Com. v. Fleming

Decision Date08 November 1971
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Conrad W. Fisher, Worcester, for defendant.

Roger F. Sullivan, Asst. Dist. Atty., for the Commonwealth.


REARDON, Justice.

This is an appeal under the provisions of G.L. c. 278, §§ 33A--33G. The defendant was tried and found guilty by a jury on an indictment of murder in the first degree; the jury recommended that the death sentence not be imposed. The case is here with a summary of the record, a transcript of the evidence, and various assignments of error, some of which have been waived.

The jury could have found the following facts. About 2:45 A.M. on July 6, 1968, the body of Kathleen Kirk was found in the cellar of the defendant's home located in East Providence, Rhode Island. She had been shot three times in the head, the cause of death being a penetrating bullet wound of the head with severe brain laceration. The defendant had been acquainted with the deceased for two and one-half years. For some two months prior to the killing there had been difficulties between them, and for two weeks before the event he had planned to kill her. Around 6 P.M. on the night of the shooting the defendant met the deceased at a restaurant operated by her mother. At 11:45 P.M. that same night he again met the deceased, this time at a restaurant called 'The Gaslight.' The two left the restaurant sometime thereafter in the deceased's father's car, which she drove. The defendant asked the deceased to drive him to his home because his car's transmission was broken. He said he wanted to return home to obtain money to repair his car. In fact, the transmission of his car was not broken. When he arrived home the defendant procured a gun with ammunition. He returned to the car and requested the deceased to drive him to Seekonk in Massachusetts. They drove to the vicinity of the Seekonk High School where the defendant ordered the deceased to stop; he then fired three bullets into the deceased's head. Following this incident he returned to his house, threw the body of the deceased down the cellar stairs, and then mutilated it with a knife. Thereafter he went upstairs, changed his clothes, wrapped his hand which he had injured in the shooting, and drove to Boston.

Later, while proceeding west on the Massachusetts Turnpike, he decided to notify the police of what he had done. He stopped at the State police barracks in Southboro where he announced, 'I think you will want me, I just killed a girl.' He was immediately advised by the police of his rights. He told his police interrogators where the gun was located in his car and asked a trooper to 'go get it.'

He described the crime in which he had just been involved. At this time the State police asked him to draw a map of the location where the shooting occurred, and he did so indicating a spot in Seekonk near the high school. Later the same morning he directed police to a location in Seekonk, pointing out a site and stating, 'I am sure it is the spot because I could see the high school on the side of me.'

While there was conflicting evidence from experts as to the mental capacity of the defendant, there was testimony that the defendant did not suffer from paranoia and was 'fully aware and did have substantial capacity to appreciate the criminality of his conduct and to conform that conduct to the requirements of the law.' For purposes of disposition of this appeal, assignments of error of the defendant will be grouped for discussion.

1. It is first argued that the trial judge erred in denying the defendant's motion to dismiss the indictment and for a directed verdict. These assignments raise the question whether as matter of law there was sufficient evidence to prove that the crime was committed within the Commonwealth of Massachusetts. Subsequent to giving his original story to the police the defendant denied that the shooting occurred in Massachusetts. He said that his original story was concocted to avoid his being sent to prison in Rhode Island where he feared meeting the deceased's brother who was jailed there at that time. He also feared that a Rhode Island trial would subject his parents to more publicity than one in Massachusetts. It is elementary that it must be shown that jurisdiction lodged in the courts of Massachusetts before the defendant can be found guilty of the offence charged. A review of the transcript discloses ample evidence to find that the crime occurred in Massachusetts. At the hearing on the motions the judge decided properly, in our view, to leave the question of the location of the crime to the jury. In Commonwealth v. Dorr, 216 Mass. 314, 103 N.E. 902, there was physical evidence that a homicide occurred in one county; this was contrary to the defendant's testimony that it actually occurred in another. In holding that the jury could have found that the homicide occurred in the first county, the court, at p. 317, 103 N.E. at p. 903 said that the 'statement of the defendant * * * might have been disbelieved by the jury, who saw him on the witness stand and had opportunities for determining as to his truthfulness and reliability.' In the instant case there was no error in the denial by the judge of the defendant's motions; there was sufficient evidence that the crime occurred in Massachusetts to make its location a jury question. A case cited by the defendant, Commonwealth v. Knowlton, 265 Mass. 382, 163 N.E. 251, which stated that the homicide could be found to have been committed in the jurisdiction where the body was found, is irrelevant on the facts of this case.

2. The defendant contends that he should have been acquitted because, as a result of mental disease or defect, he was not responsible for his criminal conduct. Alternatively, the defendant argues that although evidence was introduced tending to prove that for two weeks prior to the crime he intended to murder the deceased he suffered from mental illness which precluded a finding of deliberate premeditation (see Commonwealth v. Hicks, 356 Mass. 442, 444, 252 N.E.2d 880; Commonwealth v. Talbert, 357 Mass. 146, 148, ...

To continue reading

Request your trial
21 cases
  • Com. v. Paszko
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 14 Febrero 1984" Commonwealth v. Bettencourt, 361 Mass. 515, 517-518, 281 N.E.2d 220 (1972) (motion for continuance). See Commonwealth v. Fleming, 360 Mass. 404, 409, 274 N.E.2d 809 (1971); Commonwealth v. French, 357 Mass. 356, 405, 259 N.E.2d 195 (1970), vacated as to death penalty sub nom. Limone ......
  • Com. v. Stone
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 12 Diciembre 1974
    ...took place in Canton. Commonwealth v. Knowlton, 265 Mass. 382, 163 N.E. 251 (1928). Commonwealth v. Fleming, --- Mass. ---, ---, l 274 N.E.2d 809 (1971), and cases 9. The defendant complains that numerous alleged prejudicial references to facts not in evidence nor testified to were made by ......
  • Commonwealth v. Trotto
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 24 Junio 2021
    ...145, 153, 147 N.E.3d 1078 (2020), quoting Commonwealth v. Combs, 480 Mass. 55, 60, 100 N.E.3d 730 (2018). See Commonwealth v. Fleming, 360 Mass. 404, 406, 274 N.E.2d 809 (1971). "The general rule, accepted as ‘axiomatic’ by the courts in this country, is that a State may not prosecute an in......
  • Commonwealth v. Hall
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 26 Junio 2020
    ...the defendant can be found guilty of the offence charged." Combs, 480 Mass. at 60, 100 N.E.3d 730, quoting Commonwealth v. Fleming, 360 Mass. 404, 406, 274 N.E.2d 809 (1971). It is our practice in Massachusetts that, when there is a genuine factual dispute about whether a crime was committe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT