (1964); People v. Goodridge, 70 Cal.2d 824, 838, 76 Cal.Rptr.
421, 452 P.2d 637 (1969); People v. Stanworth, 11 Cal.3d 588, 604‑‑605,
n. 15, 114 Cal.Rptr. 250, 522 P.2d 1058 (1974); State v. Whitfield, 129 Wash.
134, 138‑‑139, 224 P. 559, 561 (1924). See also People v. Tolbert, 70 Cal.2d 790,
801, 806, 76 Cal.Rptr. 445, 452 P.2d 661 (1969), cert. den. 406 U.S. 971, 92
S.Ct. 2416, 32 L.Ed.2d 671 (1972).
[369 Mass. 316] The test, it has been held in such cases, is whether the killing
and the felony 'occurred as part of one continuous transaction in which rape
was involved. It is not necessary that
the homicide occur while the rape is in progress nor that it be caused by the
rape.' People v. Medina, 41 Cal.App.3d
438, 451, 116 Cal.Rptr. 133, 142 (1974).
Parson v. State, 222 A.2d 326, 332 (Del.Supr.1966) (citing Anderson,
Wharton's Criminal Law & Procedure s 252 (1957)), cert. den. 386 U.S. 935,
87 S.Ct. 961, 17 L.Ed.2d 807 (1967). See
Commonwealth v. Dellelo, 349 Mass. 525, 529‑‑530, 209 N.E.2d 303
(1965) (felony murder); State v. Montgomery, 191 Neb. 470, 473‑‑ 474,
215 N.W.2d 881 (1974) (robbery and homicide); State v. Craig, 82 Wash.2d 777,
781‑‑782, 514 P.2d 151 (1973) (robbery and homicide), quoting from
State v. Whitfield, supra.
The
reasoning of these cases is convincing, particularly as stated in State v.
Whitfield, supra: 'The proof of the killing, together with the fact that it was
committed in connection with a rape, is sufficient to constitute murder in the
first degree. From the very nature of
things‑‑and the evidence in this case illustrates the situation as
well as any case could‑‑it is often impossible for the state to
know at just what instant a killing was committed, whether it was done in the
commission of a felony, or in attempting to commit a felony, or while
withdrawing from the scene of a felony.
The facts here show that there were blows on the head of the child which
may have been inflicted before the rape took place or after the rape had been
committed, or may have been inflicted while the accused was withdrawing from
the scene. The child's throat was also
cut, and the same uncertainty exists as to when that mortal wound was
inflicted. It is impossible to tell
whether the wounds to the head or throat occasioned the death. Under such circumstances, to compel the state
to make a choice as to the exact instant that an unwitnessed killing took place
is by a technicality to embarrass justice.'
In the
Whitfield case and cases from other jurisdictions (see, e.g., cases cited in
the three preceding paragraphs), [369
Mass. 317] the rule was applied only
as to murder convictions. There is
emphasis in the Whitfield opinion at 139 of 129 Wash., at 561 of 224 P., for
example, that '(the defendant) was charged with one crime and only one (first
degree murder), and if the killing took place while the . . . (defendant) was
concerned in a rape it is immaterial if it was during the attempt,
consummation, or flight.' Based on the
same sound reasoning of some of these opinions we believe that our holding
should at this time apply only to the murder indictment.
Accordingly,
we hold that, in so far as the conviction of murder in the first degree is
concerned, it is inconsequential whether the victim was alive or dead at the
time of sexual molestation, so long as the rape, or attempted rape, and the
murder were parts of a continuous transaction.
It is indisputable in this case that the evidence warranted an inference
that the crimes were part of a continuous transaction. It follows that, on this second and
alternative reasoning, there was no error in submitting to the jury the
indictment concerned with murder, and in charging the jury that a conviction of
murder in the first degree would be warranted, among other grounds, if they
found that the homicide was committed during a rape or attempted rape.
[13]
5. The defendant claims error in the
admission of six black and white photographs of the body of Theresa in that
they were so inflammatory in nature that they overrode any probative
value. There was no error. The photographs had important evidential
value, particularly in light of the Commonwealth's burden to prove crime
charged under the indictments related to sexual abuse of the child. Commonwealth v. McGarty, 323 Mass. 435, 438‑‑439,
82 N.E.2d 603 (1948), and cases cited.
Commonwealth v. Pike, 324 Mass. 335, 338, 86 N.E.2d 519 (1949), and
cases cited. Commonwealth v. Lee, 324
Mass. 714, 718‑‑719, 88 N.E.2d 713 (1949), and cases cited. Commonwealth v. Lamoureux, 348 Mass. 390, 392‑‑393,
204 N.E.2d 115 (1965). Commonwealth v.
Stirling, 351 Mass. 68, 72 (1966).
