COMMONWEALTH VS. RICHARD A. DIMARZO
Supreme Judicial Court of Massachusetts
December 3, 1973.---February 28, 1974.
364 Mass. 669
Present: TAURO, C.J., REARDON, QUIRICO, HENNESSEY, & WILKINS, JJ.
Suffolk. Practice, Criminal, Venue, Charge to jury, View, Voir dire. Jurisdiction, Of crime. Evidence, Competency, Relevancy and materiality, Other offence. Search and Seizure. Constitutional Law, Search and seizure.
At the trial of an indictment for murder, where the body of the deceased was found in Maine, there was sufficient evidence for the jury to find that the crime occurred in Massachusetts, and the judge gave an adequate charge to the jury on their responsibility to determine the location of the crime. [671-673]
At the trial of an indictment for murder, where the body of the deceased was found at a location in Maine, the judge did not commit error in allowing the jury to view such location, or in denying the defendant the opportunity to attend both the out-of-State view and an in-State view. [673-675]
The rights of the defendant in a murder case under the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution were not infringed when, prior to trial and pursuant to a court order, several pairs of his footwear desired by the Commonwealth for evidence were removed from his possession while he was confined in a penal institution; if he was entitled to some degree of Fourth Amendment protection, his rights were fully preserved by a complete adversary hearing on the matter before the judge. [675-676]
A judge who conducted a complete adversary hearing on a motion by the Commonwealth in a murder case for production of footwear of the defendant as evidence was not thereby disqualified from being the trial judge in the case. [676]
At the trial of an indictment for murder of a young woman, there was no error in the admission of evidence of assaults and beatings sustained by the victim over several months prior to the murder, for the purpose of showing a “continuing course of conduct” [676-677]; there was no error in the admission of testimony concerning certain bloodstains, con-
INDICTMENT found and returned in the Superior Court on August 14, 1972.
The case was tried before Roy, J.
Edward T. Dangel, III (Edward M. Dangel with him) for the defendant.
Stephen R. Delinsky, Assistant District Attorney (Roger A. Emanuelson, Legal Assistant to the District Attorney, with him) for the Commonwealth.
REARDON, J. The defendant was tried on an indictment for first degree murder in a case taken pursuant to
1. It is first alleged that there was error in permitting the Commonwealth to proceed under
The defendant argues that such a procedure did not give the court jurisdiction over the crime if it were committed without the territorial borders of Massachusetts. With this contention we agree. In Commonwealth v. Mannos, 311 Mass. 94 (1942), it was made clear that the statute is concerned with venue and not with jurisdiciton. It was stated in the Mannos case at p. 103, that “[t]he Legislature was undoubtedly authorized to regulate the place of trial of this particular class of cases where the place of the crime might be shown at the trial to be outside the county or the territorial jurisdiction of the court.” But this does not make the procedure in this case invalid. Since there was uncertainty as to the territorial subdivision where the act was committed, it was proper for the judge to allow trial to proceed under the statute to obviate any question of improper venue.
With reference to the question of jurisdiction, there can be no doubt that the judge had no power to try the defendant for crimes committed out of State. The questions before us are (1) whether there was sufficient evidence for the jury to find that the crime of murder charged against the defendant occurred in Massachusetts and (2) whether the judge rendered an adequate charge to the jury on their responsibility
As to the first point, there was ample evidence that the beatings which eventually led to the death of the victim took place in Massachusetts. A medical examiner testified at length and placed the time of death as being within seventy-two hours of the time of the autopsy, or as early as January 7, 1971. There was evidence that hair found in the trunk of the defendant‘s car matched the hair of the victim. There was evidence from a witness who saw the defendant on January 7, 1971, put a large duffel bag in the trunk of his car at the house in Revere where he and the victim both resided. In addition there was evidence that the victim did not die at the tree where her body was discovered. From the testimony of neighbors and others, the jury could have properly concluded that it was in Revere that the final indignity was visited upon the victim and death released her from her tortures. Commonwealth v. Dorr, 216 Mass. 314, 317 (1914). The question of the location of the crime was properly left to the jury which could have found that the homicide occurred in Revere. Commonwealth v. Fleming, supra.
Relative to the adequacy of the instruction, the judge charged the jury, “We have a law enacted by the Legislature which reads as follows: ‘If a mortal wound is given or if other violence or injury is inflicted in any county of the Commonwealth by means whereof death ensues outside the Commonwealth, the homicide may be prosecuted and punished in the county where the act was committed,’ and because of a paper which was filed in this case by the Commonwealth, I charge you as a matter of law that if you are satisfied beyond a reasonable doubt that a mortal wound was inflicted upon this victim anywhere within the Commonwealth of Massachusetts and death ensued, the offense may be punished here in this county.” The charge properly covered the relevant issue. There was no need to give the instruction relative to the same material in the form requested
We conclude that it was proper to allow the Commonwealth to proceed under the statute and that the question of jurisdiction was adequately submitted to the jury.
2. An error is assigned in that the trial judge allowed an out-of-State view by the jury, and that the defendant was not allowed to be present at either the in-State or out-of-State jury views.
The taking of a view is a matter which was within the discretion of the trial judge, and we have hitherto held that the “right to order a view in furtherance of justice extends to places without as well as within the county where the crime is alleged to have been committed.” Commonwealth v. Gedzium, 259 Mass. 453, 462 (1927), overruled on other grounds in Connor v. Commonwealth, 363 Mass. 572, 575 (1973), and cases cited. There is a question raised here as to the propriety of taking a view outside the State. The defendant argues that the judge was without authority to conduct such a view, being powerless to rule on defence or Commonwealth requests while in the State of Maine, that the court officers were without authority to supervise the jury while there, and that the transcript of the jury view proceedings was not official in that the court reporter was not properly sworn to act in Maine. The Commonwealth takes, of course, the opposite position. In a New Hampshire case, Carpenter v. Carpenter, 78 N. H. 440 (1917), a view was taken in Magnolia, Massachusetts, by a judge trying a case in New Hampshire without a jury. While the judge took the view without objection, the New Hampshire Supreme Court, in deciding that it was not improper for him to do so, pointed out that he was not holding court or trying the case in Massachusetts; that “[w]hen he was there the court was in recess.” P. 448. The same result was reached by the Washington Supreme Court when a jury in a criminal case took an out-of-State view in State v. Much, 156 Wash. 403, 414-415 (1930). In the Carpenter case, supra, the court stated, at p. 451, that “[a] view therefore is a method of procedure
Nor is there error in denying the defendant the opportunity to attend the in-State or out-of-State views. We have said that the “whole subject rests in the sound discretion of the court. That discretion commonly and wisely has been exercised so that the defendant in a criminal case does not accompany the jury on a view.” Commonwealth v. Dascalakis, 246 Mass. 12, 31 (1923). See Commonwealth v. Webster, 5 Cush. 295 (1850). It has been held that the Fourteenth Amendment to the United States Constitution does not assure to a defendant the privilege to be present on a view. Snyder v. Massachusetts, 291 U. S. 97, 108 (1934), affirming Commonwealth v. Snyder, 282 Mass. 401, 413 (1933). In the latter case it was said that “[i]t is now settled that a view is not such a taking of evidence as violates the constitutional right of the defendant ‘to meet the witnesses
3. The Commonwealth pressed a pre-trial motion that the defendant submit his brown cowboy style boots, black boots and shoes for an examination. This motion was based on the discovery of footprints in the snow in the area where the body of the victim was discovered, and the Commonwealth sought to compare “for size and shape the boots and shoes of the defendant with the known measurements of the footprints.” The judge ordered the production of this or other footwear, and the defendant argues that this was a violation of his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution. At this time the defendant was in the Correctional Institution at Walpole. Thereafter there were removed from his possession five pairs of footwear including one pair of moccasins and three pairs of sneakers.
We see no error in the order of production of these goods. As was stated in Schmerber v. California, 384 U. S. 757, 767 (1966), “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” It cannot be said that a public correctional institution conveys a sufficient right of personal privacy to deprive the Commonwealth of needed evidence. It was noted in Lanza v. New York, 370 U. S. 139, 143 (1962), that “to say that a public jail is the equivalent of a man‘s ‘house’ or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument.” A prison cannot be said to demonstrate attributes of the privacy of a house. Commonwealth v. Dougherty, 343 Mass. 299, 305 (1961). United States v. Hitchcock, 467 F. 2d 1107 (9th Cir. 1972), cert. den. sub nom. Hitchcock v. UnitedStates, 410 U. S. 916 (1973). Not only was it constitutionally valid but it was also fair.
As the Commonwealth points out, prior to the issuance of the order there was a complete adversary hearing before the judge attended by both the defendant and his counsel at which the rights of the defendant received protection more complete than if a search warrant had been sought, and there was sufficient probable cause for the order to be found in two affidavits submitted by the police relating to the evidence against the defendant and the importance of the footprints in the snow. Even assuming arguendo that the defendant in custody was entitled to some degree of Fourth Amendment protection, his rights were fully preserved by this procedure. Although the formal attributes of the issuance of a warrant were lacking, the substance of the procedure was sufficient. Reasonable searches should not be condemned on excessively technical grounds. Cf. Commonwealth v. Wilbur, 353 Mass. 376 (1967), cert. den. sub nom. Wilbur v. Massachusetts, 390 U. S. 1010 (1968); Commonwealth v. Von Utter, 355 Mass. 597 (1969). Furthermore, the other evidence adduced at trial was sufficient to enable the jury to reach their verdict even if they had not been informed that the boots produced in court were consistent with the footprints in the snow.
Nor is there merit in the defendant‘s argument that the judge, having passed on the motion for production of footwear, was disqualified from sitting as the trial judge. We discern from the transcript no taint of bias or prejudice on the part of the judge. In fact it may be said that he conducted himself with exceeding great patience and fairness in the face of a taxing trial producing as it did a myriad of exceptions, hundreds of which were without any merit whatsoever.
