Com. v. Campbell

• Decision Date: 07 August 1979
• Citation: 393 N.E.2d 820,378 Mass. 680
• Parties: COMMONWEALTH v. John CAMPBELL, Jr. (and two companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 820

393 N.E.2d 820

378 Mass. 680

COMMONWEALTH v. John CAMPBELL, Jr. (and two companion cases ¹).

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Feb. 6, 1979.

Decided Aug. 7, 1979.

Usher A. Moren, Cambridge, for Arthur Keigney.

Alan P. Caplan, Boston, for Stephen J. Doherty.

Alfred E. Nugent, Boston, for John Campbell, Jr.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

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

QUIRICO, Justice.

Robert A. Perrotta was brutally murdered in his cell at the Massachusetts Correctional Institution (MCI) at Walpole on November 25, 1976. The defendants John Campbell, Jr., Stephen Doherty, and Arthur Keigney, who were all inmates at MCI Walpole on that date, were indicted, tried, and convicted of murder in the first degree as a result of this incident. Each was sentenced to "imprisonment in the state prison for life." See G.L. c. 265, §§ 1-2. Their appeals are before us under the provisions of G.L. c. 278, §§ 33A-33G, and raise a variety of issues. ² We affirm the judgments.

The evidence against the defendants consisted primarily in the testimony of Thomas Carden, a close friend and one-time brother-in-law of the victim. Carden testified as follows. On November 25, 1976, Carden, Perrotta, and the three defendants were inmates in Block A-2 at MCI Walpole. Carden lived in cell 40, which was the third cell on the left-hand side of the second tier. Perrotta occupied cell 62, which was the second cell on the left-hand side of the third tier. ³ At about noon on November 25, Carden and Perrotta ate Thanksgiving dinner together. Perrotta finished his own meal and made sandwiches from another inmate's meal. He carried these sandwiches out of the dining hall wrapped in napkins and concealed beneath his bathrobe or his coat.

Perrotta was present in Carden's cell from approximately 3:30 P.M. to 4:45 P.M. Neither inmate went to the evening meal. About 4:45 P.M., Perrotta left Carden's cell in response to a call by someone. A few minutes later, Perrotta returned in a visibly distressed state. After some conversation, Perrotta left Carden's cell again. Carden consulted his watch and, two minutes later, left the cell. He "hung around" on the landing of the rear stairway for about one minute and then walked up to the third tier landing.

Carden met the defendant Doherty on the third tier landing. Doherty put his hand on Carden's shoulder and talked in a loud voice about selling some marihuana to Carden. He prevented Carden from moving along the catwalk to get to Perrotta's cell. After an interval, the door to Perrotta's cell opened, and Perrotta, Keigney, and Campbell walked out. Doherty thereupon stopped talking to Carden and allowed him to proceed to Perrotta's cell. Carden leaned against the rail and had a brief conversation with Perrotta, during which Perrotta appeared "very nervous." Shortly afterward, a guard announced the 5 P.M. lockup and count, and Carden went back down to his own cell.

When the lockup ended at 6 P.M., Carden immediately went upstairs to Perrotta's cell. He observed Perrotta lying on the bed wearing headphones. About forty-five minutes later, Carden returned to Perrotta's cell and knocked on the door. Perrotta released an interior locking mechanism and invited Carden into the cell. ⁴ After ten minutes, Carden left the cell with two bags of marihuana in order to place a football bet in a neighboring cellblock. Enroute, Carden stopped briefly in the cell occupied by Thomas McInerney on the right-hand side of the third tier.

While Carden was out of Block A-2 placing the bet, a visitor was announced for Perrotta. On hearing a second announcement of Perrotta's visitor, Carden returned to Block A-2. As he entered the block, he observed Doherty leaning over the rail in front of Perrotta's cell. He proceeded up the front stairway. When he reached the second tier, he saw Doherty walking along the third-tier catwalk toward the rear of the cellblock and Keigney and Campbell leaving Perrotta's cell at a fast pace. No one else was present on the catwalk. Carden then proceeded up to Perrotta's cell and, at about 7:30 P.M., discovered Perrotta's body.

