Com. v. Bjorkman

• Decision Date: 14 November 1973
• Citation: 303 N.E.2d 715,364 Mass. 297
• Parties: COMMONWEALTH v. Robert J. BJORKMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 715

303 N.E.2d 715

364 Mass. 297

COMMONWEALTH v. Robert J. BJORKMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 19, 1973.

Decided Nov. 14, 1973.

William P. Homans, Jr., Boston, for defendant.

Alan Chapman, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

TAURO, Chief Justice.

The defendant was indicted for murder in the first degree, found guilty by a jury of murder in the second degree, and sentenced to the Massachusetts Correctional Institution at Walpole for the term of his natural life. The defendant appeals pursuant to G.L. c. 278, §§ 33A--33G, and argues fourteen of thirty-eight assignments of error.

The pertinent evidence is summarized. On May 28, 1970, the partly clothed body of one Ernest M. Hunt was discovered in his Boston apartment by the landlord. In response to the landlord's call three Boston policemen and a police physician came to the apartment and viewed the body. The landlord, two of the policemen and the police physician testified that there was a repugnant odor in the apartment, that there were blisters visible on the victim's body (which was lying on its side), and that there was a white cloth wrapped around his neck. After a cursory external examination the police physician declared the victim to be dead and ordered the body removed to the Southern Mortuary. Dr. George W. Curtis, Suffolk County medical examiner, rejected the body for an autopsy on the basis of a written report from the mortuary. G.L. c. 38, § 6. Gahn v. Leary, 318 Mass. 425, 61 N.E.2d 844 (1945). Dr. Oliver Redden, a doctor assigned by the Department of Public Health, thereupon observed the body and signed a death certificate in which he stated the cause of death to be myocardial infarction. ¹ At the direction of the victim's brother, a private undertaker embalmed and buried the body. The undertaker testified that he observed a white cloth around the victim's neck.

Some time later, Dr. Curtis received information from the Boston police which caused him to order the exhumation of the victim's body for the performance of an autopsy. The body was exhumed on November 13, 1970, and Dr. Curtis performed the autopsy on December 10, 1970. As a result of his findings from that autopsy Dr. Curtis concluded that the victim had not did of heart disease but instead was a victim of 'strangulation by ligature, homicide.'

The defendant was linked to the death of the victim principally by the testimony of two men, Alan Coyne and Thomas J. Hutton. Coyne and Hutton both testified that they had shared an apartment in Somerville with the defendant for a period of time in May, 1970. The three men talked of going to California together, but the defendant had said that he did not have enough money to make the trip. On the evening of May 26, 1970, the defendant left the other two, saying that he was going to obtain the necessary funds for the trip. Coyne and Hutton did not see the defendant again that evening, but the next morning they found him asleep on the living room couch. They also found cash, credit cards, keys, a wallet and a television set which had not been there the night before. After being pressed for an explanation of the presence of these articles, the defendant stated that he had robbed and killed a man for them. He pointed out to Coyne and Hutton a car parked outside which he also claimed to have stolen from the same man. Later that morning the defendant repeated that he had killed a man, adding that he had strangled him from behind. Hutton alone testified to a separate conversation in which the defendant related the circumstances of the murder. According to Hutton, the defendant said that he had met the victim in a bar, that they went together to the victim's apartment where the defendant agreed to engage in homosexual activity with the victim in exchange for $20, that the victim thereafter fell asleep, and that the defendant, upon looking for the $20 and finding only $9.40, became enraged and strangled him while he slept.

Hutton and Coyne further testified that during that same morning they and the defendant drove to the defendant's mother's house in Framingham. Although there is some conflict in the testimony as to precisely what transpired during this visit, it appears that the defendant's mother gave a sum of money in exchange for the television set. ² Subsequently, Coyne and Hutton separated from the defendant and returned to the Somerville apartment where Hutton took possession of the credit cards which the defendant had left behind. Hutton and Coyne, without the defendant, drove to 'california, where they eventually parted company. Hutton was later arrested in Wyoming as a result of having used one of the credit cards to purchase a tire. One of the credit cards which was found in Hutton's possession at the time of his arrest was in the name of the victim. Two credit cards of the victim were identified at the trial by the victim's brother.

