Commonwealth v. Dickerson

Commonwealth Dickerson. fired,

gested the rifle when was inverted length strengthened arm’s that conclusion. measurements griev- might despite That the victim all five shots fire shot, ousness of her wounds less One plausible. was than minimum, a probability at shown considerable have been fired victim on her There lay when the back. proof after by movement the victim the first shot and the could well she theory decline to credit repeat- shot herself in kitchen and then shot herself edy as she was backward into her final stumbling position. the whole

Examining record as G. required L. 33E, no mitigate we find reason to results verdict conviction.

Judgment affirmed. vs. Lewis H. Dickerson.

Commonwealth Suffolk. November 1976. June 1977. Hennessey, C.J.,

Present: Braucher, Quirico, Kaplan, Wilkins, Liacos, Abrams, & JJ. Homicide. Practice, Criminal, Search and Seizure. Identification. jurors, Charge jury, Examination of Jury Verdict. and Jurors. Limitation at a murder trial of defense counsel’s examina- concerning tion description persons present number and at a hospital required identification of the defendant this court to exam- ine the case aas one-on-one confrontation. [787-790] There was no suppress error the denial of a motion out-of- court hospital being identification of the defendant while was he at a treated gunshot shortly wounds after the crime the con- where place frontation took in the immediate aftermath of the crime part police investigation of reasonable of the crime and where the previously given police description witness had of the assailant within a [790-791]; short time of the incident nor was there error in suppress denial of a motion to an identification of the defendant probable hearing [790-791], witness at cause v. clothing suppress no in the a motion to There was error denial of seized from the defendant where the seizure was incident to a valid arrest and was for which the arrest had been made. evidence crime [791-792] judge excusing in in a criminal case did not abuse his discretion juror the a the defendant had declared himself content with after panel. [792-795] degree, charging trial murder first even At the of an indictment in the though judge’s charge the was incorrect in his statement to the felony reducing they might a of circumstances which consider in degree, to in the was harmless be- murder error yond charge favorable to the a doubt was more reasonable where J., Quirico, entitled. defendant than that to which he was [795-798] Kap- result, concurring. Braucher, J., concurring in with whom lan, J., joined. Superior in the Court found and returned Indictments April 17, 1975. on Roy, tried J. cases were before

Maurice F. Ford for defendant. McKenna, Attorney, Jr., Robert Assistant District J. for the Commonwealth. brings appeal C.J. The defendant

Hennessey, on 33A-33G, from convictions under G. L. c. his §§ in the armed charging indictments first person. his robbery, unlawfully carrying handgun on to be He was to concurrent life sentences sentenced two Institution at served at the Massachusetts Correctional robbery convictions and on the murder and armed Walpole and one-half sentence of two to an additional concurrent conviction. years handgun possession to three on the following appeal: raises issues in this The defendant hearing defendant’s a voir on the whether, during dire (1) to and out-of-court identifica- suppress motion in-court of wit- tions, excluding erred in examination to who were area respect persons nesses with other identified; whether (2) the defendant was in which denying suppress defendant’s motion judge erred in in de- clothing seized suppress identification and warrant; whether presence (3) without a fendant’s motion; excluding juror his own judge erred in charging respect erred whether (4) Commonwealth v. Dickerson. making

factors their jury might which the consider determination mur- as whether the offense constituted der in the first or second

We conclude that (1), there was no error as to issues (2), and (3) above. As to issue we Conclude there was but error, beyond it was harmless reasonable doubt. we Consequently, judgments. affirm the

We summarize the presented. evidence The incident question Variety occurred on at February Cy’s & Package Store Present store Dorchester.

evening Cyril Miller, store, were owner Eva Dodds, a assisting friend who was him as a clerk. At the rear the store was a beer chest above which was a loft area which was located square peephole a four-inch through which the front area of the store be ob- could served.

Miller stationed approx- himself the loft area at p.m. imately 5 day on the re- question while Dodds mained on duty in the front of the store. About 10:30 p.m. Miller heard someone ask Dodds for a pint of Irish Wild Rose wine. About a minute he voice say later heard a loudly, “All right. Give cash. up up.” Give it Miller immediately looked through peephole and observed two men in man, wearing the store. He saw one green a army jacket a poncho face, hood which obscured his taking the from cash an register, estimated $752.10. man, The second described Miller light-skinned as a man, black feet eight five inches tall with a moustache and small wearing beard and a dark blue or black coat and knit cap a and subsequently identified Miller as the defendant, standing was a counter from across Dodds pointing gun a at her chest. He observed the defendant through the minute peephole half a to one minute reaching shotgun while for a kept which he in the loft. away grab gun, As he he turned heard shot. He a immediately heard Dodds scream and thrust his shotgun through He peephole fired. whether unsure had hit but anyone, subsequently he he torn found some from lining nylon jacket caught a blue in a wire mesh v. Dickerson. several wall, were imbedded

grating behind which men peephole, shotgun pellets. Miller then left gunshot wound fled. Dodds died as a result chest. fewa arrived at the scene within police Boston the two

minutes, description gave and Miller them de- broadcast Maloney men as Officer Patrick above. men one of the scription, including information that Shortly there- suffering gunshot have been from wounds. from after, report received a Maloney about 11:30 p.m., wounds police suffering gunshot detective that a man Maloney City Hospital. had admitted himself to Boston immediately to the partner and his Detective Tower went men, and one and learned that two one white hospital gun- black, had been admitted for treatment recently the defend- shot wounds. Hospital records indicated p.m. suffering multiple from ant was admitted at 10:50 gunshot of the left shoulder. wounds police brought hospital by

Miller another Maloney midnight. accompanied officer about He was for the Unit, holding area and Tower the Shortell unit, defendant, black man who had X-ray where the wounds, had gunshot admitted himself for treatment man Miller identified defendant as the been taken. identifica- who had Eva Dodds. will shot We discuss our detail in connection with procedure greater tion the defendant with re- discussion of the issues raised gard suppress to his motion to identification. immediately

The under arrest placed defendant was fol- During following questioning identification. warnings the defendant’s giving lowed the of Miranda talk, Maloney seized as evi- willingness expression bed which bag found at the foot of defendánt’s dence at the time of his clothing wearing contained the he was was, among In other hospital. bag to the admission jacket pad- a blue with shredded apparel, nylon items microscopic Subsequent the area of the wound. ding in jacket padding indicated that matched analysis found at store. padding the shreds of Commonwealth v. Dickerson. em- was was one of alibi. defendant

The defense wage approx- body shop full at an auto at a ployed time crimes day of the a week. He worked on the imately $170 The defend- after taxes. paid approximately and was $125 then work and shopping ant testified that he went after girl walking He was his stopped and had a few beers. p.m. fight he saw a or 10:30 when friend’s house around 10 He testi- to watch. progress stopped on the street and gun fight got involved in the fied that one of men hit the defendant. shots, and fired one of which several with whom he hospital by He was driven to the a woman nearby emerged from a slightly acquainted who had store. the cir-

1. The issues. We first discuss identification cumstances in which the defendant was identified Miller, hearing dire developed in the course of voir sup- held motion to the trial on the defendant’s press. hospital, When Miller arrived at the he was accom- panied by Maloney and Tower to the Shortell Unit. Maloney told Miller him taking were to a room in which there a man who had been admitted treatment of gunshot wounds. He asked Miller to enter the room alone and patients saying look at the without tell anything while room and then to return and him identify anyone. whether he could The officers waited outside room. room,

At the Miller approx- time entered the there were imately wearing five to seven patients lying beds all hospital johnnies and Maloney covered with sheets. testi- during fied dire seeing voir that he remembered one other patient black in the room. Miller testified that there have been or four It possible three black men. was not tell on visual men in observation of the the room which suffering them was from gunshot wounds. lying defendant was on bed on the left side Miller around, room. looked and observed the defendant. He returned outside to the officers and told them that he he thought Maloney had seen the man. told Miller that he had to be identification, sure his whereupon Ma-

Commonwealth v. Dickerson. Miller loney together. and Miller entered the room went bed, with the officer to the defendant’s walked around looking at defendant, Maloney the and then told he was sure that the was the man he had shot defendant at in his store. de-

The defendant was also identified Miller at the was probable hearing fendant’s cause when the defendant standing hearing alone in probable the dock. The cause initially had been from date when continued its scheduled judge granted the the for an request defendant’s in-court necessary lineup. Defense counsel undertook to make the arrangements for the lineup on continued date. When probable held, cause no was con- hearing lineup ducted arrangements because the had been made and people because there insufficient in the court room were on the date of hearing lineup possible. to make a

The defendant moved to trial prior suppress out-of-court and in-court The judge identifications. denied motion, making findings his on ap- the record. He parently assumed that in question the confrontation showup, one-on-one but he the motion denied based findings his nothing there was or suggestive coercive in the procedures employed by police.

The defendant regard raises two issues with to the de- suppress nial motion to identification: whether (1) erred in limiting scope during examination hearing, the voir dire whether (2) the confrontations were suggestive so as to constitute a violation of due process. We find no reversible error.

Even considering permitted broad discretion judge in controlling scope cross-examination, we see good no reason judge’s here limitation of examina- tion related circumstances surrounding hospital con- frontation. Defense counsel attempted to examine wit- nesses respect to the number and descriptions people in at the time of hospital the confrontation and confrontation, the area long both in the corridor to the leading itself, room in the room but he was beyond opportunity establishing denied such the limited 789 Mass. 783 Commonwealth Dickerson. v. patients seven other five to

information that there were The black. of whom were room, in the one more had looked Miller closely of how exploration also limited in the room. people at other major, if plays a eyewitness often

Since identification offenses, determinative, of criminal not a role in trial great are and dangers and the of mistaken identification to allowed defendants must be tragic, the result possibly totality hearing during voir dire fully examine description circumstances, certainly presence circumstance. persons important of other in the area is an confrontation In case of unfairness suggestive the circum- development to full process, failure allow might well warrant surrounding stances the identification guilt. setting the verdict aside imposed the limitations

Nevertheless because, fatal, taken as a one-on-one this case are not even process was of a confrontation, the entire identification repeatedly up- and in which we have type circumstances of unfairness which warrant held as free from elements judge’s of the evidence. refusal allow suppression The hearing during of witnesses the voir dire full examination persons of other who were respect descriptions the confrontations occurred present the area fair other than leaves this court with no alternative on examine the case a one-on-one basis. general our of one-on-one con disapproval

We reiterate Barnett, frontations. See Commonwealth v. denied, “a However, 429 U.S. 1049 (1977). cert. process

claimed violation due of law the conduct depends totality of the circum a confrontation Denno, it.” Stovall surrounding v. 388 U.S. stances hospital governed at the (1967). identification Barnett, supra. in Commonwealth holding our recent in Barnett also took in a hos- place confrontation The witness and the defendant had both pital setting. in the incident and both were taken to the been wounded hospital. emergency After treatment was rendered same both, arranged to have the litter police officers witness’s

placed informing next to that of the defendant without confrontation, the witness of the impending the wit- ness immediately identified the defendant as the man who had shot him. Barnett, supra in “A

We stated at 91-92: ‘one-on-one’ confrontation with a in disfavored person custody gen- is of erally as a basis identification ... but such of showups suspects eyewitnesses of regularly crimes have been held permissible police promptly when conducted after criminal course, Of the circum- event. where so exigent waiting stances are as to exclude to arrange a very clear____Exigent the case or lineup, special is circumstances, are not however, prerequisite____ [T]he police procedure showups of arranging recognized these is justified as usual and need natural and for efficient crime____To of investigation immediate aftermath have the suspect witness view the while his recollection or image fresh, mental of the offender is still before other images crowd attempts impres- his to verbalize his sions original can themselves distort picture, provides good the witness with opportunity for an accurate identi- fication____The general view that speedy such confronta- permissible accepted jurisdiction tions are elsewhere.” Barnett,

In us, the case now before as there was a danger that of hospital setting the confrontation was suggestive, inherently but there are other factors which possible override the suggestiveness setting. of the Two factors given great weight to which we have are that the confrontation took place the immediate aftermath of part the crime as of reasonable police investigation Barnett, see Commonwealth crime, supra; Com v. Denault, monwealth v. 566 (1972); Com Leaster, monwealth v. 362 411 Mass. (1972); Connolly, Commonwealth v. 356 624 (1970); Mass. Commonwealth Bumpus, v. 501 (1968), denied, cert. U.S. 1034 and that witness had previously given police description the assail ant within a short time the incident, see Commonwealth Mass. 783 v. Dickerson.

Commonwealth supra; Leaster, Com- Denault, supra; Commonwealth v. v. supra 500; cf. Bumpus, monwealth at are present Barnett, supra factors Both of these at 93. hospital mitigate suggestiveness in this case to observe an opportunity confrontation. Miller had no direct there was in which assailant circumstances description police general gave threat to himself and crime, description minutes of the the assailant within oc- confrontation hospital fit the defendant. The police had crime, curred within hours of two fully ambula- indicating suspect information not even injuries so serious tory and in fact that his were required immediate medical attention. have suggestiveness police to minimize the steps took custody setting: defendant not taken into the the was identification, point until after the did not out they the suffering gunshot among Miller the man from wounds they initially sent patients room, five seven and Miller into the we patients. room alone to the While view agree finding cannot the that was judge with of the there suggestiveness confrontation, no in this we that find not so totality confrontation was in the circumstances mis- unnecessarily suggestive irreparable and conducive to deny taken identification as to due process law.

The Miller defendant by identification at probable hearing cause was not tainted fact that The role the defendant was alone in the dock. critical plays proceedings which identification often in such is such encourage lineups. However, that we would the use of lineups use of in context is constitutionally man- The dated. record in this case indicates that defense coun- was arrange sel afforded an opportunity lineup failed to so. do

We conclude two out-of-court identifications trial, identification, were admissible at in-court as was the prior since it was not on a impermissibly suggestive based Botelho, See Commonwealth confrontation.

860, 867 (1976).

The suppress clothing defendant also moved to

Commonwealth v. taken from the foot of bed con- his after his arrest. We clude that on probable the arrest was valid and based The warrantless, cause. seizure of clothing, while incident to a valid “evidence the crime arrest for 276, which the arrest... been made.” G. L. c. [had] 1, as amended c. § St. 508.

2. The argues selection issue. The defendant next erred judge excusing juror on his prospective own motion. The excused Dorothea after Ryan defendant panel had announced himself content but before the were colloquy sworn. The between the juror Ryan entirety set out in its margin.*

The juror defendant first argues prior excusing Ryan the judge failed to make the examination juror required by G. c. L. as amended St. provides part: purpose “For the determining juror whether a case, stands indifferent appears that, if it as a result of impact of considera- Ryan, “Juror No. Dorothea D. Seat No. 14.” The The clerk: Ryan, you questions put JUDGE: “Miss did hear the that I to the other jurors?” (The prospective juror judge: affirmatively.) nodded The you juror: any way “Do affect whatsoever?” The “No.” The question, you (Juror reading A.) JUDGE: “Read if will.” exhibit juror: judge: (Juror “No.” take Seat No. 14.” “You seated.) Counsel “The defendant is content.” the defendant: judge: up (Court “Have the court officer come for a moment.” The judge: bench.) officer Rosen at “Was there some indication from The jurors penalty?” one of about the death “I Court officer Rosen: judge: Ryan. up.” (Ju think Juror No. 14.” The “That’s Mrs. Come Ryan bench.) any ror at “I don’t to want cause trouble so The JUROR: thought my strongly against I I should state I views. am the death judge: juror: penalty.” The “What concern “I is that in...” The judge: thought chusetts, penalty if...” The “The death in is outlawed Massa juror: judge: any sorry.” event.” The “I’m “The The question guilt got anything pun or innocence hasn’t with to do Ryan, you ishment. are excused “Your “What’s that?” COUNSEL for THE defendant: are You excused.” The clerk: Dorothea “No. order the Court.” Counsel for the defendant: judge: Honor, exceptions the defendant takes to that.” The “The defendant takes judge: order, your exception you to that Honor.” The “What do Honor, mean?” Counsel defendant you “Your for defendant: judge: juror panel.” pe wishes that on this “I will allow a The remptory challenge for the successor.” Counsel for defendant: “My exception.” 372 Mass. v. Dickerson. made to be cause decision or decisions may

tions which a case, to the extraneous upon issues part in whole or attitudes, pos- to, community but not limited including, or material prejudicial to potentially sible exposure credibility toward the possible preconceived opinions indif- not stand juror persons, may certain classes attorneys their ferent, shall, or parties the court or direction may, under the with the permission to such respect with court, juror specifically examine the other or considerations, opinions any attitudes, exposure, deci- or may, aforesaid, cause a decision matters which as extrane- issues part upon in whole or sions to be made to designed This statute is to in the case.”2 ous the issues with jurors fully duty judge examine impose a appears if it prejudice or respect possible bias may be jurors jury pool or a whole particular jurors to the extent influenced extraneous factors verdict on the impartial to render an would be unable must, ex- therefore, be to them and presented evidence not preclude The does cused cause. statute examination. excusing juror specified from without direction; is, if Rather, opposite its focus is not juror jurors or are suspect there reason to that a may meaning of the stat- indifferent within the ute, declaring jurors before inquire fully must If indifferent and them to be seated. there was allowing therefore, action, error in not lie judge’s did violation of G. 28. L. juror next was excused argues defendant opposition

because of capital punishment. her juror respect pun- beliefs of a prospective capital ishment are irrelevant in this Commonwealth since the imposed, death not be Commonwealth v. penalty II); Furman O’Neal, (1975) (O’Neal and, even when the death Georgia, 408 U.S. imposed, opposition to penalty could have been mere the word “shall” for the word The 1975 amendment substituted following quoted ‘may” in the sentence. the word “court” 372 Mass. 783 v.

capital punishment without ground more was a valid Curry, Commonwealth v. for exclusion. 368 Mass. 195 McAlister, Commonwealth v. (1975).

(1974). There is no suggestion the record judge jurors to opposed intended to exclude a class of penalty. death

The record in suggests ground this case exclusion was not The opposition penalty. to the death judge jurors made no inquiry respect of other their opinions capital punishment only raised issue with juror Ryan apparently after she made her beliefs known to a court officer. any record judge’s is devoid of suggestion

actual for However, reason we exclusion. are hesitant guess the action of judge a trial selec- process juror tion only where one is involved. trial heavy responsibility only bears ensuring jurors who fairly attentively will consider the evidence seated, before them are and he has an opportunity alone to observe the juror. may demeanor of the It prospective judicial well that from experience his he concluded that he was juror demonstrating confronted with a who was unwillingness her panel. serve on the The judge has a great deal of discretion selection process. McKay, Commonwealth v. 363 Mass. 220, 223 (1973). French, Commonwealth v. 357 Mass. 400, A-13 (1970), judgments penalty vacated as to death Massachusetts, Limone v. sub nom. 408 U.S. 936 (1972) (“[the judge] was entitled judgment, to exercise within range discretion, substantial concerning the capacity suitability of each of them intelligently perform juror”). functions of a Our rule general has been that the absence of action or inaction which constitutes “[i]n a denial of rights... constitutional or which constitutes law, an error of an discretion, such as abuse of we will not interfere with trial in the jury process.” selection supra McKay, Commonwealth at 223. See Common Montecalvo, wealth 51 (1975).

On the us, basis the record before we are unable to v. juror excusing discretion in the abused his judge find that judge’s importance of trial However, we stress the Ryan. excusing juror. for on record the cause establishing pro- deliberative the internal The factors which influence from any that deviation of a are such jury panel cesses by specified for causes other than those random selection on 234, be and it is incumbent suspect, must G. L. c. § in the selec- to demonstrate that his interference on personal not whim. process tion is for cause and based no indication in us find However, the case now before we the exclusion a fair trial that the defendant denied juror. single of a only theory ad- It charge.

3. The clear of conviction support vanced the Commonwealth The degree felony in the that of murder. murder first charge limited his to accord with judge appropriately of prefaced portion He approach. appropriately also to the murder indictment charge his which was devoted as of G. by instructing provisions to the L. c. “Murder committed with 1, which reads as follows: § deliberately aforethought, or with malice premeditated in or at- atrocity cruelty, extreme or or the commission or of a with death punishable commission crime tempted Murder life, degree. is murder in the first imprisonment degree does iiflhe is murder appear not be first degree. prosecuted in the second Petit treason shall be The of punished as murder. murder shall found jury.” informed three ver- alternative murder guilty, dicts were available indictment: not of or of guilty degree, guilty murder first murder also, course, He identified de- degree. the second robbery punishable by term any fined armed a crime view, up imprisonment. judge, years to life our in both the submitting was correct verdicts murder jury’s consideration, for the even first and though argued support it could be evidence would either only guilty one two verdicts: In as to instructing in the first 372 Mass. 783

Commonwealth v. Dickerson. correctly, the second judge specifically, relied on statutory language degree of murder is for Further, it is determine. jury, clear that their power within evidence appraise selectively, might accepted have credible enough evi- to dence establish a conviction of murder in the second degree, but might have declined to further accept such evidence as tended to in prove case murder the first degree.3 solely assignment defendant’s of error is concerned

with that portion charge jury the in which the were told, substance, that, even if they determined that engaged robbery defendant was in committing an armed shots, when he they “ag- fired the fatal should consider gravating or determine extenuating” circumstances whether or evidence was murder in the first In degree. substance, the jury they “might were told that or might not” age defendant, consider the of the whether the robbery going smoothly, was and whether seemed killing was for the unnecessary per- petration robbery. of armed argues The defendant now fairly “circumstances” not from were selected evidence. aspect

We conclude that there error this charge, but we do not reach this conclusion for reasons urged by the defendant.4 A homicide which the deter- robbery-murder mined be an armed not properly reduced, extenuating on the basis circumstances such charge, as those enumerated in the to murder in the second degree. have no doubt judge’s We instructions 3 Rego, 385, wherein, see Commonwealth v. 360 But Mass. 395 case, unlike the instant there also some evidence which affirmative felony partici tended show that which the were defendants pating felony punishable at the of the time homicide was not Rego imprisonment. death or life See the case at for a 393-396 discus charge appropriate of the sion of contents as to the murder indict ment. 4 record, agree we do From our review of the entire not with the fairly were defendant’s assertion the “circumstances” selected. 797 372 783 Mass. v. Dickerson. Commonwealth opinions language previous were on ambiguous based DiStasio, 562, Mass. 298 court. See cases denied, **and (1937),5 U.S. cert. Chase, cf. Commonwealth cited; there denied, Because of 906 (1966). cert. 385 U.S. our statute, 1, in of the specificity language orn referred to view the circumstances” “aggravating delineated viz.: Legislature, those eases are afore deliberately premeditated malice committed cruelty, or atrocity or extreme thought, committed with crime attempted of a in the commission or commission punishable with or life imprisonment. death Where statutory “circumstance” reach a determination that met, (in this has been robbery-murder) case armed return a verdict of murder in the first should It Never- follows that the instructions were erroneous. doubt, theless, beyond the error harmless a reasonable charge because the was more favorable the defendant than that to which he was entitled. included, in some charge

We add should have words, jury form of an instruction that appropriate if duty, guilty, have a conclude that the defendant they which guilty highest return a verdict of of the crime beyond against has a doubt proved been reasonable States, & Hansen United U.S. Sparf 156 defendant. See language impress serve to. 63 This would (1895). they empowered were to return jury while verdict, duty a to consider the evidence lesser had given in of to them light principles law error, judge.6 give instruction, *8The an if failure such case, “ambiguous” language DiStasio as fol In the at 564 was crimes, separate create lows: “These statutes do not two and distinct the first and murder in the second which murder must in legislature manifestly pleaded accordingly. mur ‘The considers be crime, punishment species which der one kind of circumstances, according aggravating more severe to certain or less ” (citations omitted). may appear on the trial’ which murder, murder, charge in a we think and the As following: a homi at least the definition of case like this should include cide, degree; in a definition of the second and a definition of beyond doubt, also harmless a reasonable such since not conceivably

words could favor the defendant’s cause. 4. We have reviewed the entire record in case and grounds exercising find no for our L. powers under G. c. 33E. §

Judgments affirmed. judgment I concur in the (concurring). J. Quirico, affirming jury the court verdicts of of murder robbery, first degree, unlawfully carrying armed join I all handgun. opinion. a but 3 of the part court’s At are give issue the instructions must trial where the to prove felony murder, Commonwealth seeks “[mjurder... or attempted commission commis- sion of punishable a crime imprisonment with death or life.” Balliro, G. 1. See L. Commonwealth v. § By 512 (1965). L. c. G. such a murder is “murder in the first degree.” pro- The statute further vides that degree murder be found by shall “[t]he jury.”

The Commonwealth submitted sufficient evidence to permit to infer the commission of a course of an armed robbery. The trial instructed the degrees on the two of murder and then enumer- ated factors he said the might consider decid- robbery attempted robbery; reading armed statute, armed of the murder 265, 1; robbery an “pun- identification of armed as a crime imprisonment life”; ishable with death or and a submission to the jury homicide, of the issues whether the defendant committed a and robbery whether tempted that homicide was in the course of an armed or at- robbery. by jury armed These factors are to be considered the light by (1) in burden of instructions the as the to Commonwealth’s proof beyond doubt, (2) a reasonable and that instructions duty jurors guilty highest the a have to return a verdict of of the crime proved against charge, jury ap- the defendant. From the should preciate power and, duty, important, their more within the their con- statutory degree expression, of the text “The of murder shall be found by jury.” the charge generally Indeed, in this case was as to sufficient. the charge, excepts only aspect the defendant in to arrayed the “circumstances” of the case.

Commonwealth v. or first of murder in the to return a verdict ing whether degree.1 second goes say appear “Now, the law on to Murder which does not this: degree in

to in the first is murder the second be you classifications of murder. We call it “So that have two second-degree First-degree murder, murder. one and murder two. goes say: degree found the law on to of murder shall be “Then you jury, that. and are the absolute boss on law, “Now, reading the addition this definition from without sentence, conclude, intelligently, you you if and that last would killing beyond that this was committed are satisfied a reasonable doubt robbery, your only an verdict the course of armed this defendant degree. But, strangely enough, that isn’t first could be murder so, though may committed in the course even this murder have been degree robbery, up jury to to determine the an armed it is still of murder. jury may degree, though in the it’s “A return murder second even felony Supreme what call a murder. That’s our Judicial Court we what highest Commonwealth, all has said. That’s court who writes of these decisions in the books here. — murder, “Well,, felony question the next to If it’s a sensible ask is jury say first than what determines to murder in the rather Well, Supreme in the and Ju- vice versa? our may Court has said that the of murder be found dicial trial, ag- jury, upon developed depending the circumstances as gravating extenuating, has or I assume. in no decision that I know But gone beyond Supreme attempt our Judicial Court instructing that to to assist jury jury guide- or trial court for the have some might developed to what circumstances at the trial that lines as sort of ultimately really make it murder one or murder two. And so that issue is good good judgment jury, of the I assume. left to the conscience my may “Perhaps respect: I can own in this It well be assist consider, jury might extenuating aggravating an or an cir- that a cumstance, age perpetrator perpetrator, or not of the whether frightened teenager of a crime was a or full of bravado or whether half — might jury might don’t a A or I not he was mature man. — might might might or not consider that a circumstance know first or whether not it would be murder enter into circumstance or murder second. possible differing consider circum- “It be would stances, going smoothly robbery off no confusion where killing might where a confused situation a a victim occurred. It be different in struggle pande- fought vigorously and there was a back might reigned, speak. might those so A or not consider monium differently. blood, killing occurred, speak, would seem in cold where it “If a so unnecessary perpetration crime where it was for the the armed robbery, jury might might circum- not consider those felony determining not a in a whether or man stances as relevant in second-degree first-degree murder or murder should found

800

Commonwealth v. Dickerson. These of instructions were erroneous both on the issue the jury’s function in determining of murder felony murder case and on the which issue the factors jury may consider in The arriving at their verdict. judge’s instruction, trial apparently approved by Justice Braucher, enough,... though even this “strangely murder have been of an committed the course robbery, armed it is still to up to determine degree of murder,” is I particularly strange because believe it is erroneous. they must be instructed that if find that a

defendant has in the com- (1) committed a (2) mission or attempted punish- commission of crime (3) a duty able death or life it is then their imprisonment, to find the defendant in the first factors, These not the con- age perpetrator of the fusion surrounding crime, of a determine guilt defendant’s under G. L. this ques- 1. Because tion may recur, my mind because some doubts whether the court’s opinion sufficiently clear and em- phatic, I express my separate views concurrence. jury’s

1. Since the landmark cases of function. Porter, Commonwealth and Com 10 Met. 263 (1845), Anthes, monwealth Gray it been the has responsibility of judge presiding by jury at a trial in a criminal case decide all questions law which arise dur ing the trial and jury fully clearly to instruct governed the rules of law are to in delib erating on their It is responsibility verdict.

to find evidence, apply the facts on the basis of the those facts the rules applicable as stated instructions, his accordingly.* return a verdict give you murder. That point. is about as much assistance as I can on that again really, emphasize really it “I once in the con- rests good judgment jurors.” sciences and the Howe, responsibility The evolution of this allocation of is traced in Judges Law, (1939); Note, Juries as of Criminal 52 Harv. L. Rev. 582 801 372 783 Mass. v. Commonwealth involve instructions does of these propriety

The re- could they told that jury The were factual question. they if even the second turn a of murder in verdict in (2) a murder been (1) there had determined pun- a crime (3) attempted commission commission or ele- are the or life These imprisonment. by ishable death — degree under murder murder in the first felony ments of 265, L. 1. G. c. § thorny are statutory elements

The these presence find causal jury must jury. issues of fact for the The required and the homicide felony between the connection com “committed... in the by statutory language 265, c. 1. attempted § mission or commission.” G. L. Devereaux, 387, Commonwealth v. 256 391-393 Mass. See foundation jury find that (1926). The must further imprisonment. or life felony one death punishable is predicate forms factual for a verdict jury’s The belief When, for example, in the first murder felony punishable do not is one death believe — given or life believe in a case imprisonment they felony entering rather than breaking — robbery3 armed then in the Rego, 385, Commonwealth appropriate. 395- Changing Jury Century, Role 74 Yale Nineteenth (1964); Kadish, Departures L.J. 170 Kadish & On Justified Rule Officials, Exploration an of Otherwise Roles: Patterned Official Jury, (1971). Criminal 59 Cal. L. Rev. 905 Sparf States, (1895), & Hansen v. United 156 U.S. 51 determined an analogous result Federal courts. For recent cases on issue they any duty whether the should instruct whether have law, judge’s Moy to follow the instructions on the see United States v. lan, 1002, (4th Cir.), denied, (1969); 417 F.2d 1005 cert. 397 U.S. 910 Boardman, 110, (1st 1969), United States v. 419 F.2d 116 cert. Cir. de nied, (1970); 515, Simpson, 991 397 U.S. United States v. 460 F.2d 518 (9th 1972); Dellinger, 340, (7th United Cir. States v. 472 F.2d 408 Cir. denied, 1972), (1973); Dougherty, cert. 410 U.S. 970 United States v. (D.C. 1972) (excellent 473 F.2d 1130-1137 extended Cir. discus by Levanthal, Scheflin, Jury J.); Right Say sion Nullification: The No, (1972). 45 S. Cal L. Rev. 168 3 entering Breaking punishable by is not crime death or life imprisonment, robbery punishable. whereas armed is so G. See L. L. c. § § and G. 16.

Commonwealth v. Dickerson. 396 (1971). White, 425- 426 denied, cert (1968) U.S. 968 .

Yet in this case the instructed the might find that defendant committed a — necessary commission of an armed robbery facts — for murder in the first degree under G. L. c. nonetheless return a of de- verdict murder the second gree. This the purported grant jury instruction to the express right to determine the murder be in the second degree in spite the they might of facts have determined. Such an long-established, instruction trenches on con- our sistently applied, and line of demarca- zealously guarded tion respective functions, respon- between roles, the and sibilities of of a judge jury the and of in the the trial criminal case. History the statute.

2. of Following the definitions of the two 265, degrees murder,4 1, provides of G. L. c. § In degree jury.” of murder shall found “[t]he my view, of a language this must be read context mur- statute succinctly distinguishes degrees which I find language der. take this to mean shall facts, the degree by deliberating apply- on the ing facts, instructions judge’s to those the law thereby determining degrees appro- which of is the two priate. I permits do not believe this language instruct find all of con- they may the facts stituting yet find the first defendant guilty degree. of murder in the Neither it is language, history nor statute in which contained, sub- any supports nor decision of court judge’s role, jury, version of the trial vis-a-vis the exclusive “to adjudicate finally, law.” upon question the whole Anthes, Commonwealth Gray 5 193 Nor (1855). any encouraging usurp there basis 4 deliberately premeditated “Murder with afore committed malice thought, atrocity cruelty, or extreme or or in the commission attempted punishable imprison of a commission crime with death or ap life,- Murder which ment for is murder the first does degree.” pear is murder in the second to be in the first Mass. 783 v. Dickerson. contrary a verdict thereby produce power the facts. the law and required by to that divided of murder was 154, the crime By 1858, c. St. introduced statute 3 of that degrees. into two Section found is to be of murder language “[t]he to enact not the first State jury.” Massachusetts was to be were murder which creating degrees of a statute such adopted Pennsylvania had jury. found By followed. States numerous other scheme in any whom before jury, “the c. Pa. Laws find shall, if tried, for murder shall be person indicted verdict, in their thereof, ascertain person guilty such See degree.” or second whether it be murder the first Creating De- Pennsylvania Statute Keedy, History of the (1949); Murder, L. 772-773 grees of 97 U. Pa. Rev. I, A of Homicide: Michael, of the Law Wechsler & Rationale Hampshire New 702-727 (1937). Colum. L. Rev. 273), in 1837 N.H. Laws (1836 enacted such a statute model for this Common- appears to have been a wealth. enactment precede the legislative

The documents that into murder was divided 1858, 154, suggest of c. that St. of the common mitigate the harshness degrees largely mur- penalty on all mandatory a death imposing law rule George Briggs to by An N. derers.5 address Governor 5 1837, 30, appointed By “reduce so Res. c. Commissioners were Massachusetts, as relates to crimes Law of much of the Common thereof, systematic punishments to a written and and the incidents 27, 1844, January Commissioners, report filed on of these The Code.” proposed de comprehensive penal into divided murder code which Homicide, (1844). Mass., It grees. Report at 38 Penal Code of of the manslaughter tois provided of murder or of also “[t]he by jury.” explanatory ob An footnote stated “[t]he found be ject making degrees distinction to make a different of murder is making only degree punishable Id. death.” punishment, the first jury. proposed n.(c). explained function footnote at 4 No primarily (id. n.[c]) law of New report on the at 6 relied 273), laws of Hampshire (1836 also to the but referred N.H. Laws c. Ohio, Maryland, Virginia, Pennsylvania, and Missouri. Wharton, 354-358 on the Law of Homicide In F. Treatise Maine, 1855, Hampshire, by Pennsylvania, Connecti- New said that is degrees re- cut, Jersey, into and Tennessee divided New 372 Mass. 783 u. Dickerson.

Legislature in 1846 (1846 Senate Doc. No. re- 2) and the port of a Joint Special Committee of the Legislature (1846 Senate Doc. display No. concern 58) about the dif- ficulty in obtaining conviction when must choose between a verdict murder, of punishable by death, and guilty. a verdict of not There is no indication of any intention grant to the jury a discretion to decide the degree of murder regardless of the facts.

It was not until 1858 the Legislature St. by 1,.2, c. established degrees the two murder, §§ by provided § of murder to be “[t]he **6 by found jury.”* While the report Special the Joint Committee (1846 Senate Doc. No. did not 58) specifically recommend the language quoted above from St. it did note that Hampshire New had enacted a statute on January 13, 1837, estabhshing two degrees murder and further noted that by that statute he “[t] jury are to find degree by their verdict.”

The creation of degrees two of murder was thus part a desire to limit and restrict the mandatory death sen- tence isolating certain murders appropriately punish- quired penal to determine code was not en- Legislature. Levy, acted L.W. The Law of the Commonwealth (1957). and Chief Justice Shaw 200-201- One Legislature writer notes that this action the “voted to di degrees, vide the crime of murder following practice into two some of the joint other states and special the recommendation of a com permitting mittee in thus thought some latitude if it warranting accused had not Powers, committed a crime death.” E. Early Crime 1620-1692, and Punishment (1966). Massachusetts suggests following Another timing writer reason for the of St. 1858, charged murdering 154: “In 1857 a female with her husband by poisoning Plymouth County. arsenic was tried in The evidence against overwhelming, jury her was but the resisted conviction and was later, 1858, unable to legislature reach a verdict. Months the state time, enacted distinguishing the so-called ‘murder statute’ for the first degree, defining in the first and murder in the second requiring mandatory both imprisonment sentence of life and not penalty persons the death for convicted of murder in the second de- gree. argued legislature regardless It had been to the of the evi- dence, impossible it was to convict female defendants in murder cases mandatory penalty.” Sullivan, Goodbye because of the death R. Lizzie Borden, (1974). 193 805 783

Commonwealth v. 183, 402 U.S. California, McGautha v. death. See by able Capital Abolish The Movement Davis, 198-199 (1971); 23 Rev. 1787-1861, Am. Hist. America, Punishment death for which murders delineating those By (1957). jury forestall would the statute proper, was considered refusing hands their own taking from the law into Zeisel, and H. H. Kalven capital offense. See convict of authorizing from Far Jury The 306-312 (1966). American second in the of murder to choose a verdict discretion first in the the facts warranted degree when oblige intended 1858, c. degree, St. categories. legislative to find facts within decision I of no law. am aware 3. Massachusetts case has ever concurrence subject matter of this in which the I respectfully court. or decided this put been in issue Braucher on two cases cited Justice suggest 738, Chase, 350 Mass. subject, viz., Commonwealth denied, (1966), cert. 385 U.S. denied, 302 U.S. DiStasio, cert. point. or decide this did not involve defendant charging the involved an indictment Chase case evi At the trial degree. with murder commis in the the murder was committed dence was that robbery. armed sion or commission of an attempted convicted of could not be defendant contended that he the crime proving on evidence murder in the second issue before degree. of murder in the first Thus the degree pre in the first proof court was whether of murder of murder for the crime cluded the defendant’s conviction him, and whether degree charged against in the second to a directed verdict entitled defendant was therefore Clearly the Chase not. held that he was guilty. We the issue whether any way case did not in involve first murder in the charging at the trial of an indictment committed murder was finding after that the robbery, an armed commission of attempted commission life, have the imprisonment punishable a crime the second of murder in to find the defendant right at case, supra Chase this court said When Commonwealth v.

