Commonwealth v. FlemingCommonwealth v. Fleming
- Reporters:
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- Before:
- Reardon
This is an appeal under the provisions of
The jury could have found the following facts. About 2:45 a.m. on July 6, 1968, the body of Kathleen Kirk was found in the сellar of the defendant’s home located in East Providence, Rhode Island. She had been shot three times in the head, the cause of death being a penetrating bullet wound of the head with severe brain laceration. The defendant had been acquainted with the deceased for two and one-half years. For some two months prior to the killing there had been difficulties between them, and for two weeks before the event he had planned to kill her. Around 6 p.m. on the night of the shooting the defendant met the deceased at a restaurant operated by her mother. At 11:45 p.m. that same night he again met the deceased, this time at a restaurant called “The Gaslight.” The two left the restaurant sometime thereafter in the deceased’s father’s car, which she drove. The defendant asked the deceased to drive him to his home because his car’s transmission was broken. He said he wanted to return home to obtain money to repair his сar. In fact, the transmission of his car was not broken. When he arrived home the defendant procured a gun with ammunition. He returned to the car and requested the deceased to drive him to Seekonk in Massachusetts. They drove to the vicinity of the Seekonk High School where the defendant ordered the deceased to stop; he then fired three bullets into the deceasеd’s head. Following this incident he returned to his house, threw the body of the deceased down the cellar stairs, and then mutilated it with a knife. Thereafter he went upstairs, changed his clothes, wrapрed his hand which he had injured in the shooting, and drove to Boston.
Later, while proceeding west on the Massachusetts Turnpike, he decided to notify the police of what he had done. He stopped at the State police barracks in Southboro where he announced, “I think you will want me, I just killed a girl.” He was immediately advised by the police of his rights. He told his police interrogators where the gun was
While there was conflicting evidence from experts as to thе mental capacity of the defendant, there was testimony that the defendant did not suffer from paranoia and was “fully aware and did have substantial capacity to appreсiate the criminality of his conduct and to conform that conduct to the requirements of the law.” For purposes of disposition of this appeal, assignments of error of the defendant will be grouped for discussion.
1. It is first argued that the trial judge erred in denying the defendant’s motion to dismiss the indictment and for a directed verdict. These assignments raise the question whether as matter of law thеre was sufficient evidence to prove that the crime was committed within the Commonwealth of Massachusetts. Subsequent to giving his original story to the police the defendant denied that the shooting occurred in Massachusetts. He said that his original story was concocted to avoid his being sent to prison in Rhode Island where he feared meeting the deceased’s brother who was jailed there at that time. He also feared that a Rhode Island trial would subject Ms parents to more publicity than one in Massachusetts. It is elementary that it must be shown that jurisdiction lodged in the сourts of Massachusetts before the defendant can be found guilty of the offence charged. A review of the transcript discloses ample evidence to find that the crime occurred in Massachusetts. At the hearing on the motions the judge decided properly, in our view, to leave the question of the location of the crime to the jury. In
Commonwealth
v.
Dorr,
216 Mass. 314, there was physical evidenсe that a homicide occurred in one
2. The defendant contends that he should have been acquitted because, as a result of mental disease or defect, he was not responsible for his criminal conduct. Alternativеly, the defendant argues that although evidence was introduced tending to prove that for two weeks prior to the crime he intended to murder ‘the deceased he suffered from mental illness which precluded a finding of deliberate premeditation (see Commonwealth v. Hicks, 356 Mass. 442, 444; Commonwealth v. Talbert, 357 Mass. 146, 148). Hence, he says his conviction should be reduced from first to second degree murder.
In
Commonwealth
v.
McHoul,
352 Mass. 544, 546-547, we adopted the definition cоntained in the Model Penal Code, Proposed Official Draft (1962), § 4.01, p. 66. That section says that a “person is not responsible for criminal conduct if at the time of such conduct as a result of mеntal disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements оf law.” Here there was conflicting testimony by psychiatrists regarding the defendant’s mental capacity. Thus, as to the defendant’s first contention, a question of fact was presented, and its resol u
3. There is argument by the defendant that the verdict was not unanimous. Although there is no right to poll the jury (Commonwealth v. Goldenberg, 338 Mass. 377, 386), the judge allowed it in this case: The question of the unanimity of the verdict centers about the polling of one juror. The juror was asked whether the defendant was guilty or not guilty, and his answer was, “Guilty.” He was next asked of what the defendant was guilty, and he responded, “Murder.” He was finally asked whether he had any recommendation, and he said, “No dеath penalty.” While the juror did not respond precisely as instructed by the judge, his responses were given during the polling of the entire jury, in which all other jurors’ responses were proper. The manner in which he answered precludes the conclusion that his intention was other than to find the defendant guilty of murder in the first degree. Furthermore, the judge’s charge had spelled out the necessity of a unanimous verdict and the differences between the degrees of murder, as well as the consequences of each. Since only a verdict of murder in the first degree carries with it a dеath penalty and the necessity of a recommendation of mercy, and since the juror must have known this, his recommendation, “No death penalty,” further confirms our conclusion.
5. We find no error in the defendant’s other complaint. At one point the judge questioned a psychiatric witness. This he has a right to do. In so doing, he exhibited no bias. Commonwealth v. Oates, 327 Mass. 497, 500. Commonwealth v. Freeman, 352 Mass. 556, 560. Nor was there error, as alleged by the defendant, in the length of time in which the jury deliberated or in the further instructions which the jurors were given during the course of their deliberations. The judgе has discretion to control the conduct of the trial and he did so here without harm to the defendant. Mottla, Proof of Cases in Mass. (2d. ed.) § 597.
6. Other assignments of error have been considered as required by
Judgment affirmed.