Com. v. Costa

• Decision Date: 01 November 1971
• Citation: 274 N.E.2d 802,360 Mass. 177
• Parties: COMMONWEALTH v. Antone Charles COSTA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 802

274 N.E.2d 802

360 Mass. 177

COMMONWEALTH v. Antone Charles COSTA.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Sept. 14, 1971.

Decided Nov. 1, 1971.

Maurice M. Goldman, Brewster, for defendant.

Richard C. Paull, Asst. Dist. Atty. (Philip A. Rollins, Dist. Atty., with him), for Commonwealth.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and HENNESSEY, JJ.

HENNESSEY, Justice.

At a trial subject to G.L. c. 278, §§ 33A--33G, Costa was found guilty by a jury on two indictments charging him with murder in the first degree of Patricia H. Walsh and Mary Ann Wysocki. The jury recommended that the death penalty not be imposed. The cases are before us on Costa's appeals with summaries of the record, a transcript of the evidence, and assignments of error.

The argued assignments of error relate to the denial of Costa's motions for directed verdicts addressed to both indictments, the refusal of the trial judge to charge the jury that they were warranted in returning verdicts of guilty of manslaughter, and the refusal of the judge to instruct the jury concerning the properties and effects of certain harmful drugs.

We summarize the evidence. On Friday, January 24, 1969, Patricia H. Walsh and Mary Ann Wysocki, each about twenty-three years of age, traveled from Providence, Rhode Island, to Provincetown, Massachusetts, in Miss Walsh's light blue Volkswagen automobile. They registered for two nights at a guest house operated by one Mrs. Morton. Mrs. Morton introduced the girls on that day, January 24, to Costa, who was also staying as a paying guest at the house. The next morning Mrs. Morton discovered a note pinned to the door of the girls' room which asked, 'Could you possibly give me a ride to Truro early in the morning.' The note was signed, 'Tony.' This was the name by which Costa was commonly known.

Later that same day (Saturday, January 25), between noon and 2 P.M., Costa was seen riding as a passenger in a light colored Volkswagen by a friend of his named Zackarias. Two girls were also in the Volkswagen; one of the girls was driving. Costa hailed Zackarias, the two men conversed, and Zackarias delivered to Costa a check belonging to Costa which had issued from the common employer of both men. The Volkswagen was then driven in the direction of Truro. Later that afternoon the two girls failed to keep an appointment to meet with one Russell Norton at Provincetown.

The following day, Sunday, January 26, Mrs. Morton found a note tacked to the door of the girls' room: 'We are checking out. Thank you for your many kindnesses.' It was signed, 'Mary Ann and Pat.' It was written on the same type of paper as had been the note of the previous day. Personal property belonging to the girls was missing from the room. Later that day, Mrs. Morton saw Costa in the house.

On Wednesday, January 29, Costa asked a gasoline station owner what he would charge 'to paint a Volkswagen * * * some exotic color.' On Sunday, February 2, a witness saw the Walsh Volkswagen parked about thirty feet inside a wooded area in Truro. On that same day Costa asked two friends to ride to Boston with him, told them that he had a car in Truro and that he was sure it would start because he had been out there a week ago and it had started all right. Costa and his two friends went to the wooded area in Truro and from there drove to Boston in the Walsh Volkswagen. Costa told his two friends that two girls had given him the car and they were going to Canada.

While in Boston, Costa made inquiry as to where he could procure a fake driver's license, registration and bill of sale. He also offered to sell to two friends a .22 caliber pistol which he said was buried in the woods in Truro. On February 7, Costa rented a parking space for the Walsh vehicle and attempted to register it in his own name at Burlington, Vermont. The Rhode Island license plates were later found concealed under a rubber mat within the vehicle. On February 8, personal property of the two girls was found in Costa's room at the Morton house.

In the subsequent several days Costa told the police by telephone and in person three mutually inconsistent versions concerning his last contact with the girls and the manner in which he came into possession of Miss Walsh's automobile. On March 3, 1969, a telegram from New York City addressed to Costa arrived at his mother's home in Provincetown. It was signed 'Pat and Mary Ann.' Costa's mother took it to the police. It was later shown that the telegram originated from a New York City telephone number to which Costa had access.

