Com. v. Campbell

• Decision Date: 27 April 1967
• Parties: COMMONWEALTH v. John Allen CAMPBELL (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 211

226 N.E.2d 211

352 Mass. 387

COMMONWEALTH v. John Allen CAMPBELL (and three companion cases ¹).

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Dec. 5, 6, 1966.

Decided April 27, 1967.

William H. Welch, Northampton (Francis E. Collins, Jr., and Stephen R. Kaplan, Northampton, with him), for defendant Nietsche.

Efrem A. Gordon, Springfield, for defendant Campbell.

Sanford Keedy, Dist. Atty., for the Commonwealth.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

REARDON, Justice.

On the morning of July 14, 1964, a railroad employee came upon the body of Cindy Lou Baxa, aged seventeen, in an area of Holyoke off Route 5 known as the dinosaur tracks. The body was nude from the waist down. On the same day a pair of slacks, underwear and sneakers belonging to the deceased girl were found in Southampton and the following morning two pairs of underpants which she was wearing on the night of July 13 were found on a dirt road which led to a cornfield in that town.

The defendants, Campbell and Nietsche, both aged seventeen had come together in the late evening of July 13 in Williamsburg. At that time the defendant Campbell had possession of a 1954 Buick owned jointly by his mother and one Bourgoise, both of whom were engaged in operating a small dining establishment in Williamsburg. The defendants drove around pausing at one place for some root beer and at another for ice cream cones. They then picked up a drunken hitchhiker who desired to go to Easthampton. The Buick was low on gasoline and, in exchange for a dollar to purchase gasoline, they drove him where he wished to go. Thereafter, driving in Easthampton, they came upon two girls walking in the rain. They drove the car slowly beside the girls and the defendant Nietsche, who was a passenger in the front seat, commenced a conversation with them which continued until they arrived at the house where the Baxa girl was living with her grandmother. The Baxa girl's companion departed but she remained and, with the car stopped, a rather lengthy conversation took place, at the conclusion of which the Baxa girl accepted at midnight an invitation to ride with the defendants. She entered the car and sat on the front seat between the two defendants, whereupon Campbell drove through Easthampton into Southampton. The car was then parked along Glendale Road or in a nearby cornfield. After certain events occurred, which will be subsequently discussed, death came to the Baxa girl.

Following some three weeks of intensive police work, Lieutenant Dunn and Sergeant O'Shea of the Holyoke police, acting upon certain information which had come to the Holyoke police department, journeyed to Williamsburg where they interviewed Nietsche who told them that he had been at home on the night of July 13. They requested that he see Campbell and accompany him to the police station at Holyoke that evening. Neither appeared on that night which was August 3, 1964. The following morning the two officers returned to Williamsburg and the defendants agreed to accompany them to the Holyoke police station for questioning. Both defendants, after questioning at the police station, signed written statements implicating themselves in the death of Cindy Lou Baxa. The car in which they had been riding on July 13 was thereafter seized pursuant to a warrant and examined. There was medical evidence from the medical examiner and a State pathologist that the cause of death was asphyxia due to manual strangulation with a massive hemorrhage in the region of the larynx and a bilateral fracture of the cricoid bone or cartilage. Death occurred within one to six minutes from the time pressure was applied to the region of the neck where the fracture and hemorrhage were observed. In the autopsy which took place in the late afternoon of July 14, smears were taken which upon subsequent microscopic examination disclosed the presence of sperm in the vagina and also degenerating sperm on the perineum. It was testified that the sperm in the vagina had been present approximately sixteen hours.

In the statement given by the defendant Nietsche to the Holyoke police, the contents of which were admitted only against him, Nietsche said that the girl got into the back seat while the car was being driven to the parking place. Once there, the defendants flipped a coin to determine who would be the first to get into the back seat and 'attempt to do something first--I mean, have intercourse or something like that.' Nietsche won the flip and went into the back seat but 'did not do anything to her, I was chicken.' Campbell then got into the back seat while Nietsche returned to the front seat. The girl resisted Campbell's advances. He threatened to strangle her 'because she would not have anything to do with him; * * * she sat there as if she thought he would not have enough guts to do it. He noticed this and said 'you'd just sit there and let me strangle you?' She said nothing, and he started to strangle her. I could hear her gasping for air, I mean, she was choking. The gasping stopped * * *.' Campbell then began to remove her clothes and asked Nietsche to help him. They both engaged in removing her slacks and undergarments, following which Campbell had intercourse with her. Nietsche was given the opportunity to do the same but refused. They left the cornfield, and upon reaching Glendale Road Nietsche threw the deceased's garments out of the car. Eventually her body was dumped where it was found the next morning.