4. We consider several assignments of error bearing on evidential points raised during the trial. (a) The defendant attacks the admission of evidence of assaults and beatings sustained by the victim in the four to seven months prior to the murder. Such evidence came from the lips of a number of witnesses who testified to the physical condition of the victim
5. Consonant with the duty laid upon us by
Judgment affirmed.
HENNESSEY, J. (concurring). I concur in the court‘s affirmation of this conviction. However, I believe that discussion is advisable as to the defendant‘s claim that there was constitutional error in the admission in evidence of his prior conviction of carnal abuse of a female child. The prior conviction evidence was received in a form and manner appropriate under the statute,
More important, I conclude that it has apparently been established that there is no error under the United States Constitution in the admission of such evidence. Spencer v. Texas, 385 U. S. 554, 560-562 (1967).1 This court likewise has found no unconstitutionality both in the instant case, and in prior cases. See Commonwealth v. Ladetto, 353 Mass. 746 (1967). See also Commonwealth v. Subilosky, 352 Mass. 153 (1967); Commonwealth v. West, 357 Mass. 245 (1970). In the light of these precedents, it is perhaps of little importance that I may not be persuaded that there can never be constitutional significance in a case where the proof of a defendant‘s prior convictions works great prejudice against him on the issue of guilt. See generally, note, 37 U. of Cinn. L. Rev. 168 (1968).
Nevertheless, apart from constitutional issues, the effect of the application of
Even in a case where a trial judge is convinced that the admission of a defendant‘s prior convictions will result in an injustice, he has no discretion to exclude the evidence since this court has ruled that the only option under the statute resides in the prosecutor and not the judge. Commonwealth v. West, 357 Mass. 245, 248-249 (1970). The prejudice to the defendant, as often as not, is that he dares not exercise his right to testify in his own defence in the light of his knowledge that prior convictions will be used in cross-examination. Cautionary instructions to the jury concerning the defendant‘s privilege not to testify can be of little assistance to him in such a case.
What is involved here is the necessity of fairness in trials. Consequently, questions of constitutional error aside, there is significance in the rulings of the Supreme Court on the subject of fair trials. Due process of law is afforded to every defendant under the Fourteenth Amendment, through which the Sixth Amendment confers the right to a trial by an impartial jury. The defendant has similar guaranties under art. 12 of the Declaration of Rights of the Constitution of the Commonwealth. These guaranties are violated, and the defendant is deprived of a fair trial, when proceedings give rise to a probability of prejudice. Estes v. Texas, 381 U. S. 532, 542-543 (1965). In recent years the Supreme Court in reversing criminal convictions, has lent frequent emphasis to the guaranties of due process of law and a fair trial before an impartial jury. Ward v. Monroeville, 409 U. S. 57 (1972). Webb v. Texas, 409 U. S. 95 (1972). Cool v. United States, 409 U. S. 100 (1972). Ham v. South Carolina, 409 U. S. 524 (1973). Gagnon v. Scarpelli, 411 U. S. 778 (1973). Wardius v. Oregon, 412 U. S. 470 (1973). That court has also found a denial of due process in the application of certain unique rules of evidence in a criminal trial. Chambers v. Mississippi, 410 U. S. 284 (1973).
The danger of prejudice most clearly arises when the prior convictions are similar in nature to the indictments on trial.
It is reasonable for us to be confident that in most cases limiting instructions accomplish their intended purpose. Nevertheless, in cases like the instant one, where the evidence subject to limitations has an extremely high potential for unfair prejudice, we have a duty to be skeptical as to the effectiveness of limiting instructions. They have been characterized by Judge Learned Hand as “the recommendation to the jury of a mental gymnastic which is beyond, not only their power, but anybody‘s else.” Nash v. United States, 54 F. 2d 1006, 1007 (2d Cir. 1932). “The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.” Krulewitch v. United States, 336 U. S. 440, 453 (1949) (Jackson, J., concurring).
The case of Bruton v. United States, 391 U. S. 123, 128-137 (1968), similarly repudiates the assumption that limiting instructions can be effective. In that case, at a joint trial, the confession of one defendant which inculpated the other was admitted in evidence with instructions to the jury that the proof was received against only the confessor. The Supreme Court, in reversing the conviction of the prejudiced defend-
Prior convictions, even as applied only to the credibility issue, have little or no probative value in most instances. Prior crimes of violence, in particular, have no discernible bearing upon a defendant‘s reliability for truthfulness. In the Bruton case, the confession had strong probative force against the confessor, and the “viable alternative” to preserve its valid purpose in proof was to sever the trials of the codefendants. 391 U. S. at 134. There is only one appropriate remedy when evidence of a defendant‘s prior conviction is offered which is highly prejudicial and which has little or no probative value even upon the limited issue for which it is received. That remedy is to exclude it, but in this Commonwealth the judge has no power to exclude it. Commonwealth v. West, 357 Mass. 245 (1970).
If the statute allowed discretion in the trial judge, injustice could be avoided. For example, judges routinely and scrupulously direct trial proceedings so as to avoid premature jury awareness of alleged prior convictions where such prior convictions are part of the gravamen of the indictment.