Com. v. Burke

• Decision Date: 02 November 1978
• Citation: 376 Mass. 539,382 N.E.2d 192
• Parties: COMMONWEALTH v. John A. BURKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 192

382 N.E.2d 192

376 Mass. 539

COMMONWEALTH v. John A. BURKE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept. 13, 1978.

Decided Nov. 2, 1978.

Robert A. Stanziani, Boston, for defendant.

Susan C. Mormino, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The defendant shot five people in a home in Cambridge in the early morning of September 5, 1976. Two of these people died. The defendant was convicted of murder in the first degree of one victim; murder in the second degree of another; and armed assault with intent to murder and assault and battery by means of a dangerous weapon as to the three surviving victims. The defendant did not deny that he shot the victims but claimed that he was not criminally responsible for his conduct under the standards set forth in Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967). We affirm the judgments and, pursuant to the exercise of our responsibilities under G.L. c. 278, § 33E, we find no occasion to change the jury's verdicts on the murder indictments.

1. There was no error in the judge's rulings on three separate evidentiary questions.

The admission of photographs of the deceased victims was within the judge's discretion. See Commonwealth v. Amazeen, --- Mass. ---, --- ^A, 375 N.E.2d 693 (1978). He carefully considered six photographs offered by the Commonwealth, and directed that a portion of one be cut out.

The judge did not abuse his discretion in permitting the medical examiner to give his opinion, based in part on a color photograph, that the gun which killed one victim was fired at very close range. See Commonwealth v. Medina, --- Mass. ---, --- - ---, ^B 364 N.E.2d 203 (1977), and cases cited. Earlier, when the judge was considering with counsel the admissibility of the photographs, he inquired whether "(t)he doctor would say that that black mark would show the barrel was very close to her head." The prosecutor said he would. Immediately after the conference, the medical examiner was called to testify, and the defendant agreed to the witness's qualifications. The photographs were then admitted in evidence. If the defendant had a specific objection to the qualifications of the medical examiner to give an opinion concerning the proximity of the gun to the victim, he should have expressed it. His concession of the doctor's qualifications, knowing that the doctor was going to be asked how close the gun was to a victim's head when the bullet was fired, makes the general objection to such a question ineffective to raise the issue of the doctor's qualifications. In any event, the doctor testified, on cross-examination, that he was quite familiar with "ballistician work." See Commonwealth v. Seit, --- Mass. ---, --- ^C, 364 N.E.2d 1243 (1977). Moreover, even if the admission of that opinion had been error, it was not prejudicial in this case where the central dispute was the defendant's criminal responsibility.

It was within the judge's discretion to permit a psychiatrist, offered by the Commonwealth as a rebuttal witness, to answer a hypothetical question as part of the basis for his opinion concerning the defendant's mental competence at the time of the shootings. The defendant argues that certain important facts were omitted from that hypothetical question. The defendant might have pointed out the absence of these facts from the hypothetical question at the time of his objection, but he did not. The omitted facts could have been presented to the witness in a hypothetical question asked in cross-examination (LeBlanc v. Ford Motor Co., 346 Mass. 225, 232, 191 N.E.2d 301 (1963)), but they were not. Of course, the omission of certain facts may affect the weight of a witness's testimony. See M. DeMatteo Constr. Co. v. Daggett 341 Mass. 252, 261, 168 N.E.2d 276 (1960). We have granted wide discretion to trial judges in dealing with hypothetical questions. Id. We do not regard the omission of particular facts from the hypothetical question to be of sufficient significance to justify reversing the judge's ruling, especially where no specific omission was brought to the judge's attention. See LeBlanc v. Ford Motor Co., supra.

2. The defendant argues that the judge should have given an instruction which would have permitted the jury to return a verdict of guilty of manslaughter on the ground of sufficient provocation by one of the victims. We disagree.

We acknowledge that a judge should give a manslaughter instruction where, after resolving all reasonable inferences in the defendant's favor, any view of the evidence would permit a finding of manslaughter. Commonwealth v. LeBlanc, --- Mass. ---, --- ^D, 367 N.E.2d 846 (1977). In this case, however, the evidence would not have supported a finding that the defendant acted "from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice." Commonwealth v. Zukoski, --- Mass. ---, --- ^E, 345 N.E.2d 690 (1976), and cases cited, quoting from Commonwealth v. Soaris, 275 Mass. 291, 299, 175 N.E. 491 (1931). Nor was there evidence which would have warranted a finding of involuntary manslaughter.

The undisputed evidence showed that the defendant had been seeing the deceased female victim socially. Their relationship had been deteriorating, as the defendant knew. On the night of the shootings, the defendant, carrying a gun, came to her residence. She was not home, but her son let him in. Later, she returned home with three other people. She went into the kitchen alone, and the defendant followed. The evidence of their conversation is not complete, but it appears that he told her he loved her and asked her something. She responded with words of rejection and swore at him. ¹ He then shot her fatally and, in succession, shot her son and the three people who had come home with her. ²

In Commonwealth v. Bermudez, 370 Mass. ---, --- ^F, 348 N.E.2d 802 (1976), we acknowledged that sufficient provocation might be found in the disclosure of a fact by an oral statement, rather than from personal observations, and we left "open the possibility that, in an appropriate case, testing the defendant's response on an objective standard, sufficient provocation may be found in information conveyed to a defendant by words alone." In the Bermudez opinion, we concluded that a wife's using of obscenities and telling her husband "I don't need you around here, I have got another man" would not warrant a finding of sufficient provocation. Id. at --- - --- ^G, 348 N.E.2d 802. On an objective standard, the words used by the deceased victim in this case were less of a ground for provocation than those words held to be inadequate provocation in the Bermudez case.

3. The defendant argues that the judge committed prejudicial error in his charge to the jury by referring to the defendant's appellate rights, thereby reducing the jury's sense of responsibility in its fact-finding function. We have considered the judge's instructions, particularly the instructions given after the defendant's objection to the initial charge, and conclude that there was no error. The judge made it manifest that the jury were "the final word on the facts of the case," and that any appellate process would not deal with their factual determinations. We have suggested that, in the absence of special circumstances, the judge should not refer to the appellate process. Commonwealth v. Walker, --- Mass. ---, --- - --- ^H, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976). But here, as in the Walker case, we see no significant threat to the jury's sense of responsibility and thus find no error in the instructions taken as a...