Com. v. Best

• Decision Date: 17 September 1980
• Citation: 381 Mass. 472,411 N.E.2d 442
• Parties: COMMONWEALTH v. Mamie Ann BEST (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 442

411 N.E.2d 442

381 Mass. 472

COMMONWEALTH v. Mamie Ann BEST (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 8, 1980.

Decided Sept. 5, 1980.

As amended Sept. 17, 1980.

Alice E. Richmond, Boston (Barry C. Klickstein, Boston, with her), for Mamie Ann Best.

Thomas D. Edwards, Boston (Jeffrey M. Graeber, Boston, with him), for John R. McCown.

Pamela L. Hunt and Robert M. Raciti, Asst. Dist. Attys., for the Commonwealth.

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

KAPLAN, Justice.

Upon indictments dated in June, 1978, the defendants Mamie Ann Best and her son John R. McCown stood trial for fourteen days in April-May, 1979, and were found guilty by a Middlesex County jury of the murder in the first degree on October 25, 1974, of Fayne Adams, husband of Best and stepfather of McCown. The defendants appeal direct to this court arguing various errors claimed below, and also, in reliance on G.L. c. 278, § 33E, certain errors freshly claimed here. We recount the facts as the jury might have apprehended them, at the same time indicating more or less the trail of the investigators of the crime. Then we take up Best's contention that she deserved a directed verdict of acquittal (McCown has abandoned any such claim as to himself). Sundry legal points affecting both defendants or either are dealt with and we conclude that the judgments of conviction should be affirmed.

1. Narrative. (a) About 1 A.M., October 25, 1974, Holliston police officer Donald Haynes, answering a radio report based on a call from one Mary Ann Thistle, proceeded down Central Street and spotted a four-door Ford Torino car that had evidently run off an S-curve on that road and into an embankment. The driver's door was open, the headlights were on, the car was in gear, and the ignition key in the on position, although the engine had died. On the back floorboard was sprawled the body of the victim Adams (age, fifty-three; height, five feet ten inches; weight, 230 pounds), dead of twenty-six lacerations of the head. The interior and sides of the car were much bloodied, but blood was not found in the area about the car. On the front floorboard Haynes found a blood-covered crowbar which, according to the medical examiner's later study, could have been the fatal instrument; also found was a rock that evidently had been used to weight down the accelerator. Despite the considerable blood in the car, the evidence, as described and analyzed by Sergeant W. Lawrence Marsell (who among other officers reached the scene), suggested that the victim had not been killed in the car but had been dispatched at another location and dragged into his car, ² and the car driven down Central Street and abandoned.

(b) Papers in the car identified the body. By 4:15 A.M. the police arrived at the house of the victim and Best located at 229 High Street, Holliston, some five to seven minutes' drive from the site at Central Street, and set back 150 yards from the road in a heavily wooded, isolated area.

On inspection before entering the house, the police found a pool of blood, ten to twelve inches across and 1 1/2 inches deep, about fifteen feet to the side of the house at the driveway's edge. There were several bloodstains on the cement step and screen door at the back entrance to the house. ³

Best, a slight woman (height, four feet eleven inches; weight, seventy-eight to 115 pounds) answered the back door. The officers told Best her husband had been in an accident, and let her change her clothes when she asked to be taken to the hospital, but she was then told without detail that her husband had "passed away." Thelma Midyette, a friend, was summoned to calm her.

Best was questioned about events of the evening. ⁴ It appeared that Adams worked as a lieutenant for the Pinkerton company with duties of assigning Pinkerton employees to patrol local businesses, arranging replacements when employees called in as unavailable, and sometimes filling in himself. Adams kept long and erratic hours. On the night of October 24, according to Best, Adams arrived home about 6:50 P.M. Between 7 and midnight, Best said, Adams napped, ate dinner, and received and placed several telephone calls. Around 7:30 Adams received the first of three calls. This informed him that a Pinkerton employee could not work that night. According to Best, a second call was received around 9 o'clock. This made Adams angry; Best heard him say, "I'll meet you any place," and, "Well, you know the contract. You be there at quarter till." As Adams hung up, he said, "Oh, those damn kids. They'll drive me crazy." Adams then dressed, left the house, and returned thirty minutes later. He did not explain nor did Best know the reason for his absence. A little after 11:30 Best answered a wake-up call from Pinkerton Sergeant Raul Baez; Adams told Baez that because he had overslept, he would not go by the plant Baez was guarding, but instead would go direct to his midnight shift. (The first and third calls were later verified by the police; the second remained unverified.)

