Com. v. Blaikie

Decision Date06 July 1978
Citation375 Mass. 601,378 N.E.2d 1361
PartiesCOMMONWEALTH v. James F. BLAIKIE, Jr.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Daniel G. Harrington, Boston (Paul F. Markham, Boston, with him), for defendant.

Alice E. Richmond, Sp. Asst. Atty. Gen. (Charles J. Hely, Asst. Dist. Atty., with her), for Com.

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

LIACOS, Justice.

The defendant appeals under the provisions of G.L. c. 278, §§ 33A-33G, from a conviction of murder in the first degree. The defendant argues on appeal that the trial judge erred in (1) denying the defendant's motion for a directed verdict of not guilty on so much of the indictment as charged murder in the first degree; (2) denying the defendant's motion to suppress statements, based on an alleged breach of a discovery agreement; (3) refusing to allow the defendant to call the prosecutor as a witness; (4) denying the defendant permission to reopen his case on surrebuttal; and (5) failing to instruct the jury that the prosecutor's closing argument contained statements of fact not based on the evidence.

We conclude that there was no error. After reviewing the case on the law and the evidence, we also conclude that the defendant is not entitled to relief under G.L. c. 278, § 33E. We briefly summarize the evidence presented at trial by the prosecution before turning to the defendant's assignments of error.

The arrest of the defendant followed the discovery in November, 1975, of the corpse of twenty-seven year old Caesar D. DeWilde. The police found the deceased buried in a dry well located in the basement of a house in Brookline, owned and occupied by the defendant from April of 1974 to April of 1975. To reach the body, the police had to break through a layer of concrete, then two to three inches of coal and an eighteen-inch layer of sand. Beneath three large green plastic garbage bags lay the body of DeWilde in a curled-up position. His head was encased in a bloodied plastic bag, bound around his neck with a wire and string; the back portion of his body was covered with an "egg shell" thin layer of concrete lime. This layer remarkably retarded the normal decomposition process, well preserving the body for identification purposes. The autopsy revealed that DeWilde had been shot once in the back of the head with a .38 caliber bullet. Dr. Bigelow, the medical examiner, testified that DeWilde had been dead for at least six months prior to the discovery of the corpse by the police.

It was in January of 1975 that the police had begun their search for DeWilde. Responding to a report by DeWilde's mother that her son was missing, the police sought information as to DeWilde's whereabouts from the defendant. The defendant had known DeWilde for several years. DeWilde was impressed by Blaikie's apparent financial success as evidenced by his large home in Brookline, his new cars, and his sailboat. In reality, the defendant was living beyond his means, for he was deeply in debt. In early December, 1974, the defendant had borrowed $6,000 from DeWilde to be repaid on February 12, 1975. There also was evidence, offered to show the state of mind of the deceased, that a week before his death DeWilde loaned the defendant an additional large sum of money. According to his friends, DeWilde was thus "uptight" and worried that he would "lose everything."

On January 14, 1975, DeWilde, owner of a foreign auto repair business, was playing "nickel" poker during his lunch break with Matthew Chaet, who rented garage space to DeWilde. At approximately quarter past twelve, DeWilde received a telephone call. Elated by the telephone message, DeWilde slapped Chaet on the back and yelled, "he's got it. Jimmy's got it." About five minutes later the telephone rang again, and Chaet heard DeWilde say after taking the receiver, "Oh, you want me to come over there? Okay." Shortly thereafter DeWilde left the garage and never returned.

In response to police questioning in January, the defendant told them that DeWilde arrived at his home in Brookline around noontime on January 14 to deliver certain automobile insurance papers and to collect on a $50 Superbowl bet. The defendant volunteered false and misleading information, which he later admitted was an attempt to steer the police investigation away from him.

On February 6 and 25, 1975, police Officers Doris and Moran interviewed the defendant. Without recounting the details of these February meetings, it is sufficient to note that the defendant made various incriminating statements. He admitted that he had previously lied to the police and that he owed DeWilde $6,000. He also told them he was involved as a middleman in a deal between DeWilde and a man named Ned Woodman. Subsequently, the defendant sold his house and went to Phoenix, Arizona.

The defendant testified in his own defense. He admitted killing DeWilde but claimed he did so in self-defense. The defendant portrayed DeWilde as a hot-tempered loan shark who wanted to collect on the $6,000 loan a month before it became due. When the defendant could not produce the entire amount of the loan, DeWilde became enraged and threatened him. In the ensuing scuffle, the defendant shot DeWilde in the head.

1. Deliberate premeditation. At the close of the Commonwealth's case in chief, the defendant moved for a directed verdict of not guilty of murder in the first degree. The defendant claims error in the judge's denial of this motion. The narrow issue raised by the defendant's motion for a directed verdict is whether the evidence, in its light most favorable to the Commonwealth, was sufficient to permit the jury to infer deliberate premeditation. Commonwealth v. McInerney, --- Mass. ---, ---a 365 N.E.2d 815 (1977). In considering this issue, we review only the evidence introduced during the Commonwealth's case in chief. Commonwealth v. Kelley, 370 Mass. ---, --- - ---b 346 N.E.2d 368 (1976).