On March 5, 1969, and the several days thereafter, police officers uncovered two graves in a wooded area of Truro containing the dismembered remains of the two girls. A .22 caliber pistol was found buried nearby. It was later identified as Costa's gun. The death of Miss Walsh was shown to have been caused by a gunshot wound in the neck, while Miss Wysocki died as a result of a gunshot wound in the brain from the left side of the head. Miss Wysocki had also been shot a second time in the head. Three expended .22 caliber shells were found near the graves and there was expert testimony that they had been fired from the Costa gun. Blood stains were found both on a piece of rope in Costa's room and on a pair of Costa's boots.

1. Assignment 1 alleges error in the trial judge's denial of Costa's motions for directed verdicts as to both indictments. Costa correctly concedes that the jury were warranted in concluding that he perpetrated the homicides. He argues, however, that the evidence concerning Costa's mental state was such as to preclude the return of any guilty verdicts, and to require that verdicts of not guilty by reason of insanity be returned. ¹ He further argues, in the alternative, that directed verdicts were required as to so much of the indictments as alleged first degree murder because (1) there was no evidence to warrant a finding of deliberate premeditation, and (2) the evidence of his mental state required a finding that he was incapable of deliberate premeditation.

The trial judge's rulings were correct. All questions were for the jury to decide. As discussed elsewhere in this opinion, the jury were correctly charged as to the rules of law applicable to the mental condition of Costa. The charge on first degree murder was predicated solely upon deliberate premeditation. No instructions were given upon felony murder or extreme atrocity or cruelty (G.L. c. 265, § 1) as basis for first degree murder, presumably upon the reasoning that the evidence would permit of neither conclusion. Although the bodies had been dismembered and showed evidence of severe mutilation, as well as evidence of sexual abuse, the trial judge ruled that the evidence did not permit an inference that these atrocities had been accomplished before death.

There was conflicting evidence as to Costa's mental capacity at the time of the crimes. From the testimony of a number of witnesses, the jury could infer that Costa from 1965 up to about the time of the homicides was a frequent user of such drugs as amphetamines, barbiturates, LSD, methadrine, hashish, solacen, nembutal and marihuana; that he took the drugs orally and by injection; that Costa was drug dependent, and that he had been 'stoned' and 'high' on frequent occasions. There was medical testimony concerning the tendency of such drugs to affect adversely the mental capacity of the user.

The bizarre nature of the killings is also offered as evidence of insanity. Testimony of a pathologist established that the body of Miss Walsh was cut in two pieces at the midline of the abdomen and the body of Miss Wysocki was cut in five pieces, one consisting of the head, the second the upper portion of the torso, the third the pelvis, the fourth the right lower extremity and the fifth the left lower extremity. With respect to Miss Walsh, it appeared that death was effected by means of a single gunshot wound entering from the back of the neck and that, after death, the skin was peeled off the chest 'in a fashion like a sweater, so that it was attached only about the shoulders.' During the autopsy, post mortem incised wounds or stab wounds were found perforating the entire thickness of the chest wall and fracturing one of the ribs. With reference to Miss Wysocki, there was a gunshot wound through the back of the head and another gunshot wound, which caused her death, was found on the left side of the head. The buttocks showed many stab wounds, 'big slashes,' which involved both the skin and the underlying muscles and soft tissues. Stab wounds were also present in the chest and the skin was again peeled, creating a sweaterlike effect. The pathologist testified that the mutilation and dismemberment of the bodies were done after death and that his findings were consistent with the psychiatric condition known as necrophilia, that is, the perverse sexual attraction to dead bodies. The pathologist further described the numerous stab wounds and slashing-type wounds, which he inferred from his findings were all inflicted after death. In each case there was evidence of sexual abuse.

Four psychiatrists testified before the jury. Two of these doctors expressed opinions that Costa was a borderline schizophrenic whose mental capacity had been further seriously diminished by the use of various harmful drugs. From their testimony the jury could have concluded that Costa did not possess the substantial capacity to appreciate the criminality of his conduct or the substantial capacity to conform his conduct to the requirements of the law. Commonwealth v. McHoul, 352 Mass. 544, 546--547, 226 N.E.2d 556. The other two medical witnesses testified that Costa suffered from no more than a personality disorder. From each and every one of the several medical witnesses the jury heard opinions that supported in some measure a conclusion of sanity on the part of Costa. Nor were the jury bound to...