The defendant's arguments on this appeal mostly concern the admission of items of evidence relating to the cause of the victim's death. We deal with those arguments seriatim.

1. Dr. Curtis, the medical examiner, gave detailed testimony describing the results of the autopsy which he performed on the body of the victim. He also gave his opinion as to the cause of death, based in part on the autopsy results. During the doctor's testimony the assistant district attorney introduced in evidence two photographs of the body taken by Dr. Curtis at the time of the autopsy. He also introduced the white cloth which Dr. Curtis had removed from the victim's neck. Dr. Curtis was permitted to display to the jury the knots which he had found in the cloth.

The defendant assigns as error the admission in evidence of these several items of real and oral evidence on the ground that there had been no preliminary showing that the condition of the body and the condition of the white cloth at the time of the autopsy were similar to their conditions at the time of death. Because of the time lag of from six to seven months between the date of death and the autopsy, the defendant deems inadmissible all evidence which described or was based upon the conditions of the body and of the cloth on the latter date. We reject this contention.

Five of the six witnesses who had viewed the body after its discovery but prior to its interment testified that they had seen a white cloth around the neck. Dr. Curtis testified that he found a white cloth around the neck when he photographed the body prior to beginning the autopsy. One of the policemen who observed the body on the day it was discovered and the undertaker who embalmed it both testified, in substance, that the photographs taken at the autopsy fairly represented the cloth which they had originally observed on the victim's neck. Dr. Curtis also testified that he removed the cloth from the neck and stored it in his morgue until removing it just prior to the trial. When the cloth was introduced Dr. Curtis identified it as the one he removed from the victim's neck and as the one appearing in the photographs. This provided ample uncontradicted evidence from which the jury could identify the white cloth and could determine the similarity or differences between its condition at trial and its condition at the time the victim's body was discovered. There was no necessity for the judge to make a preliminary finding of similarity. See Commonwealth v. Vanetzian, 350 Mass. 491, 496, 215 N.E.2d 658 (1966). Indeed, in the circumstances, it might have been erroneous for him to have done so, since this was a question for jury determination. Id.

We reach the same conclusion on the defendant's argument that Dr. Curtis's description of the autopsy results and the doctor's opinion as to the cause of death should also have been excluded absent a preliminary finding of similarity of conditions. Dr. Curtis's testimony as to the condition of the body at the time of autopsy was both extensive and detailed. He found the body to be 'very badly decomposed,' and in explaining the autopsy procedure he described the extent of decomposition present in specific organs. Nevertheless, he was able to form opinions 'within the realm of reasonable medical certainty' that the cause of death was neither 'arteriosclerotic heart disease' nor 'coronary occlusion' but rather was 'asphyxia due to strangulation by ligature, homicide.' It was for the jury to determine the cause of death. Commonwealth v. Giacomazza, 311 Mass. 456, 463, 42 N.E.2d 506 [364 Mass. 302] (1942). Commonwealth v. Noxon, 319 Mass. 495, 534, 66 N.E.2d 814 (1946). The lapse of time between death and the autopsy went to the weight to be given Dr. Curtis's opinions, and not to their admissibility. Cf. Commonwealth v. Giacomazza, supra, 311 Mass. at 471, 42 N.E.2d 506. The defendant's contention in essence is a challenge to the relevance of data obtained from the autopsy performed several months after death. Implicit in the trial judge's overruling of defence counsel's objections to the doctor's testimony is the judge's determination that there was evidence from which the jury could infer that the body as described by Dr. Curtis was sufficiently similar to the body at the time of death to provide relevant information for their consideration. That is all that was required of the judge. We conclude that the evidence was admissible. See COMMONWEALTH V. BOUDREAU, MASS. (1972), 285 N.E.2D 915,^A and cases cited. It was not necessary for the trial judge explicitly to state his conclusion as to relevancy as a preliminary finding, since that conclusion was implicit in his ruling that the evidence was admissible. Commonwealth v. Tucker, 189 Mass. 457, 476, 76 N.E. 127 (1905).

Finally, the defendant's argument that it was error to admit the two photographs of the body relies on the holdings of Lynch v. Larivee Lumber Co. 223 Mass. 335, 111...