Com. v. Freiberg

• Decision Date: 06 July 1989
• Citation: 405 Mass. 282,540 N.E.2d 1289
• Parties: COMMONWEALTH v. Richard S. FREIBERG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1289

540 N.E.2d 1289

405 Mass. 282

COMMONWEALTH v. Richard S. FREIBERG.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Jan. 3, 1989.

Decided July 6, 1989.

A. Hugh Scott (Edward H. Seksay, Boston, with him) for defendant.

Sharon B. Soffer, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Chief Justice.

The defendant, Richard S. Freiberg, appeals from his conviction of murder in the first degree on the basis of extreme atrocity or cruelty. He also appeals from the denial of his motion for a new trial. ¹ He asserts numerous claims of error, each of which we address below. We affirm the conviction. Also, we affirm the denial of his motion for a new trial.

We recite in summary form the evidence put before the jury.

On the morning of May 14, 1986, the victim, Lisa Margil, a student at Boston University, arrived at the defendant's home at 461 LaGrange Street in the West Roxbury section of Boston. The victim and the defendant walked with Brian B. Lincoln, a mutual friend, to a nearby liquor store where they purchased some beer and vodka. During the course of the morning, the defendant had at least one beer and shared two pipe bowls full of marihuana with the victim and Lincoln. The three were joined at approximately 12:30 p.m. by Christopher Hurley, a friend of the defendant's younger brother.

Hurley watched the defendant and the victim playing a drinking game while they sat at the kitchen table. The victim consumed at least three shot glasses full of vodka during this game. The defendant, in addition to having some vodka during the game, was drinking vodka out of a mug. When the victim refused to continue drinking, the defendant became angry and pressed her to drink more.

The defendant and the victim remained in the kitchen; Hurley and Lincoln repaired to the adjoining living room. After about fifteen minutes, the defendant came into the living room with a worried look on his face. He asked Lincoln and Hurley to go upstairs. They had not heard any untoward noises, but, as they were leaving the living room, Lincoln heard, coming from the kitchen, a series of short, sharp breaths, as if someone were about to vomit. Lincoln asked the defendant if anything was wrong, to which the defendant responded, "No, no, no, no, just go upstairs." Hurley and Lincoln went upstairs to the bedroom of the defendant's brother.

About fifteen minutes later, the defendant came upstairs and slowly pushed the bedroom door open. He asked Lincoln to follow him. The defendant said that Lisa Margil was dead. He explained, "I went over to the table, I picked up my bag and turned around and she spun around and fell down and hit her head next to the stove and split her head open and her brains are all over the floor."

The defendant and Lincoln went to the kitchen where the victim was on her knees next to the stove, breathing quickly. Blood was splattered in front of her and was flowing out from between her legs. White brain matter was oozing from the back of her head. Lincoln urged the defendant to call an ambulance. The defendant refused, saying that he had three warrants out for his arrest. The defendant persuaded Lincoln to go upstairs again. The defendant asked Lincoln to put the victim's body in his automobile and to leave it on some nearby abandoned railroad tracks. Lincoln refused, and again urged the defendant to call an ambulance.

When the defendant was about to tell Hurley what had happened in the kitchen, Lincoln ran downstairs and out to his automobile. The defendant pursued Lincoln, got in the passenger's seat, and turned off the ignition. Lincoln again told the defendant to call an ambulance. The defendant refused and got out of Lincoln's automobile. Lincoln drove away. Hurley left the defendant's home shortly thereafter.

Lincoln proceeded to a nearby gasoline station where he telephoned the emergency 911 number, told the operator to send an ambulance to the defendant's house immediately, and described the nature of the victim's injuries. The 911 operator called the defendant's telephone number in order to help him administer assistance to the injured person. The defendant answered the phone and cancelled the ambulance, falsely stating that "[s]he just walked up and left.... I tried to stop her and she just ran away."

The defendant placed a large green garbage bag over the head and torso of the victim, carried her out to his backyard, and dropped her in a large hole. The defendant dropped a large rock in the hole and shovelled dirt into it, completely covering the body. The defendant then returned to the house. The burial was observed by Mac Brodie, an employee of the Boston Edison Company, from the vantage point of an aerial lift bucket truck where he was transferring wires to a new utility pole. Brodie sent a fellow worker to get a police officer. The officer arrived and began to dig away the dirt from the burial area. He saw the victim's legs. The victim started to move; it was clear that she was still alive. The police officer, Brodie, and his fellow worker dug furiously until they got the victim out. They observed that the victim's head had been split open and that portions of her brain were spilling out. She was breathing hard, gasping for air, but appeared to be unconscious. When an emergency medical technician, who arrived soon thereafter, pinched the victim to determine whether she could feel pain, the victim responded by moaning. The victim was taken to the Faulkner Hospital, where she died within a few hours.

Several police officers arrived at the scene. The defendant was found in the basement of his home and was taken to the back porch, where Brodie positively identified him as the man whom he had seen burying the victim.

Dr. Leonard Atkins conducted an autopsy. He testified at trial that the victim's injuries were consistent with her head being banged against the kitchen stove with a "very severe degree of force." Dr. Atkins also testified that the injuries were caused by more than one blow to the head, assuming that they were not caused by a "pattern-type instrument." He testified that the injuries could not have been caused by someone falling against a metal stove or against a floor. The blows to the head, which probably rendered the victim unconscious, were the cause of the victim's death.

1. Mental impairment. The defendant contends that Commonwealth v. Grey, 399 Mass. 469, 505 N.E.2d 171 (1987), which was decided two weeks after the jury reached their verdict in this case, entitles the defendant to a new trial. In Grey, we concluded that "we should permit the jury to consider evidence of mental impairment at the time of the crime" in determining whether the defendant had malice aforethought, in that he specifically intended to kill or to cause grievous bodily harm to the victim. Id. at 470-471, 505 N.E.2d 171. Even assuming, without deciding, that Grey applies retroactively to this case, we hold that the lack of a Grey charge did not create a substantial likelihood of a miscarriage of justice under G.L. c. 278, § 33E (1986 ed.). ²

The defendant's behavior did not manifest signs of intoxication or mental impairment triggered by intoxication. See Commonwealth v. Griffith, 404 Mass. 256, 260, 534 N.E.2d 1153 (1989). Just before the killing, the defendant's speech was not slurred, and he did not stumble. Shortly after the attack, the defendant had the presence of mind to cancel the ambulance, falsely stating to the 911 operator that the victim was not seriously injured and that she had gone home. The defendant then carried the still-living victim's body to a hole in his backyard and buried her there. The defendant then hid in his basement and, after being found by the police, did not have trouble walking up the narrow basement staircase.

In addition, the judge did not foreclose the jury from considering the effect of alcohol or drugs on the malice element. Cf. Commonwealth v. Glass, 401 Mass. 799, 810, 519 N.E.2d 1311 (1988).

We reject the defendant's argument that he is entitled to present, at a new trial, evidence from two psychiatrists that the defendant allegedly was suffering from an "impulse control disorder" at the time of the killing. The defendant concedes that this evidence was not newly discovered and admits that he made a conscious strategic decision not to introduce it at the trial. The defendant may not, after losing on one theory, retry his case on an alternate theory on which admissible, highly relevant evidence was available to him at the time of the trial. See Commonwealth v. Brown, 378 Mass. 165, 170, 390 N.E.2d 1107 (1979).

2. Extreme atrocity or cruelty. The defendant urges us to add a new intent element to the crime of murder by extreme atrocity or cruelty.

We have recently considered, and rejected, the suggestion that we transform the legal standard for that crime to include an element of intent to inflict extraordinary pain or suffering. Commonwealth v. Sinnott, 399 Mass. 863, 879, 507 N.E.2d 699 (1987). Commonwealth v. Cunneen, 389 Mass. 216, 227-229, 449 N.E.2d 658 (1983). In Cunneen, supra at 227, 449 N.E.2d 658, we stated that "[w]e adhere to our view that proof of malice aforethought is the only requisite mental intent for a conviction of murder in the first degree based on murder committed with extreme atrocity or cruelty." We decline the invitation to reconsider our recent decisions on this point.

3. Vagueness. The defendant challenges the constitutionality of G.L. c. 265, § 1, claiming that the phrase "extreme atrocity or cruelty" is vague and thus violates due process as guaranteed by the Fourteenth Amendment of the United States Constitution and art. 10 of the Massachusetts Declaration of Rights.

"A law is void for vagueness if persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.' Smith v. Goguen, 415 U.S. 566, 572 n. 8 [94 S.Ct....