Campbell's account, admitted only against him, stated that he parked the car on Glendale Road in Southampton, at which time Cindy Lou expressed some concern as to where she was being taken. Campbell and Nietsche in answer to this concern began to joke back and forth as to whether or not they should take Cindy Lou home. 'She was now getting excited and talking loud, and we told her to be quiet or she would wake the neighbors. She seemed more mad than excited. She kept making noises, so I put my hand over her mouth, and she started biting my fingers. I kept my hand over her mouth, and she turned her head and my arms slipped down, and my arm was then around her throat. I didn't think I was squeezing her tight, but I guess I was. The way she was fighting made my grip tighter on her. Suddenly she stopped fighting me. I thought she was quieting down. * * * I released my hold and she fell forward on me. We were on the road and she was making funny noises with her throat and she was still slumped over, and we decided to get her out of the car fast.' The defendants then began to take her clothes off, according to Campbell, to conceal her identity. These clothes were thrown out of car while the defendants were driving along Glendale Road.

The defendants were subsequently indicted for murder and assault with intent to commit rape. Nietsche was further charged with being an accessory after the fact to the murder. Both were found guilty of assault with intent to rape and murder in the first degree with the recommendation that the death sentence be not imposed. The court directed the jury to return a verdict of not guilty on the indictment of Nietsche of being an accessory after the fact. The cases were tried pursuant to the provisions of G.L. c. 278, §§ 33A-33G. These appeals come to this court with a transcript of the evidence, a summary of the record, and the defendants' assignments of error.

1. The defendants contend that there was error in the trial judge's refusal to instruct the jury that they might return verdicts of manslaughter on the murder indictments and assault on the indictments charging assault with intent to commit rape. ² A trial judge is not required, however, to charge on an hypothesis which is not supported by evidence. Commonwealth v. Kleciak, 350 Mass. 679, 691-692, 216 A.2d 417; Commonwealth v. McCann, 97 Mass. 580, 582; Commonwealth v. Levenson, 250 Mass. 440, 444-445, 146 N.E. 5; Commonwealth v. Dawn, 302 Mass. 255, 262, 19 N.E.2d 315. We have held on many occasions that no error exists in a refusal to charge on manslaughter in an indictment for murder where no evidence of the lesser offence appears. Commonwealth v. Devereaux, 256 Mass. 387, 393-394, 152 N.E. 380; Commonwealth v. Soaris, 275 Mass. 291, 299, 175 N.E. 491. Commonwealth v. Green, 302 Mass. 547, 556, 20 N.E.2d 417. Commonwealth v. Moore, 323 Mass. 70, 77-78, 80 N.E.2d 24. Commonwealth v. Lussier, 333 Mass. 83, 92, 128 N.E.2d 569. Commonwealth v. Beaulieu, 333 Mass. 640, 643-644, 133 N.E.2d 226. Commonwealth v. Hartford, 346 Mass. 482, 490-491, 194 N.E.2d 401. See Commonwealth v. Wallace, 346 Mass. 9, 12, 190 N.E.2d 224. We have also held it to be error to give an instruction on manslaughter where there is no evidence to justify such an instruction. Commonwealth v. Bouvier, 316 Mass. 489, 55 N.E.2d 913. Equally well established is the proposition that where evidence in a murder prosecution is such that a jury could find the defendants guilty of manslaughter rather than murder it is reversible error to refuse to give such an instruction on manslaughter. COMMONWEALTH V. KENDRICK, MASS., 218 A.2D 408;^A Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980; People v. Carmen, 36 Cal.2d 768, 228 P.2d 281; People v. Canada, 26 Ill.2d 491, 187 N.E.2d 243; People v. Draper, 278 App.Div. 298, 104 N.Y.S.2d 703, affd. 303 N.Y. 653, 101 N.E.2d 763; People v. Oddy, 16 App.Div.2d 585, 229 N.Y.S.2d 983; State of Ohio v. Loudermill, 2 Ohio St.2d 79, 206 N.E.2d 198. See Commonwealth v. Meas, 415 Pa. 41, 44-45, 202 A.2d 74.

The judge withdrew from the consideration of the jury the possibility of a conviction of murder committed with deliberately premeditated malice aforethought or with extreme atrocity or cruelty. See G.L. c. 265, § 1. For that reason, the jury's verdicts of murder in the first degree could have been based only on the finding that the defendant Campbell strangled the deceased during an...