Commonwealth v. [369 Mass.
318] Rogers, 351 Mass. 522, 531, 222
N.E.2d 766 (1967), cert. den. 389 U.S. 991, 84 S.Ct. 484, 19 L.Ed.2d 483
(1967). Commonwealth v. Chalifoux, 362
Mass. 811, 817, 291 N.E.2d 635 (1973).
6. The defendant asserts error in the judge's
denial of his motion to be furnished with a copy of the transcript of the grand
jury testimony of the witness Richard.
This court, in conferring a right of access to grand jury testimony of
Commonwealth witnesses relating to the subject matter of
their testimony at trial without a showing of a particularized need, ordered
that the new rule would be applied prospectively only. Commonwealth v. Stewart, 365 Mass. 99, ‑‑‑
([FNE]), 309 N.E.2d 470 (1974).
[14] The
burden in the instant case, which was tried before the date of the Stewart
decision, is thus on the defendant to show a particularized need. Commonwealth v. Ladetto, 349 Mass. 237, 244‑‑245,
207 N.E.2d 536 (1965). Commonwealth v.
Doherty, 353 Mass. 197, 209‑‑210, 229 N.E.2d 267 (1967), cert. den.
390 U.S. 982, 88 S.Ct. 1106, 19 L.Ed.2d 1280 (1968). Commonwealth v. Gordon, 356 Mass. 598, 602‑‑603, 254
N.E.2d 901 (1970). The defendant in
substance argues that the record shows evidence of particularized need so
compelling as to demonstrate error in the judge's ruling adverse to the
defendant's motion. We disagree. There is nothing before us to demonstrate
error in the ruling of the judge (who examined the grand jury transcript in
camera) that the record showed no inconsistency with the witness's testimony at
the trial. See Commonwealth v. Stewart,
365 Mass. at ‑‑‑[FNf], 309 N.E.2d 470 (1974). Although it is clear that appellate counsel
has examined the grand jury record, the defendant's argument in this regard is
neither specific nor well focused.
Particularized need was not demonstrated before the trial judge, or
before this court. See generally
Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237,
3 L.Ed.2d 1323 (1959).
[15]
7. The defendant contends that it was
error to permit the introduction of a death certificate concerning Theresa
which contained the specification by the medical examiner that the death was a
'homicide.' In Commonwealth v. Lannon,
364 Mass. 480, ‑‑‑ ([FNG]), 306 N.E.2d 248 (1974), we
suggested[369 Mass. 319]
that it might be error to permit such an entry to come to the attention
of the jury. However, an issue in that
case was whether the death was accidental or a homicide. In the case before us, it is clear beyond
dispute that a homicide was involved.
Assuming error in the admission in evidence of the entry in the
certificate, the error was clearly harmless.
[16]
8. The defendant challenges the
constitutionality of the death penalty imposed on him. This court has decided that the death penalty
for rape‑murder is proscribed by our State Constitution. Commonwealth v. O'Neal, ‑‑‑Mass.
‑‑‑, ‑‑‑, 339 N.E.2d 676 (1975) (O'Neal
II). Accordingly the death penalty
imposed herein must be vacated.
9. There was no error except in the single
particular of the death penalty.
Accordingly, the murder indictment is remanded to the Superior Court where
the sentence of death is to be vacated and a sentence of imprisonment for life
is to be imposed. Commonwealth v.
LeBlanc, 364 Mass. 1, 14‑‑15, 299 N.E.2d 719 (1973).
After
reviewing the entire evidence and proceedings in accordance with our function
under G.L. c. 278 s 33E, we see no reason for disturbing the verdict in the
murder case except for this modification of the sentence. As so modified, the judgments are affirmed.
So
ordered.
TAURO,
Chief Justice (concurring).
Justice
Quirico, speaking in dissent, states that the majority in this case as well as
in O'Neal II feel that 'the General Court has somehow lost the constitutional
power . . . to mandate, as matter of legislative judgment and policy, that the
penalty for the crime of rape‑murder shall be death,' and concludes that
he and Justices Reardon and Braucher '(adhere) to the position that under the
Constitution of this Commonwealth the General Court still
has . . . (this) power.'
I am quite
confident that Justice Quirico does not wish to leave the impression (as might
be inferred) that in [369 Mass. 320] rape‑murder cases the Supreme
Judicial Court has 'somehow lost the . . . power' and responsibility, on
review, to pass on the constitutionality of the statute in question‑‑because
this is all we have done, no more and no less.
I am sure that even the most ardent advocate of the Legislature's
prerogatives would not argue that legislative views on the constitutionality of
any statute are final and not subject to review by this court.
Of course
the General Court has the power and the duty to exercise 'legislative judgment
and policy.' Such exercise of judgment
and policy is entitled to the utmost respect by this court. Moreover, the Justices should never
substitute their views on matters of judgment and policy for those of the
Legislature. However, it always has been
and still is our solemn constitutional and statutory obligation to make the
ultimate decision on constitutional questions.
This is precisely what the majority have done.
QUIRICO,
Justice (dissenting in part).
The
defendant was convicted of the crimes of murder in the first degree,
kidnapping, indecent assault and battery on a child under the age of fourteen,
and carnal knowledge and abuse of a female child. All four offenses arose out of the same
incident and all were committed against the same victim. In part 4 of the court's opinion it is
stated: 'It seems clear that the jury, since they concluded that the defendant
was guilty as to all indictments, reached their verdict of murder in the first
degree based on a conclusion that the defendant raped or attempted to rape the
victim.'
Under G.L.
c. 265 s 2, as amended through St.1956, c. 731 s 12, as in effect at all times
material to this case, the death penalty was mandatory for a person guilty of
murder in the first degree 'unless the jury shall by their verdict, and as a
part thereof, upon and after consideration of all the evidence, recommend that
the sentence of death be not imposed, in which case he shall be punished by
imprisonment in the state prison for life.'
The jury [369 Mass. 321] did not recommend that the sentence
of death be not imposed, and indeed they could make no such recommendation in
this case because s 2 provides further that '(n) o such recommendation shall be
made by a jury or recorded by the court if the murder was committed in
connection with the commission of rape or an attempt to commit rape.' On this combination of facts and law, the
trial judge, following the clear mandate of G.L. c. 265 s 2, sentenced the
defendant to death on the conviction for murder. The several consecutive sentences imposed for
the other crimes are not at issue in this dissent. All the sentences were imposed before the
decision in the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346, on June 29, 1972.
Despite
the factual and statutory background described above, this court has this day
held that the death penalty imposed on the defendant 'must be vacated,' and it
has ordered that 'the murder indictment is remanded to the Superior Court where
the sentence of death is to be vacated and a sentence of imprisonment for life
is to be imposed.' The holding and order
are preceded by the statement that the death penalty for the crime of rape‑murder
is proscribed by the Constitution of this Commonwealth, citing as authority
therefor the decision in Commonwealth v. O'Neal, 369 Mass. 242, ‑‑‑,
339 N.E.2d 676 (1975) (O'Neal II), decided this day. The relationship between the O'Neal decision
and the order that the sentence of death in the present case be vacated is
further indicated by the following statement in fn. 6 of the court's opinion in
this case: '(I)f we had not held in . . . (the O'Neal II case), that
even the mandatory death penalty applicable to rape‑murder is
unconstitutional under our State Constitution, it seems clear that this court
might well have been constrained to affirm the death penalty in this case.'
For all
the reasons stated in the dissenting opinion of Reardon, J., which I joined, in
the O'Neal II case, I also dissent from the action of the court in holding in
this [369 Mass. 322] case, as it did in the O'Neal II
case, that in effect (a) the General Court has somehow lost the constitutional
power which it has at all times heretofore possessed to mandate, as matter of
legislative judgment and policy, that the penalty for the crime of rape‑murder
shall be death, and (b) the State Constitution which has at all times prior
hereto permitted the General Court to mandate the death penalty for that crime
now prohibits it from doing so.