744, language that “we are not the persuaded that of c. was intended to limit the operation § [G. L.] the did felony-murder degree murder,” rule to so first emphasize charging the fact that on indictment an the second the could convict defendant the actually of that crime although the crime committed was murder in the degree. first That does warrant a con- clusion say, saying, court meant or was a charge of the first could properly find the defendant of guilty murder degree notwithstanding proof of the greater cases,

The Chase decision is but one of a number including decision, supra, the DiStasio to the effect that statute,” the “murder St. c. now L.G. 1, “does not two crimes, create and distinct separate but Legislature kind ‘considers murder as one species crime, punishment of be more or less according aggravating severe to certain circum- ” stances, which may appear on the trial.’ Commonwealth Chase, supra at 744. early

In the Gardner, case of 11 Gray Commonwealth v. (1858), court held that did not statute estab any crimes, lish new only degrees but two same crime, one which, murder in pun the first ishable with death formerly, other, murder in the second degree, was punishable imprisonment for life, the in punishment difference due to the differ being ence degrees between two of the crime as defined In speaking statute. statute, on the same court said in Desmarteau, 16 Gray 1, 15 (1860): “The statute provision only has reference to the punishment, extent purpose required are degree” (emphasis supplied). find French, decision of this court in Commonwealth v. Mass. 356 judgments vacated as to death penalty Massachusetts, sub nom. Limone v. 408 U.S. 936 (1972), contains language which has since been cited in O’Neal, Commonwealth v. 274 n.1 (1975) Commonwealth v. J., concurring), supporting

(O’Neal II) (Hennessey, Braucher. position the now taken Justice opinion dealing French appendix In the to the by assignments issues raised significant less “[v]arious murder, defining error” the “A-40. In court said at 405: 1, and jury the L. c. judge first read the G. jury if He then said that aforethought. defined malice Commonwealth, that this believed ‘the contention of the in advance, it is murder Deegan planned murder was clear, however, that, they if degree.’ first He made it of murder so, they saw fit to do could return a verdict degree plan in the second if ‘there advance even [was] to kill He have Deegan.’ previously jury had said that ‘the power to decide the of murder.’ This ade- quately stated law.”

I do not consider the “A-40” above paragraph quoted from appendix holding to the French decision to be a way one subject or the other on the matter of this con- An original currence. examination of the records in that represents case reveals that paragraph disposition of substantially assignments similar of error most of the defendants in that case to the effect that trial (a) judge’s they statement to the that if “the believed testimony of the mur- Deegan Commonwealth... der planned advance, it murder in the de- is first gree” was error improperly imposed because it on the his opinion they own on how should testi- evaluate the mony permitted give them to second-class considera- tion to the or not question whether facts amounted to murder in the second the trial (b) sufficiently failed to instruct the jury on the ele- of and ments distinction between murder in the first de- gree and murder the second Neither these assignments alleged arguments error nor the parties raised or referred to question whether jury had power return a verdict of of murder Deegan if found that “this In planned advance.” view of the limited

Commonwealth v. Dickerson. assignments of error and arguments thereon, my opinion statement in the decision that “[t]his adequately stated the disposed only law” of the claims impose opinion tried to his on a factual question on the and that he had failed to define and distinguish degrees the two I nothing murder. attribute more to that statement.

Our decision in Corcione, Commonwealth v. 611, 614-615 (1974), following includes the statement: “He argues also that the judge improp- [the defendant] erly precluded consideration of by jury a verdict of guilty of second degree 265, murder. L.G. c. 1. See Com- § Chase, However, monwealth v. 350 Mass. 738 (1966).” that question was not further considered because the court said it was reversing judgments for other reasons.

The concurring opinion of Hennessey, Justice now the Justice, Chief II, n.1, at 274 included the fol O’Neal lowing statement: “It argued can be that of the law this Commonwealth is that murder in the degree second must be submitted to the permissible every as a verdict in case, murder including rape-murder, regardless of circum of French, Chase, Desmarteau, stances----[Citations Gardner, and cases, supra, Corcione all and three other cases that, From this it can be argued further omitted.] since murder punishable by is not death penalty, have unconstitutional untrammeled dis cretion in rape-murder to choose imprison between life ment and the penalty.” death The concurring opinion containing suggested argument joined by was not any of the six other participated Justices who in the decision II I O’Neal case. know no other decision in which argument passed has been on by this court.

It my conclusion, based on a consideration of the various opinions this court which are cited and dis- above, cussed that we have never by held that virtue 1858, 154, St. c. now G. L. c. have “un- § trammeled discretion” to return a guilty verdict of murder either in the first degree or the second degree against a defendant who is found have committed mur- v.

Commonwealth defendant involving der, specifically more in a case which constitute found to have committed acts as defined the statute. first in this earlier jurisdictions. 4. Other Having noted patterned probably c. that our St. opinion Rev. later became after the 1836 N.H. Laws by ultimately repealed (1955), Ann. 585:3 and was Stat. examine the 34:12, helpful 1974 N.H. Laws c. of New Court Supreme effect to that statute given degrees of statute created two Hampshire. That any person shall find “[e]very Jury who provided find committed, shall also murder, hereafter degree.” verdict, their it is of the first or second whether State, In Pierce v. Hampshire New (1843), 13 N.H. 536 rejected juries could determine emphatically view cases, done in very the law in criminal much as was in Commonwealth the later decisions Porter, Commonwealth v. (1845), 10 Met. 263 Anthes, Gray 185 (1855). Thorp, State

In 504-545 86 N.H. jury to deter- interpreted permitting court the statute murder, rejected of that degrees argument mine an regarding instruction the defendant was entitled to an court did not degree. murder in the second It said: “The jury they might that find refusing err in to instruct of a of homicide than guilty grade the defendant lower assuming request of murder first-degree (even that charge seasonably made), to so had been since there from murder or man- second-degree no evidence inferred____The reasonably contention slaughter could to jury permitted in murder cases should be leniency is untenable. ‘The exercise without restriction administering justice in criminal proposition that a by failing jury commits an to tell a cases error... find unwarranted the evidence

they may... a verdict Young, State v. justice/ lead to a perversion ... would 233, Furthermore, 67 since the (1902). N.J.L. 234 as the leniency case declined exercise such present allowed, statute it is difficult to understand how the de- Mass. 783 372 810 Commonwealth v. Dickerson. harmed the refusal possibly

fendant could have been grant request, legally his even if entitled to instruc- tion asked for.” jurisdictions

In other determine the de- where gree murder, murder is in the first felony murder authority there that no instruction is substantial for felony on is warranted degree murder the second is an instruc- murder where there no basis for such factual If no required, tion.7 instruction is a fortiori would not be expressly instructed find that a murder committed the course of an armed robbery is degree. precedents the second These are not binding, but I them persuasive. find It

5. Conclusion. seems almost incredible to me that years the first time in the 119 since the enactment of 1858, 154, 265, St. c. now G. L. 1, we should be called pass question on the of what a judge may trial tell a must jury about what factors can be considered in deciding whether a murder is in the first or in degree. my It opinion the reason the ques- tion has never come up before is that the answers are 7 Conner, 447, (Iowa v. 1976): State only- 241 N.W.2d 461 “Under the theory jury here, of murder submitted to the defendant could under only first-degree the evidence The court did not err in be found acquitted. murder or failing second-degree to submit murder.” State Nasello, 442, (1930). v. cert. 402-403 Saccoccio, Monahan, 325 Mo. State 16 N.J. denied, (1954). Bandy State, 348 U.S. 889 Ohio St. (1921). Bradshaw, (1966). State v. 101 R.I. State v. (1929): says jury may 50 R.I. “Our statute that the degrees expressly find the makes murder committed in robbery course murder in the first The statute every intended leave the determination of the of murder in jury.” Commonwealth, case to the Wooden v. 208 Va. 634-635 (1968). Contra, Meas, (1964): “Moreover, 415 Pa. indictment, right in a on a trial has the exclusive guilt may deprived right, fix the not be of this even though only killing evidence the case establishes that felony: perpetration Turner, committed in the of a Commonwealth v. (1951)” (emphasis original). 367 Pa. ... questions exhaustive An treatment these be found Annots. (1923), 21 A.L.R. 603 27 A.L.R. 1097 and 102 A.L.R. 1019 (1936).

Commonwealth v. Dickerson. written into the statute there they itself and have been original since its I enactment. would read the statute exactly mean what it says “[mjurder and that (a) committed with deliberately malice afore- premeditated thought, or with atrocity cruelty, extreme or in the commission or attempted punish- commission of a crime able with imprisonment life, death or is murder in the first degree,” and “[mjurder which does not (b) appear to be in the first is murder in the second degree.” For the meaning of “murder” from apart degrees, I would go to the common law.

I believe that the proper meaning concluding sentence of G. L. c. “[tjhe to the effect that degree of murder shall be found jury,” is that jury should follow substantially procedure the same they would in any follow case, criminal particularly one charging a crime in aggravated an form such as assault dangerous weapon, assault with intent to murder, or assault with intent procedure, rob. That in a case involving a charge of murder degree, first would involve the following steps: (a) the jury must first find the facts of the case, (b) they must decide whether on the facts found the defendant committed crime murder, if (c) did, he they must decide whether the mur- der comes within any one of the three statutory cate- gories of murder in the first degree, (d) does, if it they must return a verdict of guilty of murder in the first if (e) not, they does must return a verdict of guilty of murder in the second degree, and in all (f) their deliberations and decisions must follow and apply the law given to them by the trial on all phases and aspects of the case.

I recognize and concede, of course, that, jurors if thus instructed fail to follow judge’s and, instructions violation of their duty, find a defendant in such a case guilty of murder in the second degree and the court ac- cepts and records their verdict, it cannot be set aside later. However, the reason the verdict cannot be set aside later is not because the jury had the right to return it but 372 Mass. 783

Commonwealth v. Dickerson. there- appeal rather because the Commonwealth cannot jurors’ from. The verdict in such a case is the result of the not such a result and power8 produce exercise of their to Com- right to do of the helpless position so. mur- case, whether any monwealth is common to criminal jurors having der found facts offense, or some other where nevertheless return a ver- constituting charged the crime charged, in that dict of of a lesser offense included However, that realisti- or a of not the fact guilty. verdict jurors power pro- to cally we must concede that have therefore duce not that we must require such a result does so, or any right (b) conclude to do (a) they have the trial must inform them of the existence judge they may them on what factors power and instruct the return contemplating or consider when are they must by on the facts found required of a verdict other than one them thereto. applicable and the law does my

It conclusion that G. L. c. charging on an indictment exempt jurors a trial the dis- governing from the rules in the first basic and the in all other judge roles of the tinctly separate any power It not endow them with criminal trials. does right give It does not them the clemency. to exercise or the law of the contrary the facts return a verdict a verdict It does not authorize them to contrive case. designed by punishment them to control for his crime. imposed on the defendant think should just to return a verdict on requires Rather them applicable the facts found them and law basis of judge, as stated the end that thereto required permitted as is penalty such may impose law. J., joins, concurring Kaplan, (with J. whom

Braucher, 3 of the join part opinion I do not in the result). true, guilty] and the a verdict it is cannot direct [of “The bring power teeth of law and in a verdict both has Columbia, (1920) Horning 254 U.S. District facts.” J.). (Holmes, the judge correctly I the instructed agree the court. on the possible three verdicts were alternative degree, murder in the first guilty indictment: not This guilty. in or guilty of murder the second 1: L. “The accordance with G. jury.” agree But I do not by murder shall be found the jury. to the charge there was error court, I Contrary the view taken think of murder properly could return a verdict though they even found that robbery. course of armed murder was committed an “It often been statute not create has said that does crimes, Legislature but that separate two and distinct crime, species ‘considers murder as one kind or according punishment of which be more or less severe circumstances, aggravating may appear to certain DiStasio, trial.’ Commonwealth on the denied, cases (1937)] 302 U.S. [cert. Chase, there cited.” Commonwealth denied, Accordingly, cert. we held in (1966). U.S. 906 the Chase case that a person guilty felony could degree. murder in be indicted and convicted of the second robbery-murder, jury, Thus the a case of armed were either the required to find that was murder in first the second As the statute confers dispensing power, quite proper judge help it is for the them with how exer- suggesting instructions should Indeed, think, defendant, I cise it. if requested give would be bound to such instructions. case present factors listed were drawn, question it clear unfairly and he made entirely jury, requires. for the statute Without factors, general charge might reference to illustrative confusing. uninformative or even

Case Details

Case Name: Commonwealth v. Dickerson

Court Name: Massachusetts Supreme Judicial Court

Date Published: Jun 20, 1977

Citation: 364 N.E.2d 1052

Court Abbreviation: Mass.