Anthony J. Jackson
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A.K.A: "The Hitch-Hike Murderer"
Classification: Serial killer
Characteristics: Rape
Number of victims: 3 - 5 +
Date of murders: September-December 1972
Date of arrest: December 26, 1972
Date of birth: 1939
Victims profile: Kathleen Randall, 18 / Debra Stevens, 19 / Ellen Reich, 19 / Sandra Ehramjian, 21 / Damaris Synge Gillispie, 22
Method of murder: Strangulation - Shooting
Location: Massachusetts, USA
Status: Sentenced to life in prison
Eight years after the solution of the "Boston Strangler" case, Massachusetts co-eds were terrorized by a new series of brutal rape-murders.
Unlike one strangler's crimes, all victims in the latest series were young, between 18 and 22 years of age, and none were killed in their homes. As bodies were retrieved and evidence compiled, it soon became apparent that Boston's new slayer was preying on attractive hitchhikers, selecting his victims as random "targets of opportunity."
The killer claimed his first two victims in late September 1972, picking off 18-year-old Kathleen Randall a week after she enrolled at Boston University. Last seen thumbing rides near the campus, she was found two weeks later, raped and strangled in rural New Hampshire.
Two days after Randall's disappearance, 19-year-old Debra Stevens was raped and strangled to death at Lynn, Massachusetts, her body discarded within 50 yards of home.
Victim Ellen Reich was another habitual hitchhiker. A 19-year-old sophomore at Emerson College, she lived off campus in the Back Bay area, traveling by thumb in preference to laying out the money for a car.
The practice cost her life on November 9. Strangled and stabbed several times, she had been dead at least four days when searchers found her body on November 14, nailed inside the closet of an abandoned house in Boston's Roxbury district.
Sandra Ehramjian, age 21, also liked to hitchhike when she wasn't earning money as a Boston taxi driver. A resident of Cambridge, she vanished November 27, en route to a dentist's appointment, her strangled corpse found the next day in a culvert near Waldo Lake, in suburban Brockton.
Two days later, honor student Synge Gillespie vanished while thumbing rides in Boston. A telephone ransom demand for $25,000 brought relatives no closer to recovery of their loved one, and the Boston slayer had claimed three more victims by Christmas, all strangled or suffocated, with some stabbed for good measure.
Police got their break on December 26, when 33-year-old Anthony Jackson was arrested following a high-speed chase and shootout with Cambridge patrolmen. Booked on charges of assault with a deadly weapon, operating an automobile to endanger, and illegal possession of firearms, he was indicted for the Gillespie murder on February 3, 1973.
A blood-soaked Cadillac, discovered in a Brockton junkyard, was believed to be the murder scene, and while evidence would remain elusive in several cases, investigators noted that the co-ed killings stopped abruptly with Jackson's arrest.
Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans
COMMONWEALTH vs. ANTHONY J. JACKSON.
376 Mass. 790
September 13, 1978 - December 12, 1978
Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, & WILKINS, JJ.
WILKINS, J.
The defendant appeals from his conviction of armed assault with intent to murder and unlawful carrying of a firearm. [Note 1] He argues that he was unfairly forced to go to trial, representing himself, in circumstances where a continuance should have been granted and counsel appointed. We conclude that there was no abuse of discretion in proceeding to trial on the day designated, with the defendant acting for himself. [Note 2] We reject, as not properly before us, the defendant's unrelated contention that, because of certain newspaper publicity during trial, the judge should have conducted an individual voir dire of each empanelled juror. We do, however, set forth the appropriate procedures which should be followed in similar circumstances in the future.
We briefly describe the evidence because we shall have occasion to consider whether certain of the judge's rulings prejudiced the defense or gave rise to a substantial risk of a miscarriage of justice.
The evidence of the defendant's guilt was overwhelming. On December 26, 1972, one of two Cambridge police officers in an unmarked van observed the defendant driving a Cadillac automobile and apparently accosting a female pedestrian. The police officers in the van followed the Cadillac automobile, which sped away. They lost sight of it, spotted it again, and gave chase. Another police vehicle joined the pursuit. The Cadillac automobile was found abandoned a few minutes later. Nearby and shortly thereafter, two other police officers in a cruiser saw a pedestrian whom they identified as the defendant. When they approached the defendant, he drew a gun and fired at them. The police officers returned the fire. The defendant appeared to have been hit, but he fled on foot. A few minutes later the defendant was found approximately three blocks away, lying in the street wounded. He was wearing an empty holster. He told the officer who first approached him, "I don't have the gun."
At the hospital, a spent bullet was found in the defendant's clothing. The bullet was of the same caliber as the guns of the officers who had been involved in the shoot-out. Keys to the Cadillac automobile were found, along with material identifying the defendent, in an alley between the location of the shooting and the location of the defendant's arrest. A gun was found in that alley eight days later. There was evidence that a bullet recovered from the scene of the shooting had been fired from that gun.
The defendant presented no substantial evidence in his defense. He suggested that the police had failed to investigate the possibility of other suspects, including the registered owner of the Cadillac automobile.
1. There was no abuse of discretion in denying the defendant's requests for a continuance. At a hearing on June 3, 1976, trial was set for June 14, 1976. The defendant requested a continuance in order to prepare for trial, and the judge denied the request. Such a determination will be disturbed only if there was a clear abuse of discretion. Commonwealth v. Watkins, 375 Mass. 472 , 490 (1978), and cases cited. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964). The defendant has made no such showing.
The indictments in this case were handed down in January, 1973. In June, 1973, at the defendant's request, an order was entered deferring trial in this case, and certain other cases involving the defendant, until the conclusion of the trial against the defendant in the so called Reich murder case. The trial of the Reich case was substantially delayed. This delay, as we noted in Jackson v. Commonwealth, 370 Mass. 855 (1976), was due to the defendant's failure to establish and maintain a satisfactory working relationship with any of the various attorneys who had been retained by, assigned to, or offered to the defendant. Shortly after our 1976 opinion, the order giving priority to the Reich trial was rescinded. The judge who denied the continuance in this case was aware of the defendant's record of delay in the Reich case and that those delays had also prevented the case at bar from proceeding to trial.
The defendant had no reasonable basis for being unprepared for trial by reliance on the order deferring the trial of this case. The order had deferred only the trial date and had placed no restrictions on preparation for trial. Nor did the withdrawal of counsel, approved by the judge on June 3, 1976, require a continuance. The defendant had long known that those withdrawals were inevitable, and they were solely the product of his own conduct. Jackson v. Commonwealth, 370 Mass. 855 (1976). See Commonwealth v. Bettencourt, 361 Mass. 515 , 517-518 (1972); United States v. Rodriguez Vallejo, 496 F.2d 960, 964-965 (1st Cir.), cert. denied, 419 U.S. 965 (1974). The defendant was offered new counsel at the hearing, and the trial was still eleven days away.
There are further grounds for upholding the denial of a continuance. The record indicates, in addition, that the defense had substantially prepared for trial in the six months following the indictments. In August, 1973, the Commonwealth had presented a general version of the events surrounding this case in a hearing on a motion to suppress filed in another of the criminal proceedings against the defendant. The defendant made no showing on June 3, 1976, of a particular need for a continuance. Even now, the defendant has not demonstrated how the denial of the continuance prejudiced him at trial. The judge accommodated late requests for an investigator, a ballistician, and a psychiatrist. The defendant presented his defense vigorously. He used transcripts of prior proceedings for the purpose of impeachment, called his own witnesses, and successfully excluded a confession which he had given at the hospital following the shooting.
If we assume that the denial of a continuance on the first day of trial is before us on the assignments of error, there was no abuse of discretion for reasons already given. The defendant has made no showing that his receipt of certain papers four days before trial was prejudicial to him.
2. On June 3, 1976, after the trial date of June 14, 1976, was established, the judge accepted the defendant's request that he be permitted to represent himself at trial. The defendant claims that the judge improperly concluded that the defendant had waived his constitutional right to counsel. The colloquy between the judge and the defendant, portions of which are set forth in the margin, [Note 3] plainly warrants the judge's conclusion that the defendant knowingly and intelligently waived his right to counsel. Indeed, he insisted on his constitutional right to represent himself, apparently citing (although by the wrong name) and quoting from the opinion of the Supreme Court in Faretta v. California, 422 U.S. 806 (1975). On June 4, 1976, the judge filed a statement in which he noted that the defendant stated in open court that he wished to proceed "pro se," and added that "if the defendant does not desire to make use of appointed counsel, I appoint said counsel as legal advisor in all proceedings."
The defendant was adequately aware of the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 835 (1975). The record shows that the defendant was "literate, competent, and understanding." Id. The finding of the defendant's waiver of right to counsel was fully justified. See Fillippini v. Ristaino, 585 F.2d 1163, 1165-1167 (1st Cir. 1978).
The assertion in the defendant's brief that his waiver of counsel was contingent on the granting of a continuance is incorrect. The trial date was firmly established before the court considered the question of representation, and at no time did the defendant suggest that his waiver of counsel was contingent on a change of the trial date.
3. The defendant makes a fleeting reference to the judge's refusal to let him abandon his self-representation and use his court-appointed legal advisor as defense counsel. He made such a request on the first day of trial, and repeated it several times during the course of the trial. Although this issue is presented to us in the context of the defendant's claim that he never effectively waived his right to counsel, we shall treat the defendant's assertion as a claim of an abuse of discretion in the judge's refusal to permit him to retract his decision to represent himself.
On June 14, 1976, before the jury were selected, the defendant asserted that he had not had adequate time to prepare the case and asked the judge to permit his court-appointed legal advisor to defend him. Seemingly gone was the eloquent self-confidence of June third--"And I ask the Court for that right [to defend myself]. If I must sail the sea, I want to be at the helm of my own ship, Your Honor without counsel."
The judge did not abuse his discretion in turning down the defendant's request made at that late date. While we recognize the importance of counsel, we reject any suggestion that every defendant has an absolute right at the moment trial is to begin to retract his decision to represent himself. See Glenn v. United States, 303 F.2d 536, 540-541 (5th Cir. 1962), cert. denied sub nom. Belvin v. United States, 372 U.S. 922 (1963). A court faced with a dilatory defendant has the power to take reasonable measures to keep proceedings moving forward, even if a defendant's refusal to arrange representation leaves him without counsel. See Ungar v. Sarafite, 376 U.S. 575, 588-591 (1964); Kates v. Nelson, 435 F.2d 1085, 1088-1089 (9th Cir. 1970); Nunn v. Wilson, 371 F.2d 113, 117-118 (9th Cir. 1967); Glenn v. United States, supra. These proceedings had been long delayed by the failure of the defendant to make satisfactory arrangements for representation in other criminal matters pending against him, and the judge had seasonably put him to a clear choice between counsel and self-representation.
Furthermore, the defendant delayed his request for counsel until the final moment before trial, without showing good cause for not having made a more seasonable request. The defendant's last-minute assertion of lack of preparation did not have to be accepted at face value. There was ample justification for the judge to conclude that the request was just another dilatory tactic. See Commonwealth v. Scott, 360 Mass. 695 , 699 (1971); United States v. Rodriguez Vallejo, 496 F.2d 960, 965 (1st Cir.), cert. denied, 419 U.S. 965 (1974). Even if we assume that the defendant had the right to retract his decision to represent himself and to seek the appointment of counsel, the delay of the request until immediately prior to trial brought it within the broad discretionary power of a court over requests for last-minute shifts in representation which threaten to delay a proceeding. See Commonwealth v. Bettencourt, 361 Mass. 515 , 517-518 (1972); Commonwealth v. Scott, supra at 698-701; Commonwealth v. Flowers, 5 Mass. App. Ct. 557 , 565-566 (1977).
The decision of the judge was consistent with a concern for a fair trial. The defendant had substantially prepared his case with the assistance of counsel. He was familiar with the Commonwealth's case against him. He had accepted a legal advisor.
In addition, the defendant has failed to prove an abuse of discretion in the denial of his requests to change counsel during trial. In this latter situation, a defendant's freedom to change counsel is significantly more restricted than it is before trial has commenced. Commonwealth v. Miskel, 364 Mass. 783 , 791 (1974), and cases cited.
4. The defendant argues finally that he was denied a fair trial because the judge declined to question the empanelled jurors separately concerning the impact on them of a newspaper article which most of them read on the morning of the second day of trial. Although the defendant excepted to the judge's determination to question the jurors collectively concerning this article, rather than individually, he has not assigned the judge's ruling as error. In such a case, the propriety of the judge's failure to interrogate each juror individually is not before us for consideration. See Commonwealth v. Wallace, 356 Mass. 92 , 97 (1969); Commonwealth v. Chester, 337 Mass. 702 , 703 (1958). In the absence of a proper preservation of an issue for appellate review, we would still consider whether there was a "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556 , 563-564 (1967). In any event, even if the question were before us fully, the judge's ruling was not an abuse of discretion and that ruling did not unconstitutionally deny the defendant a fair trial. We see no substantial risk of a miscarriage of justice.
On the morning of the second day of his trial, in which the jury were not sequestered, the defendant told the judge that there has been publicity on at least one radio station and in one Boston newspaper, mentioning murder charges which were pending against him. The record does not disclose what these news reports stated concerning the defendant. We do not even have a copy of the allegedly prejudicial newspaper article. We infer from the comments of a juror who was discharged that the article stated, at least, that the defendant had been indicted in three separate counties on other charges. Although the judge rejected the defendant's request for individual questioning of the jurors, he asked the jury collectively whether they had heard about the case on the radio or on television during either of the first two days of the trial. No juror responded affirmatively. When asked whether they had seen anything about the case in an article in the Boston Globe published on the second day of the trial, thirteen of the sixteen empanelled jurors answered that they had. The judge then asked if "anything that any juror [had] seen in that article caused him or her to form any opinion or prejudice against the defendant, or in relation to this case?" One juror answered in the affirmative. He then asked if anything that any juror had read in that article caused him or her to form any opinion which would prevent him or her from rendering a fair and impartial verdict. The same juror answered in the affirmative. No other juror answered in the affirmative. The judge immediately instructed the jury not to read, listen to, or discuss any media reference to the case, that cases are decided on evidence in the courtroom, and that they should ignore the newspaper article. [Note 4] Out of the hearing of the other jurors, the judge questioned the juror who indicated that she had been affected by the newspaper article, and then excused her.
The defendant was not denied his constitutional right to a fair trial. The Supreme Court of the United States, in the exercise of its supervisory powers, has adopted a stricter standard for Federal courts in cases involving potential juror prejudice than the constitutional standard which applies to State courts. Compare Murphy v. Florida, 421 U.S. 794, 797-798 (1975), with Marshall v. United States, 360 U.S. 310, 313 (1959).
The constitutional standard of fairness requires only that the jurors be impartial and indifferent. Murphy v. Florida, supra at 799. By this test, we see no constitutional violation. The record fails to disclose the allegedly prejudicial publicity. It appears that the newspaper article referred to serious charges pending against the defendant, but had no direct bearing on any contested issue in this case. The judge did not ignore the potential for prejudice. He made inquiry of the jury, discovered one juror who expressed a lack of impartiality due to the publicity, and discharged her after individual questioning out of the presence of the other jurors. The judge did not conduct a individual voir dire of each juror, but we do not see a threat to the fundamental impartiality of the jury in his failure to do so. The collective questioning of the jury brought forth one juror who conceded the prejudicial effect of the newspaper article on her. Any inhibitory effect of the collective questioning of the jury did not deter that juror, and her statements "broke the ice" for any other juror who might have been reluctant to identify him or her self as prejudiced. The judge gave prompt cautionary instructions and later repeated them.
The same reasoning which leads us to find no constitutional violation supports our further conclusion that the judge did not abuse his discretion in his handling of the asserted prejudicial publicity. We have heretofore granted trial judges wide discretion on this subject. See Commonwealth v. Stanley, 363 Mass. 102 , 104-105 (1973); Commonwealth v. Eagan, 357 Mass. 585 , 588-589 (1970). The circumstances of the Eagan case are quite similar to those in this case.
Although what we have said would dispose of the issue sought to be raised if it were properly before us, we exercise our power of general superintendence to set forth the procedures which should be followed hereafter when a claim of potentially extraneous influence on a jury is brought to the judge's attention after the jury are selected. We adopt prospectively the practice which has been followed in several Federal circuits. See, e.g., United States v. Perrotta, 553 F.2d 247, 249-250 (1st Cir. 1977). This practice seems indicated as a matter of public policy in light of G. L. c. 234, Section 28, concerning specific questioning of individual jurors when certain potentially prejudicial circumstances may affect the jury selection process. [Note 5]
When material disseminated during trial is reliably brought to the judge's attention, he should determine whether the material goes beyond the record and raises a serious question of possible prejudice. A number of factors may be involved in making that determination, including the likelihood that the material reached one or more jurors. See United States v. Perrotta, supra at 249. If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror's exposure to the material and its effects on the juror's ability to render an impartial verdict. See United States v. Perrotta, supra at 249-250; United States v. Lord, 565 F.2d 831, 838-839 (2d Cir. 1977); Margoles v. United States, 407 F.2d 727, 734 (7th Cir.), cert. denied, 396 U.S. 833 (1969). See also the even stricter requirements expressed in the ABA Standards Relating to Fair Trial and Free Press Section 3.5 (f) (1968) as to material disseminated during trial, according to which all questioning should be conducted individually and a juror should be excused if he has been exposed to potentially prejudicial material which would furnish grounds for a mistrial if referred to in the trial itself, and United States v. Herring, 568 F.2d 1099, 1104-1105 (5th Cir. 1978).
Judgments affirmed.
*****
FOOTNOTES
[Note 1] The defendant was convicted also of assault by means of a dangerous weapon and of three motor vehicle offenses. These cases were placed on file, the defendant not objecting.
[Note 2] We have allowed the Commonwealth's motion to expand the record to include the transcript of a pretrial hearing in this matter (referred to in the briefs of each party) and certain transcripts or records in other criminal proceedings involving the defendant. These documents bear on the merits of certain issues in this case.
[Note 3] On June 3, 1976, the defendant indicated that, if counsel were allowed to withdraw, he would represent himself. Later, the judge suggested that he was "going to appoint counsel, a legal advisor, for you, anyway." The following conversation then occurred:
THE DEFENDANT: "Your Honor, Barry versus California says I have a right to try without legal counsel, without any assistance, without any attorney sitting at the table with me; and that is a U.S. Supreme Court, recent case, 1975."
THE JUDGE: "You are a highly intelligent person, Mr. Jackson, but you are not trained in the--"
THE DEFENDANT: "I understand."
THE JUDGE: "You are not trained as a lawyer."
THE DEFENDANT: "I understand that, Your Honor. It says that--the last statement of the decision says that: we bestow on the defendant the right to defend himself--although one who defends himself may have a fool for a client. And I ask the Court for that right. If I must sail the sea, I want to be at the helm of my own ship, Your Honor, without counsel."
THE JUDGE: "I will take those matters under advisement."
[Note 4] On the fifth day of the trial, the judge gave a similar instruction to the jury. In his final charge to the jury, the judge instructed the jury that anything they read outside the courtroom was not evidence, that they must decide the case only on the evidence, that indictments are not evidence in any respect, and that "[t]he defendant cannot be found guilty upon suspicion or conjecture." The defendant did not except to the judge's charge nor did he request further instructions.
[Note 5] The defendant made no claim below, and makes none here, that the judge's failure to conduct individual questioning of each juror was a violation of G. L. c. 234, Section 28, as amended by St. 1975, c. 335. That statute is directed to the process of jury selection. See Commonwealth v. Horton, ante 380, 394-395 (1978). It does not prescribe the consequences of a failure to follow its terms. The rule of practice which we prescribe for the handling of potentially prejudicial circumstances arising during trial parallels that prescribed in G. L. c. 234, Section 28.
COMMONWEALTH vs. ANTHONY J. JACKSON.
384 Mass. 572
September 14, 1981 - November 13, 1981
Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, NOLAN, & LYNCH, JJ.
HENNESSEY, C.J.
The defendant was convicted by a Superior Court jury of murder in the first degree and sentenced to life imprisonment, to be served from and after any other previously imposed sentence he was serving or was to serve.
The defendant appeals, asserting error in (1) the admission of evidence of other crimes he committed, (2) the trial judge's advisory ruling that he would admit evidence of the defendant's prior conviction, (3) the prosecutor's opening statement, (4) the partial violation of an order sequestering witnesses, (5) the denial of a speedy trial, (6) the denial of a motion to suppress certain physical evidence, and (7) the admission of certain other evidence during trial. The defendant has also asked this court to exercise its broad power of review under G. L. c. 278, Section 33E, and order a new trial. We find no reversible error and see no reason to order a new trial. Accordingly, we affirm.
We summarize briefly the pertinent facts, reserving elaboration of specific facts to the discussion of each of the defendant's contentions.
The body of Ellen Ann Reich, age nineteen, was found on November 13, 1972, in a closet in an abandoned apartment at 132 Seaver Street, Roxbury. Reich had lived at 31 Massachusetts Avenue in Boston. She was last seen on Thursday morning, November 8, 1972, by her roommate, Eileen Wacks. Wacks testified that the victim usually hitchhiked to Emerson College, where she attended school. One Belin McArthur found the body while helping a friend, Mary Lee Cobb, move furniture from her apartment at 132 Seaver Street. While waiting for the moving truck to return, he looked around the building and saw a nailed closet door, became curious, and pried it open. The victim's body was inside.
Dr. George W. Curtis, medical examiner for Suffolk County, performed an autopsy on the body on November 14, 1972. This autopsy, in combination with a later exhumation and second autopsy, established that the victim was killed by strangulation and two gunshot wounds to the chest and abdomen. One bullet was retrieved from near the victim's vertebrae, and sperm was found in the victim's vagina.
Human hairs were found on the panties and jeans of the victim, who was white. The hair found on the victim's jeans was determined to be negroid pubic hair, but it did not match the pubic hair of the defendant, who is black. The head hairs found on the victim's panties were negroid in origin, and an expert in microscopic examinations testified for the Commonwealth that he compared them to hair samples of the defendant and found those samples to be microscopically alike in all identifiable characteristics.
Robert P. Spalding, special agent for the FBI in forensic serology, testified that he examined stains in the crotch area of the victim's jeans and found the presence of factors from blood types "A" and "B," factors which appear when an individual is a "secretor." He stated that a secretor has substances in his or her other bodily fluids which indicate that person's blood type, eighty per cent of the population are secretors, and forty per cent of the population have type "A" blood.
William A. Gavin, also a special agent for the FBI, had studied a sample of the defendant's saliva, and found that he was a secretor, and had type "A" blood. He also found type "B" blood on the victim's sweater, jacket, and slacks. The victim had type "B" blood. Evidence of male spermatozoa was discovered in the victim's panties, together with traces of both "A" and "B" blood type factors. The results of his examination were consistent with the involvement of a female secretor with type "B" blood and a male secretor with type "A" blood. They were also consistent with fluids from one individual having group "AB" blood. Such individuals comprise about five per cent of the population.
William Tobin, a special agent for the FBI in metallurgy, compared nails taken from the frame of the closet where the body was found with nails from a milk carton taken from the defendant's residence at 154 Washington Street, Dorchester. He found hundreds of similarities between the samples, and concluded that the nails originated from the same source.
Several Cambridge police officers testified, over the defendant's objections and exceptions, that they pursued, exchanged gunfire with, and arrested the defendant in Cambridge on the evening of December 26, 1972. Officer John Conroy related that at about eight o'clock that evening he was on cruiser patrol in Cambridge, when he observed the defendant in a dark-colored Cadillac automobile motioning to a young woman walking down the street. He followed the defendant's car until the defendant suddenly "took off" at a high rate of speed. Cambridge police Officer Joseph J. McSweeney soon thereafter spotted the vehicle, which was empty, and located the defendant. He walked toward the defendant, who drew a gun from a black holster, shot at the officer, and kept firing at him while running down the street. McSweeney returned the fire, and saw the defendant drop to one knee. He lost the defendant for two to three minutes, but found him again, lying on the ground with two police officers beside him. The police looked for a gun, but did not find one. Several days later, a man who worked near the spot where the defendant was apprehended discovered a pearl-handled, silver-colored gun in a snowbank. This gun was turned over to the police. Test bullets fired from this gun were matched microscopically to a bullet retrieved from a building at the site of the Cambridge shooting incident and to the bullet retrieved from the victim's body. Ballistics experts concluded that all of the bullets came from the same gun.