In the
O'Neal II case, four members of this court, Tauro, C.J., and Hennessey, Kaplan,
and Wilkins, JJ., concluded that the General Court may no longer mandate the
death penalty for the crime of rape‑murder, basing their conclusions on
one or more of several constitutional grounds, no one of which grounds had more
than three adherents. A fifth member,
Braucher, J., concurred in the result on a basis of statutory construction, but
he did so after first stating that '(o)n the constitutional issues discussed in
the opinions of my brothers, I find myself in agreement with the dissenting
opinion of Justice Reardon.' There were
thus three members of the court, Reardon, Quirico, and Braucher, JJ., who, in
O'Neal II, adhered to the position that under the Constitution of this
Commonwealth the General Court still has the power which it has at all times
heretofore possessed to mandate, as matter of legislative judgment and policy,
that the penalty for the crime of rape‑murder shall be death.
(FN1.)
The trial was held before the date of Furman v. Georgia, 408 U.S. 238,
92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). As
to the applicability of the Furman principle to this case, see n. 6, infra.
(FN2.)
These detailed descriptions are included, infra, at 675‑‑676,
in the discussion of the identifying testimony at the trial.
(FNA.)
Mass.Adv.Sh. (1974) 1225, 1230‑‑1231.
(FNC.)
Mass.Adv.Sh. (1974) 583, 585.
(FND.)
Mass.Adv.Sh. (1975) 719, 736.
(FN3.)
There is nothing to show that the lineup was tainted in its composition,
nor is it urged here that the defendant's constitutional rights were violated
because the lineup was viewed by persons not interested in the specific crime
for which he was under arrest. See,
e.g., United States v. Perry, 164 U.S.App.D.C. 111, 504 F.2d 180, 182‑‑184
(1974) (separate statement by McGowan, J.).
(FN4.)
Undoubtedly because the lineup preceded the complaint or indictment as
to Theresa's case, no issue as to the absence of counsel at the pre‑trial
lineup is raised. As a consequence, no
problem of exclusion per se of evidence of the pre‑trial confrontation is
involved, and the defendant rightfully addresses the due process issue as to
all identification evidence. See Neil v.
Biggers, 409 U.S. at 193, 93 S.Ct. 375 (1972).
(FN5.)
The Wade case listed six pertinent inquiries: (1) the extent of a
witness's opportunity to observe the defendant at the time of the crime; prior
errors, if any, (2) in description, (3) in identifying another person or (4) in
failing to identify the defendant; (5) the receipt of other suggestions, and
(6) the lapse of time between the crime and the identification.
(FN6.)
The trial was held before the date of Furman v. Georgia, 408 U.S. 238,
92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
The judge correctly (as of that time) charged the jury as to their
function in recommending that the death penalty not be imposed if they
concluded that the defendant was guilty of murder with deliberate
premeditation, or with extreme atrocity and cruelty, or with both
elements. Furman, of course, proscribes
death sentences rendered in that way.
The judge also correctly charged that if the jury found Tarver guilty of
murder in the commission of a rape or attempted rape, they could make no
recommendation of mercy. Therefore, if
we had not held in Commonwealth v. O'Neal, 369 Mass. 242, 339 N.E.2d 676 (1975)
(O'Neal II), that even the mandatory death penalty applicable to rape‑murder
is unconstitutional under our State Constitution, it seems clear that this
court might well have been constrained to affirm the death penalty in this
case. This follows from necessary
inferences to be drawn by reason of the jury's returning verdicts of guilty of
both rape and murder in the first degree.
FNAll
similar Massachusetts cases brought to our attention by the parties show that
this specific issue has not been directly addressed since the court has
invariably found that the evidence indicated that the victim was alive at the
time of the sexual abuse. Commonwealth
v. Osman, supra. Commonwealth v.
McGarty, 323 Mass. 435, 439, 82 N.E.2d 603 (1948). Commonwealth v. O'Neal, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (O'Neal I)
(Mass.Adv.Sh. (1975) 1086, 1088‑‑1089),
327 N.E.2d 662. Nothing to the contrary
can be found in Commonwealth v. Costa, 360 Mass. 177, 181, 274 N.E.2d 802
(1971), where there was no evidence that the sexual abuses perpetrated there
took place before the victims' respective deaths. Therefore, although we are establishing the
principle for the first time, we are not overruling any prior holdings of this
court.
(FNE.)
Mass.Adv.Sh. (1974) 519, 525‑‑526.
FNf.
Mass.Adv.Sh. (1974) at 523.
(FNG.)
Mass.Adv.Sh. (1974) 1, 5.