To prove deliberate premeditation, an essential element of murder in the first degree, the Commonwealth must show that the defendant's resolution to kill was a product of cool reflection. "(W)here the purpose is resolved upon and the mind determined to do it before the blow is struck, then it is, within the meaning of the law, deliberately premeditated malice aforethought." Commonwealth v. Tucker, 189 Mass. 457, 494, 76 N.E. 127, 141 (1905). See also Commonwealth v. Caine, 366 Mass. 366, 374, 318 N.E.2d 901 (1974); Commonwealth v. Brooks, 308 Mass. 367, 369, 32 N.E.2d 242 (1941).

We conclude that there was sufficient evidence from which the jury could infer that the defendant deliberately premeditated the act. In reaching this conclusion, we need not consider conduct of the defendant after the killing in an attempt to avoid detection. Such conduct is rarely relevant to the issue of premeditation. See W. R. LaFave & A. W. Scott, Jr., Criminal Law § 73, at 565 (1972). See also People v. Anderson, 70 Cal.2d 15, 33-34, 73 Cal.Rptr. 550, 447 P.2d 942 (1968). Thus, the defendant's elaborate concealment of the body without proof that preparations were made in advance of the killing, his misleading and false statements to the police officers, and his subsequent flight to Phoenix are more properly considered as evidence of consciousness of guilt, not premeditation. See Commonwealth v. Noxon, 319 Mass. 495, 533, 66 N.E.2d 814 (1946). Cf. Commonwealth v. Smith, 350 Mass. 600, 606-607, 215 N.E.2d 897 (1966).

The evidence previously recited, apart from the matters excluded above, was ample to warrant the finding of the jury. The jury could have found that the defendant had a motive to kill in that he was being pressed for repayment by DeWilde, his creditor, and that he lured him to his home with a preconceived plan to kill. The evidence of a single deadly shot in the back of the victim's skull adds further weight to such a finding. There was no error in the denial of the motion for a directed verdict.

2. Motion to suppress. Prior to the second trial, the judge denied the defense motion to suppress incriminating statements of the defendant that were not disclosed to the defendant prior to his first trial on this indictment. These statements, made to the police while DeWilde was still considered a missing person, included admissions by the defendant that he had a motive to kill DeWilde and that he had lied to avoid being suspected of killing DeWilde.

The first trial ended in a mistrial after police Officer Moran testified that on February 25, 1975, the defendant had told him that "(h)e didn't want to be suspected of killing David DeWilde." Finding this testimony to be so different from the language in any pretrial information disclosed to the defendant as to be prejudicial, the judge granted the defendant's motion for a mistrial. The judge found neither the prosecutor nor the defense counsel blameworthy, but attributed the discrepancy between Moran's trial testimony and his previously disclosed interview notes to a "difference in understanding of the language used" and a failure to have the defendant's discovery motions "formally acted on by the Court in precise language." 1

The defendant argues on appeal that because the prosecutor at the aborted first trial allegedly breached a pretrial discovery agreement to disclose all the defendant's statements, due process requires that the prosecution be limited at the second trial to only those statements disclosed prior to the first trial. 2

The defendant here was fully apprised of the contents of his statements that would be used against him at the second trial. More than a month before that trial, the prosecution delivered to the defense counsel all the defendant's statements. In doing so, the prosecution complied with the discovery rule set forth in Commonwealth v. Lewinski, 367 Mass. 889, 903, 329 N.E.2d 738, 747 (1975) ("Written statements and the substance of any oral...

To continue reading

Request your trial
72 cases
  • Commonwealth v. Edwards
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 7 Diciembre 2022
    ...preparation by having to meet unexpected [evidence]").The situation here is not unlike the circumstances in Commonwealth v. Blaikie, 375 Mass. 601, 606-607, 378 N.E.2d 1361 (1978), where a trial judge granted the defendant's request for a mistrial because testimony by a police officer refer......
  • Com. v. Doherty
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 26 Marzo 1985
    ...defense witnesses.... '[T]he constitutional right of the accused to call witnesses is not without limit.' Commonwealth v. Blaikie, 375 Mass. 601, 608-610, 378 N.E.2d 1361 (1978). Nor is the defendant's right to present witness testimony in his own behalf absolute." Commonwealth v. Curtis, s......
  • Mass. Highway Dep't & Another 1 v. Perini Corp.. & Others.2
    • United States
    • Appeals Court of Massachusetts
    • 9 Mayo 2011
  • Com. v. Campbell
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 7 Agosto 1979
    ...is premeditated if the "resolution to kill was a product of cool reflection." Commonwealth v. Blaikie, --- Mass. ---, --- D, 378 N.E.2d 1361, 1364 (1978). "(N)o particular length of time is required in order for deliberate premeditation to be found." Commonwealth v. Caine, supra, 366 Mass. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT