Com. v. Burden

• Decision Date: 02 June 1983
• Citation: 448 N.E.2d 387,15 Mass.App.Ct. 666
• Parties: COMMONWEALTH v. Weldon E. BURDEN.
• Court: Appeals Court of Massachusetts

Page 387

448 N.E.2d 387

15 Mass.App.Ct. 666

COMMONWEALTH v. Weldon E. BURDEN.

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 13, 1983.

Decided April 21, 1983.

Further Appellate Review Denied June 2, 1983.

Ellen K. Wade, Boston, for defendant.

Newman Flanagan, Dist. Atty. (Muriel Ann Finnegan & Robert J. Schilling, Asst. Dist. Attys., with him) for the Commonwealth.

Before HALE, C.J., and ARMSTRONG and WARNER, JJ.

HALE, Chief Judge.

The defendant was convicted on indictments charging him with breaking and entering, armed assault in a dwelling, armed robbery and aggravated rape. He was also convicted of second degree murder on an indictment charging him with murder in the first degree.

He appeals from these convictions and assigns as error (1) the judge's denial of several motions brought to mitigate extensive pretrial publicity; (2) the judge's instruction to the venire that capital punishment did not exist in Massachusetts; (3) the admission of hearsay statements of the victim; (4) the failure to exclude television cameras from the courtroom; (5) the judge's denial of his motion to compel the principal prosecution witness, one Matthew Farley, to submit to a polygraph examination; (6) the judge's instruction to the jury that the defendant could have taken a polygraph examination "if he wants to"; (7) the judge's instructions regarding joint venture; (8) the denial of the defendant's motion to compel the prosecution to state its theory of the case; and (9) the denial of the defendant's motion for post trial interviews of the jurors for sentencing purposes. We find no error and affirm the convictions.

The following are some of the facts which the evidence warranted the jury in finding. On Saturday, March 14, 1981, at approximately 1:00 P.M. Deborah Smith, a twenty-eight year old nurse employed by Beth Israel Hospital, was robbed, raped, and murdered in her apartment in Boston. After the assault, Smith phoned the police and told the dispatcher that she had been stabbed and needed an ambulance. Shortly thereafter, but before an ambulance arrived, Pamela Rollins, a nurse practitioner, was walking up the stairs when she heard Smith say, "Get a doctor," and went to her aid. Rollins asked Smith what had happened, and Smith responded that she had been raped and stabbed.

Rollins then called 911 and reported what she had observed and the need for an ambulance. She returned to the victim and checked her for injuries. She discovered a wound three or four centimeters in length on the victim's right side, just below her rib cage. Rollins went to the bathroom, got a towel and put it over the wound. She asked Smith if she had any medical problems or allergies. She then asked the victim if she could tell who had done this to her and Smith replied, "two black men." When asked how old they were, Smith said, "in their twenties," and stated they were "about six-two" when Rollins asked how tall they were. Because the victim was losing consciousness, Rollins could obtain no further information. The ambulance arrived shortly thereafter, but Smith died of a stab wound four to six inches deep which cut through her liver and aorta, causing a massive hemorrhage. Sperm cells were detected in a vaginal swab and wash taken from the victim.

When the police arrived at the scene they found that the door to Smith's apartment had been smashed open and was hanging only by the uppermost of its three hinges. The apartment from that door to the rear wall was open and was comprised of living, dining, and kitchen areas. The bedroom was separate and adjoined the kitchen through a short hallway. On the floor of the living area the police found a blood-stained plate glass table top. A trail of blood led from the living area to the dining area where a pair of blood stained dungarees, torn at the crotch, lay on the floor. The trail of blood continued through the kitchen area and then led to the left and extended into the victim's bedroom. There at the foot of the victim's blood stained bed was a small pile of clothes, some of which were blood stained. Various credit cards and cards of similar size were strewn about the floor. Blood was spattered on the floor and wall and on a closet door.

There were several eye witnesses to the aftermath of the crime. Three men who were outside the building saw Farley leave the building and run across Commonwealth Avenue. He was followed by Burden, who was carrying a stereo turntable. The three men became suspicious and began to pursue Farley and Burden. Burden dropped the turntable, and a chase ensued, but Farley and Burden escaped. During the pursuit, another witness observed that Farley had a black camera slung around his neck. Burden's fingerprints were later found on the turntable.

On the evening of March 16, 1981, the police received a call from a Jeanette Johnson, who lived in the same apartment building as the defendant. Johnson told them that Burden and Matthew (she could not pronounce Farley's last name) had killed Smith. Following a meeting with and statements by Johnson and a Wanda Murphy, police secured a warrant to search the apartment where Burden and Farley were staying. The search resulted in the seizure of coins and hundreds of pieces of jewelry, a number of which were identified as having belonged to Smith. Some of these pieces had been given by the defendant to his girlfriend, who was wearing them at the time of the search. Also found were clothes with human blood stains and a buck type knife having a four inch blade, which a medical examiner later testified could have caused the fatal wound.

Two weeks before trial Farley agreed to a plea bargain. By its terms the District Attorney would recommend the acceptance of a plea of guilty to murder in the second degree with any other sentences to run concurrently with that imposed on the murder indictment should Farley testify against the defendant.

Farley testified at trial that he and the defendant decided on March 14, 1981, to break into an apartment. Thinking no one was home, Farley and Burden broke open Smith's apartment door. As they entered the apartment, they saw Smith, and Burden chased her into the bedroom, grabbed her by the hair, hit her, demanded money, used his knife to rip her jeans off, raped her and then stabbed her. While Burden was engaged in these acts, Farley was collecting jewelry, a camera, a stereo, and other valuables. They ran from the scene and split up a few blocks away. Farley later returned to their own apartment where Burden met him at the door and said, "I killed the bitch." Farley and Burden then went to Cambridge to sell the camera, after which they split the proceeds.

Burden also testified. He admitted to breaking into Smith's apartment on March 14, 1981, after deciding no one was home. He testified that Farley had a knife with him which he used to turn the cylinder on Smith's door. According to Burden, they did not encounter the victim on entering the apartment. Burden checked one side of the apartment and Farley the other. Burden spotted a stereo and began dismantling it and looking for something to carry it in. When he heard a woman's voice, he entered a bedroom, where he saw Farley holding his hand over a woman's mouth. The defendant said they should leave, but Farley told him to pack up the stereo and that he would get everything from the bedroom. After Burden collected the stereo, he yelled to Farley that he was ready to go. Not receiving a reply, he returned to the bedroom where he saw Farley on top of Smith. Burden then said, "Matt, you crazy man, this ain't the deal man. I'm going." He then left the building, picking up the turntable on his way. Farley ran past him on the way out. Burden admitted to selling Smith's camera and splitting the proceeds later that day.

We now address each of the defendant's assignments of error.

1. Pretrial Publicity.

The defendant urges that, in light of extensive pretrial publicity, the trial judge's refusal to grant at least some of the relief requested in his motions (namely for a change of venue, a continuance, attorney-conducted voir dire, an expanded and more probing jury selection voir dire, and for additional peremptory challenges) denied him his constitutional right to a fair trial by an impartial jury.

At the time of the murder, there was extensive media coverage of the incident. Approximately forty articles concerning it appeared in local newspapers between March 15, 1981, and April 3, 1981. Additionally, all major television stations covered the killing on their March 14 evening news and ran follow-up segments during the next two weeks.

The trial judge was well aware of the potential difficulties resulting from the coverage. He repeatedly instructed the entire venire that only those individuals who could make a determination of guilt or innocence based solely on the evidence as it came before them in court and the law as the judge instructed them would be acceptable jurors. In addition, every individual subsequently impanelled was asked whether he would be able to put out of his mind anything that he might have heard or read of the case. Finally, each juror was sequestered from the time he was first sworn, and access by the jurors to media reports was appropriately limited.

(a) Change of venue and continuance. Traditionally, the matters of change of venue and continuance are within the discretion of the trial judge. Commonwealth v. Gilday, 367 Mass. 474, 491, 327 N.E.2d 851 (1975). Commonwealth v. Small, 10 Mass.App. 606, ---, Mass.App.Ct.Adv.Sh. (1980) 1879, 1881, 411 N.E.2d 179. Commonwealth v. Rahilly, 13 Mass.App. 917, 918, 430 N.E.2d 859 (1982), S.C. 388 Mass. 1005, 445 N.E.2d 618 (1983). The burden is upon the moving party to show prejudice necessitating the relief sought. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Commonwealth v. Gilday, supra, 367 Mass. at 491, 327 N.E.2d 851. Commonwealth v....