About 11:50 or 11:55 the back doorbell rang. Adams answered the door and told the person or persons there who had arrived in a car that he would be right out. As Best was ironing clothes at the time, she did not see the visitors, but thought they were Pinkerton trainees whom Adams had mentioned at dinner. As Best said goodbye to Adams in the kitchen (her last sight of Adams), she looked out the window and could make out two pairs of legs as they leaned against the front of their car which pointed at Adams' Torino. Thus ended Best's account.

While at the house that morning Sergeant Marsell saw two droplets of blood at the base of the bathroom toilet, and a benzidine test applied to Best at 7 A.M. revealed a trace of blood on her left hand. ⁵ When told of the test result, she said, do "you think I killed my husband?" Although claiming not to have known until November 6 that Adams had been murdered, ⁶ Best was looking in the yard of her house on October 26 for blood or signs of struggle.

(c) We interpolate the comment that at this stage a suspicious mind might not have dismissed the thought that Best could have been implicated in the homicide. But the police apparently could not picture so small a woman contending physically with Adams, and McCown was not yet in the picture. The police were rather led from Best's account to investigate several Pinkerton employees, and particularly Baez, who had earlier been in an argument with Adams about Baez's pay and work schedule. ⁷

The police again interviewed Best at the house on October 26. McCown was present, as was his homosexual lover Mike Bertram, called the "Marquis Di Jon," but the police made no inference as to McCown. They did not then know of the very close attachment of McCown to Best. Again on November 9, 1974, Best was interviewed at some length at the Holliston station. About this time the police with Best's permission examined Adams' safety deposit box. This held several insurance policies on his life. The material was returned to Best when on November 18 Best with others moved to South Carolina. The murder remained an ongoing investigation.

(d) In February, 1976, John J. Healy, an investigator for CNA Insurance Co., was instructed to look into Adams' death, in accordance with the company's practice of investigating claims arising within three months of a policy's effective date, here September 28, 1974. Healy put himself in touch with the Massachusetts authorities with an understanding to share information. Evidently the Marquis spoke with Sergeant Marsell and Detective John F. Burns of the Massachusetts State police shortly after Healy came on the job. ⁸ Healy now learned through records kept by parking lots at Boston's Logan airport that a 1967 Oldsmobile Cutlass car registered to McCown in South Carolina had been parked there from October 25, 1974, at 11:31 A.M. until November 18, 1974, at 7:52 A.M. (the day of the return to South Carolina).

There was also a significant interview with Kenneth Coldwell, for whom Best worked regularly as a babysitter. Coldwell said he was in Best's house about 9 A.M., October 25. Best and Midyette were awaiting a call from the Marquis. He, Coldwell, took a call from South Carolina to the effect that the Marquis would be arriving in Boston at 9 P.M. that night. Coldwell drove Best and Midyette to Logan that evening. The three met the Marquis coming off a plane from Charlotte, North Carolina. As they reached the baggage area, McCown appeared carrying a suitcase. He said he had had trouble finding the airport, and indicated to Coldwell that his car was there.

That McCown may have arrived in his car at Holliston before the murder, was suggested by Edward Shea about a month after the murder. He said that on October 24, 1974, hitchhiking home to Holliston from his job in Natick, he was picked up around noon by a man named "John" ⁹ from South Carolina. At the trial Shea testified that John's car was a blue Chevrolet Chevelle or Malibu but the jury learned through cross-examination of Marsell that Shea had earlier identified the car as a blue 1967 Oldsmobile Cutlass. John said he was coming up to see his parents in Holliston. He needed directions to a part of town known to Shea as High Street. Shea, however, could not identify McCown as the driver from photographs two or three months after the incident, nor could he identify him at the time of trial.

The investigators learned also by a telephone interview in July, 1976, of an episode in South Carolina in July or August, 1974, witnessed by one James H. Bell. (Bell's testimony was admitted in evidence only as to McCown.) Bell was acquainted with McCown and the Marquis and heard them discussing how much they wanted Best to return to South Carolina. Suddenly the Marquis jumped up and said, "Let's knock this guy off," meaning Adams. McCown...