Peter McGuire was the corrections officer in charge of Block A-2 during the evening of November 25. While locking Perrotta into the cell during the 5 P.M. count, McGuire "saw flesh," ⁵ and thereby assured himself that Perrotta was present. Based on the log he kept that night, McGuire testified that Carden left the block at 6:10 P.M., returning at 6:25 P.M., and left again at 7:18 P.M. At 7:20 P.M., McGuire was notified that Perrotta had a visitor. He shouted Perrotta's name but received no response. At 7:30 P.M., McGuire repeated the visitor announcement. An inmate, whom McGuire was unable to identify, was walking along the third tier at this time. This inmate looked into Perrotta's cell and told McGuire that Perrotta was not there. McGuire then telephoned other blocks to have the visitor announcement repeated there. Shortly thereafter, Carden entered Block A-2 in apparent haste, and, looking up to the third tier and ignoring McGuire, he went up to Perrotta's cell. Carden then called for a stretcher.

Dennis Spicer, a prison medic, was summoned to Perrotta's cell at about 7:40 P.M. Perrotta displayed no signs of life, but his skin was warm and normal in color. There was a bright drop of blood on the pillow, but no blood on the bed. Dr. Harold Shenker, a medical examiner, arrived in Perrotta's cell at about 9 P.M. Based on his own observations and those made by Spicer, Dr. Shenker determined that Perrotta had died within two hours preceding 9 P.M. Dr. George Katsas performed an autopsy on Perrotta's body at 4:15 P.M. on November 26. His examination disclosed several bruises and two bathrobe cords tied tightly about the neck. The victim's penis had been torn from his body and inserted into his mouth; this dismemberment had been done, in Dr. Katsas's opinion, while Perrotta was alive. The stomach contained undigested chicken or turkey together with other food; the food had been in Perrotta's stomach for at most two hours preceding death. Dr. Katsas estimated the time of death as "shortly before" Spicer's observations and two to four hours before Dr. Shenker's, and he concluded that death had resulted from strangulation.

The defense evidence consisted solely of testimony aimed at contradicting subsidiary details in Carden's story and at otherwise discrediting Carden. Thomas McInerney was acquainted with Perrotta and Carden. He testified that Perrotta was rising from the Thanksgiving dinner table with a half-full tray when he arrived, that Perrotta was wearing dungarees and a T-shirt, and that he did not observe Perrotta make sandwiches or see any bulges in Perrotta's clothing. McInerney also described a conversation at Bridgewater in which Carden asked McInerney to say he "saw something" on November 25 and suggested, "If you back me up, you might even be able to hit the street behind this." McInerney stated that Carden had not visited his cell around 7 P.M.

One Ronald MacDonald testified to observing an argument between Carden and Perrotta within the week preceding the murder in which Carden expressed dissatisfaction with the way Perrotta was treating Carden's sister (formerly Perrotta's wife) and her children. Carden denied ever arguing with Perrotta about family matters. One Robert Guzowski stated that at some time no later that April of 1977, Carden told him at the Salem house of correction that "when he got through with his trials and his cases, he was going to get away from here and go to Arizona." Carden denied mentioning a trip to Arizona during the pendency of the case.

1. Motions for directed verdicts. At the close of the Commonwealth's case in chief, and again after the summations, ⁶ each defendant moved for a directed verdict. Following argument, the judge denied the motions subject to the defendants' exceptions. In reviewing the denial of a motion for a directed verdict in a criminal case, we determine whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged. Commonwealth v. Lattimore, --- Mass. ---, --- - --- ^A, 393 N.E.2d 370 (1979). See Jackson v. Virginia, --- U.S. ----, ---- - ----, 99 S.Ct. 2781, 61 L.Ed.2d 560; Commonwealth v. Clark, --- Mass. ---, --- ^B, 393 N.E.2d 296 (1979) and cases cited. Under this standard there was no error in denying the motions for directed verdicts.

General Laws c. 265 § 1, provides: "Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree. . . . The degree of murder shall be found by the jury."

Speaking in general terms, we have defined the term "murder" used in this statute to mean the unlawful killing of a human being by another human being with malice aforethought. Commonwealth v. Campbell,--- Mass. ---, --- ^C, 376 N.E.2d 872 (1978). Commonwealth v. Caine,366 Mass. 366, 373, 318 N.E.2d 901 (1974). Commonwealth v. McCauley, 355 Mass. 554, 559, 246 N.E.2d 425 (1969). The indivisible phrase of art "malice aforethought" describes the particular mental state accompanying a homicide which makes the act murder and, in so far as is relevant to this case, encompasses the intent to inflict great bodily harm and the intent to kill. E. g., Commonwealth v. Hebert, 373 Mass. 535, 539, 368 N.E.2d 1204 (1977); Commonwealth v. Mangum, 357 Mass. 76, 85, 256 N.E.2d 297 (1970). See generally R. Perkins, Criminal Law 30-40 (1957).

A killing is...