Com. v. Bys

• Citation: 370 Mass. 350,348 N.E.2d 431
• Parties: COMMONWEALTH v. Henry J. BYS, Jr.
• Decision Date: 28 May 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 431

348 N.E.2d 431

370 Mass. 350

COMMONWEALTH

v. Henry J. BYS, Jr.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Dec. 1, 1975.

Decided May 28, 1976.

Edward L. Donnellan, Springfield, for defendant.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

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

QUIRICO, Justice.

The defendant was tried and found guilty by a jury on two indictments, one charging that he assaulted a young lady with intent to rape her and the other that he murdered her in the first degree. The trial was held under the provisions of G.L. c. 278, §§ 33A--33G. The cases are before us on the defendant's appeal based on numerous alleged errors by the trial judge, but only two issues, grouping various exceptions, were argued in the defendant's brief. All errors alleged but not argued in the brief are treated as waived. S.J.C. Rule 1:13, as amended, --- Mass. --- (1975). Commonwealth v. Baker, --- Mass. ---, --- ^a, 330 N.E.2d 794 (1975), and cases cited. The two issues argued relate to the admission in evidence of photographs and slides of the victim's body and the defendant's oral confession.

We hold that there was no error, and on review of the case under G.L. c. 278, § 33E, we conclude that there shall be no relief thereunder.

At this point we shall summarize the pertinent evidence presented at the trial. Although the two limited issues argued by the defendant do not require us to deal with the evidence in great detail, we are unfortunately required to do so in order to place on the record some of the circumstances relevant to our denial of relief under G.L. c. 278, § 33E. We shall deal with some of the evidence further in our discussion of the two issues argued in the defendant's brief.

About 5:30 P.M. on April 27, 1973, the defendant picked up his friend of many years, Allen Bilodeau, in Chicopee, and they thereafter began to ride around in the defendant's 1962 white Ford station wagon 'looking to pick up girls.' They had done this together on previous occasions. Both the defendant and Bilodeau were twenty-four years old and they had attended school together. The defendant weighed about 250 pounds and worked for the Chicopee sanitation department picking up trash barrels and emptying them into trucks. The travels of the two men on that evening can best be described as a prowl which took them through the five communities of Holyoke, Chicopee, South Hadley, Amherst and Northampton in search of prey, the intended prey being girls they might pick up. On this prowl they drove by the campus of Mt. Holyoke College several times and around the campuses of Hampshire College and the University of Massachusetts one or more times. After their last drive around the campus of the university they decided to return to Northampton.

About 9:30 to 9:45 P.M. as they were leaving Amherst, with Bilodeau driving, they saw a young lady hitchhiking. The defendant asked Bilodeau to stop and pick her up and stated that he wanted to have sexual intercourse. The young lady, hereinafter referred to as the victim, was a student at Smith College in Northampton. She got into the back seat, saying that she wanted to go to Northampton, and Bilodeau continued to drive toward Northampton. Shortly thereafter the defendant climbed over the top of the front seat where he was sitting and sat next to the victim. He made physical advances toward her which she resisted. As the car was proceeding along the main road leading directly through Northampton to Smith College, eithr the defendant or Bilodeau decided to go instead to some place to park. As the car left the main road the victim began to struggle and scream, begging to be let out of the car so that she could go home. The defendant then struck the victim a number of times as they continued to struggle, and she was bleeding from her nose or face. The car became stuck in mud on a beach near a body of water, which is a part of the Connecticut River and is commonly called the Oxbow, in Northampton. Bilodeau looked into the back seat and saw that the victim's blouse or sweater was pulled up, her face was covered with blood, and the defendant was on top of her and appeared to be trying to have sexual intercourse with her.

Bilodeau walked away from the car. He then heard the wheels of the car spinning, and the defendant drove the car up to him and stopped. The victim was in the back seat. The defendant asked Bilodeau to help him carry the victim down to the water. Bilodeau refused and walked toward the water. The defendant walked over to him, grabbed him by the arm, turned him around and again asked him to help carry the victim down to the water. Bilodeau at first refused but then they walked back to the car. At that time the victim was 'on the ground under the car.' Her blouse was pulled up and her slacks were pulled down to about her ankles, with the rest of her body exposed.

The two men lifted the victim's body, Bilodeau by her feet and the defendant by her shoulders, and they started to carry her toward the water. Before they reached the water the victim started to kick and they dropped her. The defendant punched her and the two men again picked her up and carried her to the water. As Bilodeau walked away he saw the defendant strike the victim on the head twice with a tire iron, and he heard eight or nine more similar thumps.

The two men returned to the car and started to leave, with the defendant driving. The car became stuck in mud again and they were unable to get it out. The defendant then broke all of the windows of the car with the tire iron and tried to remove the rear registration plate but could not do so. As Bilodeau walked away from the scene he heard a couple of splashes. The defendant then joined him as they walked toward a highway. Before reaching the highway the defendant threw his keys away in a wooded area. On the highway they hitchhicked a ride to Holyoke and then such went home, Bilodeau arriving home at about midnight. About 1:00 A.M on April 28, 1973, the Northampton police received a telephone report that the defendant's Ford station wagon had been stolen from a shopping center parking lot in that city between 9:45 and 9:50 P.M. the previous evening. There is evidence that the defendant's mother made the call based on information which he gave her when he arrived home without the car.

Most of the evidence summarized to this point comes from two sources. One source is the testimony of police officers stating what the defendant told them in an oral confession after his arrest. The other source is the testimony of Bilodeau. Bilodeau was indicted for the same crimes charged against the defendant. He agreed to plead guilty to the crimes of murder in the second degree and assault with intent to commit rape and then became a witness for the Commonwealth.

The defendant in testifying at his trial denied making most of the statements attributed to him by the police officers in describing his confession. He also denied much of the testimony of Bilodeau and testified that it was Bilodeau who was in the back seat of the car with the victim after they arrived at the Oxbow, that it was Bilodeau who attempted to rape the victim and who punched her and struck her with the tire iron, that it was Bilodeau who smashed all of the car windows with the tire iron, that it was Bilodeau who threw the tire iron and some cans of beer into the water, and that it was Bilodeau who asked that he help him throw the victim into the water after she was dead. The defendant also testified that he had tried to stop Bilodeau from attacking the victim, that Bilodeau had threatened to kill him if he touched him and he was afraid of Bilodeau, and that Bilodeau again threatened to kill him when, after they left the victim believing her to be dead, the defendant wanted to go back to help her. It is clear from their verdicts that the jurors did not believe the defendant's testimony attempting to exculpate himself.

About noon on April 28, 1973, three men who were fishing at the Oxbow discovered the body of the victim and the defendant's car. The police were notified, and they conducted an investigation which disclosed the following. The victim was lying face up with her feet in the water, and her clothing had been pulled up over her breasts and down over her ankles. She had a shoe on one foot and her other shoe, her hat and her umbrella were found on the sand nearby. The defendant's car was located about eighty-three feet from the body with all of its windows shattered. The victim's pocketbook was found in the car. There were several human blood stains on the rear seat and floor of the car, the largest being about four inches by five inches in size. Samples from the larger stains were analyzed as human blood of Group A. The victim's blood was also found to be Group. A. A tire iron was found under water about sixty-five feet out from shore, at a point between the locations of the body and the car. Examination by an expert revealed the presence of particles of pulverized glass on the tire iron. Broken glass from a wine bottle was found near the body, and a package of six unopened cans of 'Budweiser' beer was found under water about ten feet from the body. The defendant and Bilodeau had purchased both of these items at a package store shortly before the victim entered the car.

The medical examiner for Hampshire County viewed the body of the victim before it was removed from the Oxbow area, and on the following day, April 29, 1973, he was present when an autopsy was performed on the body by Dr. George W. Curtis, who was a forensic pathologist and medical examiner of extensive experience. He described the many lacerations, contusions, abrasions and scrapings which he found by an examination of the exterior of the body. His description was in part as follows: '(O)n the back of the head I found it covered by many lacerations, many areas of...