Patricia Archer testified that she had lived with the defendant at 154 Washington Street from the fall of 1972 until the time of his arrest. She identified a holster and the nickel-plated revolver recovered from the snowbank as belonging to the defendant. She also identified the carton containing nails found in the defendant's apartment as the defendant's and testified that she had seen it in the trunk of the defendant's car. Archer also testified that she had visited 132 Seaver Street once with the defendant.
Michelle Maupin, another woman living with the defendant on Washington Street at the time of the defendant's arrest, testified that she had known the defendant for many years. She had seen the defendant carrying a silver gun with a pearl handle, which he carried in a black holster. She, too, saw the carton of nails at the Washington Street address, and visited 132 Seaver Street with the defendant at least nine times.
Maupin visited the defendant at a hospital the morning after he was shot, but he told her to leave so that she would not be questioned by the police. She returned to the hospital the next day, and the defendant asked her to pick up a gun in the snowbank in Cambridge. He drew a map with her eyebrow pencil to locate the weapon.
Donald McDonald, a longtime friend of the defendant, testified over the defendant's objection that he visited the defendant at the Billerica house of correction following his arrest. On February 6 or 7, 1973, McDonald discussed with the defendant two newspaper articles concerning an investigation into the murders of six young women, one of whom was the victim, Reich. These articles referred to a murder in New Hampshire, and McDonald testified that the defendant voluntarily told him that "the one in New Hampshire was not [the defendant's]." The two newspaper articles, with some portions excised, were admitted in evidence. McDonald also testified that the defendant asked him to retrieve the gun abandoned in Cambridge, and that he had seen the defendant with a pearl-handled, silver-colored gun.
1. Evidence of the defendant's other crimes. The defendant's primary contention on appeal is that the trial judge committed reversible error when he admitted in evidence the defendant's admission to McDonald and the two related newspaper articles. This evidence, the defendant contends, tied him to the well-publicized murders of other young, white women, creating a serious danger that the jury's decision was based on the defendant's criminal propensity rather than on the evidence.
The statement by the defendant to McDonald ("The one they found in New Hampshire . . . [t]hat wasn't mine") was, in the context of his conversation with McDonald, an indivisible admission of the murders of five young women, including Ellen Reich. The admission is obviously relevant to the issue of who murdered Reich, but it also constitutes evidence of the defendant's participation in the murders of other women. McDonald's statements and the defendant's reply were admissible as an admission by the defendant that he killed Reich. See Commonwealth v. Kenney, 12 Met. 235 , 237 (1847). Evidence that is otherwise relevant to the offense charged is not rendered inadmissible simply because it tends to prove the commission of other crimes. E.g., Commonwealth v. Hoffer, 375 Mass. 369 , 373 (1973).
However, where evidence of other crimes is irrelevant to proof of the offense charged, this court has generally considered it inadmissible, even when that evidence is the defendant's voluntary admission. Commonwealth v. Welcome, 348 Mass. 68 , 70-71 (1964). Commonwealth v. Valcourt, 333 Mass. 706 , 717-718 (1956). Commonwealth v. Bishop, 296 Mass. 459 , 461-462 (1937). Commonwealth v. Kosior, 280 Mass. 418 , 423 (1932). In this case, however, the potential for unfair prejudice to the defendant was reduced by his earlier introduction of evidence implicating him in another, unconnected murder. We conclude that, because the defendant, in his admission of the crime charged, admitted to other, unrelated crimes in a manner that rendered the admission unintelligible if references to the unrelated crimes were omitted, the entire admission was properly admitted in evidence. This conclusion accords with the reasoning in other jurisdictions. See, e.g., United States v. Wiggins, 509 F.2d 454, 462 (D.C. Cir. 1975) (dictum); State v. Palko, 122 Conn. 529, 536, aff'd on other grounds, Palko v. Connecticut, 302 U.S. 319 (1937); State v. Underwood, 75 Mo. 230, 236 (1881). Cf. State v. Hopkins, 117 Ohio App. 48, 52 (1962) (confession to setting at least thirty-five fires, including that for which arson was charged, properly admitted); Commonwealth v. Weston, 297 Pa. 382, 389 (1929) (confession that it was not the first time defendant had "done a thing of this kind" properly admitted). The decision to admit or exclude such an admission requires the trial judge to balance the probative value and the prejudicial impact of the admission, and so it is within his sound discretion. We cannot say that that discretion was abused here.
The admission of the newspaper articles was also within the judge's discretion. The defendant's critical statement was in response to the contents of those articles, [Note 1] as presented to him by McDonald. The articles therefore amounted to a declaration, admissible "because it may give meaning and effect to the reply." Commonwealth v. Kenney, 12 Met. 235 , 237 (1847). That is, they established the context in which the admission was made. See Commonwealth v. Labbe, 6 Mass. App. Ct. 73 , 78 (1978).
A trial judge should exercise caution in admitting such prejudicial material [Note 2] in evidence for explanatory purposes. The judge here demonstrated appropriate caution by excising irrelevant portions and by giving a careful, forceful instruction to the jurors, limiting their consideration of the remainder of the articles. We presume, as we must, that a jury understands and follows limiting instructions, Commonwealth v. Leno, 374 Mass. 716 , 719 (1978); and their use usually renders any error in the introduction of prejudicial evidence harmless, Commonwealth v. Roberts, 378 Mass. 116 , 127 (1979).
The defendant also asserts as error the admission of other evidence showing various facts [Note 3] that connected him with the other murders. Some of this evidence was introduced for the first time by the defendant, and the balance was so remotely related in time and effect to McDonald's testimony that there was no risk of unfair prejudice to the defendant.
2. Defendant's prior convictions. The defendant requested and received an advisory ruling by the judge on the admissibility of his prior convictions should he testify. The judge told the defendant that he would exclude his conviction for murder, but would admit the conviction for assault with a deadly weapon that resulted from the shooting incident in Cambridge. The defendant did not take the stand. The defendant contends that this ruling impermissibly infringed his right to testify on his own behalf and so denied his constitutional right to a fair trial. Article 12 of the Declaration of Rights of the Constitution of the Commonwealth.
The record of some prior convictions of a defendant is admissible to impeach the defendant if he testifies. G. L. c. 233, Section 21. We have previously indicated that a trial judge has a right to exclude prior convictions in order to prevent unfairness to a defendant, particularly where they are similar to the crime charged and do not inherently pertain to the defendant's credibility. Commonwealth v. Chase, 372 Mass. 736 , 750 (1977). We have also held, however, that, where the judge admits proof of prior convictions, any prejudice to the defendant is not of constitutional dimension and will not be reviewed on appeal. Commonwealth v. Leno, supra at 717-718. See Commonwealth v. Diaz, 383 Mass. 73 (1981); Commonwealth v. Tabor, 376 Mass. 811 (1978). Thus the defendant's argument fails. It is true also that the events underlying the conviction which was ruled admissible by the judge were closely related to the murder of Ellen Reich. One of the bullets the defendant fired at the Cambridge police officers and his possession of the pearl-handled, silver-colored pistol connected the defendant with the murder weapon. Finally, the defendant's flight from and shooting at the police revealed his consciousness of guilt. This evidence was properly admitted long before the defendant's request for the advisory ruling. Proof of the conviction would be merely cumulative, and for that additional reason no error is shown.
3. Prosecutor's opening statement. The prosecutor, in his opening statement, told the jury that two witnesses, Mary McIntyre and Linda White, would testify at trial. He indicated that these two would further link the defendant to 132 Seaver Street, McIntyre to testify that the defendant occupied an apartment there and White to testify that the defendant had a telephone installed there. Neither witness was produced at trial, despite the prosecutor's efforts to produce them, and the prosecutor justified the omission by indicating that McIntyre's testimony would be cumulative and that White was suffering emotional problems. The defendant's motion for a mistrial on this ground was denied.
There was no error in the judge's denial of the defendant's motion for a mistrial. The prosecution fully intended to call both witnesses at the time of the opening, and therefore could properly comment on the substance of their testimony. Cf. Commonwealth v. Fazio, 375 Mass. 451 , 454-457 (1978) (proper to comment on testimony of witness despite pretrial assertion by counsel that witness would invoke privilege against self-incrimination). There is no evidence that the prosecutor here acted intentionally or in bad faith, cf. Commonwealth v. Killelea, 370 Mass. 638 , 648 (1976), and the cumulative nature of the missing witnesses' testimony makes the omission harmless, cf. Commonwealth v. Roberts, 378 Mass. 116 , 123-124 (1979).
We also note in passing that any potential prejudice to the defendant was reduced by the prosecutor's opening remark that his statements were not evidence, cf. Commonwealth v. Breese, 381 Mass. 13 , 15 (1980), and by the defendant's use in closing argument of the failure of McIntyre and White to testify.
4. Sequestration order. The judge, pursuant to a motion by the defendant, issued an order sequestering all witnesses (with certain immaterial exceptions). The judge permitted two witnesses who had testified for the prosecution to remain in the courtroom during the trial. The first, State police Officer McGuinness, resumed the witness stand to reinforce a link in the chain of custody of test bullets fired from the murder weapon. The second, FBI Agent Tobin, was permitted over the defendant's objection to remain in the courtroom to assist the prosecution in its cross-examination of the defendant's nail expert.
The sequestration of witnesses lies within the discretion of the trial judge, and it is not error to refuse to sequester witnesses.
Commonwealth v. Vanderpool, 367 Mass. 743 , 748-749 (1975). Commonwealth v. Blackburn, 354 Mass. 200 , 205 (1968). See Commonwealth v. Watkins, 373 Mass. 849 , 850-851 (1977). It is also within the judge's discretion to admit or exclude the testimony of witnesses who have violated sequestration orders. Commonwealth v. Crowley, 168 Mass. 121 , 127-128 (1897) (defense witness's testimony properly excluded). Commonwealth v. Hall, 4 Allen 305 , 306 (1862) (witnesses violating order properly permitted to testify).
The judge here acted within his discretion. The expert witness, Tobin, was not recalled to the witness stand and therefore could not commit perjury, which is the principal evil that sequestration orders are designed to prevent. See W.B. Leach & P.J. Liacos, Massachusetts Evidence 78 (4th ed. 1967). Moreover, the very nature of expert testimony makes perjury unlikely, and so it would be proper to exempt all expert witnesses from a sequestration order. See Commonwealth v. Hersey, 2 Allen 173 , 176 (1861). The testimony of the police officer who resumed the stand was brief, cumulative, and directed only at a technical link in the chain of custody. There was no substantial danger of perjury, and any error was harmless beyond a reasonable doubt. See Commonwealth v. Watkins, supra. See also Commonwealth v. Parry, 1 Mass. App. Ct. 730 , 735-736 (1974).
5. Speedy trial. The defendant was indicted on April 11, 1973, and the trial began on January 10, 1978. The defendant contends that this delay of fifty-seven months deprived him of his right to a speedy trial and prejudiced his defense.
This is the second time this court has considered the delay in bringing this case to trial. In Jackson v. Commonwealth, 370 Mass. 855 , 856 (1976), we confirmed a special master's finding that the first three years of delay were attributable to the actions of the defendant, primarily his failure to accept and work with a series of defense attorneys assigned to assist him. We reaffirm that conclusion, and note that the period of time between our previous opinion and this trial was largely consumed by the trial of three other indictments against the defendant. The balance was taken up with further difficulties between the defendant and yet another defense attorney. The defendant's own actions delayed the trial of this case, and he therefore suffered no deprivation of his right to a speedy trial.
6. Motion to suppress nails. On January 19, 1973, without a warrant, the police seized from the defendant's apartment at 154 Washington Street, a milk carton containing, among other things, the nails that were matched to those in the frame of the closet where the body was found. The defendant's motion to suppress these nails was denied on the grounds that the defendant had abandoned the premises, that the police had obtained valid consent to be on the premises, and that the defendant lacked standing to contest the search and seizure.
The hearing judge entered subsidiary findings, none of which is contested on appeal. The defendant had paid rent on the apartment through January 1, 1973. He was arrested on December 26, 1972, placed in custody, and the following day told the other residents of the apartment to move out, and remove all of his belongings and furnishings. The apartment was bare after January 9, 1973. The police were given permission by the landlord to enter the apartment at any time, and the nails were found in a pantry while a policeman was helping Archer, an occupant of the apartment, remove her belongings. The defendant contends that these findings are consistent with a three-week lapse in rental payments due to his incarceration and a desire to protect his belongings.
Even if the defendant's testimony was believed by the hearing judge, the protection of one's belongings is not inconsistent with an intent to abandon the premises. The hearing judge's subsidiary findings are supported by the evidence. Based on our independent review of the application of those findings, e.g., Commonwealth v. Murphy, 362 Mass. 542 , 550-551 (1972) (Hennessey, J., concurring), we affirm the hearing judge's conclusion that the defendant intentionally abandoned any proprietary interest in the premises.
Abandonment leaves the defendant without standing to contest the search and seizure since he has no interest in the property. Brown v. United States, 411 U.S. 223, 229-230 (1973). See United States v. Salvucci, 448 U.S. 83 (1980); Rakas v. Illinois, 439 U.S. 128 (1978). It also renders the warrantless search, made with the landlord's permission, reasonable. See United States v. Wilson, 472 F.2d 901, 902-903 (9th Cir. 1973). Moreover, any proprietary interest the defendant may have retained in the apartment was shared with Archer, whose consent rendered the seizure valid. United States v. Matlock, 415 U.S. 164, 171 (1974).
7. Admission of other evidence. Testimony was admitted, over the defendant's objection, relating the acts for which the witness McDonald was granted immunity and McArthur's explanation [Note 4] to the police of his presence in the apartment where he discovered the body. In the context of this trial, admission of this testimony was within the sound discretion of the trial judge. The trial judge did not abuse that discretion.
McDonald testified that he was granted immunity from prosecution for being an accessory after the fact to any murder in which the defendant was implicated, and for larceny of a motor vehicle. The defendant, whose questions implied McDonald was involved in several other murders including that of Reich, cross-examined McDonald on these grants of immunity. The prosecutor was permitted, during the subsequent redirect examination, to elicit the facts underlying the two grants of immunity.
Admission of this testimony was within the power of the trial judge to control the scope of direct and cross-examination. See Commonwealth v. Best, 381 Mass. 472 , 488-491 (1980); Commonwealth v. Adrey, 376 Mass. 747 , 752-753 (1978). It was admissible to correct any mistaken conclusions the jury may have drawn from the defendant's questions as well as to rehabilitate the witness. Cf. Commonwealth v. Howard, 8 Mass. App. Ct. 318 , 321-323 (1979). There was no possibility of unfair prejudice to the defendant since the defendant had previously brought out testimony linking the defendant to the primary murder in question.
The defendant, in his cross-examination of two witnesses, emphasized that McArthur's presence in the fourth floor apartment where he found the body was suspicious since he was helping a woman move from the third floor. This theory culminated in a colloquy with Officer Madden, [Note 5] who had spoken with McArthur. In response to this colloquy, the trial judge permitted the prosecutor to elicit on redirect examination McArthur's explanation to Officer Madden of his presence on the fourth floor, instructing the jury that this testimony was to be considered only on the issue of why the police did not suspect McArthur.
This testimony was admissible for this limited purpose, and as to that purpose was not hearsay. Cf. Commonwealth v. Miller, 361 Mass. 644 , 658-659 (1972) (testimony that drug users had mentioned the defendant's name admissible to show reason for undercover activity against the defendant). It was relevant to rebut the defense's theory that McArthur was in fact the murderer and that the police had handled the investigation carelessly. Cf. Commonwealth v. Howard, supra. In addition, the defendant's final question opened up the issue of McArthur's statements, entitling the prosecution to have the entire conversation in evidence. Commonwealth v. Taylor, 327 Mass. 641 , 648 (1951).
8. Review under G. L. c. 278, Section 33E. The defendant has asked us to grant him a new trial pursuant to our powers under G. L. c. 278, Section 33E. Consistent with our duties under that statute, we have reviewed the entire record on the law and the evidence and conclude that the defendant is entitled to no relief under Section 33E.
Judgment affirmed.
*****
FOOTNOTES
[Note 1] On voir dire, McDonald expressed some confusion about which newspaper articles were actually discussed during his conversation with the defendant. It is clear, however, that the defendant was responding to newspaper articles with the same content as those introduced at trial, and the witness testified that his conversation with the defendant concerned the two articles admitted in evidence.
[Note 2] The articles did not refer to the defendant by name, but did indicate that several of the victims were college students and were last seen hitchhiking, and that a single person was responsible. One also said a suspect was being held in the Billerica house of correction, where the defendant was incarcerated at the time.
[Note 3] Evidence was admitted tending to show that the victim was last seen hitchhiking, that the defendant was arrested after accosting a young girl, and that the defendant was under investigation in other counties.
[Note 4] McArthur was not located and did not testify at trial.
[Note 5] COUNSEL FOR THE DEFENDANT: "Is it usual for a person to be moving from the second [sic -- third] floor to go up to the fourth floor in somebody else's apartment? You didn't find that strange or a little suspect?"
THE WITNESS: "Not when it was explained to me, it wasn't."
COUNSEL FOR THE DEFENDANT: "And he explained it to you did he not?"
THE WITNESS: "Oh yes."
COMMONWEALTH vs. ANTHONY J. JACKSON.
388 Mass. 98
October 4, 1982 - January 28, 1983
Present: HENNESSEY, C.J., WILKINS, LIACOS, NOLAN, & O'CONNOR, JJ.
HENNESSEY, C.J.
On December 22, 1976, the defendant, Anthony J. Jackson, was convicted of murder in the first degree, kidnapping, rape, and unarmed robbery, and sentenced to life imprisonment at the Massachusetts Correctional Institution at Walpole on the murder conviction. [Note 1] He challenges his convictions on direct appeal and by means of a motion for a new trial. We conclude that the defendant's claims lack merit, and, after reviewing the entire record as required by G. L. c. 278, Section 33E, we conclude that the defendant is not entitled to relief on any other grounds. Accordingly, his convictions are affirmed.
The facts are summarized as follows. The victim was found dead under a bed in her apartment at One Langdon Street in Cambridge on the morning of Sunday, December 24, 1972. She was last seen alive at approximately 8 P.M. on Thursday, December 21. It was estimated that her death occurred no earlier than 11:30 A.M. on Friday, December 22. She did not report to work on Friday, and attempts to reach her by telephone and by visits to her apartment between Friday and Sunday were unsuccessful. However, at about midnight on Saturday, her car was found parked near her sister's apartment building several blocks from where the victim lived. Several .22 caliber bullet shells were found in her apartment, and spent .22 caliber bullet shells were found in her car. Several items were missing from her apartment.
The defendant lived in an apartment at 154 Washington Street in the Dorchester section of Boston with one Michelle Maupin, one Patricia Archer, and one Diane Dixon. Maupin and Archer testified for the Commonwealth at the trial.
According to Maupin, the defendant left the apartment in the early evening on Thursday, December 21, and returned about 6 or 6:30 A.M. on Friday morning, December 22. He left again about 9 A.M., and returned about 11 A.M. He left again at 11:30 A.M. and returned at 1:30 P.M. with some furniture, which he moved into the apartment with the help of one Donald McDonald. McDonald testified that the defendant called him at 11:30 A.M., Friday, and asked him to help move some furniture, and returned to Dorchester at 1:30 P.M. The defendant left again about 8 P.M. and returned by car early Saturday morning, December 23.
Archer's testimony was essentially consistent with Maupin's. Both testified that the defendant gave them money and items later identified as from the victim's apartment, at various times on that Friday, Saturday, and Sunday. Archer testified that she spent part of Saturday, December 23, with the defendant in an apartment he had rented under Dixon's name at 55G Codman Park. At 11:30 that night she drove past a building on the corner of Langdon Street and Massachusetts Avenue with the defendant, and he stated that he and McDonald knew a couple of girls there. The defendant's former wife, Patricia Jackson, testified that he visited her on Friday afternoon and late Saturday afternoon at her apartment.
On December 30, 1972, the victim's father received a copy of her bank statement with a cancelled check for $593 endorsed by "Robert Johnson." An expert testified that the defendant's fingerprints were on the check. The Commonwealth also introduced photographs taken by a video camera at a branch of the Coolidge Bank & Trust Company showing a black man in the teller's line. An assistant manager identified this black man as the man who brought the check to him for approval on the morning of December 22, but at trial he did not identify that man as the defendant.
The defendant was arrested on unrelated charges on December 26, 1972. In June, 1976, the defendant was convicted of armed assault with intent to murder and of unlawfully carrying a firearm in connection with that arrest. The convictions were affirmed. Commonwealth v. Jackson. 376 Mass. 790 (1978). Testimony about that arrest was admitted at the trial in the instant case, over the defendant's objections. Hair samples from a hat taken from the defendant at that arrest were found to be "microscopically like" a hair found in the victim's apartment.
Maupin visited the defendant several times between his arrest and his trial. She testified that on December 29, he told her to take several items, including two jackets and a .22 caliber rifle, from his apartment to Patricia Jackson's apartment. She did so, and also brought a .22 caliber handgun back from Patricia Jackson threw the rifle into the Charles River on January 6, 1973. They also disposed of other objects on that date at his request, including the two jackets and several of the items taken from the victim's apartment. Some of these objects, including the rifle, were later recovered by the police. Both guns were admitted in evidence at trial, over the defendant's objections.
McDonald was given immunity from prosecution as an accessory after the fact to any murders for which the defendant was prosecuted. He testified at trial to incriminating statements the defendant made when he visited the defendant in jail in January, 1973. The Commonwealth also offered the testimony of Ralph Bens, one of the defendant's jailors, regarding an inculpatory statement made by the defendant. The defendant objected to this testimony by McDonald and Bens.
The defense was alibi. Two nurse's aides testified that they spent a Friday or Saturday evening in December, 1972, with a black man named Tony and a white man named Brian. McDonald sometimes used the name Bryant Alexander. One of the women testified that she spent the night with the black man, whom she identified at trial as the defendant. While there was some evidence that this encounter took place on December 22, there was other evidence that it took place several weeks earlier.
1. The defendant objects to the admission of certain evidence of the defendant's alleged involvement in other crimes. Evidence of other crimes is not ordinarily admissible at trial. Commonwealth v. Roberts, 378 Mass. 116 , 125 (1979). Commonwealth v. Kosior, 280 Mass. 418 , 423 (1932). "However, otherwise relevant evidence is not rendered inadmissible simply because it may indicate that the defendant has committed another offense." Commonwealth v. Roberts, supra. Commonwealth v. Jackson, 384 Mass. 572 , 577 (1981).
(a) The defendant first objects to the admission of testimony about a chase and shoot-out with police which preceded his arrest. This evidence of flight was properly admitted to show the defendant's consciousness of guilt. Commonwealth v. Booker, 386 Mass. 466 , 469-471 (1982). Commonwealth v. Roberts, supra at 125. Commonwealth v. Gilday, 367 Mass. 474 , 496 (1975). The fact that the defendant was arrested on unrelated charges does not render the evidence inadmissible, but rather goes to the weight which the jury will give to the evidence. Commonwealth v. Booker, supra at 470. Nor is there merit in the defendant's contention that he was unfairly prejudiced because the judge allowed Commonwealth witnesses to describe in detail the circumstances of his arrest. Balancing the probative value of evidence against its possible prejudicial impact is a task committed to the discretion of the judge. Commonwealth v. Booker, supra at 469. Commonwealth v. D'Agostino, 344 Mass. 276 , 279, cert. denied, 371 U.S. 852 (1962). That principle controls here. We have upheld the admission of evidence of a "running gunfight with police, in which an officer was wounded," because the "desperate nature of the defendant's conduct . . . lent credibility to the . . . inference of guilt of the crimes charged." Commonwealth v. Gilday, supra. See Commonwealth v. Green, 302 Mass. 547 , 553 (1939) ("testimony of one [witness] as to the details of the robbery [of a car]" admissible to show intensity of defendant's desire to escape, indicating consciousness of guilt). Moreover, in this case relevant evidence was recovered in the course of the defendant's arrest. The jury were entitled to know how this evidence was recovered and identified with the defendant. The judge instructed the jury that testimony about the arrest was "not to be used by you as a basis for a verdict of guilty in the cases that we are now trying." Jurors are expected to follow such instructions. Commonwealth v. Stone, 366 Mass. 506 , 512-513 (1974). Commonwealth v. Ciminera, 11 Mass. App. Ct. 101 , 105 (1981). We conclude that there was no error in the admission of evidence describing the defendant's arrest.
(b) The defendant next objects to the admission in evidence of two .22 caliber guns, on the ground that they were irrelevant. Although the victim was not shot, .22 caliber shells were found in her apartment and car. Since it thereby appeared that one or both guns might have been used in the commission of the crimes of kidnapping or rape, the guns were relevant. Commonwealth v. O'Toole, 326 Mass. 35 , 39 (1950). Compare Commonwealth v. Banuchi, 335 Mass. 649 , 654 (1957) (when defendant was charged with arson, it was error to admit knife with which defendant allegedly threatened wife). It was not necessary to provide expert ballistics testimony linking the shells with the defendant's guns. There was testimony establishing that the shells and guns were of the same caliber, and that shells of the smae caliber were found in the defendant's apartment; the jury could infer that the shells were connected with the defendant's guns. See Commonwealth v. O'Toole, supra. The absence of expert testimony expressly linking the shells with the guns went only to the weight of the evidence. Cf. Commonwealth v. Ellis, 373 Mass. 1 , 5 (1977) (absence of murder weapon did not preclude admission of expert testimony comparing shell found near murder scene to shells allegedly fired from the same gun). Alternatively, the fact that the defendant asked McDonald to dispose of one of the guns was admissible to show consciousness of guilt.
Since the guns were relevant, it was within the judge's discretion to admit them in evidence if he found their probative worth outweighed their prejudicial impact, even though they might tend to show that the defendant had committed another crime. See Commonwealth v. Booker, 386 Mass. 466 , 469-470 (1982); Commonwealth v. D'Agostino, 344 Mass. 276 (1962). We see no basis on which to interfere with his decision. We note that the judge gave strong limiting instructions at the time the challenged evidence was introduced, which cured any possible error. See Commonwealth v. Stone, supra.
(c) The defendant's third objection is that the judge improperly allowed McDonald and Bens to testify to statements the defendant made which implicated him in other crimes. [Note 2] The jury could reasonably have inferred that these statements were admissions by the defendant to the murder of the victim in this case. As such they were relevant, even though they tended to implicate the defendant in other crimes. See Commonwealth v. Jackson, 384 Mass. 572 , 577 (1981); Commonwealth v. Roberts, 378 Mass. 116 , 125-126 (1979); Commonwealth v. Deschamps, 1 Mass. App. Ct. 1 , 3 (1972). The contested statements simultaneously represented admissions to the murder of the victim in this case and implicated the defendant in other crimes. "We conclude that, because the defendant, in his admission of the crime charged, admitted to other, unrelated crimes in a manner that rendered the admission unintelligible if references to the unrelated crimes were omitted, the entire admission [were] properly admitted in evidence." Commonwealth v. Jackson, supra at 578. A judge has discretion in considering the admissibility of evidence of other crimes. Id. Commonwealth v. Deschamps, supra. Here, the judge carefully balanced the probative value of these statements against their prejudicial impact, and redacted portions of the statements. We see no abuse of discretion.
(d) The defendant last objects to references by several police officers testifying at trial to prior trials of the defendant, and to a reference by an FBI fingerprint analyst to "prior-arrest fingerprint cards on file." These references were brief and scattered, and were not elicited in bad faith. In each case, the defendant either failed to object to the reference, or succeeded in having it struck, in several instances with appropriate and curative instructions. We conclude that the defendant was not prejudiced by these references to a previous arrest and trial.
2. Prior to the trial, the defendant moved that the Commonwealth be ordered to provide him with a sample of McDonald's hair. After discussion, the judge denied the motion without prejudice to the defendant's renewing it "f it becomes more material during the course of this trial." The defendant asserts that this was reversible error, because it unfairly denied him an opportunity to present evidence that might have buttressed his theory that McDonald killed the victim.
The defendant relies in part on his rights to cross-examination and compulsory process under the Sixth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. Washington v. Texas, 388 U.S. 14 (1967). See Chambers v. Mississippi, 410 U.S. 284, 294-295 (1973); Commonwealth v. Bohannon, 376 Mass. 90 , 94 (1978). However, the defendant has not referred us to any case which extends these Sixth Amendment guaranties beyond testimonial evidence to the production of real evidence of the type sought here. Moreover, the defendant has not shown that the judge prevented him from introducing this evidence at trial. The defendant failed to establish that he could not have obtained a hair sample from McDonald on his own. In addition, his failure to renew the motion at trial suggests that the defendant chose to abandon his attempt to get a hair sample from McDonald.
The defendant's reliance on Commonwealth v. Balliro, 349 Mass. 505 , 516-518 (1965), is similarly misplaced. In Balliro, we held that, under art. 12 of the Massachusetts Declaration of Rights, the Commonwealth could not prevent defense counsel from interviewing individuals who were being held by the Commonwealth as material witnesses. Here, the Commonwealth does not seek to prevent the defendant from obtaining access to evidence in the Commonwealth's control which should be available to both sides; rather, the defendant seeks to compel the Commonwealth to obtain evidence for him from an independent third party. Cf. Commonwealth v. Campbell, 378 Mass. 680 , 702 (1979) (prosecutor not obliged to obtain Department of Correction records for defendants). We will not extend Balliro to this situation, particularly absent a showing that the defendant was unable to obtain a hair sample on his own. But see Evans v. Superior Court, 11 Cal. 3d 617, 623-626 (1974) (in circumstances of case, denial of defense request for line-up was abuse of discretion).
3. In Estelle v. Williams, 425 U.S. 501 (1976), the Supreme Court held that it is unconstitutional to compel a defendant to stand trial in identifiable prison clothing. The defendant contends that, because the judge would not authorize funds to buy him new clothes, he was unconstitutionally compelled to appear in identifiable prison garb during the voir dire of prospective jurors. He argues that, since he had no proper clothes and was unable to pay for such clothing, the State had a constitutional obligation to provide him with funds to buy suitable clothing. See Bentley v. Crist, 469 F.2d 854, 856 (9th Cir. 1972). Cf. Commonwealth v. Tessier, 371 Mass. 828 (1977) (State not required to pay for indigent to have independent blood-alcohol test). The Supreme Court has not addressed this issue, nor has it applied Estelle v. Williams, supra, to pretrial proceedings. But see Boswell v. Alabama, 537 F.2d 100, 102-103 & n.7 (5th Cir. 1976); Gaito v. Brierley, 485 F.2d 86, 88-90 (3d Cir. 1973).
We do not consider these issues now, because we conclude, after a careful review of the record, that the defendant was not compelled to wear his prison clothes. It appears that the defendant had an adequate wardrobe; he claimed his clothing no longer fit him. The judge questioned this claim, and asked defense counsel to verify it and to explore the possibility of altering the defendant's clothing, before he authorized funds for new clothes. It was never clearly established that the clothing did not fit. After several discussions of the issue, defense counsel could report only that the clothes were "[t]oo small, I think." However, it appears that the defendant came to trial on one occasion wearing one of his old suits. We note that during voir dire defense counsel stated that the problem did not have to be resolved "today or tomorrow, but this case is going to take a long time." The entire record suggests that the judge tried to work with defense counsel to resolve the problem, and would have been willing to authorize funds if he had found it was necessary. Thus, even assuming that the State is obliged to provide suitable clothing during voir dire to a defendant unable to afford such clothing, we find no constitutional violation on this record. In any event, given the overwhelming evidence of the defendant's guilt, any error relating to the defendant's clothing was harmless beyond a reasonable doubt. See Estelle v. Williams, supra at 506-507; Chapman v. California, 386 U.S. 18, 21-24 (1967).
4. The defendant contends that extensive, prejudicial pretrial publicity deprived him of his constitutional right to a fair by "a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). Murphy v. Florida, 421 U.S. 794, 799 (1975). Commonwealth v. Jackson, 376 Mass. 790, 799 (1978). The existence of pretrial publicity does not alone indicate that an impartial jury cannot be empanelled. Dobbert v. Florida, 432 U.S. 282, 302-303 (1977). Murphy v. Florida, supra at 800. Nor need qualified jurors be "totally ignorant of the facts and issues involved." Id. Dobbert v. Florida, supra. Commonwealth v. Blackburn, 354 Mass. 200 , 204 (1968). The question is whether there are "any indications in the totality of circumstances that [the defendant's] trial was not fundamentally fair." Murphy v. Florida, supra at 799. Dobbert v. Florida, supra at 303.
The defendant submitted a pretrial exhibit containing approximately 216 newspaper and three magazine articles published between December 27, 1972, and September 1, 1976. In his findings on the motion for a new trial, the judge found that these articles reported the death of the victim in this case and of several other young women, the investigation into these deaths and speculation that one person might be responsible, the defendant's indictments in 1973 for four murders, the defendant's frequent changes of counsel, and the postponements of his trial. The judge found that these articles were generally factual in nature, and were not inflammatory. Moreover, most of the publicity had dissipated well before the defendant's trial; only five of these articles were published in 1975, and only three in 1976, the year of the trial. These factors have been considered significant in cases holding that a defendant was not unfairly prejudiced by pretrial publicity. See Murphy v. Florida, supra at 802; Commonwealth v. Smith, 357 Mass. 168 , 173 (1970); Commonwealth v. McLaughlin, 352 Mass. 218 , 225 cert. denied, 389 U.S. 916 (1967); United States v. Gullion, 575 F.2d 26, 30 (1st Cir. 1978).
The judge carefully questioned each prospective juror to determine whether he or she had gained any information about the case from the news media, and whether he or she was prejudiced thereby. See Commonwealth v. Gilday, 367 Mass. 474 , 492 (1975); Commonwealth v. Smith, supra at 172; United States v. Gullion, supra at 30-31. Cf. Commonwealth v. Vitello, 367 Mass. 224 , 236-237 (1975) (even in face of frequent and vigorous newspaper publicity up to the date jury were empanelled, sufficient to question venire and seated jury rather than each prospective juror individually). The record shows that, while some individuals knew that the defendant was charged with other crimes, most knew nothing about the case or knew only the defendant's name, the victim's name, and the charge. See Murphy v. Florida, supra; Commonwealth v. Smith, supra at 173. The jury were sequestered after empanelling. See Commonwealth v. Gilday, supra; Commonwealth v. Vitello, supra at 237. We conclude that the judge did not abuse his discretion in relying on these measures to secure an impartial jury. See Commonwealth v. Subilosky, 352 Mass. 153 , 158 (1967). There is no indication in the totality of circumstances that the defendant was denied a fair trial.
5. The defendant claims that the prosecution failed to disclose exculpatory evidence within its control, in violation of Brady v. Maryland, 373 U.S. 83 (1963). See Commonwealth v. Ellison, 376 Mass. 1 , 21 (1978). The disputed evidentiary items were a Brockton police report and portions of Archer's and Maupin's criminal records. The defendant admits that he filed only a general request for exculpatory evidence. He argues that this general request should, in effect, be combined with other motions filed requesting production of "state, county or police department reports," and of probation records of witnesses, and treated as a specific request for the disputed items. We disagree. A specific request must "provide the Commonwealth with notice of the defendant['s] interest in a particular piece of evidence." Commonwealth v. Wilson, 381 Mass. 90 , 109 (1980). See Commonwealth v. Pisa, 372 Mass. 590 , 595, cert. denied, 434 U.S. 869 (1977); United States v. Sheehan, 442 F. Supp. 1003, 1008 (D. Mass. 1977). Whatever the merits of the defendant's argument in other circumstances, the requests for broad categories of evidence (police reports and probation records) made here did not give the prosecutor such notice. Accordingly, we review the defendant's claims under the standard of materiality for a general request: "f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record." United States v. Agurs, 427 U.S. 97, 112 (1976). Commonwealth v. Collins, 386 Mass. 1 , 9-10 (1982). Commonwealth v. Wilson, supra at 107.
(a) In the course of their investigation of the death of one Sandra Ehramjian, officers of the Brockton police department interviewed one Adelle Swirsky, who worked at a jewelry store in Brockton. The officers' report states that "she can recall Jackson being in the store . . . around the Wednesday or Thursday before Christmas of '72." However, at the hearing on the defendant's motion for a new trial in the instant case, Mrs. Swirsky testified that the defendant was at the store sometime between 12 noon and 2 P.M. on Saturday, December 23, 1972.
There was no evidence that the district attorney's office for the northern district, which prosecuted the instant case, knew of the Brockton police report. As part of its attempt to coordinate and facilitate investigations into the deaths of several young women, including the victim in this case and Sandra Ehramjian, the Attorney General's office had collected over 2,400 pages of information. The Brockton police report was in these files under the name Sandra Ehramjian, and was disclosed at the defendant's trial for her murder. That trial took place after the trial in the instant case.
The police report was not exculpatory on its face in the instant case, since the victim was seen alive at 8 P.M. on Thursday, December 21. In any event, we conclude that disclosure was not required because the police report was not material. At best, it could have led to an alibi for a small portion of the afternoon of Saturday, December 23, 1972. In light of the overwhelming evidence of the defendant's guilt, this was not sufficient to raise a reasonable doubt that did not otherwise exist. United States v. Agurs, supra. [Note 3]
(b) The defendant contends that the prosecution failed to disclose portions of Archer's and Maupin's criminal records, which would have established that at the time of her testimony at the defendant's trial, Archer was charged with uttering a false prescription and falsely making a prescription, and that Maupin, under the alias Margaret Tatum, was under a suspended sentence on prostitution charges when she made statements to the police incriminating the defendant. The defendant argues that these records were exculpatory and material because they would have tended to show that Archer and Maupin had reason to cooperate with the Commonwealth in the instant case.
Evidence tending to show that important government witnesses are biased is exculpatory within the meaning of Brady v. Maryland, 373 U.S. 83 (1963). See Giglio v. United States, 405 U.S. 150 (1972); Commonwealth v. Ellison, 376 Mass. 1 , 22 (1978). However, the defendant does not suggest that the Commonwealth made any promises or inducements to Archer or Maupin based on the charges described in the records, and the judge found in considering the motion for a new trial that no such promises were made. Mere proof of the existence of criminal records falls far short of establishing bias.
Moreover, while evidence that tends to show that a government witness is biased is exculpatory, "[w]here it is . . . cumulative . . . courts generally reject the contention that such evidence is material . . . so long as the defense had an adequate opportunity to impeach the witness by other means" (citations omitted). Zeigler v. Callahan, 659 F.2d 254, 266 (1st Cir. 1981). See Commonwealth v. Bernard, 6 Mass. App. Ct. 499 , 508-509 (1978), S. C. 378 Mass. 24 (1979); United States v. Imbruglia, 617 F.2d 1, 7 (1st Cir. 1980); United States v. Shelton, 588 F.2d 1242, 1248 (9th Cir. 1978), cert. denied, 442 U.S. 909 (1979). Archer testified that, when she gave statements to the police, she was under arrest for the murder of Charlene Sustakowsky, and that the judge who dismissed the charges (in June of 1974) told her that nothing would happen to her as long as she cooperated. She testified that charges against her for receiving stolen goods and for prostitution and lewdness were also dismissed, in the former case with a promise from the police to "see what we can do." She also testified that she was a prostitute.
Archer's testimony established that she had good reason to wish to curry favor with the Commonwealth. Similarly, the jury heard testimony that Maupin was a prostitute and that she was involved in the Sustakowsky murder. In light of this testimony, the judge correctly concluded in his findings that Archer and Maupin were placed in their "proper setting," and that the disputed evidence "would have been . . . repetitious and cumulative." We cannot say that the records were sufficient to raise a reasonable doubt that did not otherwise exist. United States v. Agurs, supra.
6. The defendant argues that the judge impermissibly refused to allow him to impeach Maupin with her prior juvenile record. Davis v. Alaska, 415 U.S. 308 (1974). Commonwealth v. Ferrara, 368 Mass. 182 (1975). The record does not establish that the judge denied any such request, and, after the hearing on the motion for a new trial, the judge found that the request, if any, was not renewed after Maupin had testified. The defendant's failure to renew his request vitiates any alleged error. Commonwealth v. Adams, 374 Mass. 722 , 732-733 (1978), and cases cited. Moreover, we agree with the judge that the "record would have added little, if anything, to defendant's efforts to impeach the witness. There was ample testimony concerning her character and involvement in another murder." Thus, the defendant was not prejudiced by his inability, if any, to impeach Maupin with this record.
7. The defendant contends that he was denied the effective assistance of counsel because his trial counsel did not impeach Patricia Jackson with certain prior inconsistent statements, and did not cross-examine Maupin on the extent of her involvement in the Sustakowsky murder.
In evaluating a claim of ineffective assistance of counsel, we consider whether "the conduct of [the] lawyer was 'measurably below that which might be expected from an ordinary fallible lawyer.'. . . In addition . . . , our cases usually require a demonstration of prejudice resulting therefrom." Commonwealth v. Rondeau, 378 Mass. 408 , 412 (1979), quoting Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974). Commonwealth v. Daigle, 379 Mass. 541 , 544 (1980).
The defendant's trial counsel testified at the hearing on the defendant's motion for a new trial. He stated that he did not cross-examine Patricia Jackson with her prior inconsistent statement because it was basically consistent with her trial testimony, and he knew the prosecutor would rehabilitate the witness. He also testified that he did not probe Maupin on her involvement in the Sustakowsky murder because he thought it might reveal the defendant's involvement in other murders.
We conclude that defense counsel made sound tactical decisions not to bring out this information on cross-examination. The record reveals that defense counsel was well prepared throughout the lengthy and complex trial, and made every effort to put on the best possible defense. We agree with the judge's ruling on the motion for a new trial that defense counsel's "representation of his client was more than merely adequate. The defendant was very capably represented."
8. We have considered the defendant's claims at length, and conclude that they lack merit. After review of the entire record pursuant to G. L. c. 278, Section 33E, we find no basis on which to disturb the verdict of guilty of murder in the first degree.
Judgments affirmed.
Denial of motion for new trial affirmed.
*****
FOOTNOTES
[Note 1] The defendant was also sentenced to imprisonment at the Massachusetts Correctional Institution at Walpole, for a term of not more than ten nor less than five years for kidnapping, not more than thirty nor less than twenty years for rape, and not more than thirty nor less than twenty years for unarmed robbery, the sentences to be served concurrently after the expiration of the sentence for murder in the first degree.
[Note 2] The defendant challenges the admission of the following statements. Bens testified that, when he read to the defendant a copy of his indictment for the victim's murder, the defendant responded: "Wait until the spring thaw. You will find more." McDonald testified that he and the defendant discussed newspaper items which related the facts of the murder, and that the defendant responded: "There's couple they don't even know about." McDonald also testified that the defendant stated: "I was becoming more professional with every one . . . [;] the more you do a thing, the better you get at it. I was getting bolder and bolder."
[Note 3] The defendant argues that the report would have attacked Archer's credibility, because she testified that she was with the defendant at that time. His assertion is not supported by the record, as Archer testified that she "was not with him totally all that time" on Saturday, December 23, 1972. We also note that the judge found that the defendant called the store from Dorchester at 10 A.M. on December 23, and that this evidence would have been inculpatory, since it contradicted the defendant's alibi evidence which placed him in New Hampshire until at least 11 A.M. on that day.
COMMONWEALTH vs. ANTHONY J. JACKSON.
391 Mass. 749
February 6, 1984 - May 1, 1984
Present: WILKINS, LIACOS, ABRAMS, NOLAN, & LYNCH, JJ.
LYNCH, J.
On November 22, 1978, the defendant, Anthony J. Jackson, was convicted of murder in the first degree and kidnapping. He was sentenced to life imprisonment and a term of from nine to ten years to be served consecutively at the Massachusetts Correctional Institution at Walpole. Both sentences were to be served from and after any sentences previously imposed.
The defendant appeals, claiming that he was denied his right to a fair trial by an impartial jury (1) because of prejudicial pretrial publicity, and (2) because the trial judge failed to excuse for cause jurors who were allegedly biased in favor of the police. He also claims error in the refusal of the judge to exclude from evidence (3) an admission allegedly made by the defendant which linked him to four other murders, (4) testimony by police concerning the defendant's conduct at the time of his arrest, and (5) portions of two tape recorded telephone conversations. We conclude that the defendant's claims lack merit, and, after reviewing the entire record as required by G. L. c. 278, Section 33E, we conclude that he is not entitled to relief on any other ground. Accordingly, we affirm his convictions.
The facts are summarized as follows. The body of Damaris Synge Gillispie, a twenty-two year old college student, was found on February 3, 1973, in a heavily wooded area of Billerica. She had been strangled to death. The autopsy indicated that her death occurred on or about November 29, 1972, the date on which she was last seen by her roommate at their apartment in Cambridge.
The victim left her apartment at 6:45 P.M. to go to her job at the Jazz Workshop in Boston. She was wearing open-toed, cork-soled shoes, a hooded brown fur coat with the initials "DSG" embroidered on the lining, a moonstone ring made from one of her grandfather's cuff links, and a turquoise and silver ring. When she failed to return to the apartment by the next morning, her boyfriend reported her missing to the Cambridge police and notified her family.
The victim's family tried to locate her by publicizing her disappearance. They arranged for newspaper and television coverage and for the distribution of leaflets containing two photographs of the victim, her description, and a "hotline" telephone number at her apartment. Three telephones were installed with a recording system to record incoming telephone calls.
The defendant lived at 154 Washington Street in Dorchester with three women: Patricia Archer, Michelle Maupin, and Diane Dixon. According to Archer, who testified for the Commonwealth, she returned home at approximately 11:30 P.M. on the night of November 29, 1972. The defendant was at the apartment. He told Archer that he had killed someone and had been driving all night with a body in his car (a 1967 gold Cadillac automobile with a dark vinyl top). He asked her to help him clean up the blood in his car before it dried, which she did. The defendant subsequently gave Archer a pair of shoes which had cork soles, worn heels, and spots of blood on them. When she went to put the shoes in the defendant's car, she noticed a moonstone ring and a silver and turquoise ring in the ashtray.
The owner of a dry cleaners located about one block from the defendant's apartment testified that the defendant had left a hooded brown fur coat to be cleaned. It appeared to have blood stains in the lining. The initials "DSG" were embroidered on the inside of the coat. The owner stated that he told the counter clerk to give it back to the defendant because it was fur and could not be cleaned.
On December 6, 1972, the victim's brother and one of her roommates were manning the hotline telephone at the victim's apartment. Each of them received a telephone call from an unknown male who provided information about the victim's jewelry, her friends, and her family. During the first conversation, after some introductory remarks, the caller had said, "You know, I know the phone is tapped -- I'm hep to that, but I'm going to get in touch." During the second call, the caller had said, "I know the thing is being taped, but that's cool too." Numerous witnesses identified the voice of the caller as that of the defendant.
The defendant was arrested on unrelated charges on December 26, 1972. In connection with that arrest, he was convicted of armed assault with intent to murder and of unlawfully carrying a firearm. Testimony about the arrest was admitted at the trial in the instant case, over the defendant's objections.
