Com. v. McInerney

• Decision Date: 28 July 1977
• Citation: 373 Mass. 136,365 N.E.2d 815
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 815

365 N.E.2d 815

373 Mass. 136

COMMONWEALTH v. THOMAS F. McINERNEY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 6, 1977.

Decided July 28, 1977.

Stephen L. Saltonstall, Boston, for defendant.

David L. Trainor, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

QUIRICO, Justice.

The defendant was indicted for the crime of murder in the first degree of Cynthia M. Hartford (victim). The case was submitted to the jury with instructions by the trial judge that they could return one of four alternate verdicts: not guilty, guilty of murder in the first degree, guilty of murder in the second degree, or guilty of manslaughter. The jury returned a verdict of guilty of murder in the first degree, whereupon the defendant was sentenced to imprisonment for life, the sentence to be served from and after a life sentence which he was then serving. ¹ The case is now before us on the defendant's appeal under G.L. c. 278, §§ 33A-33G.

The appeal raises four issues with respect to which the defendant alleges that the judge committed error. They are: (a) whether there was sufficient evidence of malice to permit the case to be submitted to the jury on the charge of murder in either degree, (b) whether the judge correctly instructed the jury that they might infer malice from the use of a deadly weapon "unless by the circumstances the jury considers that it has been disproved," (c) whether the judge correctly declined to instruct the jury on the defense of insanity and that they might return a verdict of not guilty of reason of insanity, and (d) whether there was sufficient evidence of premeditated malice to permit the case to be submitted to the jury on the charge of murder in the first degree.

We conclude that there was error in the judge's denial of the defendant's motion for a directed verdict of acquittal on so much of the indictment as charges murder in the first degree and that he is entitled to a reduction of the verdict to one of guilty of murder in the second degree, that there was no error by the judge in any other respect, and that the defendant is entitled to no relief under G.L. c. 278, § 33E.

There was an abundance of evidence implicating the defendant in the killing of the victim. Most of it was in the form of admissions made by the defendant to a number of his friends and acquaintances in the first two days following the killing and repeated by them in their testimony as witnesses at the defendant's trial. ² The following is a brief summary of the evidence.

The defendant and the victim met at a lounge in Boston about 6:30 P.M. on August 14, 1974, and the were there together until they left about 1 A.M. on August 15, 1974. During that period the defendant drank about six servings of beer and the victim about six "wine coolers." When they left the lounge the victim drove the defendant in her car to a point in Brookline where the defendant had left his car, and from that point they agreed to go in their separate cars to her apartment in Quincy. After arriving there they had a few drinks of beer and then attempted to have sexual intercourse but were unable to do so because of the defendant's long-standing problem of impotency and his inability to copulate.

The victim laughed at the defendant and told him she had wasted her evening. He asked her to stop laughing at him and she continued, so he put his hand over her mouth to stop her. She still continued to laugh and he slapped or struck her. She started to yell and tried to leave. He then grabbed a piece of cord or twine from a table, wrapped it around her neck, and applied pressure. He saw blood coming from her nose and mouth and thought he had killed her. He put her body on a couch and then left the apartment.

In leaving the apartment the defendant wiped the doorknob to eliminate fingerprints and took with him the empty beer cans and the victim's pocketbook. He disposed of the victim's automobile driving license and keys to her apartment and automobile by throwing them away in some tall grass and shrubbery at the rear of the apartment complex where he lived. The police found the items there on August 19, 1974.

A medical expert attributed the death of the victim to "asphyxia due to strangulation by ligature," and he expressed the opinion that her death had occurred sometime between 1 A.M. and 1 P.M. on August 15, 1974.

In the late afternoon or early evening of August 17, 1974, the defendant, accompanied by four of his friends, was driven to the home of an officer of the Quincy police department and turned himself in and was placed under arrest.

Additional evidence will be summarized, as necessary, in the discussion of the several errors alleged by the defendant.

1. Malice. On the subject of malice the defendant argues, in the alternative, first, that there was no evidence from which the jury could find that the killing of the victim was with "malice aforethought" (G.L. c. 265, § 1), and therefore it could not be murder in either degree, and, second, that if there was any evidence indicating such malice, the verdict was against the weight of the evidence. We disagree.

We dispose of the second part of the defendant's argument by saying that, if there was any evidence from which the jury could infer malice, it was not error for the judge to refuse to limit the jury verdicts to either one of not guilty or one of guilty of manslaughter. However, in such a situation it would be appropriate for us to consider that matter in the review of the entire case, both as to fact and law, under the mandate of G.L. c. 278, § 33E.

At the outset of our consideration of the first part of the defendant's argument, we take note of what is meant by the words "malice" and "malice aforethought" as part of the definition of murder. It is appropriate that we do so because of the defendant's emphasis on evidence which he contends indicates the absence of any ill will or hostility on his part toward the victim and also the absence of any intention to kill or harm the victim.

"The argument of the defendant that there was no evidence of malice or "ill will" on the part of the defendant toward the victim, and that this therefore precluded a verdict of guilty of murder in the second degree, betrays a basic misunderstanding of the meaning of 'malice aforethought' employed with respect to the crime of murder in this Commonwealth. Malice aforethought does not necessarily require a showing of ill will toward the victim. Rather it comprehends any intent to inflict injury without legal justification or palliation." Commonwealth v. Festa, --- Mass. ---, --- ^a , 341 N.E.2d 276, 280 (1976). "If there was an intention on the part of the defendant to inflict injury upon the deceased which was not justified on any lawful ground or palliated by the existence of any mitigating circumstances, that intention was malicious within the meaning of the law." Commonwealth v. Mangum, 357 Mass. 76, 85, 256 N.E.2d 297, 303 (1970). "[I]t is possible to commit murder

without any actual intent to kill or to do grievous bodily harm, and ... reduced to its lowest terms, malice in murder means knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act, coupled perhaps with an implied negation of any excuse or justification." Commonwealth v. Chance, 174 Mass. 245, 252 54 N.E. 551, 554 (1899). In Commonwealth v. Campbell, 352 Mass. 387, 398-399, 226 N.E.2d 211, 219 (1967), we quoted the above language from the Chance decision, and then said: "This simply means in such circumstances that a jury could imply malice and render a verdict of second degree murder which would be upheld on appeal." Commonwealth v. Hicks, 356 Mass. 442, 445, 252 N.E.2d 880 (1969); Commonwealth v. Gricus, 317 Mass. 403, 410-411, 58 N.E.2d 241 (1944); Commonwealth v. Bedrosian, 247 Mass. 573, 576, 142 N.E. 778 (1924); Commonwealth v. Pemberton, 118 Mass. 36, 39, 43 (1875). Commonwealth v.

Webster, 5 Cush. 295, 304 (1850). Commonwealth v. York, 9 Metc. 93, 103-107 (1845). ³

The defendant's contention that there was no evidence from which the jury could find malice is based on the fact that the Commonwealth's only proof of the homicide consisted of the defendant's admissions which were coupled with denials by him of any intention to hurt or kill the victim. He contends that the Commonwealth thus failed to prove malice, and that it has instead actually proved the absence of malice. The defendant argues in effect (a) that the jury may not accept the defendant's admissions as true and at the same time reject his accompanying exculpatory statements as untrue, and (b) that, in the alternative, if the jury were permitted to disbelieve, and did disbelieve the defendant's exculpatory statements, the net result would be the proof of a homicide but no proof of malice, and therefore no proof of murder in either degree.

The defendant does not question the general rule that "[t]he credibility of witnesses is ordinarily entirely for the fact finding tribunal ... [and that c]ommonly how much or how little of the testimony of a witness is to be believed is for the jury." Commonwealth v. Davis, 284 Mass. 41, 51, 187 N.E. 33, 37-38 (1933), and cases cited. In the application of that rule to civil cases this court has held that the jury "would have ... the right to accept .. [a party's admissions], and to reject that part of her testimony which was favorable to herself." Jefferds v. Alvard, 151 Mass. 94, 95, 23 N.E. 734 (1890). Limoges v. Limoges, 287 Mass. 260, 261, 191 N.E. 639 (1934).

The same rule has been applied in criminal cases. In Commonwealth v. Holiday, 349 Mass. 126, 129, 206 N.E.2d 691, 693 (1965), where the defendant contended that the jury had to accept his testimony on a point "in its entirety or not at all," we said: "The Commonwealth need not accept the...