Com. v. Bonomi

• Decision Date: 31 January 1957
• Citation: 335 Mass. 327,140 N.E.2d 140
• Parties: COMMONWEALTH v. Domenick L. BONOMI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 140

140 N.E.2d 140

335 Mass. 327

COMMONWEALTH v. Domenick L. BONOMI.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 1, 1956.

Decided Jan. 31, 1957.

Dwight L. Allison, Boston, Frederick W. Harrington, Jr., Boston, for defendant.

John R. Wheatley, Dist. Atty., Brockton, Warren H. Lindberg, Asst. Dist. Atty., Brockton, for Commonwealth.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and WHITTEMORE, JJ.

WILLIAMS, Justice.

The defendant was found guilty of the murder in the first degree of his wife, Mildred H. Bonomi, without recommendation by the jury that the sentence of death be not imposed. G.L.(Ter.Ed.) c. 265, § 2, as appearing in St.1951, c. 203, and as amended by St.1955, c. 770, § 78. Sentence of death has been imposed and execution of sentence stayed as required by G.L. (Ter.Ed.) c. 279, § 4, as appearing in St.1935, c. 437, § 3. The case is before us on the defendant's appeal, pursuant to G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended, accompanied by a summary of the record, a transcript of the evidence, and assignments of error. The indictment was in the form provided by G.L. (Ter.Ed.) c. 277, § 79, and charged that the defendant on or about August 31, 1955, 'at a place in the County of Plymouth, the exact location of which is to the jurors unknown, did assault and beat Mildred H. Bonomi, with intent to murder her, and by such assault and beating did kill and murder Mildred H. Bonomi.' The Commonwealth specified in a bill of particulars that the victim came to her death between 12:30 P.M. and 4 P.M. on August 31, 1955, as a result of multiple injuries to the head inflicted by a blunt instrument and 'strangulation by ligature.'

The defendant seasonably moved for a change in the place of trial to some adjoining county alleging that a fair and impartial trail could not be had in the county of Plymouth because of (1) 'local prejudice * * * created to the detriment of the defendant's constitutional right to a fair and impartial trial' and (2) 'inflamed public opinion, provocative to anger, and bias which is rampant in said county' In support of his motion he brought to the attention of the trial judge clippings from local and Boston newspapers containing inaccurate accounts of the alleged murder and misstatements of the evidence to be presented at the trial. The first assignment of error is to the denial of this motion. We cannot say that the judge was wrong in refusing to believe that it was practically impossible to empanel an impartial jury in the county where the murder was alleged to have occurred.

'In criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen' art. 13 of the Declaration of Rights of the Constitution of Massachusetts, and while under G.L. (Ter.Ed.) c. 277, § 51, there may be a change in the place of trial it should be ordered with 'great caution and only after a solid foundation of fact has been first established.'

Crocker v. Justices of Superior Court, 208 Mass. 162, 180, 94 N.E. 369, 377. The newspaper accounts and comments submitted to the judge did not require a finding that the guilt of the defendant had been so generally and substantially prejudged by the residents of the county that an unbiased tribunal for the trial could not be obtained. It was not error to deny the motion. See Commonwealth v. Millen, 289 Mass. 441, 463-464, 194 N.E. 463; Commonwealth v. Sheppard, 313 Mass. 590, 594-595, 48 N.E.2d 630.

Assignments 2 to 16, inclusive, based on exceptions 1 to 6, inclusive, 10, 11, 13, 14, 16, 17, 19, and 22, relate to the denial of the defendant's request that the judge propound to each prospective juror as called the following questions. '1. Have you read any newspaper articles or any other publicity in connection with this case? 2. If you serve as a juror on this case, will your judgment be affected or your verdict in any way influenced by any articles you have read or may read or by any publicity that the case has received or shall receive? 3. Will anything you may have heard or read regarding this case or anything you may read in the future prevent you from returning a fair, unbiased, impartial verdict according to the law and the evidence? 4. Has your mind or judgment been so effected by anything you have read or heard concerning this case that you will thereby be unable to render a fair and impartial verdict? 5. Are you able to eliminate or put out of your mind anything you have heard or read concerning this case so that you are satisfied that despite what you may have heard or read you will be able to render a fair and impartial verdict according to the law and the evidence? 6. Are you able to eliminate and put out of your mind anything and everything you have read or heard concerning this case so that if, when the case is closed, you have a reasonable doubt as to the guilt of the defendant, you will give him the benefit of that doubt and return a verdict of not guilty? 7. If after hearing the evidence and applying the law as given you by the court, you entertain a reasonable doubt as to the guilt of this defendant, will you give him the benefit of that doubt and return a verdict of not guilty? 8. If after hearing the evidence and the law as given you by the court you have a reasonable doubt as to the guilt of this defendant, would you permit or allow that doubt to be overcome or affected in any way by any bias or prejudice you might have towards this defendant? 9. If after hearing the evidence and the law as given you by the court you have a reasonable doubt as to the guilt of this defendant, would you permit or allow that doubt to be affected in any way by any impressions you may have received from anything you may have heard or read outside of the court room? 10. Are you satisfied that you are able to render a fair and impartial verdict according to the law and the evidence and to give the defendant the benefit of a reasonable doubt and find him not guilty if you have such a doubt?' The judge asked each juror the required four statutory questions, G.L. (Ter.Ed.) c. 234, § 28, and the question made necessary by G.L. (Ter.Ed.) c. 278, § 3, as to his qualification to serve as a juror in a capital case. Further inquiry was made by the judge in certain instances to determine whether the juror was free from bias, had formed an opinion, and stood genuinely indifferent. It is settled that whether questions additional to those prescribed should be asked is a matter for the trial judge to decide. Commonwealth v. Cero, 264 Mass. 264, 271, 162 N.E. 349; Commonwealth v. Millen, 289 Mass. 441, 475-476, 194 N.E. 463; Commonwealth v. DiStasio, 294 Mass. 273, 280-282, 1 N.E. 189; Commonwealth v. Taylor, 327 Mass. 641, 647, 100 N.E.2d 22.

There was no error in the denial of the defendant's request.

There was also no error in denying subsequent requests of the same import presented as each of the fourteen jurors who were subsequently empanelled was called.

The evidence was voluminous and in important particulars is summarized as follows. Other evidence is recited in connection with the discussion of assignments of error relating to its admissibility.

The defendant and Mildred H. Bonomi were married in 1941 when he was twenty and she sixteen years of age. In about two months they separated and were divorced in 1943. They remarried in 1947 and continued to live together until August, 1955. They dwelt with their two children, a daughter, Carol Ann, aged fourteen, and a son, Domenick, Junior, aged about eighteen months, in a house which the defendant built, at 321 Gannett Road in that part of Scituate called North Scituate. The house was of one story with bedrooms, a living room, a kitchen, and at the left and as viewed from the street a room with an outside front door which the defendant used as an office. He conducted a construction business through a corporation, Scituate Construction Company, Inc., of which, except for two qualifying shares held by his wife and her brother George E. Haley, he held all of the stock Mrs. Bonomi was the clerk. In May and June of 1955 there were frequent quarrels between the defendant and his wife, in one or more of which he struck her. On August 31 mutual ill will had reached a point that there were pending a libel for divorce brought by the husband and a petition for separate support instituted by the wife. At that time the defendant was living in a room at Scituate Harbor by reason of a temporary order of the Probate Court in the separate support proceeding, issued on August 22, that he obtain a 'separate place of abode' and pay $100 a week for the support of his wife and children. He was allowed to continue the use of his office at 321 Gannett Road, but the door between it and the adjoining kitchen was kept locked on both the office and the kitchen sides. About a week before Wednesday, August 31, the defendant told Carol Ann that he was going to give her tickets to the Music Circus, an entertainment which was running in Cohasset. On Tuesday, the thirtieth, learning that his daughter's cousin, Mary Beth Haley, a girl of ten years, was at the house on a visit, he invited her to accompany Carol Ann and said that he would call for the two girls at 1 or 1:30 P. M. On Wednesday morning, the day they were to go, he told them to be ready at 12:30. The girls and Mrs. Bonomi lunched about noon, the latter having orange juice, bread and butter, bacon and eggs, and cake. The defendant, dressed in khaki shirt and pants, arrived at the house between that hour and 12:30 driving a black panel truck which he customarily drove and which had the name of his corporation painted on the sides. He said to hurry up as they were to stop on the way at the Lad and Lassie Shop in North Scituate where Carol Ann previously had selected a jacket. They stopped at the shop and the defendant seemed to be and said that he was in a...