Subsequent to his arrest, the defendant was visited by Donald McDonald, who testified for the Commonwealth. According to McDonald's testimony, the defendant told him to get a green metal box from the defendant's former wife and burn the contents, because among the contents were things that could convict him of murder. McDonald and the defendant's former wife threw the box from the Longfellow Bridge into the Charles River. It was subsequently recovered by the police and was found to contain over two hundred photographs of nude women, one of whom was the victim.
During a subsequent visit by McDonald, he and the defendant discussed a newspaper article depicting six murdered women. The defendant told McDonald, "The one in New Hampshire, that's not mine," and, "You know . . . I've got more respect for the FBI."
Shortly before the trial, a full page political advertisement promoting the then district attorney's campaign for reelection appeared in various newspapers in Middlesex county. This advertisement, as well as a leaflet distributed throughout Middlesex county, credited the incumbent district attorney with obtaining the first conviction against the "hitchhike murderer." The hitchhike murders received extensive publicity in late 1972 and 1973, as did the defendant's trials in 1976, 1977, and 1978. Publication of the advertisement and distribution of the leaflets took place after the judge had admonished counsel "not to discuss this matter with the Press. . . . I mean the entire district attorney's office." The defendant's motion to dismiss for prosecutorial misconduct was denied by the judge.
The judge conducted an extensive voir dire of the jury. It lasted seven days and involved eighty-eight potential jurors. Several jurors were excused for cause and the judge allowed the defendant and the Commonwealth each to exercise twenty-two peremptory challenges. The judge refused to exclude for cause six jurors peremptorily challenged later by the defendant who had expressed a predisposition to credit police testimony.
1. Pretrial publicity. The defendant argues that his right to a fair trial by an impartial jury has been jeopardized by extraneous and prejudicial influences. His argument breaks down into two distinct claims: first, that prosecutorial misconduct warranted the dismissal of the defendant's indictments, and, second, that the extensive pretrial publicity mandated a change of venue.
The judge acknowledged that "[a]t the very least there was lack of good judgment on the part of the prosecutor," in permitting the publication and distribution of the political advertisement which referred to the "hitchhike murders," despite the fact that neither the defendant nor the victim was mentioned by name. He ruled, however, that the advertisement did not add significantly to the problem of prejudicial publicity that already existed. Absent prejudice to the defendant as a result of the advertisement, the actions of the prosecutor did not so seriously impair the defendant's right to a fair trial as to warrant dismissal of the charges. "Whether an indictment should be dismissed upon the defendant's motion where the prosecution has acted improperly, turns primarily on the ability of the defendant to obtain a fair trial after, and in light of, the impropriety." Commonwealth v. Lamm Hue To, ante 301, 312-313 (1984). The record before us does not indicate that the political advertisement had any prejudicial effect in addition to or distinguishable from that caused by publicity due to the extensive media coverage of the hitchhike murders and subsequent trials. The defendant was not mentioned by name and, in some versions of the advertisement, the paragraph concerning the defendant was only one of several. Although it is possible that some jurors might have identified the defendant with the hitchhike murders as a result of this text, it is more likely that any knowledge of the jurors that the defendant was connected with other murders arose from other pretrial publicity.
The defendant argues however that the prosecutorial misconduct involved here warrants the sanction of dismissal of the indictments whether or not the defendant was prejudiced. He relies on our holding in Commonwealth v. Manning, 373 Mass. 438 (1977). In that case, Federal agents talked to the defendant and criticized the way his lawyer was handling his defense. Although the defendant's relationship with his lawyer was not jeopardized and there was no actual prejudice, this court ruled that dismissal of the indictment was appropriate. The purpose of the sanction was not to rectify harm done to the defendant, because there had been none; the point was to discourage government agents from such deliberate and insidious attempts to subvert the defendant's right to a fair trial by impairing his relationship with his attorney. The misconduct in Commonwealth v. Manning, supra at 444, was "so pervasive as to preclude any confident assumption that proceedings at a new trial would be free of the taint." The deliberate actions of the prosecutor in the instant case, while ill-advised, and possibly contrary to the provisions of S.J.C. Rule 3:07, DR 7-107, as appearing in 382 Mass. 788 (1981), [Note 1] and II ABA Standards for Criminal Justice, Fair Trial and Free Press, Standards 8-1.1, 8-2.1 (2d ed. 1982), do not rise to the level of seriousness of the misconduct in Commonwealth v. Manning, supra, and do not warrant the ultimate sanction of dismissal of the indictments.
The defendant also argues that the extensive pretrial publicity about the defendant and other crimes with which he was associated (publicity due only in small part to the advertisement published by the district attorney's reelection campaign) mandated a change of venue. The existence of pretrial publicity does not alone indicate that an impartial jury cannot be empanelled. Dobbert v. Florida, 432 U.S. 282, 302-303 (1977). Jurors need not be absolutely ignorant of the facts and issues involved in a case to be able to make an impartial judgment. Id. The judge carefully questioned each prospective juror to determine whether he or she had any information about the case, either from the news media or from conversations with other prospective jurors, and whether he or she had formed an opinion or was prejudiced thereby. The record shows that most jurors had no prior knowledge of the case. [Note 2] When answers were unclear or indicated knowledge, the judge asked further questions. He also made further inquiries at the request of counsel. None of the jurors selected indicated that he or she had an opinion about the case which would affect his or her ability to consider the evidence impartially. "The dominant consideration . . . is not the views to which the jurors have been exposed; it is what is their commitment, if any, in their own opinions, or their own expressions." Commonwealth v. Subilosky, 352 Mass. 153 , 158-159 (1967). See Commonwealth v. Gilday, 367 Mass. 474 , 491-492 (1975). The judge has broad discretion to decide, after conducting the voir dire, whether jurors have been contaminated by extraneous information. Commonwealth v. Brown, 386 Mass. 17 , 30 (1982). We conclude that the judge did not abuse his discretion in relying on the measures he took to ensure the defendant an impartial jury. There is no indication in the totality of the circumstances that the defendant was denied a fair trial because of pretrial publicity. Murphy v. Florida, 421 U.S. 794, 799 (1975).
2. Juror prejudice. During the jury selection process, the judge inquired of each prospective juror whether he or she would be more likely to believe the testimony of a police officer than that of a lay witness. The judge found indifferent six jurors who indicated a predisposition to credit police testimony, and the defendant exercised a peremptory challenge to excuse each one. The defendant argues that the judge's failure to excuse these jurors for cause violated his right to a fair and impartial jury.
The record shows that the judge was thorough in his examination of the six jurors who expressed some disposition to give greater credit to police testimony. Four of the six jurors gave detailed explanations of their predisposition, and, after extensive questioning of all six by the judge, each indicated that he or she could follow instructions to consider the evidence impartially. The judge did not abuse his discretion in refusing to excuse these jurors for cause.
By statute, a judge may have an obligation to examine prospective jurors fully with respect to possible bias or prejudice. G. L. c. 234, Section 28 [Note 3] Whether a juror should be excused on the basis of the results of an examination is within the discretion of the judge. Commonwealth v. Hobbs, 385 Mass. 863 , 873 (1982). Even if a juror originally indicates that he or she might give more weight to the testimony of a police officer than to that of a lay witness, such a response would not necessarily disqualify a person. Cf. Commonwealth v. Nickerson, 388 Mass. 246 , 249 (1983). See People v. Macias, 44 Colo. App. 203, 205 (1980); State v. Baldwin, 388 So. 2d 664, 671 (La. 1980); State v. Williams, 617 S.W.2d 98, 99 (Mo. Ct. App. 1981). Contra Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978).
3. Evidence of other crimes. The defendant contends that it was reversible error for the judge to allow Donald McDonald to testify about a conversation he had with the defendant regarding a newspaper article which contained pictures of six murdered women. McDonald testified that the defendant said, "The one in New Hampshire, that's not mine. You know me better than that. I've got more respect for the FBI." The argument that this testimony should have been excluded because the admission, which is obviously relevant to the issue of who murdered Gillispie, also constitutes evidence of the defendant's participation in other murders, was raised and rejected in Commonwealth v. Jackson, 384 Mass. 572 , 577-579 (1981), and we will not go over that ground again.
Here, the defendant also objects to the admission of the testimony because, he alleges, it was not clear that the defendant and McDonald were referring to the same newspaper article and the testimony, therefore, lacked sufficient indicia of reliability. It is clear from the transcript of the voir dire that the judge was satisfied that the prosecution had laid a sufficient foundation for the admission of this evidence. Although the article was not physically present during the conversation between the defendant and McDonald, there was testimony from which the jury could infer that they were referring to the same article, the only one with pictures of the six slain women. See Commonwealth v. Jackson, 384 Mass. 572 , 578 n.1 (1981). The decision to admit the evidence on the basis of this foundation was within the discretion of the trial judge. See
Commonwealth v. Williams, 378 Mass. 217 , 229 (1979); Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660 , 673 (1980).
4. Evidence of the defendant's arrest. The defendant's claim that evidence of the chase and shoot-out with police on December 26, 1972, which preceded his arrest should have been excluded has also been before this court before. See Commonwealth v. Jackson, 388 Mass. 98 , 103 (1983). There we said that the evidence of flight was properly admitted to show the defendant's consciousness of guilt. Id. The defendant attempts to distinguish the present case on the basis of the proximity of the flight to the time fixed for the murder. In Commonwealth v. Jackson, 388 Mass. 98 (1983), the murder was committed between December 22 and December 24, 1972. The arrest occurred at the most four days later. On the other hand, the murder of Gillispie was estimated to have occurred on November 29, 1972, approximately one month prior to the arrest. The defendant argues that the probative worth of this evidence is undercut because the one-month hiatus and the intervening murder of another woman suggest that, if the defendant was feeling guilty on December 26, it was not because of the Gillispie murder. The relevancy of evidence of flight in such circumstances is within the discretion of the trial judge and his finding will not be disturbed unless it is palpably unreasonable. See Commonwealth v. Sawyer, 389 Mass. 686 , 700 (1983); Commonwealth v. Booker, 386 Mass. 466 , 469-470 (1982), and cases cited. It was not unreasonable for the judge in this case to conclude that the defendant had in his mind on December 26 all of the crimes for which the police might be interested in locating him.
The defendant's objection that this testimony should not have been admitted because it was prejudicial in that it portrayed the defendant as a "guntoting desperado" and described the defendant's attempts to persuade a woman to get into his car is also without merit. "Balancing the probative value of evidence against its possible prejudicial impact is a task committed to the discretion of the judge." Commonwealth v. Jackson, 388 Mass. 98 , 103 (1983). We see no reason to disturb the judge's decision to admit the evidence.
5. The admission of tape recorded telephone conversations. Finally, the defendant argues that the judge committed reversible error when he admitted in their entirety recordings of two telephone calls made by the defendant to the victim's brother and roommate. These recordings were the subject of our decision in Commonwealth v. Jackson, 370 Mass. 502 (1976), where we held that they were lawfully recorded under G. L. c. 272, Section 99, and that portions of them could be admitted in evidence. The defendant argues that what we held to be admissible in 1976 was only that part of each tape after the defendant acknowledged that he knew the telephone call was being recorded. Id. at 505. Even if this interpretation of our holding is correct the admission of both tapes in their entirety does not constitute reversible error. First, the defendant did not make timely objection to the admissions. On the third day of the trial the recordings were played twice before the jury and were admitted as exhibits without objection. The record shows that counsel was aware that portions of the recordings had been suppressed. On the fifth day, the defendant moved for a mistrial and to strike the suppressed portions of the recordings. "[W]hen something occurs which constitutes the basis for requesting a mistrial it must be called to the attention of the judge immediately, or when the aggrieved party first learns of it, . . . If this is not done seasonably, the incident may not be availed of later as the basis for a claim of appellate review." Commonwealth v. DiPietro, 373 Mass. 369 , 387 (1977). Furthermore, the portion of each call that occurred before the defendant stated that he knew the calls were being taped is quite brief and contains no conversation of substance that would be prejudicial to the defendant. Therefore, the admission of those portions of the telephone calls not dealt with in Commonwealth v. Jackson, 370 Mass. 502 (1976), did not prejudice the defendant.
6. Review under G. L. c. 278, Section 33E. We have considered the defendant's claims at length and conclude that they lack merit. After review of the entire record pursuant to G. L. c. 278, Section 33E, we find no basis on which to disturb the verdict of guilty of murder in the first degree.
Judgments affirmed.
*****
FOOTNOTES
[Note 1] DR 7-107 states, in pertinent part: "(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:
"(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused.
". . . .
"(D) During the selection of a jury or the trial of a criminal matter, a lawyer . . . shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial . . . ."
[Note 2] Although there had been an immense amount of publicity at the time of the murders in 1972 and 1973, and then around the time of the subsequent trials (see Commonwealth v. Jackson, 384 Mass. 572 [1981], and Commonwealth v. Jackson, 370 Mass. 502 [1976]), most of the publicity had dissipated before the beginning of the instant trial; the only articles published around the time of the trial concerned the empanelment of the jury.
[Note 3] General Laws c. 234, Section 28, as amended through St. 1975, c. 335, states in pertinent part: "f it appears that, as a result of the impact of considerations which may cause a decision or decisions to be made in whole or in part upon issues extraneous to the case, including . . . possible preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent, the court shall . . . examine the juror specifically with respect to such considerations, attitudes . . . [or] opinions."
ANTHONY JACKSON VS. KAY LONGCOPE & another. [Note 1]
394 Mass. 577
February 6, 1985 - April 17, 1985
Present: HENNESSEY, C.J., WILKINS, NOLAN, LYNCH, & O'CONNOR, JJ.
WILKINS, J.
The plaintiff, Jackson, was subject to substantial criminal sentences, including a life sentence for murder in the first degree, when on May 20, 1977, the Boston Globe, a newspaper published by the corporate defendant, printed an article allegedly libelous of Jackson and written by the defendant Longcope. We conclude that Jackson was libel-proof at the time of the publication and, therefore, affirm the summary judgment entered for the defendants.
The allegedly libelous article appeared in the Boston Globe approximately one month after a Plymouth County jury found Jackson not guilty of the 1972 rape and murder of a twenty-one year old Cambridge woman. The article set forth statements from various jurors as to why the jury had returned verdicts of not guilty. The article pointed out that the jurors did not know that in December, 1976, Jackson had been convicted of the murder, rape, unarmed robbery, and kidnapping of Ruth A. Hamilton, a twenty-three old art teacher, or that he had been convicted in June, 1976, of crimes associated with a shootout with Cambridge police officers. The article stated that the shootout occurred "during a stolen car chase." It recited that Jackson was under indictment for the slaying of two other young women. It referred to a series of 1972 slayings as "the hitch-hike murders," adding that all the women were raped and strangled.
On May 24, 1977, Jackson wrote a letter to the defendant Longcope demanding a correction of the statement that the shootout with the Cambridge police occurred during a stolen car chase and the statement that all the victims of "the hitch-hike murders" were raped and strangled. He asserted that the car was not stolen, that not all the hitch-hike murder victims were raped, and that not all were strangled. Jackson brought his action in May, 1979. In his amended complaint, filed in July, 1979, Jackson alleged that substantially the same statements were untrue. The amended complaint alleged libel and a now abandoned claim of invasion of privacy.
The defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The motion judge accepted the recommendation of a special master that the motion to dismiss should be treated as a motion for summary judgment and, so treated, should be allowed. We transferred Jackson's appeal here on our own motion.
We assume in Jackson's favor that the newspaper article was libelous and that the material before the motion judge did not warrant the conclusion that all the libelous statements in the article were substantially true. On the other hand, Jackson's considerable criminal record, as to which there is no dispute of material fact, bars him from recovering damages for libelous statements concerning his criminal activities. For the purposes of this case, we shall rely only on Jackson's criminal record and other circumstances established at the time of the libelous publication. We thus leave open the question whether events subsequent to libelous publication, proving a plaintiff's serious criminal misconduct prior to the publication, may be considered in determining whether a plaintiff is libel-proof.
This court has had little occasion to consider whether a particular libel plaintiff may have such a notorious reputation that he is incapable of recovering damages in a libel action, and, therefore, may be characterized as libel-proof. In Lyons v. New Mass Media, Inc., 390 Mass. 51 , 61 (1983), the defendants argued that the plaintiff was libel-proof as a matter of law because of prior adverse publicity, but this court rejected the argument on the facts presented. The principle has been recognized elsewhere and has been applied to justify dismissal of defamation actions where the substantial criminal record of a libel plaintiff shows as a matter of law that he would be unable to recover other than nominal damages. See Cardillo v. Doubleday & Co., 518 F.2d 638, 639-640 (2d Cir. 1975); Wynberg v. National Enquirer, Inc., 564 F. Supp. 924, 928 (C.D. Cal. 1982), and cases cited. As the court said in the Wynberg case, "Depending upon the nature of the conduct, the number of offenses, and the degree and range of publicity received, there comes a time when the individual's reputation for specific conduct, or his general reputation for honesty and fair dealing is sufficiently low in the public's estimation that he can recover only nominal damages for subsequent defamatory statements." Id. The principle might apply to a habitual criminal (see Cardillo v. Doubleday & Co., supra), or to a criminal notorious for one criminal act (see James Earl Ray v. Time, Inc., 452 F. Supp. 618 [W.D. Tenn. 1976], aff'd mem., 582 F.2d 1280 [6th Cir. 1978]).
Although a libel plaintiff who cannot prove damages is normally entitled to an award of nominal damages if he establishes that he was libeled (see W.L. Prosser & W.P. Keeton, Torts Section 116A, at 845 [5th ed. 1984]), courts have generally considered First Amendment rights as predominating in cases of this character and have denied a libel-proof plaintiff the right to try to prove his case and recover simply nominal damages. See Cardillo v. Doubleday & Co., supra at 640, quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974); Wynberg v. National Enquirer, Inc., supra at 928; James Earl Ray v. Time, Inc., supra at 622. It has been suggested that, under First Amendment principles, at least as to a public figure, such as Jackson, proof of actual damages may be required and thus nominal damages may not be awarded. See W.L. Prosser & W.P. Keeton, Torts, supra; Restatement (Second) of Torts Section 620 comment c (1977).
In any event, we accept the principle that a libel-proof plaintiff is not entitled to burden a defendant with a trial in which the most favorable result the plaintiff could achieve is an award of nominal damages. Although we accept the principle that a convicted criminal may have such a poor reputation that no further damage to it was possible at the time of an otherwise libelous publication, it must be clear, as a matter of law, that the reputation of a plaintiff, even a convicted felon, could not have suffered from the publication of the false and libelous statements. See Marcone v. Penthouse Int'l, Ltd., 577 F. Supp. 318, 333 (E.D. Pa. 1983), rev'd on other grounds sub nom. Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072 (3d Cir. 1985); Sharon v. Time, Inc., 575 F. Supp. 1162, 1168-1169 (S.D. N.Y. 1983). We turn, therefore, to the question whether the plaintiff Jackson is libel-proof.
By the time of the publication challenged by Jackson, he had already been convicted of various crimes. [Note 2] In 1976, Jackson had been found guilty of armed assault with intent to murder and unlawful carrying of a firearm, arising out of a 1972 running gunfight with Cambridge police officers. We affirmed that conviction. Commonwealth v. Jackson, 376 Mass. 790 (1978).
Later in 1976, Jackson had been convicted of murder in the first degree, kidnapping, rape, and unarmed robbery of a woman in December, 1972. Jackson was sentenced to various terms of incarceration for these convictions. He received a sentence of life imprisonment without the possibility of parole for the murder conviction. On both the conviction for rape and unarmed robbery, he was sentenced to not more than thirty nor less than twenty years, the sentences to be served concurrently after the expiration of the sentence for murder in the first degree. We affirmed these convictions. Commonwealth v. Jackson, 388 Mass. 98 (1983). In that appeal, Jackson claimed that pretrial publicity had deprived him of a fair trial. He submitted an exhibit to the trial judge in that case setting forth scores of newspaper articles published between December 27, 1972, and September 1, 1976. These articles reported, among other facts, the deaths of the victim and several other other women and the defendant's indictment for four murders. Id. at 109. [Note 3]
We know from this record of Jackson's criminal activity that, at the time of the libelous publication in this case, Jackson had been convicted of numerous serious crimes. He was serving a life sentence for murder, without the possibility of parole, with consecutive sentences of long duration to be served after the expiration of that life sentence. He was under indictment for other murders. There had been substantial publicity concerning the various crimes with which Jackson was charged and for which he had been convicted. Jackson himself in his complaint challenged as factually wrong only the newspaper article's statements that the shootout with the Cambridge police involved a stolen car chase and that all the victims of the 1972 slayings were raped and strangled. Jackson claimed he was not involved in a stolen car chase, that in two other cases there were no rape charges pending, and not all the women were strangled. By his silence concerning the notoriety of the "hitchhike murders," his prior convictions and sentences, and the stated pendency against him of two other murder indictments, Jackson concedes that he had been convicted of one of the "hitch-hike murders," had been sentenced to long terms of incarceration in the Massachusetts Correctional Institution at Cedar Junction, and had two other murder indictments pending against him. In the circumstances, Jackson was libel-proof.
Jackson complains that the motion judge improperly treated the defendants' motion to dismiss under Mass. R. Civ. P. 12 (b) (6), as a motion for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974), without giving him a reasonable opportunity to present opposing material, by affidavit or otherwise. See Stop & Shop Cos. v. Fisher, 387 Mass. 889 , 893 (1983); White v. Peabody Constr. Co., 386 Mass. 121 , 126-128 (1982). Jackson discussed the libel-proof issue in his memorandum in opposition to the defendants' motion to dismiss, which was filed in response to the defendants' memorandum in support of their motion to dismiss. We see no basis for concluding that Jackson was prejudiced or unfairly surprised by the judge's treatment of the matter under rule 56, nor does Jackson indicate what he could have offered to counter the facts considered, which are basically facts of which the judge took judicial notice.
Judgment affirmed.
*****
FOOTNOTES
[Note 1] Globe Newspaper Company.
[Note 2] It is proper on a motion for summary judgment to recognize those facts of which a judge may take judicial notice, including criminal cases involving a party. See 10A C.A. Wright & A.R. Miller, Federal Practice and Procedure Section 2723 (1983); Matter of Welansky, 319 Mass. 205 , 210 (1946); Flynn v. Brassard, 1 Mass. App. Ct. 678 , 681 (1974).
It may not have been necessary to treat the motion to dismiss as a motion for summary judgment. The only facts outside the complaint that are involved are those of which judicial notice may be taken. It seems reasonable to take judicial notice of facts when considering a motion to dismiss under Mass. R. Civ. P. 12 (b) (6). See 5 C.A. Wright & A.R. Miller, Federal Practice and Procedure Section 1367, at 685 (1969), discussing Fed. R. Civ. P. 12 (c) (judgment on the pleadings).
[Note 3] This court has dealt with other matters involving Jackson. In June, 1976, we upheld a lower court decision to permit the introduction in evidence of certain incriminating, recorded telephone conversations between Jackson and the brother of Damaris Synge Gillispie, for whose murder and kidnapping the defendant had been indicted in February, 1973. Commonwealth v. Jackson, 370 Mass. 502 (1976). After the publication involved in this case, Jackson was convicted of these charges in 1978, and we affirmed the convictions. Commonwealth v. Jackson, 391 Mass. 749 (1984). In our opinion, we noted that "[t]he hitchhike murders received extensive publicity in late 1972 and 1973, as did the defendant's trials in 1976, 1977, and 1978." Id. at 753.
In April, 1976, we considered Jackson's challenges to lower court rulings concerning his representation by counsel with respect to his April, 1973, indictment for the murder of Ellen Ann Reich. Jackson v. Commonwealth, 370 Mass. 855 (1976). Jackson was convicted of the Reich murder in 1978, after the publication involved in the case before us, and we upheld the conviction. Commonwealth v. Jackson, 384 Mass. 572 (1981).
Finally, in Jackson v. Commissioner of Correction, 388 Mass. 700 (1983), we upheld a decision of the Commissioner of Correction to transfer Jackson from a medium security correctional facility to a maximum security facility. In that opinion, it appears that in the summer of 1976 approximately eight inmates of the Massachusetts Correctional Institution at Cedar Junction entered Jackson's cell, beat him, and poured a disinfectant in his eyes. Id. at 701. Jackson feared for his safety if returned to the prison at Cedar Junction. Even in that segment of society, Jackson appears to have had a reputation not universally respected.
no pictures available
A.K.A: "The Hitch-Hike Murderer"
Classification: Serial killer
Characteristics: Rape
Number of victims: 3 - 5 +
Date of murders: September-December 1972
Date of arrest: December 26, 1972
Date of birth: 1939
Victims profile: Kathleen Randall, 18 / Debra Stevens, 19 / Ellen Reich, 19 / Sandra Ehramjian, 21 / Damaris Synge Gillispie, 22
Method of murder: Strangulation - Shooting
Location: Massachusetts, USA
Status: Sentenced to life in prison
Eight years after the solution of the "Boston Strangler" case, Massachusetts co-eds were terrorized by a new series of brutal rape-murders.
Unlike one strangler's crimes, all victims in the latest series were young, between 18 and 22 years of age, and none were killed in their homes. As bodies were retrieved and evidence compiled, it soon became apparent that Boston's new slayer was preying on attractive hitchhikers, selecting his victims as random "targets of opportunity."
The killer claimed his first two victims in late September 1972, picking off 18-year-old Kathleen Randall a week after she enrolled at Boston University. Last seen thumbing rides near the campus, she was found two weeks later, raped and strangled in rural New Hampshire.
Two days after Randall's disappearance, 19-year-old Debra Stevens was raped and strangled to death at Lynn, Massachusetts, her body discarded within 50 yards of home.
Victim Ellen Reich was another habitual hitchhiker. A 19-year-old sophomore at Emerson College, she lived off campus in the Back Bay area, traveling by thumb in preference to laying out the money for a car.
The practice cost her life on November 9. Strangled and stabbed several times, she had been dead at least four days when searchers found her body on November 14, nailed inside the closet of an abandoned house in Boston's Roxbury district.
Sandra Ehramjian, age 21, also liked to hitchhike when she wasn't earning money as a Boston taxi driver. A resident of Cambridge, she vanished November 27, en route to a dentist's appointment, her strangled corpse found the next day in a culvert near Waldo Lake, in suburban Brockton.
Two days later, honor student Synge Gillespie vanished while thumbing rides in Boston. A telephone ransom demand for $25,000 brought relatives no closer to recovery of their loved one, and the Boston slayer had claimed three more victims by Christmas, all strangled or suffocated, with some stabbed for good measure.
Police got their break on December 26, when 33-year-old Anthony Jackson was arrested following a high-speed chase and shootout with Cambridge patrolmen. Booked on charges of assault with a deadly weapon, operating an automobile to endanger, and illegal possession of firearms, he was indicted for the Gillespie murder on February 3, 1973.
A blood-soaked Cadillac, discovered in a Brockton junkyard, was believed to be the murder scene, and while evidence would remain elusive in several cases, investigators noted that the co-ed killings stopped abruptly with Jackson's arrest.
Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans
COMMONWEALTH vs. ANTHONY J. JACKSON.
376 Mass. 790
September 13, 1978 - December 12, 1978
Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, & WILKINS, JJ.
WILKINS, J.
The defendant appeals from his conviction of armed assault with intent to murder and unlawful carrying of a firearm. [Note 1] He argues that he was unfairly forced to go to trial, representing himself, in circumstances where a continuance should have been granted and counsel appointed. We conclude that there was no abuse of discretion in proceeding to trial on the day designated, with the defendant acting for himself. [Note 2] We reject, as not properly before us, the defendant's unrelated contention that, because of certain newspaper publicity during trial, the judge should have conducted an individual voir dire of each empanelled juror. We do, however, set forth the appropriate procedures which should be followed in similar circumstances in the future.
We briefly describe the evidence because we shall have occasion to consider whether certain of the judge's rulings prejudiced the defense or gave rise to a substantial risk of a miscarriage of justice.
The evidence of the defendant's guilt was overwhelming. On December 26, 1972, one of two Cambridge police officers in an unmarked van observed the defendant driving a Cadillac automobile and apparently accosting a female pedestrian. The police officers in the van followed the Cadillac automobile, which sped away. They lost sight of it, spotted it again, and gave chase. Another police vehicle joined the pursuit. The Cadillac automobile was found abandoned a few minutes later. Nearby and shortly thereafter, two other police officers in a cruiser saw a pedestrian whom they identified as the defendant. When they approached the defendant, he drew a gun and fired at them. The police officers returned the fire. The defendant appeared to have been hit, but he fled on foot. A few minutes later the defendant was found approximately three blocks away, lying in the street wounded. He was wearing an empty holster. He told the officer who first approached him, "I don't have the gun."
At the hospital, a spent bullet was found in the defendant's clothing. The bullet was of the same caliber as the guns of the officers who had been involved in the shoot-out. Keys to the Cadillac automobile were found, along with material identifying the defendent, in an alley between the location of the shooting and the location of the defendant's arrest. A gun was found in that alley eight days later. There was evidence that a bullet recovered from the scene of the shooting had been fired from that gun.
The defendant presented no substantial evidence in his defense. He suggested that the police had failed to investigate the possibility of other suspects, including the registered owner of the Cadillac automobile.
1. There was no abuse of discretion in denying the defendant's requests for a continuance. At a hearing on June 3, 1976, trial was set for June 14, 1976. The defendant requested a continuance in order to prepare for trial, and the judge denied the request. Such a determination will be disturbed only if there was a clear abuse of discretion. Commonwealth v. Watkins, 375 Mass. 472 , 490 (1978), and cases cited. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964). The defendant has made no such showing.
The indictments in this case were handed down in January, 1973. In June, 1973, at the defendant's request, an order was entered deferring trial in this case, and certain other cases involving the defendant, until the conclusion of the trial against the defendant in the so called Reich murder case. The trial of the Reich case was substantially delayed. This delay, as we noted in Jackson v. Commonwealth, 370 Mass. 855 (1976), was due to the defendant's failure to establish and maintain a satisfactory working relationship with any of the various attorneys who had been retained by, assigned to, or offered to the defendant. Shortly after our 1976 opinion, the order giving priority to the Reich trial was rescinded. The judge who denied the continuance in this case was aware of the defendant's record of delay in the Reich case and that those delays had also prevented the case at bar from proceeding to trial.
The defendant had no reasonable basis for being unprepared for trial by reliance on the order deferring the trial of this case. The order had deferred only the trial date and had placed no restrictions on preparation for trial. Nor did the withdrawal of counsel, approved by the judge on June 3, 1976, require a continuance. The defendant had long known that those withdrawals were inevitable, and they were solely the product of his own conduct. Jackson v. Commonwealth, 370 Mass. 855 (1976). See Commonwealth v. Bettencourt, 361 Mass. 515 , 517-518 (1972); United States v. Rodriguez Vallejo, 496 F.2d 960, 964-965 (1st Cir.), cert. denied, 419 U.S. 965 (1974). The defendant was offered new counsel at the hearing, and the trial was still eleven days away.
There are further grounds for upholding the denial of a continuance. The record indicates, in addition, that the defense had substantially prepared for trial in the six months following the indictments. In August, 1973, the Commonwealth had presented a general version of the events surrounding this case in a hearing on a motion to suppress filed in another of the criminal proceedings against the defendant. The defendant made no showing on June 3, 1976, of a particular need for a continuance. Even now, the defendant has not demonstrated how the denial of the continuance prejudiced him at trial. The judge accommodated late requests for an investigator, a ballistician, and a psychiatrist. The defendant presented his defense vigorously. He used transcripts of prior proceedings for the purpose of impeachment, called his own witnesses, and successfully excluded a confession which he had given at the hospital following the shooting.
If we assume that the denial of a continuance on the first day of trial is before us on the assignments of error, there was no abuse of discretion for reasons already given. The defendant has made no showing that his receipt of certain papers four days before trial was prejudicial to him.
2. On June 3, 1976, after the trial date of June 14, 1976, was established, the judge accepted the defendant's request that he be permitted to represent himself at trial. The defendant claims that the judge improperly concluded that the defendant had waived his constitutional right to counsel. The colloquy between the judge and the defendant, portions of which are set forth in the margin, [Note 3] plainly warrants the judge's conclusion that the defendant knowingly and intelligently waived his right to counsel. Indeed, he insisted on his constitutional right to represent himself, apparently citing (although by the wrong name) and quoting from the opinion of the Supreme Court in Faretta v. California, 422 U.S. 806 (1975). On June 4, 1976, the judge filed a statement in which he noted that the defendant stated in open court that he wished to proceed "pro se," and added that "if the defendant does not desire to make use of appointed counsel, I appoint said counsel as legal advisor in all proceedings."
The defendant was adequately aware of the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 835 (1975). The record shows that the defendant was "literate, competent, and understanding." Id. The finding of the defendant's waiver of right to counsel was fully justified. See Fillippini v. Ristaino, 585 F.2d 1163, 1165-1167 (1st Cir. 1978).
The assertion in the defendant's brief that his waiver of counsel was contingent on the granting of a continuance is incorrect. The trial date was firmly established before the court considered the question of representation, and at no time did the defendant suggest that his waiver of counsel was contingent on a change of the trial date.
3. The defendant makes a fleeting reference to the judge's refusal to let him abandon his self-representation and use his court-appointed legal advisor as defense counsel. He made such a request on the first day of trial, and repeated it several times during the course of the trial. Although this issue is presented to us in the context of the defendant's claim that he never effectively waived his right to counsel, we shall treat the defendant's assertion as a claim of an abuse of discretion in the judge's refusal to permit him to retract his decision to represent himself.
On June 14, 1976, before the jury were selected, the defendant asserted that he had not had adequate time to prepare the case and asked the judge to permit his court-appointed legal advisor to defend him. Seemingly gone was the eloquent self-confidence of June third--"And I ask the Court for that right [to defend myself]. If I must sail the sea, I want to be at the helm of my own ship, Your Honor without counsel."
The judge did not abuse his discretion in turning down the defendant's request made at that late date. While we recognize the importance of counsel, we reject any suggestion that every defendant has an absolute right at the moment trial is to begin to retract his decision to represent himself. See Glenn v. United States, 303 F.2d 536, 540-541 (5th Cir. 1962), cert. denied sub nom. Belvin v. United States, 372 U.S. 922 (1963). A court faced with a dilatory defendant has the power to take reasonable measures to keep proceedings moving forward, even if a defendant's refusal to arrange representation leaves him without counsel. See Ungar v. Sarafite, 376 U.S. 575, 588-591 (1964); Kates v. Nelson, 435 F.2d 1085, 1088-1089 (9th Cir. 1970); Nunn v. Wilson, 371 F.2d 113, 117-118 (9th Cir. 1967); Glenn v. United States, supra. These proceedings had been long delayed by the failure of the defendant to make satisfactory arrangements for representation in other criminal matters pending against him, and the judge had seasonably put him to a clear choice between counsel and self-representation.
Furthermore, the defendant delayed his request for counsel until the final moment before trial, without showing good cause for not having made a more seasonable request. The defendant's last-minute assertion of lack of preparation did not have to be accepted at face value. There was ample justification for the judge to conclude that the request was just another dilatory tactic. See Commonwealth v. Scott, 360 Mass. 695 , 699 (1971); United States v. Rodriguez Vallejo, 496 F.2d 960, 965 (1st Cir.), cert. denied, 419 U.S. 965 (1974). Even if we assume that the defendant had the right to retract his decision to represent himself and to seek the appointment of counsel, the delay of the request until immediately prior to trial brought it within the broad discretionary power of a court over requests for last-minute shifts in representation which threaten to delay a proceeding. See Commonwealth v. Bettencourt, 361 Mass. 515 , 517-518 (1972); Commonwealth v. Scott, supra at 698-701; Commonwealth v. Flowers, 5 Mass. App. Ct. 557 , 565-566 (1977).
The decision of the judge was consistent with a concern for a fair trial. The defendant had substantially prepared his case with the assistance of counsel. He was familiar with the Commonwealth's case against him. He had accepted a legal advisor.
In addition, the defendant has failed to prove an abuse of discretion in the denial of his requests to change counsel during trial. In this latter situation, a defendant's freedom to change counsel is significantly more restricted than it is before trial has commenced. Commonwealth v. Miskel, 364 Mass. 783 , 791 (1974), and cases cited.
4. The defendant argues finally that he was denied a fair trial because the judge declined to question the empanelled jurors separately concerning the impact on them of a newspaper article which most of them read on the morning of the second day of trial. Although the defendant excepted to the judge's determination to question the jurors collectively concerning this article, rather than individually, he has not assigned the judge's ruling as error. In such a case, the propriety of the judge's failure to interrogate each juror individually is not before us for consideration. See Commonwealth v. Wallace, 356 Mass. 92 , 97 (1969); Commonwealth v. Chester, 337 Mass. 702 , 703 (1958). In the absence of a proper preservation of an issue for appellate review, we would still consider whether there was a "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556 , 563-564 (1967). In any event, even if the question were before us fully, the judge's ruling was not an abuse of discretion and that ruling did not unconstitutionally deny the defendant a fair trial. We see no substantial risk of a miscarriage of justice.
On the morning of the second day of his trial, in which the jury were not sequestered, the defendant told the judge that there has been publicity on at least one radio station and in one Boston newspaper, mentioning murder charges which were pending against him. The record does not disclose what these news reports stated concerning the defendant. We do not even have a copy of the allegedly prejudicial newspaper article. We infer from the comments of a juror who was discharged that the article stated, at least, that the defendant had been indicted in three separate counties on other charges. Although the judge rejected the defendant's request for individual questioning of the jurors, he asked the jury collectively whether they had heard about the case on the radio or on television during either of the first two days of the trial. No juror responded affirmatively. When asked whether they had seen anything about the case in an article in the Boston Globe published on the second day of the trial, thirteen of the sixteen empanelled jurors answered that they had. The judge then asked if "anything that any juror [had] seen in that article caused him or her to form any opinion or prejudice against the defendant, or in relation to this case?" One juror answered in the affirmative. He then asked if anything that any juror had read in that article caused him or her to form any opinion which would prevent him or her from rendering a fair and impartial verdict. The same juror answered in the affirmative. No other juror answered in the affirmative. The judge immediately instructed the jury not to read, listen to, or discuss any media reference to the case, that cases are decided on evidence in the courtroom, and that they should ignore the newspaper article. [Note 4] Out of the hearing of the other jurors, the judge questioned the juror who indicated that she had been affected by the newspaper article, and then excused her.
The defendant was not denied his constitutional right to a fair trial. The Supreme Court of the United States, in the exercise of its supervisory powers, has adopted a stricter standard for Federal courts in cases involving potential juror prejudice than the constitutional standard which applies to State courts. Compare Murphy v. Florida, 421 U.S. 794, 797-798 (1975), with Marshall v. United States, 360 U.S. 310, 313 (1959).
The constitutional standard of fairness requires only that the jurors be impartial and indifferent. Murphy v. Florida, supra at 799. By this test, we see no constitutional violation. The record fails to disclose the allegedly prejudicial publicity. It appears that the newspaper article referred to serious charges pending against the defendant, but had no direct bearing on any contested issue in this case. The judge did not ignore the potential for prejudice. He made inquiry of the jury, discovered one juror who expressed a lack of impartiality due to the publicity, and discharged her after individual questioning out of the presence of the other jurors. The judge did not conduct a individual voir dire of each juror, but we do not see a threat to the fundamental impartiality of the jury in his failure to do so. The collective questioning of the jury brought forth one juror who conceded the prejudicial effect of the newspaper article on her. Any inhibitory effect of the collective questioning of the jury did not deter that juror, and her statements "broke the ice" for any other juror who might have been reluctant to identify him or her self as prejudiced. The judge gave prompt cautionary instructions and later repeated them.
The same reasoning which leads us to find no constitutional violation supports our further conclusion that the judge did not abuse his discretion in his handling of the asserted prejudicial publicity. We have heretofore granted trial judges wide discretion on this subject. See Commonwealth v. Stanley, 363 Mass. 102 , 104-105 (1973); Commonwealth v. Eagan, 357 Mass. 585 , 588-589 (1970). The circumstances of the Eagan case are quite similar to those in this case.
Although what we have said would dispose of the issue sought to be raised if it were properly before us, we exercise our power of general superintendence to set forth the procedures which should be followed hereafter when a claim of potentially extraneous influence on a jury is brought to the judge's attention after the jury are selected. We adopt prospectively the practice which has been followed in several Federal circuits. See, e.g., United States v. Perrotta, 553 F.2d 247, 249-250 (1st Cir. 1977). This practice seems indicated as a matter of public policy in light of G. L. c. 234, Section 28, concerning specific questioning of individual jurors when certain potentially prejudicial circumstances may affect the jury selection process. [Note 5]
When material disseminated during trial is reliably brought to the judge's attention, he should determine whether the material goes beyond the record and raises a serious question of possible prejudice. A number of factors may be involved in making that determination, including the likelihood that the material reached one or more jurors. See United States v. Perrotta, supra at 249. If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror's exposure to the material and its effects on the juror's ability to render an impartial verdict. See United States v. Perrotta, supra at 249-250; United States v. Lord, 565 F.2d 831, 838-839 (2d Cir. 1977); Margoles v. United States, 407 F.2d 727, 734 (7th Cir.), cert. denied, 396 U.S. 833 (1969). See also the even stricter requirements expressed in the ABA Standards Relating to Fair Trial and Free Press Section 3.5 (f) (1968) as to material disseminated during trial, according to which all questioning should be conducted individually and a juror should be excused if he has been exposed to potentially prejudicial material which would furnish grounds for a mistrial if referred to in the trial itself, and United States v. Herring, 568 F.2d 1099, 1104-1105 (5th Cir. 1978).
Judgments affirmed.
*****
FOOTNOTES
[Note 1] The defendant was convicted also of assault by means of a dangerous weapon and of three motor vehicle offenses. These cases were placed on file, the defendant not objecting.
[Note 2] We have allowed the Commonwealth's motion to expand the record to include the transcript of a pretrial hearing in this matter (referred to in the briefs of each party) and certain transcripts or records in other criminal proceedings involving the defendant. These documents bear on the merits of certain issues in this case.
[Note 3] On June 3, 1976, the defendant indicated that, if counsel were allowed to withdraw, he would represent himself. Later, the judge suggested that he was "going to appoint counsel, a legal advisor, for you, anyway." The following conversation then occurred:
THE DEFENDANT: "Your Honor, Barry versus California says I have a right to try without legal counsel, without any assistance, without any attorney sitting at the table with me; and that is a U.S. Supreme Court, recent case, 1975."
THE JUDGE: "You are a highly intelligent person, Mr. Jackson, but you are not trained in the--"
THE DEFENDANT: "I understand."
THE JUDGE: "You are not trained as a lawyer."
THE DEFENDANT: "I understand that, Your Honor. It says that--the last statement of the decision says that: we bestow on the defendant the right to defend himself--although one who defends himself may have a fool for a client. And I ask the Court for that right. If I must sail the sea, I want to be at the helm of my own ship, Your Honor, without counsel."
THE JUDGE: "I will take those matters under advisement."
[Note 4] On the fifth day of the trial, the judge gave a similar instruction to the jury. In his final charge to the jury, the judge instructed the jury that anything they read outside the courtroom was not evidence, that they must decide the case only on the evidence, that indictments are not evidence in any respect, and that "[t]he defendant cannot be found guilty upon suspicion or conjecture." The defendant did not except to the judge's charge nor did he request further instructions.
[Note 5] The defendant made no claim below, and makes none here, that the judge's failure to conduct individual questioning of each juror was a violation of G. L. c. 234, Section 28, as amended by St. 1975, c. 335. That statute is directed to the process of jury selection. See Commonwealth v. Horton, ante 380, 394-395 (1978). It does not prescribe the consequences of a failure to follow its terms. The rule of practice which we prescribe for the handling of potentially prejudicial circumstances arising during trial parallels that prescribed in G. L. c. 234, Section 28.
COMMONWEALTH vs. ANTHONY J. JACKSON.
384 Mass. 572
September 14, 1981 - November 13, 1981
Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, NOLAN, & LYNCH, JJ.
HENNESSEY, C.J.
The defendant was convicted by a Superior Court jury of murder in the first degree and sentenced to life imprisonment, to be served from and after any other previously imposed sentence he was serving or was to serve.
The defendant appeals, asserting error in (1) the admission of evidence of other crimes he committed, (2) the trial judge's advisory ruling that he would admit evidence of the defendant's prior conviction, (3) the prosecutor's opening statement, (4) the partial violation of an order sequestering witnesses, (5) the denial of a speedy trial, (6) the denial of a motion to suppress certain physical evidence, and (7) the admission of certain other evidence during trial. The defendant has also asked this court to exercise its broad power of review under G. L. c. 278, Section 33E, and order a new trial. We find no reversible error and see no reason to order a new trial. Accordingly, we affirm.
We summarize briefly the pertinent facts, reserving elaboration of specific facts to the discussion of each of the defendant's contentions.
The body of Ellen Ann Reich, age nineteen, was found on November 13, 1972, in a closet in an abandoned apartment at 132 Seaver Street, Roxbury. Reich had lived at 31 Massachusetts Avenue in Boston. She was last seen on Thursday morning, November 8, 1972, by her roommate, Eileen Wacks. Wacks testified that the victim usually hitchhiked to Emerson College, where she attended school. One Belin McArthur found the body while helping a friend, Mary Lee Cobb, move furniture from her apartment at 132 Seaver Street. While waiting for the moving truck to return, he looked around the building and saw a nailed closet door, became curious, and pried it open. The victim's body was inside.
Dr. George W. Curtis, medical examiner for Suffolk County, performed an autopsy on the body on November 14, 1972. This autopsy, in combination with a later exhumation and second autopsy, established that the victim was killed by strangulation and two gunshot wounds to the chest and abdomen. One bullet was retrieved from near the victim's vertebrae, and sperm was found in the victim's vagina.
Human hairs were found on the panties and jeans of the victim, who was white. The hair found on the victim's jeans was determined to be negroid pubic hair, but it did not match the pubic hair of the defendant, who is black. The head hairs found on the victim's panties were negroid in origin, and an expert in microscopic examinations testified for the Commonwealth that he compared them to hair samples of the defendant and found those samples to be microscopically alike in all identifiable characteristics.
Robert P. Spalding, special agent for the FBI in forensic serology, testified that he examined stains in the crotch area of the victim's jeans and found the presence of factors from blood types "A" and "B," factors which appear when an individual is a "secretor." He stated that a secretor has substances in his or her other bodily fluids which indicate that person's blood type, eighty per cent of the population are secretors, and forty per cent of the population have type "A" blood.
William A. Gavin, also a special agent for the FBI, had studied a sample of the defendant's saliva, and found that he was a secretor, and had type "A" blood. He also found type "B" blood on the victim's sweater, jacket, and slacks. The victim had type "B" blood. Evidence of male spermatozoa was discovered in the victim's panties, together with traces of both "A" and "B" blood type factors. The results of his examination were consistent with the involvement of a female secretor with type "B" blood and a male secretor with type "A" blood. They were also consistent with fluids from one individual having group "AB" blood. Such individuals comprise about five per cent of the population.
William Tobin, a special agent for the FBI in metallurgy, compared nails taken from the frame of the closet where the body was found with nails from a milk carton taken from the defendant's residence at 154 Washington Street, Dorchester. He found hundreds of similarities between the samples, and concluded that the nails originated from the same source.
Several Cambridge police officers testified, over the defendant's objections and exceptions, that they pursued, exchanged gunfire with, and arrested the defendant in Cambridge on the evening of December 26, 1972. Officer John Conroy related that at about eight o'clock that evening he was on cruiser patrol in Cambridge, when he observed the defendant in a dark-colored Cadillac automobile motioning to a young woman walking down the street. He followed the defendant's car until the defendant suddenly "took off" at a high rate of speed. Cambridge police Officer Joseph J. McSweeney soon thereafter spotted the vehicle, which was empty, and located the defendant. He walked toward the defendant, who drew a gun from a black holster, shot at the officer, and kept firing at him while running down the street. McSweeney returned the fire, and saw the defendant drop to one knee. He lost the defendant for two to three minutes, but found him again, lying on the ground with two police officers beside him. The police looked for a gun, but did not find one. Several days later, a man who worked near the spot where the defendant was apprehended discovered a pearl-handled, silver-colored gun in a snowbank. This gun was turned over to the police. Test bullets fired from this gun were matched microscopically to a bullet retrieved from a building at the site of the Cambridge shooting incident and to the bullet retrieved from the victim's body. Ballistics experts concluded that all of the bullets came from the same gun.
Patricia Archer testified that she had lived with the defendant at 154 Washington Street from the fall of 1972 until the time of his arrest. She identified a holster and the nickel-plated revolver recovered from the snowbank as belonging to the defendant. She also identified the carton containing nails found in the defendant's apartment as the defendant's and testified that she had seen it in the trunk of the defendant's car. Archer also testified that she had visited 132 Seaver Street once with the defendant.
Michelle Maupin, another woman living with the defendant on Washington Street at the time of the defendant's arrest, testified that she had known the defendant for many years. She had seen the defendant carrying a silver gun with a pearl handle, which he carried in a black holster. She, too, saw the carton of nails at the Washington Street address, and visited 132 Seaver Street with the defendant at least nine times.
Maupin visited the defendant at a hospital the morning after he was shot, but he told her to leave so that she would not be questioned by the police. She returned to the hospital the next day, and the defendant asked her to pick up a gun in the snowbank in Cambridge. He drew a map with her eyebrow pencil to locate the weapon.
Donald McDonald, a longtime friend of the defendant, testified over the defendant's objection that he visited the defendant at the Billerica house of correction following his arrest. On February 6 or 7, 1973, McDonald discussed with the defendant two newspaper articles concerning an investigation into the murders of six young women, one of whom was the victim, Reich. These articles referred to a murder in New Hampshire, and McDonald testified that the defendant voluntarily told him that "the one in New Hampshire was not [the defendant's]." The two newspaper articles, with some portions excised, were admitted in evidence. McDonald also testified that the defendant asked him to retrieve the gun abandoned in Cambridge, and that he had seen the defendant with a pearl-handled, silver-colored gun.
1. Evidence of the defendant's other crimes. The defendant's primary contention on appeal is that the trial judge committed reversible error when he admitted in evidence the defendant's admission to McDonald and the two related newspaper articles. This evidence, the defendant contends, tied him to the well-publicized murders of other young, white women, creating a serious danger that the jury's decision was based on the defendant's criminal propensity rather than on the evidence.
The statement by the defendant to McDonald ("The one they found in New Hampshire . . . [t]hat wasn't mine") was, in the context of his conversation with McDonald, an indivisible admission of the murders of five young women, including Ellen Reich. The admission is obviously relevant to the issue of who murdered Reich, but it also constitutes evidence of the defendant's participation in the murders of other women. McDonald's statements and the defendant's reply were admissible as an admission by the defendant that he killed Reich. See Commonwealth v. Kenney, 12 Met. 235 , 237 (1847). Evidence that is otherwise relevant to the offense charged is not rendered inadmissible simply because it tends to prove the commission of other crimes. E.g., Commonwealth v. Hoffer, 375 Mass. 369 , 373 (1973).
However, where evidence of other crimes is irrelevant to proof of the offense charged, this court has generally considered it inadmissible, even when that evidence is the defendant's voluntary admission. Commonwealth v. Welcome, 348 Mass. 68 , 70-71 (1964). Commonwealth v. Valcourt, 333 Mass. 706 , 717-718 (1956). Commonwealth v. Bishop, 296 Mass. 459 , 461-462 (1937). Commonwealth v. Kosior, 280 Mass. 418 , 423 (1932). In this case, however, the potential for unfair prejudice to the defendant was reduced by his earlier introduction of evidence implicating him in another, unconnected murder. We conclude that, because the defendant, in his admission of the crime charged, admitted to other, unrelated crimes in a manner that rendered the admission unintelligible if references to the unrelated crimes were omitted, the entire admission was properly admitted in evidence. This conclusion accords with the reasoning in other jurisdictions. See, e.g., United States v. Wiggins, 509 F.2d 454, 462 (D.C. Cir. 1975) (dictum); State v. Palko, 122 Conn. 529, 536, aff'd on other grounds, Palko v. Connecticut, 302 U.S. 319 (1937); State v. Underwood, 75 Mo. 230, 236 (1881). Cf. State v. Hopkins, 117 Ohio App. 48, 52 (1962) (confession to setting at least thirty-five fires, including that for which arson was charged, properly admitted); Commonwealth v. Weston, 297 Pa. 382, 389 (1929) (confession that it was not the first time defendant had "done a thing of this kind" properly admitted). The decision to admit or exclude such an admission requires the trial judge to balance the probative value and the prejudicial impact of the admission, and so it is within his sound discretion. We cannot say that that discretion was abused here.
The admission of the newspaper articles was also within the judge's discretion. The defendant's critical statement was in response to the contents of those articles, [Note 1] as presented to him by McDonald. The articles therefore amounted to a declaration, admissible "because it may give meaning and effect to the reply." Commonwealth v. Kenney, 12 Met. 235 , 237 (1847). That is, they established the context in which the admission was made. See Commonwealth v. Labbe, 6 Mass. App. Ct. 73 , 78 (1978).
A trial judge should exercise caution in admitting such prejudicial material [Note 2] in evidence for explanatory purposes. The judge here demonstrated appropriate caution by excising irrelevant portions and by giving a careful, forceful instruction to the jurors, limiting their consideration of the remainder of the articles. We presume, as we must, that a jury understands and follows limiting instructions, Commonwealth v. Leno, 374 Mass. 716 , 719 (1978); and their use usually renders any error in the introduction of prejudicial evidence harmless, Commonwealth v. Roberts, 378 Mass. 116 , 127 (1979).
The defendant also asserts as error the admission of other evidence showing various facts [Note 3] that connected him with the other murders. Some of this evidence was introduced for the first time by the defendant, and the balance was so remotely related in time and effect to McDonald's testimony that there was no risk of unfair prejudice to the defendant.
2. Defendant's prior convictions. The defendant requested and received an advisory ruling by the judge on the admissibility of his prior convictions should he testify. The judge told the defendant that he would exclude his conviction for murder, but would admit the conviction for assault with a deadly weapon that resulted from the shooting incident in Cambridge. The defendant did not take the stand. The defendant contends that this ruling impermissibly infringed his right to testify on his own behalf and so denied his constitutional right to a fair trial. Article 12 of the Declaration of Rights of the Constitution of the Commonwealth.
The record of some prior convictions of a defendant is admissible to impeach the defendant if he testifies. G. L. c. 233, Section 21. We have previously indicated that a trial judge has a right to exclude prior convictions in order to prevent unfairness to a defendant, particularly where they are similar to the crime charged and do not inherently pertain to the defendant's credibility. Commonwealth v. Chase, 372 Mass. 736 , 750 (1977). We have also held, however, that, where the judge admits proof of prior convictions, any prejudice to the defendant is not of constitutional dimension and will not be reviewed on appeal. Commonwealth v. Leno, supra at 717-718. See Commonwealth v. Diaz, 383 Mass. 73 (1981); Commonwealth v. Tabor, 376 Mass. 811 (1978). Thus the defendant's argument fails. It is true also that the events underlying the conviction which was ruled admissible by the judge were closely related to the murder of Ellen Reich. One of the bullets the defendant fired at the Cambridge police officers and his possession of the pearl-handled, silver-colored pistol connected the defendant with the murder weapon. Finally, the defendant's flight from and shooting at the police revealed his consciousness of guilt. This evidence was properly admitted long before the defendant's request for the advisory ruling. Proof of the conviction would be merely cumulative, and for that additional reason no error is shown.
3. Prosecutor's opening statement. The prosecutor, in his opening statement, told the jury that two witnesses, Mary McIntyre and Linda White, would testify at trial. He indicated that these two would further link the defendant to 132 Seaver Street, McIntyre to testify that the defendant occupied an apartment there and White to testify that the defendant had a telephone installed there. Neither witness was produced at trial, despite the prosecutor's efforts to produce them, and the prosecutor justified the omission by indicating that McIntyre's testimony would be cumulative and that White was suffering emotional problems. The defendant's motion for a mistrial on this ground was denied.
There was no error in the judge's denial of the defendant's motion for a mistrial. The prosecution fully intended to call both witnesses at the time of the opening, and therefore could properly comment on the substance of their testimony. Cf. Commonwealth v. Fazio, 375 Mass. 451 , 454-457 (1978) (proper to comment on testimony of witness despite pretrial assertion by counsel that witness would invoke privilege against self-incrimination). There is no evidence that the prosecutor here acted intentionally or in bad faith, cf. Commonwealth v. Killelea, 370 Mass. 638 , 648 (1976), and the cumulative nature of the missing witnesses' testimony makes the omission harmless, cf. Commonwealth v. Roberts, 378 Mass. 116 , 123-124 (1979).
We also note in passing that any potential prejudice to the defendant was reduced by the prosecutor's opening remark that his statements were not evidence, cf. Commonwealth v. Breese, 381 Mass. 13 , 15 (1980), and by the defendant's use in closing argument of the failure of McIntyre and White to testify.
4. Sequestration order. The judge, pursuant to a motion by the defendant, issued an order sequestering all witnesses (with certain immaterial exceptions). The judge permitted two witnesses who had testified for the prosecution to remain in the courtroom during the trial. The first, State police Officer McGuinness, resumed the witness stand to reinforce a link in the chain of custody of test bullets fired from the murder weapon. The second, FBI Agent Tobin, was permitted over the defendant's objection to remain in the courtroom to assist the prosecution in its cross-examination of the defendant's nail expert.
The sequestration of witnesses lies within the discretion of the trial judge, and it is not error to refuse to sequester witnesses.
Commonwealth v. Vanderpool, 367 Mass. 743 , 748-749 (1975). Commonwealth v. Blackburn, 354 Mass. 200 , 205 (1968). See Commonwealth v. Watkins, 373 Mass. 849 , 850-851 (1977). It is also within the judge's discretion to admit or exclude the testimony of witnesses who have violated sequestration orders. Commonwealth v. Crowley, 168 Mass. 121 , 127-128 (1897) (defense witness's testimony properly excluded). Commonwealth v. Hall, 4 Allen 305 , 306 (1862) (witnesses violating order properly permitted to testify).
The judge here acted within his discretion. The expert witness, Tobin, was not recalled to the witness stand and therefore could not commit perjury, which is the principal evil that sequestration orders are designed to prevent. See W.B. Leach & P.J. Liacos, Massachusetts Evidence 78 (4th ed. 1967). Moreover, the very nature of expert testimony makes perjury unlikely, and so it would be proper to exempt all expert witnesses from a sequestration order. See Commonwealth v. Hersey, 2 Allen 173 , 176 (1861). The testimony of the police officer who resumed the stand was brief, cumulative, and directed only at a technical link in the chain of custody. There was no substantial danger of perjury, and any error was harmless beyond a reasonable doubt. See Commonwealth v. Watkins, supra. See also Commonwealth v. Parry, 1 Mass. App. Ct. 730 , 735-736 (1974).
5. Speedy trial. The defendant was indicted on April 11, 1973, and the trial began on January 10, 1978. The defendant contends that this delay of fifty-seven months deprived him of his right to a speedy trial and prejudiced his defense.
This is the second time this court has considered the delay in bringing this case to trial. In Jackson v. Commonwealth, 370 Mass. 855 , 856 (1976), we confirmed a special master's finding that the first three years of delay were attributable to the actions of the defendant, primarily his failure to accept and work with a series of defense attorneys assigned to assist him. We reaffirm that conclusion, and note that the period of time between our previous opinion and this trial was largely consumed by the trial of three other indictments against the defendant. The balance was taken up with further difficulties between the defendant and yet another defense attorney. The defendant's own actions delayed the trial of this case, and he therefore suffered no deprivation of his right to a speedy trial.
6. Motion to suppress nails. On January 19, 1973, without a warrant, the police seized from the defendant's apartment at 154 Washington Street, a milk carton containing, among other things, the nails that were matched to those in the frame of the closet where the body was found. The defendant's motion to suppress these nails was denied on the grounds that the defendant had abandoned the premises, that the police had obtained valid consent to be on the premises, and that the defendant lacked standing to contest the search and seizure.
The hearing judge entered subsidiary findings, none of which is contested on appeal. The defendant had paid rent on the apartment through January 1, 1973. He was arrested on December 26, 1972, placed in custody, and the following day told the other residents of the apartment to move out, and remove all of his belongings and furnishings. The apartment was bare after January 9, 1973. The police were given permission by the landlord to enter the apartment at any time, and the nails were found in a pantry while a policeman was helping Archer, an occupant of the apartment, remove her belongings. The defendant contends that these findings are consistent with a three-week lapse in rental payments due to his incarceration and a desire to protect his belongings.
Even if the defendant's testimony was believed by the hearing judge, the protection of one's belongings is not inconsistent with an intent to abandon the premises. The hearing judge's subsidiary findings are supported by the evidence. Based on our independent review of the application of those findings, e.g., Commonwealth v. Murphy, 362 Mass. 542 , 550-551 (1972) (Hennessey, J., concurring), we affirm the hearing judge's conclusion that the defendant intentionally abandoned any proprietary interest in the premises.
Abandonment leaves the defendant without standing to contest the search and seizure since he has no interest in the property. Brown v. United States, 411 U.S. 223, 229-230 (1973). See United States v. Salvucci, 448 U.S. 83 (1980); Rakas v. Illinois, 439 U.S. 128 (1978). It also renders the warrantless search, made with the landlord's permission, reasonable. See United States v. Wilson, 472 F.2d 901, 902-903 (9th Cir. 1973). Moreover, any proprietary interest the defendant may have retained in the apartment was shared with Archer, whose consent rendered the seizure valid. United States v. Matlock, 415 U.S. 164, 171 (1974).
7. Admission of other evidence. Testimony was admitted, over the defendant's objection, relating the acts for which the witness McDonald was granted immunity and McArthur's explanation [Note 4] to the police of his presence in the apartment where he discovered the body. In the context of this trial, admission of this testimony was within the sound discretion of the trial judge. The trial judge did not abuse that discretion.
McDonald testified that he was granted immunity from prosecution for being an accessory after the fact to any murder in which the defendant was implicated, and for larceny of a motor vehicle. The defendant, whose questions implied McDonald was involved in several other murders including that of Reich, cross-examined McDonald on these grants of immunity. The prosecutor was permitted, during the subsequent redirect examination, to elicit the facts underlying the two grants of immunity.
Admission of this testimony was within the power of the trial judge to control the scope of direct and cross-examination. See Commonwealth v. Best, 381 Mass. 472 , 488-491 (1980); Commonwealth v. Adrey, 376 Mass. 747 , 752-753 (1978). It was admissible to correct any mistaken conclusions the jury may have drawn from the defendant's questions as well as to rehabilitate the witness. Cf. Commonwealth v. Howard, 8 Mass. App. Ct. 318 , 321-323 (1979). There was no possibility of unfair prejudice to the defendant since the defendant had previously brought out testimony linking the defendant to the primary murder in question.
The defendant, in his cross-examination of two witnesses, emphasized that McArthur's presence in the fourth floor apartment where he found the body was suspicious since he was helping a woman move from the third floor. This theory culminated in a colloquy with Officer Madden, [Note 5] who had spoken with McArthur. In response to this colloquy, the trial judge permitted the prosecutor to elicit on redirect examination McArthur's explanation to Officer Madden of his presence on the fourth floor, instructing the jury that this testimony was to be considered only on the issue of why the police did not suspect McArthur.
This testimony was admissible for this limited purpose, and as to that purpose was not hearsay. Cf. Commonwealth v. Miller, 361 Mass. 644 , 658-659 (1972) (testimony that drug users had mentioned the defendant's name admissible to show reason for undercover activity against the defendant). It was relevant to rebut the defense's theory that McArthur was in fact the murderer and that the police had handled the investigation carelessly. Cf. Commonwealth v. Howard, supra. In addition, the defendant's final question opened up the issue of McArthur's statements, entitling the prosecution to have the entire conversation in evidence. Commonwealth v. Taylor, 327 Mass. 641 , 648 (1951).
8. Review under G. L. c. 278, Section 33E. The defendant has asked us to grant him a new trial pursuant to our powers under G. L. c. 278, Section 33E. Consistent with our duties under that statute, we have reviewed the entire record on the law and the evidence and conclude that the defendant is entitled to no relief under Section 33E.
Judgment affirmed.
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FOOTNOTES
[Note 1] On voir dire, McDonald expressed some confusion about which newspaper articles were actually discussed during his conversation with the defendant. It is clear, however, that the defendant was responding to newspaper articles with the same content as those introduced at trial, and the witness testified that his conversation with the defendant concerned the two articles admitted in evidence.
[Note 2] The articles did not refer to the defendant by name, but did indicate that several of the victims were college students and were last seen hitchhiking, and that a single person was responsible. One also said a suspect was being held in the Billerica house of correction, where the defendant was incarcerated at the time.
[Note 3] Evidence was admitted tending to show that the victim was last seen hitchhiking, that the defendant was arrested after accosting a young girl, and that the defendant was under investigation in other counties.
[Note 4] McArthur was not located and did not testify at trial.
[Note 5] COUNSEL FOR THE DEFENDANT: "Is it usual for a person to be moving from the second [sic -- third] floor to go up to the fourth floor in somebody else's apartment? You didn't find that strange or a little suspect?"
THE WITNESS: "Not when it was explained to me, it wasn't."
COUNSEL FOR THE DEFENDANT: "And he explained it to you did he not?"
THE WITNESS: "Oh yes."
COMMONWEALTH vs. ANTHONY J. JACKSON.
388 Mass. 98
October 4, 1982 - January 28, 1983
Present: HENNESSEY, C.J., WILKINS, LIACOS, NOLAN, & O'CONNOR, JJ.
HENNESSEY, C.J.
On December 22, 1976, the defendant, Anthony J. Jackson, was convicted of murder in the first degree, kidnapping, rape, and unarmed robbery, and sentenced to life imprisonment at the Massachusetts Correctional Institution at Walpole on the murder conviction. [Note 1] He challenges his convictions on direct appeal and by means of a motion for a new trial. We conclude that the defendant's claims lack merit, and, after reviewing the entire record as required by G. L. c. 278, Section 33E, we conclude that the defendant is not entitled to relief on any other grounds. Accordingly, his convictions are affirmed.
The facts are summarized as follows. The victim was found dead under a bed in her apartment at One Langdon Street in Cambridge on the morning of Sunday, December 24, 1972. She was last seen alive at approximately 8 P.M. on Thursday, December 21. It was estimated that her death occurred no earlier than 11:30 A.M. on Friday, December 22. She did not report to work on Friday, and attempts to reach her by telephone and by visits to her apartment between Friday and Sunday were unsuccessful. However, at about midnight on Saturday, her car was found parked near her sister's apartment building several blocks from where the victim lived. Several .22 caliber bullet shells were found in her apartment, and spent .22 caliber bullet shells were found in her car. Several items were missing from her apartment.
The defendant lived in an apartment at 154 Washington Street in the Dorchester section of Boston with one Michelle Maupin, one Patricia Archer, and one Diane Dixon. Maupin and Archer testified for the Commonwealth at the trial.
According to Maupin, the defendant left the apartment in the early evening on Thursday, December 21, and returned about 6 or 6:30 A.M. on Friday morning, December 22. He left again about 9 A.M., and returned about 11 A.M. He left again at 11:30 A.M. and returned at 1:30 P.M. with some furniture, which he moved into the apartment with the help of one Donald McDonald. McDonald testified that the defendant called him at 11:30 A.M., Friday, and asked him to help move some furniture, and returned to Dorchester at 1:30 P.M. The defendant left again about 8 P.M. and returned by car early Saturday morning, December 23.
Archer's testimony was essentially consistent with Maupin's. Both testified that the defendant gave them money and items later identified as from the victim's apartment, at various times on that Friday, Saturday, and Sunday. Archer testified that she spent part of Saturday, December 23, with the defendant in an apartment he had rented under Dixon's name at 55G Codman Park. At 11:30 that night she drove past a building on the corner of Langdon Street and Massachusetts Avenue with the defendant, and he stated that he and McDonald knew a couple of girls there. The defendant's former wife, Patricia Jackson, testified that he visited her on Friday afternoon and late Saturday afternoon at her apartment.
On December 30, 1972, the victim's father received a copy of her bank statement with a cancelled check for $593 endorsed by "Robert Johnson." An expert testified that the defendant's fingerprints were on the check. The Commonwealth also introduced photographs taken by a video camera at a branch of the Coolidge Bank & Trust Company showing a black man in the teller's line. An assistant manager identified this black man as the man who brought the check to him for approval on the morning of December 22, but at trial he did not identify that man as the defendant.
The defendant was arrested on unrelated charges on December 26, 1972. In June, 1976, the defendant was convicted of armed assault with intent to murder and of unlawfully carrying a firearm in connection with that arrest. The convictions were affirmed. Commonwealth v. Jackson. 376 Mass. 790 (1978). Testimony about that arrest was admitted at the trial in the instant case, over the defendant's objections. Hair samples from a hat taken from the defendant at that arrest were found to be "microscopically like" a hair found in the victim's apartment.
Maupin visited the defendant several times between his arrest and his trial. She testified that on December 29, he told her to take several items, including two jackets and a .22 caliber rifle, from his apartment to Patricia Jackson's apartment. She did so, and also brought a .22 caliber handgun back from Patricia Jackson threw the rifle into the Charles River on January 6, 1973. They also disposed of other objects on that date at his request, including the two jackets and several of the items taken from the victim's apartment. Some of these objects, including the rifle, were later recovered by the police. Both guns were admitted in evidence at trial, over the defendant's objections.
McDonald was given immunity from prosecution as an accessory after the fact to any murders for which the defendant was prosecuted. He testified at trial to incriminating statements the defendant made when he visited the defendant in jail in January, 1973. The Commonwealth also offered the testimony of Ralph Bens, one of the defendant's jailors, regarding an inculpatory statement made by the defendant. The defendant objected to this testimony by McDonald and Bens.
The defense was alibi. Two nurse's aides testified that they spent a Friday or Saturday evening in December, 1972, with a black man named Tony and a white man named Brian. McDonald sometimes used the name Bryant Alexander. One of the women testified that she spent the night with the black man, whom she identified at trial as the defendant. While there was some evidence that this encounter took place on December 22, there was other evidence that it took place several weeks earlier.
1. The defendant objects to the admission of certain evidence of the defendant's alleged involvement in other crimes. Evidence of other crimes is not ordinarily admissible at trial. Commonwealth v. Roberts, 378 Mass. 116 , 125 (1979). Commonwealth v. Kosior, 280 Mass. 418 , 423 (1932). "However, otherwise relevant evidence is not rendered inadmissible simply because it may indicate that the defendant has committed another offense." Commonwealth v. Roberts, supra. Commonwealth v. Jackson, 384 Mass. 572 , 577 (1981).
(a) The defendant first objects to the admission of testimony about a chase and shoot-out with police which preceded his arrest. This evidence of flight was properly admitted to show the defendant's consciousness of guilt. Commonwealth v. Booker, 386 Mass. 466 , 469-471 (1982). Commonwealth v. Roberts, supra at 125. Commonwealth v. Gilday, 367 Mass. 474 , 496 (1975). The fact that the defendant was arrested on unrelated charges does not render the evidence inadmissible, but rather goes to the weight which the jury will give to the evidence. Commonwealth v. Booker, supra at 470. Nor is there merit in the defendant's contention that he was unfairly prejudiced because the judge allowed Commonwealth witnesses to describe in detail the circumstances of his arrest. Balancing the probative value of evidence against its possible prejudicial impact is a task committed to the discretion of the judge. Commonwealth v. Booker, supra at 469. Commonwealth v. D'Agostino, 344 Mass. 276 , 279, cert. denied, 371 U.S. 852 (1962). That principle controls here. We have upheld the admission of evidence of a "running gunfight with police, in which an officer was wounded," because the "desperate nature of the defendant's conduct . . . lent credibility to the . . . inference of guilt of the crimes charged." Commonwealth v. Gilday, supra. See Commonwealth v. Green, 302 Mass. 547 , 553 (1939) ("testimony of one [witness] as to the details of the robbery [of a car]" admissible to show intensity of defendant's desire to escape, indicating consciousness of guilt). Moreover, in this case relevant evidence was recovered in the course of the defendant's arrest. The jury were entitled to know how this evidence was recovered and identified with the defendant. The judge instructed the jury that testimony about the arrest was "not to be used by you as a basis for a verdict of guilty in the cases that we are now trying." Jurors are expected to follow such instructions. Commonwealth v. Stone, 366 Mass. 506 , 512-513 (1974). Commonwealth v. Ciminera, 11 Mass. App. Ct. 101 , 105 (1981). We conclude that there was no error in the admission of evidence describing the defendant's arrest.
(b) The defendant next objects to the admission in evidence of two .22 caliber guns, on the ground that they were irrelevant. Although the victim was not shot, .22 caliber shells were found in her apartment and car. Since it thereby appeared that one or both guns might have been used in the commission of the crimes of kidnapping or rape, the guns were relevant. Commonwealth v. O'Toole, 326 Mass. 35 , 39 (1950). Compare Commonwealth v. Banuchi, 335 Mass. 649 , 654 (1957) (when defendant was charged with arson, it was error to admit knife with which defendant allegedly threatened wife). It was not necessary to provide expert ballistics testimony linking the shells with the defendant's guns. There was testimony establishing that the shells and guns were of the same caliber, and that shells of the smae caliber were found in the defendant's apartment; the jury could infer that the shells were connected with the defendant's guns. See Commonwealth v. O'Toole, supra. The absence of expert testimony expressly linking the shells with the guns went only to the weight of the evidence. Cf. Commonwealth v. Ellis, 373 Mass. 1 , 5 (1977) (absence of murder weapon did not preclude admission of expert testimony comparing shell found near murder scene to shells allegedly fired from the same gun). Alternatively, the fact that the defendant asked McDonald to dispose of one of the guns was admissible to show consciousness of guilt.
Since the guns were relevant, it was within the judge's discretion to admit them in evidence if he found their probative worth outweighed their prejudicial impact, even though they might tend to show that the defendant had committed another crime. See Commonwealth v. Booker, 386 Mass. 466 , 469-470 (1982); Commonwealth v. D'Agostino, 344 Mass. 276 (1962). We see no basis on which to interfere with his decision. We note that the judge gave strong limiting instructions at the time the challenged evidence was introduced, which cured any possible error. See Commonwealth v. Stone, supra.
(c) The defendant's third objection is that the judge improperly allowed McDonald and Bens to testify to statements the defendant made which implicated him in other crimes. [Note 2] The jury could reasonably have inferred that these statements were admissions by the defendant to the murder of the victim in this case. As such they were relevant, even though they tended to implicate the defendant in other crimes. See Commonwealth v. Jackson, 384 Mass. 572 , 577 (1981); Commonwealth v. Roberts, 378 Mass. 116 , 125-126 (1979); Commonwealth v. Deschamps, 1 Mass. App. Ct. 1 , 3 (1972). The contested statements simultaneously represented admissions to the murder of the victim in this case and implicated the defendant in other crimes. "We conclude that, because the defendant, in his admission
(d) The defendant last objects to references by several police officers testifying at trial to prior trials of the defendant, and to a reference by an FBI fingerprint analyst to "prior-arrest fingerprint cards on file." These references were brief and scattered, and were not elicited in bad faith. In each case, the defendant either failed to object to the reference, or succeeded in having it struck, in several instances with appropriate and curative instructions. We conclude that the defendant was not prejudiced by these references to a previous arrest and trial.
2. Prior to the trial, the defendant moved that the Commonwealth be ordered to provide him with a sample of McDonald's hair. After discussion, the judge denied the motion without prejudice to the defendant's renewing it "f it becomes more material during the course of this trial." The defendant asserts that this was reversible error, because it unfairly denied him an opportunity to present evidence that might have buttressed his theory that McDonald killed the victim.
The defendant relies in part on his rights to cross-examination and compulsory process under the Sixth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. Washington v. Texas, 388 U.S. 14 (1967). See Chambers v. Mississippi, 410 U.S. 284, 294-295 (1973); Commonwealth v. Bohannon, 376 Mass. 90 , 94 (1978). However, the defendant has not referred us to any case which extends these Sixth Amendment guaranties beyond testimonial evidence to the production of real evidence of the type sought here. Moreover, the defendant has not shown that the judge prevented him from introducing this evidence at trial. The defendant failed to establish that he could not have obtained a hair sample from McDonald on his own. In addition, his failure to renew the motion at trial suggests that the defendant chose to abandon his attempt to get a hair sample from McDonald.
The defendant's reliance on Commonwealth v. Balliro, 349 Mass. 505 , 516-518 (1965), is similarly misplaced. In Balliro, we held that, under art. 12 of the Massachusetts Declaration of Rights, the Commonwealth could not prevent defense counsel from interviewing individuals who were being held by the Commonwealth as material witnesses. Here, the Commonwealth does not seek to prevent the defendant from obtaining access to evidence in the Commonwealth's control which should be available to both sides; rather, the defendant seeks to compel the Commonwealth to obtain evidence for him from an independent third party. Cf. Commonwealth v. Campbell, 378 Mass. 680 , 702 (1979) (prosecutor not obliged to obtain Department of Correction records for defendants). We will not extend Balliro to this situation, particularly absent a showing that the defendant was unable to obtain a hair sample on his own. But see Evans v. Superior Court, 11 Cal. 3d 617, 623-626 (1974) (in circumstances of case, denial of defense request for line-up was abuse of discretion).
3. In Estelle v. Williams, 425 U.S. 501 (1976), the Supreme Court held that it is unconstitutional to compel a defendant to stand trial in identifiable prison clothing. The defendant contends that, because the judge would not authorize funds to buy him new clothes, he was unconstitutionally compelled to appear in identifiable prison garb during the voir dire of prospective jurors. He argues that, since he had no proper clothes and was unable to pay for such clothing, the State had a constitutional obligation to provide him with funds to buy suitable clothing. See Bentley v. Crist, 469 F.2d 854, 856 (9th Cir. 1972). Cf. Commonwealth v. Tessier, 371 Mass. 828 (1977) (State not required to pay for indigent to have independent blood-alcohol test). The Supreme Court has not addressed this issue, nor has it applied Estelle v. Williams, supra, to pretrial proceedings. But see Boswell v. Alabama, 537 F.2d 100, 102-103 & n.7 (5th Cir. 1976); Gaito v. Brierley, 485 F.2d 86, 88-90 (3d Cir. 1973).
We do not consider these issues now, because we conclude, after a careful review of the record, that the defendant was not compelled to wear his prison clothes. It appears that the defendant had an adequate wardrobe; he claimed his clothing no longer fit him. The judge questioned this claim, and asked defense counsel to verify it and to explore the possibility of altering the defendant's clothing, before he authorized funds for new clothes. It was never clearly established that the clothing did not fit. After several discussions of the issue, defense counsel could report only that the clothes were "[t]oo small, I think." However, it appears that the defendant came to trial on one occasion wearing one of his old suits. We note that during voir dire defense counsel stated that the problem did not have to be resolved "today or tomorrow, but this case is going to take a long time." The entire record suggests that the judge tried to work with defense counsel to resolve the problem, and would have been willing to authorize funds if he had found it was necessary. Thus, even assuming that the State is obliged to provide suitable clothing during voir dire to a defendant unable to afford such clothing, we find no constitutional violation on this record. In any event, given the overwhelming evidence of the defendant's guilt, any error relating to the defendant's clothing was harmless beyond a reasonable doubt. See Estelle v. Williams, supra at 506-507; Chapman v. California, 386 U.S. 18, 21-24 (1967).
4. The defendant contends that extensive, prejudicial pretrial publicity deprived him of his constitutional right to a fair by "a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). Murphy v. Florida, 421 U.S. 794, 799 (1975). Commonwealth v. Jackson, 376 Mass. 790, 799 (1978). The existence of pretrial publicity does not alone indicate that an impartial jury cannot be empanelled. Dobbert v. Florida, 432 U.S. 282, 302-303 (1977). Murphy v. Florida, supra at 800. Nor need qualified jurors be "totally ignorant of the facts and issues involved." Id. Dobbert v. Florida, supra. Commonwealth v. Blackburn, 354 Mass. 200 , 204 (1968). The question is whether there are "any indications in the totality of circumstances that [the defendant's] trial was not fundamentally fair." Murphy v. Florida, supra at 799. Dobbert v. Florida, supra at 303.
The defendant submitted a pretrial exhibit containing approximately 216 newspaper and three magazine articles published between December 27, 1972, and September 1, 1976. In his findings on the motion for a new trial, the judge found that these articles reported the death of the victim in this case and of several other young women, the investigation into these deaths and speculation that one person might be responsible, the defendant's indictments in 1973 for four murders, the defendant's frequent changes of counsel, and the postponements of his trial. The judge found that these articles were generally factual in nature, and were not inflammatory. Moreover, most of the publicity had dissipated well before the defendant's trial; only five of these articles were published in 1975, and only three in 1976, the year of the trial. These factors have been considered significant in cases holding that a defendant was not unfairly prejudiced by pretrial publicity. See Murphy v. Florida, supra at 802; Commonwealth v. Smith, 357 Mass. 168 , 173 (1970); Commonwealth v. McLaughlin, 352 Mass. 218 , 225 cert. denied, 389 U.S. 916 (1967); United States v. Gullion, 575 F.2d 26, 30 (1st Cir. 1978).
The judge carefully questioned each prospective juror to determine whether he or she had gained any information about the case from the news media, and whether he or she was prejudiced thereby. See Commonwealth v. Gilday, 367 Mass. 474 , 492 (1975); Commonwealth v. Smith, supra at 172; United States v. Gullion, supra at 30-31. Cf. Commonwealth v. Vitello, 367 Mass. 224 , 236-237 (1975) (even in face of frequent and vigorous newspaper publicity up to the date jury were empanelled, sufficient to question venire and seated jury rather than each prospective juror individually). The record shows that, while some individuals knew that the defendant was charged with other crimes, most knew nothing about the case or knew only the defendant's name, the victim's name, and the charge. See Murphy v. Florida, supra; Commonwealth v. Smith, supra at 173. The jury were sequestered after empanelling. See Commonwealth v. Gilday, supra; Commonwealth v. Vitello, supra at 237. We conclude that the judge did not abuse his discretion in relying on these measures to secure an impartial jury. See Commonwealth v. Subilosky, 352 Mass. 153 , 158 (1967). There is no indication in the totality of circumstances that the defendant was denied a fair trial.
5. The defendant claims that the prosecution failed to disclose exculpatory evidence within its control, in violation of Brady v. Maryland, 373 U.S. 83 (1963). See Commonwealth v. Ellison, 376 Mass. 1 , 21 (1978). The disputed evidentiary items were a Brockton police report and portions of Archer's and Maupin's criminal records. The defendant admits that he filed only a general request for exculpatory evidence. He argues that this general request should, in effect, be combined with other motions filed requesting production of "state, county or police department reports," and of probation records of witnesses, and treated as a specific request for the disputed items. We disagree. A specific request must "provide the Commonwealth with notice of the defendant['s] interest in a particular piece of evidence." Commonwealth v. Wilson, 381 Mass. 90 , 109 (1980). See Commonwealth v. Pisa, 372 Mass. 590 , 595, cert. denied, 434 U.S. 869 (1977); United States v. Sheehan, 442 F. Supp. 1003, 1008 (D. Mass. 1977). Whatever the merits of the defendant's argument in other circumstances, the requests for broad categories of evidence (police reports and probation records) made here did not give the prosecutor such notice. Accordingly, we review the defendant's claims under the standard of materiality for a general request: "f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record." United States v. Agurs, 427 U.S. 97, 112 (1976). Commonwealth v. Collins, 386 Mass. 1 , 9-10 (1982). Commonwealth v. Wilson, supra at 107.
(a) In the course of their investigation of the death of one Sandra Ehramjian, officers of the Brockton police department interviewed one Adelle Swirsky, who worked at a jewelry store in Brockton. The officers' report states that "she can recall Jackson being in the store . . . around the Wednesday or Thursday before Christmas of '72." However, at the hearing on the defendant's motion for a new trial in the instant case, Mrs. Swirsky testified that the defendant was at the store sometime between 12 noon and 2 P.M. on Saturday, December 23, 1972.
There was no evidence that the district attorney's office for the northern district, which prosecuted the instant case, knew of the Brockton police report. As part of its attempt to coordinate and facilitate investigations into the deaths of several young women, including the victim in this case and Sandra Ehramjian, the Attorney General's office had collected over 2,400 pages of information. The Brockton police report was in these files under the name Sandra Ehramjian, and was disclosed at the defendant's trial for her murder. That trial took place after the trial in the instant case.
The police report was not exculpatory on its face in the instant case, since the victim was seen alive at 8 P.M. on Thursday, December 21. In any event, we conclude that disclosure was not required because the police report was not material. At best, it could have led to an alibi for a small portion of the afternoon of Saturday, December 23, 1972. In light of the overwhelming evidence of the defendant's guilt, this was not sufficient to raise a reasonable doubt that did not otherwise exist. United States v. Agurs, supra. [Note 3]
(b) The defendant contends that the prosecution failed to disclose portions of Archer's and Maupin's criminal records, which would have established that at the time of her testimony at the defendant's trial, Archer was charged with uttering a false prescription and falsely making a prescription, and that Maupin, under the alias Margaret Tatum, was under a suspended sentence on prostitution charges when she made statements to the police incriminating the defendant. The defendant argues that these records were exculpatory and material because they would have tended to show that Archer and Maupin had reason to cooperate with the Commonwealth in the instant case.
Evidence tending to show that important government witnesses are biased is exculpatory within the meaning of Brady v. Maryland, 373 U.S. 83 (1963). See Giglio v. United States, 405 U.S. 150 (1972); Commonwealth v. Ellison, 376 Mass. 1 , 22 (1978). However, the defendant does not suggest that the Commonwealth made any promises or inducements to Archer or Maupin based on the charges described in the records, and the judge found in considering the motion for a new trial that no such promises were made. Mere proof of the existence of criminal records falls far short of establishing bias.
Moreover, while evidence that tends to show that a government witness is biased is exculpatory, "[w]here it is . . . cumulative . . . courts generally reject the contention that such evidence is material . . . so long as the defense had an adequate opportunity to impeach the witness by other means" (citations omitted). Zeigler v. Callahan, 659 F.2d 254, 266 (1st Cir. 1981). See Commonwealth v. Bernard, 6 Mass. App. Ct. 499 , 508-509 (1978), S. C. 378 Mass. 24 (1979); United States v. Imbruglia, 617 F.2d 1, 7 (1st Cir. 1980); United States v. Shelton, 588 F.2d 1242, 1248 (9th Cir. 1978), cert. denied, 442 U.S. 909 (1979). Archer testified that, when she gave statements to the police, she was under arrest for the murder of Charlene Sustakowsky, and that the judge who dismissed the charges (in June of 1974) told her that nothing would happen to her as long as she cooperated. She testified that charges against her for receiving stolen goods and for prostitution and lewdness were also dismissed, in the former case with a promise from the police to "see what we can do." She also testified that she was a prostitute.
Archer's testimony established that she had good reason to wish to curry favor with the Commonwealth. Similarly, the jury heard testimony that Maupin was a prostitute and that she was involved in the Sustakowsky murder. In light of this testimony, the judge correctly concluded in his findings that Archer and Maupin were placed in their "proper setting," and that the disputed evidence "would have been . . . repetitious and cumulative." We cannot say that the records were sufficient to raise a reasonable doubt that did not otherwise exist. United States v. Agurs, supra.
6. The defendant argues that the judge impermissibly refused to allow him to impeach Maupin with her prior juvenile record. Davis v. Alaska, 415 U.S. 308 (1974). Commonwealth v. Ferrara, 368 Mass. 182 (1975). The record does not establish that the judge denied any such request, and, after the hearing on the motion for a new trial, the judge found that the request, if any, was not renewed after Maupin had testified. The defendant's failure to renew his request vitiates any alleged error. Commonwealth v. Adams, 374 Mass. 722 , 732-733 (1978), and cases cited. Moreover, we agree with the judge that the "record would have added little, if anything, to defendant's efforts to impeach the witness. There was ample testimony concerning her character and involvement in another murder." Thus, the defendant was not prejudiced by his inability, if any, to impeach Maupin with this record.
7. The defendant contends that he was denied the effective assistance of counsel because his trial counsel did not impeach Patricia Jackson with certain prior inconsistent statements, and did not cross-examine Maupin on the extent of her involvement in the Sustakowsky murder.
In evaluating a claim of ineffective assistance of counsel, we consider whether "the conduct of [the] lawyer was 'measurably below that which might be expected from an ordinary fallible lawyer.'. . . In addition . . . , our cases usually require a demonstration of prejudice resulting therefrom." Commonwealth v. Rondeau, 378 Mass. 408 , 412 (1979), quoting Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974). Commonwealth v. Daigle, 379 Mass. 541 , 544 (1980).
The defendant's trial counsel testified at the hearing on the defendant's motion for a new trial. He stated that he did not cross-examine Patricia Jackson with her prior inconsistent statement because it was basically consistent with her trial testimony, and he knew the prosecutor would rehabilitate the witness. He also testified that he did not probe Maupin on her involvement in the Sustakowsky murder because he thought it might reveal the defendant's involvement in other murders.
We conclude that defense counsel made sound tactical decisions not to bring out this information on cross-examination. The record reveals that defense counsel was well prepared throughout the lengthy and complex trial, and made every effort to put on the best possible defense. We agree with the judge's ruling on the motion for a new trial that defense counsel's "representation of his client was more than merely adequate. The defendant was very capably represented."
8. We have considered the defendant's claims at length, and conclude that they lack merit. After review of the entire record pursuant to G. L. c. 278, Section 33E, we find no basis on which to disturb the verdict of guilty of murder in the first degree.
Judgments affirmed.
Denial of motion for new trial affirmed.
*****
FOOTNOTES
[Note 1] The defendant was also sentenced to imprisonment at the Massachusetts Correctional Institution at Walpole, for a term of not more than ten nor less than five years for kidnapping, not more than thirty nor less than twenty years for rape, and not more than thirty nor less than twenty years for unarmed robbery, the sentences to be served concurrently after the expiration of the sentence for murder in the first degree.
[Note 2] The defendant challenges the admission of the following statements. Bens testified that, when he read to the defendant a copy of his indictment for the victim's murder, the defendant responded: "Wait until the spring thaw. You will find more." McDonald testified that he and the defendant discussed newspaper items which related the facts of the murder, and that the defendant responded: "There's couple they don't even know about." McDonald also testified that the defendant stated: "I was becoming more professional with every one . . . [;] the more you do a thing, the better you get at it. I was getting bolder and bolder."
[Note 3] The defendant argues that the report would have attacked Archer's credibility, because she testified that she was with the defendant at that time. His assertion is not supported by the record, as Archer testified that she "was not with him totally all that time" on Saturday, December 23, 1972. We also note that the judge found that the defendant called the store from Dorchester at 10 A.M. on December 23, and that this evidence would have been inculpatory, since it contradicted the defendant's alibi evidence which placed him in New Hampshire until at least 11 A.M. on that day.
COMMONWEALTH vs. ANTHONY J. JACKSON.
391 Mass. 749
February 6, 1984 - May 1, 1984
Present: WILKINS, LIACOS, ABRAMS, NOLAN, & LYNCH, JJ.
LYNCH, J.
On November 22, 1978, the defendant, Anthony J. Jackson, was convicted of murder in the first degree and kidnapping. He was sentenced to life imprisonment and a term of from nine to ten years to be served consecutively at the Massachusetts Correctional Institution at Walpole. Both sentences were to be served from and after any sentences previously imposed.
The defendant appeals, claiming that he was denied his right to a fair trial by an impartial jury (1) because of prejudicial pretrial publicity, and (2) because the trial judge failed to excuse for cause jurors who were allegedly biased in favor of the police. He also claims error in the refusal of the judge to exclude from evidence (3) an admission allegedly made by the defendant which linked him to four other murders, (4) testimony by police concerning the defendant's conduct at the time of his arrest, and (5) portions of two tape recorded telephone conversations. We conclude that the defendant's claims lack merit, and, after reviewing the entire record as required by G. L. c. 278, Section 33E, we conclude that he is not entitled to relief on any other ground. Accordingly, we affirm his convictions.
The facts are summarized as follows. The body of Damaris Synge Gillispie, a twenty-two year old college student, was found on February 3, 1973, in a heavily wooded area of Billerica. She had been strangled to death. The autopsy indicated that her death occurred on or about November 29, 1972, the date on which she was last seen by her roommate at their apartment in Cambridge.
The victim left her apartment at 6:45 P.M. to go to her job at the Jazz Workshop in Boston. She was wearing open-toed, cork-soled shoes, a hooded brown fur coat with the initials "DSG" embroidered on the lining, a moonstone ring made from one of her grandfather's cuff links, and a turquoise and silver ring. When she failed to return to the apartment by the next morning, her boyfriend reported her missing to the Cambridge police and notified her family.
The victim's family tried to locate her by publicizing her disappearance. They arranged for newspaper and television coverage and for the distribution of leaflets containing two photographs of the victim, her description, and a "hotline" telephone number at her apartment. Three telephones were installed with a recording system to record incoming telephone calls.
The defendant lived at 154 Washington Street in Dorchester with three women: Patricia Archer, Michelle Maupin, and Diane Dixon. According to Archer, who testified for the Commonwealth, she returned home at approximately 11:30 P.M. on the night of November 29, 1972. The defendant was at the apartment. He told Archer that he had killed someone and had been driving all night with a body in his car (a 1967 gold Cadillac automobile with a dark vinyl top). He asked her to help him clean up the blood in his car before it dried, which she did. The defendant subsequently gave Archer a pair of shoes which had cork soles, worn heels, and spots of blood on them. When she went to put the shoes in the defendant's car, she noticed a moonstone ring and a silver and turquoise ring in the ashtray.
The owner of a dry cleaners located about one block from the defendant's apartment testified that the defendant had left a hooded brown fur coat to be cleaned. It appeared to have blood stains in the lining. The initials "DSG" were embroidered on the inside of the coat. The owner stated that he told the counter clerk to give it back to the defendant because it was fur and could not be cleaned.
On December 6, 1972, the victim's brother and one of her roommates were manning the hotline telephone at the victim's apartment. Each of them received a telephone call from an unknown male who provided information about the victim's jewelry, her friends, and her family. During the first conversation, after some introductory remarks, the caller had said, "You know, I know the phone is tapped -- I'm hep to that, but I'm going to get in touch." During the second call, the caller had said, "I know the thing is being taped, but that's cool too." Numerous witnesses identified the voice of the caller as that of the defendant.
The defendant was arrested on unrelated charges on December 26, 1972. In connection with that arrest, he was convicted of armed assault with intent to murder and of unlawfully carrying a firearm. Testimony about the arrest was admitted at the trial in the instant case, over the defendant's objections.
Subsequent to his arrest, the defendant was visited by Donald McDonald, who testified for the Commonwealth. According to McDonald's testimony, the defendant told him to get a green metal box from the defendant's former wife and burn the contents, because among the contents were things that could convict him of murder. McDonald and the defendant's former wife threw the box from the Longfellow Bridge into the Charles River. It was subsequently recovered by the police and was found to contain over two hundred photographs of nude women, one of whom was the victim.
During a subsequent visit by McDonald, he and the defendant discussed a newspaper article depicting six murdered women. The defendant told McDonald, "The one in New Hampshire, that's not mine," and, "You know . . . I've got more respect for the FBI."
Shortly before the trial, a full page political advertisement promoting the then district attorney's campaign for reelection appeared in various newspapers in Middlesex county. This advertisement, as well as a leaflet distributed throughout Middlesex county, credited the incumbent district attorney with obtaining the first conviction against the "hitchhike murderer." The hitchhike murders received extensive publicity in late 1972 and 1973, as did the defendant's trials in 1976, 1977, and 1978. Publication of the advertisement and distribution of the leaflets took place after the judge had admonished counsel "not to discuss this matter with the Press. . . . I mean the entire district attorney's office." The defendant's motion to dismiss for prosecutorial misconduct was denied by the judge.
The judge conducted an extensive voir dire of the jury. It lasted seven days and involved eighty-eight potential jurors. Several jurors were excused for cause and the judge allowed the defendant and the Commonwealth each to exercise twenty-two peremptory challenges. The judge refused to exclude for cause six jurors peremptorily challenged later by the defendant who had expressed a predisposition to credit police testimony.
1. Pretrial publicity. The defendant argues that his right to a fair trial by an impartial jury has been jeopardized by extraneous and prejudicial influences. His argument breaks down into two distinct claims: first, that prosecutorial misconduct warranted the dismissal of the defendant's indictments, and, second, that the extensive pretrial publicity mandated a change of venue.
The judge acknowledged that "[a]t the very least there was lack of good judgment on the part of the prosecutor," in permitting the publication and distribution of the political advertisement which referred to the "hitchhike murders," despite the fact that neither the defendant nor the victim was mentioned by name. He ruled, however, that the advertisement did not add significantly to the problem of prejudicial publicity that already existed. Absent prejudice to the defendant as a result of the advertisement, the actions of the prosecutor did not so seriously impair the defendant's right to a fair trial as to warrant dismissal of the charges. "Whether an indictment should be dismissed upon the defendant's motion where the prosecution has acted improperly, turns primarily on the ability of the defendant to obtain a fair trial after, and in light of, the impropriety." Commonwealth v. Lamm Hue To, ante 301, 312-313 (1984). The record before us does not indicate that the political advertisement had any prejudicial effect in addition to or distinguishable from that caused by publicity due to the extensive media coverage of the hitchhike murders and subsequent trials. The defendant was not mentioned by name and, in some versions of the advertisement, the paragraph concerning the defendant was only one of several. Although it is possible that some jurors might have identified the defendant with the hitchhike murders as a result of this text, it is more likely that any knowledge of the jurors that the defendant was connected with other murders arose from other pretrial publicity.
The defendant argues however that the prosecutorial misconduct involved here warrants the sanction of dismissal of the indictments whether or not the defendant was prejudiced. He relies on our holding in Commonwealth v. Manning, 373 Mass. 438 (1977). In that case, Federal agents talked to the defendant and criticized the way his lawyer was handling his defense. Although the defendant's relationship with his lawyer was not jeopardized and there was no actual prejudice, this court ruled that dismissal of the indictment was appropriate. The purpose of the sanction was not to rectify harm done to the defendant, because there had been none; the point was to discourage government agents from such deliberate and insidious attempts to subvert the defendant's right to a fair trial by impairing his relationship with his attorney. The misconduct in Commonwealth v. Manning, supra at 444, was "so pervasive as to preclude any confident assumption that proceedings at a new trial would be free of the taint." The deliberate actions of the prosecutor in the instant case, while ill-advised, and possibly contrary to the provisions of S.J.C. Rule 3:07, DR 7-107, as appearing in 382 Mass. 788 (1981), [Note 1] and II ABA Standards for Criminal Justice, Fair Trial and Free Press, Standards 8-1.1, 8-2.1 (2d ed. 1982), do not rise to the level of seriousness of the misconduct in Commonwealth v. Manning, supra, and do not warrant the ultimate sanction of dismissal of the indictments.
The defendant also argues that the extensive pretrial publicity about the defendant and other crimes with which he was associated (publicity due only in small part to the advertisement published by the district attorney's reelection campaign) mandated a change of venue. The existence of pretrial publicity does not alone indicate that an impartial jury cannot be empanelled. Dobbert v. Florida, 432 U.S. 282, 302-303 (1977). Jurors need not be absolutely ignorant of the facts and issues involved in a case to be able to make an impartial judgment. Id. The judge carefully questioned each prospective juror to determine whether he or she had any information about the case, either from the news media or from conversations with other prospective jurors, and whether he or she had formed an opinion or was prejudiced thereby. The record shows that most jurors had no prior knowledge of the case. [Note 2] When answers were unclear or indicated knowledge, the judge asked further questions. He also made further inquiries at the request of counsel. None of the jurors selected indicated that he or she had an opinion about the case which would affect his or her ability to consider the evidence impartially. "The dominant consideration . . . is not the views to which the jurors have been exposed; it is what is their commitment, if any, in their own opinions, or their own expressions." Commonwealth v. Subilosky, 352 Mass. 153 , 158-159 (1967). See Commonwealth v. Gilday, 367 Mass. 474 , 491-492 (1975). The judge has broad discretion to decide, after conducting the voir dire, whether jurors have been contaminated by extraneous information. Commonwealth v. Brown, 386 Mass. 17 , 30 (1982). We conclude that the judge did not abuse his discretion in relying on the measures he took to ensure the defendant an impartial jury. There is no indication in the totality of the circumstances that the defendant was denied a fair trial because of pretrial publicity. Murphy v. Florida, 421 U.S. 794, 799 (1975).
2. Juror prejudice. During the jury selection process, the judge inquired of each prospective juror whether he or she would be more likely to believe the testimony of a police officer than that of a lay witness. The judge found indifferent six jurors who indicated a predisposition to credit police testimony, and the defendant exercised a peremptory challenge to excuse each one. The defendant argues that the judge's failure to excuse these jurors for cause violated his right to a fair and impartial jury.
The record shows that the judge was thorough in his examination of the six jurors who expressed some disposition to give greater credit to police testimony. Four of the six jurors gave detailed explanations of their predisposition, and, after extensive questioning of all six by the judge, each indicated that he or she could follow instructions to consider the evidence impartially. The judge did not abuse his discretion in refusing to excuse these jurors for cause.
By statute, a judge may have an obligation to examine prospective jurors fully with respect to possible bias or prejudice. G. L. c. 234, Section 28 [Note 3] Whether a juror should be excused on the basis of the results of an examination is within the discretion of the judge. Commonwealth v. Hobbs, 385 Mass. 863 , 873 (1982). Even if a juror originally indicates that he or she might give more weight to the testimony of a police officer than to that of a lay witness, such a response would not necessarily disqualify a person. Cf. Commonwealth v. Nickerson, 388 Mass. 246 , 249 (1983). See People v. Macias, 44 Colo. App. 203, 205 (1980); State v. Baldwin, 388 So. 2d 664, 671 (La. 1980); State v. Williams, 617 S.W.2d 98, 99 (Mo. Ct. App. 1981). Contra Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978).
3. Evidence of other crimes. The defendant contends that it was reversible error for the judge to allow Donald McDonald to testify about a conversation he had with the defendant regarding a newspaper article which contained pictures of six murdered women. McDonald testified that the defendant said, "The one in New Hampshire, that's not mine. You know me better than that. I've got more respect for the FBI." The argument that this testimony should have been excluded because the admission, which is obviously relevant to the issue of who murdered Gillispie, also constitutes evidence of the defendant's participation in other murders, was raised and rejected in Commonwealth v. Jackson, 384 Mass. 572 , 577-579 (1981), and we will not go over that ground again.
Here, the defendant also objects to the admission of the testimony because, he alleges, it was not clear that the defendant and McDonald were referring to the same newspaper article and the testimony, therefore, lacked sufficient indicia of reliability. It is clear from the transcript of the voir dire that the judge was satisfied that the prosecution had laid a sufficient foundation for the admission of this evidence. Although the article was not physically present during the conversation between the defendant and McDonald, there was testimony from which the jury could infer that they were referring to the same article, the only one with pictures of the six slain women. See Commonwealth v. Jackson, 384 Mass. 572 , 578 n.1 (1981). The decision to admit the evidence on the basis of this foundation was within the discretion of the trial judge. See
Commonwealth v. Williams, 378 Mass. 217 , 229 (1979); Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660 , 673 (1980).
4. Evidence of the defendant's arrest. The defendant's claim that evidence of the chase and shoot-out with police on December 26, 1972, which preceded his arrest should have been excluded has also been before this court before. See Commonwealth v. Jackson, 388 Mass. 98 , 103 (1983). There we said that the evidence of flight was properly admitted to show the defendant's consciousness of guilt. Id. The defendant attempts to distinguish the present case on the basis of the proximity of the flight to the time fixed for the murder. In Commonwealth v. Jackson, 388 Mass. 98 (1983), the murder was committed between December 22 and December 24, 1972. The arrest occurred at the most four days later. On the other hand, the murder of Gillispie was estimated to have occurred on November 29, 1972, approximately one month prior to the arrest. The defendant argues that the probative worth of this evidence is undercut because the one-month hiatus and the intervening murder of another woman suggest that, if the defendant was feeling guilty on December 26, it was not because of the Gillispie murder. The relevancy of evidence of flight in such circumstances is within the discretion of the trial judge and his finding will not be disturbed unless it is palpably unreasonable. See Commonwealth v. Sawyer, 389 Mass. 686 , 700 (1983); Commonwealth v. Booker, 386 Mass. 466 , 469-470 (1982), and cases cited. It was not unreasonable for the judge in this case to conclude that the defendant had in his mind on December 26 all of the crimes for which the police might be interested in locating him.
The defendant's objection that this testimony should not have been admitted because it was prejudicial in that it portrayed the defendant as a "guntoting desperado" and described the defendant's attempts to persuade a woman to get into his car is also without merit. "Balancing the probative value of evidence against its possible prejudicial impact is a task committed to the discretion of the judge." Commonwealth v. Jackson, 388 Mass. 98 , 103 (1983). We see no reason to disturb the judge's decision to admit the evidence.
5. The admission of tape recorded telephone conversations. Finally, the defendant argues that the judge committed reversible error when he admitted in their entirety recordings of two telephone calls made by the defendant to the victim's brother and roommate. These recordings were the subject of our decision in Commonwealth v. Jackson, 370 Mass. 502 (1976), where we held that they were lawfully recorded under G. L. c. 272, Section 99, and that portions of them could be admitted in evidence. The defendant argues that what we held to be admissible in 1976 was only that part of each tape after the defendant acknowledged that he knew the telephone call was being recorded. Id. at 505. Even if this interpretation of our holding is correct the admission of both tapes in their entirety does not constitute reversible error. First, the defendant did not make timely objection to the admissions. On the third day of the trial the recordings were played twice before the jury and were admitted as exhibits without objection. The record shows that counsel was aware that portions of the recordings had been suppressed. On the fifth day, the defendant moved for a mistrial and to strike the suppressed portions of the recordings. "[W]hen something occurs which constitutes the basis for requesting a mistrial it must be called to the attention of the judge immediately, or when the aggrieved party first learns of it, . . . If this is not done seasonably, the incident may not be availed of later as the basis for a claim of appellate review." Commonwealth v. DiPietro, 373 Mass. 369 , 387 (1977). Furthermore, the portion of each call that occurred before the defendant stated that he knew the calls were being taped is quite brief and contains no conversation of substance that would be prejudicial to the defendant. Therefore, the admission of those portions of the telephone calls not dealt with in Commonwealth v. Jackson, 370 Mass. 502 (1976), did not prejudice the defendant.
6. Review under G. L. c. 278, Section 33E. We have considered the defendant's claims at length and conclude that they lack merit. After review of the entire record pursuant to G. L. c. 278, Section 33E, we find no basis on which to disturb the verdict of guilty of murder in the first degree.
Judgments affirmed.
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FOOTNOTES
[Note 1] DR 7-107 states, in pertinent part: "(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:
"(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused.
". . . .
"(D) During the selection of a jury or the trial of a criminal matter, a lawyer . . . shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial . . . ."
[Note 2] Although there had been an immense amount of publicity at the time of the murders in 1972 and 1973, and then around the time of the subsequent trials (see Commonwealth v. Jackson, 384 Mass. 572 [1981], and Commonwealth v. Jackson, 370 Mass. 502 [1976]), most of the publicity had dissipated before the beginning of the instant trial; the only articles published around the time of the trial concerned the empanelment of the jury.
[Note 3] General Laws c. 234, Section 28, as amended through St. 1975, c. 335, states in pertinent part: "f it appears that, as a result of the impact of considerations which may cause a decision or decisions to be made in whole or in part upon issues extraneous to the case, including . . . possible preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent, the court shall . . . examine the juror specifically with respect to such considerations, attitudes . . . [or] opinions."
ANTHONY JACKSON VS. KAY LONGCOPE & another. [Note 1]
394 Mass. 577
February 6, 1985 - April 17, 1985
Present: HENNESSEY, C.J., WILKINS, NOLAN, LYNCH, & O'CONNOR, JJ.
WILKINS, J.
The plaintiff, Jackson, was subject to substantial criminal sentences, including a life sentence for murder in the first degree, when on May 20, 1977, the Boston Globe, a newspaper published by the corporate defendant, printed an article allegedly libelous of Jackson and written by the defendant Longcope. We conclude that Jackson was libel-proof at the time of the publication and, therefore, affirm the summary judgment entered for the defendants.
The allegedly libelous article appeared in the Boston Globe approximately one month after a Plymouth County jury found Jackson not guilty of the 1972 rape and murder of a twenty-one year old Cambridge woman. The article set forth statements from various jurors as to why the jury had returned verdicts of not guilty. The article pointed out that the jurors did not know that in December, 1976, Jackson had been convicted of the murder, rape, unarmed robbery, and kidnapping of Ruth A. Hamilton, a twenty-three old art teacher, or that he had been convicted in June, 1976, of crimes associated with a shootout with Cambridge police officers. The article stated that the shootout occurred "during a stolen car chase." It recited that Jackson was under indictment for the slaying of two other young women. It referred to a series of 1972 slayings as "the hitch-hike murders," adding that all the women were raped and strangled.
On May 24, 1977, Jackson wrote a letter to the defendant Longcope demanding a correction of the statement that the shootout with the Cambridge police occurred during a stolen car chase and the statement that all the victims of "the hitch-hike murders" were raped and strangled. He asserted that the car was not stolen, that not all the hitch-hike murder victims were raped, and that not all were strangled. Jackson brought his action in May, 1979. In his amended complaint, filed in July, 1979, Jackson alleged that substantially the same statements were untrue. The amended complaint alleged libel and a now abandoned claim of invasion of privacy.
The defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The motion judge accepted the recommendation of a special master that the motion to dismiss should be treated as a motion for summary judgment and, so treated, should be allowed. We transferred Jackson's appeal here on our own motion.
We assume in Jackson's favor that the newspaper article was libelous and that the material before the motion judge did not warrant the conclusion that all the libelous statements in the article were substantially true. On the other hand, Jackson's considerable criminal record, as to which there is no dispute of material fact, bars him from recovering damages for libelous statements concerning his criminal activities. For the purposes of this case, we shall rely only on Jackson's criminal record and other circumstances established at the time of the libelous publication. We thus leave open the question whether events subsequent to libelous publication, proving a plaintiff's serious criminal misconduct prior to the publication, may be considered in determining whether a plaintiff is libel-proof.
This court has had little occasion to consider whether a particular libel plaintiff may have such a notorious reputation that he is incapable of recovering damages in a libel action, and, therefore, may be characterized as libel-proof. In Lyons v. New Mass Media, Inc., 390 Mass. 51 , 61 (1983), the defendants argued that the plaintiff was libel-proof as a matter of law because of prior adverse publicity, but this court rejected the argument on the facts presented. The principle has been recognized elsewhere and has been applied to justify dismissal of defamation actions where the substantial criminal record of a libel plaintiff shows as a matter of law that he would be unable to recover other than nominal damages. See Cardillo v. Doubleday & Co., 518 F.2d 638, 639-640 (2d Cir. 1975); Wynberg v. National Enquirer, Inc., 564 F. Supp. 924, 928 (C.D. Cal. 1982), and cases cited. As the court said in the Wynberg case, "Depending upon the nature of the conduct, the number of offenses, and the degree and range of publicity received, there comes a time when the individual's reputation for specific conduct, or his general reputation for honesty and fair dealing is sufficiently low in the public's estimation that he can recover only nominal damages for subsequent defamatory statements." Id. The principle might apply to a habitual criminal (see Cardillo v. Doubleday & Co., supra), or to a criminal notorious for one criminal act (see James Earl Ray v. Time, Inc., 452 F. Supp. 618 [W.D. Tenn. 1976], aff'd mem., 582 F.2d 1280 [6th Cir. 1978]).
Although a libel plaintiff who cannot prove damages is normally entitled to an award of nominal damages if he establishes that he was libeled (see W.L. Prosser & W.P. Keeton, Torts Section 116A, at 845 [5th ed. 1984]), courts have generally considered First Amendment rights as predominating in cases of this character and have denied a libel-proof plaintiff the right to try to prove his case and recover simply nominal damages. See Cardillo v. Doubleday & Co., supra at 640, quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974); Wynberg v. National Enquirer, Inc., supra at 928; James Earl Ray v. Time, Inc., supra at 622. It has been suggested that, under First Amendment principles, at least as to a public figure, such as Jackson, proof of actual damages may be required and thus nominal damages may not be awarded. See W.L. Prosser & W.P. Keeton, Torts, supra; Restatement (Second) of Torts Section 620 comment c (1977).
In any event, we accept the principle that a libel-proof plaintiff is not entitled to burden a defendant with a trial in which the most favorable result the plaintiff could achieve is an award of nominal damages. Although we accept the principle that a convicted criminal may have such a poor reputation that no further damage to it was possible at the time of an otherwise libelous publication, it must be clear, as a matter of law, that the reputation of a plaintiff, even a convicted felon, could not have suffered from the publication of the false and libelous statements. See Marcone v. Penthouse Int'l, Ltd., 577 F. Supp. 318, 333 (E.D. Pa. 1983), rev'd on other grounds sub nom. Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072 (3d Cir. 1985); Sharon v. Time, Inc., 575 F. Supp. 1162, 1168-1169 (S.D. N.Y. 1983). We turn, therefore, to the question whether the plaintiff Jackson is libel-proof.
By the time of the publication challenged by Jackson, he had already been convicted of various crimes. [Note 2] In 1976, Jackson had been found guilty of armed assault with intent to murder and unlawful carrying of a firearm, arising out of a 1972 running gunfight with Cambridge police officers. We affirmed that conviction. Commonwealth v. Jackson, 376 Mass. 790 (1978).
Later in 1976, Jackson had been convicted of murder in the first degree, kidnapping, rape, and unarmed robbery of a woman in December, 1972. Jackson was sentenced to various terms of incarceration for these convictions. He received a sentence of life imprisonment without the possibility of parole for the murder conviction. On both the conviction for rape and unarmed robbery, he was sentenced to not more than thirty nor less than twenty years, the sentences to be served concurrently after the expiration of the sentence for murder in the first degree. We affirmed these convictions. Commonwealth v. Jackson, 388 Mass. 98 (1983). In that appeal, Jackson claimed that pretrial publicity had deprived him of a fair trial. He submitted an exhibit to the trial judge in that case setting forth scores of newspaper articles published between December 27, 1972, and September 1, 1976. These articles reported, among other facts, the deaths of the victim and several other other women and the defendant's indictment for four murders. Id. at 109. [Note 3]
We know from this record of Jackson's criminal activity that, at the time of the libelous publication in this case, Jackson had been convicted of numerous serious crimes. He was serving a life sentence for murder, without the possibility of parole, with consecutive sentences of long duration to be served after the expiration of that life sentence. He was under indictment for other murders. There had been substantial publicity concerning the various crimes with which Jackson was charged and for which he had been convicted. Jackson himself in his complaint challenged as factually wrong only the newspaper article's statements that the shootout with the Cambridge police involved a stolen car chase and that all the victims of the 1972 slayings were raped and strangled. Jackson claimed he was not involved in a stolen car chase, that in two other cases there were no rape charges pending, and not all the women were strangled. By his silence concerning the notoriety of the "hitchhike murders," his prior convictions and sentences, and the stated pendency against him of two other murder indictments, Jackson concedes that he had been convicted of one of the "hitch-hike murders," had been sentenced to long terms of incarceration in the Massachusetts Correctional Institution at Cedar Junction, and had two other murder indictments pending against him. In the circumstances, Jackson was libel-proof.
Jackson complains that the motion judge improperly treated the defendants' motion to dismiss under Mass. R. Civ. P. 12 (b) (6), as a motion for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974), without giving him a reasonable opportunity to present opposing material, by affidavit or otherwise. See Stop & Shop Cos. v. Fisher, 387 Mass. 889 , 893 (1983); White v. Peabody Constr. Co., 386 Mass. 121 , 126-128 (1982). Jackson discussed the libel-proof issue in his memorandum in opposition to the defendants' motion to dismiss, which was filed in response to the defendants' memorandum in support of their motion to dismiss. We see no basis for concluding that Jackson was prejudiced or unfairly surprised by the judge's treatment of the matter under rule 56, nor does Jackson indicate what he could have offered to counter the facts considered, which are basically facts of which the judge took judicial notice.
Judgment affirmed.
*****
FOOTNOTES
[Note 1] Globe Newspaper Company.
[Note 2] It is proper on a motion for summary judgment to recognize those facts of which a judge may take judicial notice, including criminal cases involving a party. See 10A C.A. Wright & A.R. Miller, Federal Practice and Procedure Section 2723 (1983); Matter of Welansky, 319 Mass. 205 , 210 (1946); Flynn v. Brassard, 1 Mass. App. Ct. 678 , 681 (1974).
It may not have been necessary to treat the motion to dismiss as a motion for summary judgment. The only facts outside the complaint that are involved are those of which judicial notice may be taken. It seems reasonable to take judicial notice of facts when considering a motion to dismiss under Mass. R. Civ. P. 12 (b) (6). See 5 C.A. Wright & A.R. Miller, Federal Practice and Procedure Section 1367, at 685 (1969), discussing Fed. R. Civ. P. 12 (c) (judgment on the pleadings).
[Note 3] This court has dealt with other matters involving Jackson. In June, 1976, we upheld a lower court decision to permit the introduction in evidence of certain incriminating, recorded telephone conversations between Jackson and the brother of Damaris Synge Gillispie, for whose murder and kidnapping the defendant had been indicted in February, 1973. Commonwealth v. Jackson, 370 Mass. 502 (1976). After the publication involved in this case, Jackson was convicted of these charges in 1978, and we affirmed the convictions. Commonwealth v. Jackson, 391 Mass. 749 (1984). In our opinion, we noted that "[t]he hitchhike murders received extensive publicity in late 1972 and 1973, as did the defendant's trials in 1976, 1977, and 1978." Id. at 753.
In April, 1976, we considered Jackson's challenges to lower court rulings concerning his representation by counsel with respect to his April, 1973, indictment for the murder of Ellen Ann Reich. Jackson v. Commonwealth, 370 Mass. 855 (1976). Jackson was convicted of the Reich murder in 1978, after the publication involved in the case before us, and we upheld the conviction. Commonwealth v. Jackson, 384 Mass. 572 (1981).
Finally, in Jackson v. Commissioner of Correction, 388 Mass. 700 (1983), we upheld a decision of the Commissioner of Correction to transfer Jackson from a medium security correctional facility to a maximum security facility. In that opinion, it appears that in the summer of 1976 approximately eight inmates of the Massachusetts Correctional Institution at Cedar Junction entered Jackson's cell, beat him, and poured a disinfectant in his eyes. Id. at 701. Jackson feared for his safety if returned to the prison at Cedar Junction. Even in that segment of society, Jackson appears to have had a reputation not universally respected.
