Com. v. Haas, No. M-3347

CourtMassachusetts Supreme Judicial Court
Writing for the CourtBefore HENNESSEY; HENNESSEY
PartiesCOMMONWEALTH v. Gordon F. HAAS.
Decision Date17 December 1986
Docket NumberNo. M-3347

Page 1154

501 N.E.2d 1154
398 Mass. 806
COMMONWEALTH

v.
Gordon F. HAAS.
No. M-3347.
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued Oct. 8, 1986.
Decided Dec. 17, 1986.

[398 Mass. 807]

Page 1155

Virginia Lee, Boston, for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty. (Frederick B. McAlary, Asst. Dist. Atty., with her), for the Com.

Before [398 Mass. 806] HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

[398 Mass. 807] HENNESSEY, Chief Justice.

The defendant returns to this court after having been found guilty by a Superior Court jury on three indictments charging murder in the first degree. The defendant had originally been tried in 1975 for the same crimes and had been found guilty on all indictments. On appeal to this court, we reversed the judgments and remanded the case for a new trial. Commonwealth v. Haas, 373 Mass. 545, 369 N.E.2d 692 (1977). A second trial occurred in June, 1979, but a mistrial was declared when the jury were unable to reach a verdict. A third trial was then held from March 17 through April 8, 1982, which resulted in the current convictions. The defendant's appeal from these convictions has been consolidated with his appeal from a denial of his motion for a new trial. We affirm both the judgments of conviction and the denial of the motion for a new trial.

Because the facts of this case are set out in our previous opinion, we review only those facts relevant to this appeal. At the time of the murders, the defendant, his wife, Shirley, and their two children, Gordon, Jr., and Melissa, lived in Ipswich. The defendant worked at Lechmere Sales in Cambridge. There was evidence from a person who lived nearby that the defendant was at his home on the morning of June 26, 1973, at approximately 6:30 A.M. The defendant arrived at work at approximately 7:30 A.M. At approximately 10:20 A.M., the defendant called the Ipswich police station from his office in Cambridge and reported that he had just received an anonymous telephone call to the effect that "black and white don't mix" and that his family had just been "taken care of." 1 An officer was dispatched to the family home and discovered the front door open with a key in the lock. In the upstairs bedrooms, the officer found the bodies of Shirley Haas and the children. Each victim's head was covered with a white plastic bag tightly secured with adhesive tape. In the master bedroom, a note propped up on [398 Mass. 808] a nightstand read, "I'm sorry, but Black and White don't mix." Other police officers arrived, searched the house, and found it to be "secure" with no signs of violence. The only sign of disturbance was in the master bedroom where the sheets were off the bed.

At approximately 10:40 A.M., Dr. John J. Pallotta, an associate medical examiner in Essex County, arrived at the Haas home. Without undressing the bodies, he examined

Page 1156

all three for heartbeat, temperature, rigor mortis, and lividity. He determined that the cause of death for all three victims was asphyxia. On the basis of temperature, lividity, and rigor mortis, he formed the opinion that death had occurred on June 26 between 2:55 A.M. and 5:15 A.M. The medical examiner also noted that the fingernail on the middle finger of Shirley Haas's right hand was broken.

Meanwhile, the defendant returned to his home after having called the police station and being told "to return to his home as soon as he could because apparently a tragedy had occurred." On arriving home, the defendant was immediately taken to the Ipswich police station where he was arrested. 2 At the police station, officers observed scratches on the right side of the defendant's face.

Dr. George Katsas, then an associate medical examiner in Suffolk County, performed the autopsies of the victims in the late afternoon on June 26. He determined that, based on the petechial hemorrhages and bloody froth coming from the victims' nostrils and mouths, the cause of the deaths was asphyxia. He also determined that the time of death was twelve to sixteen hours prior to his examination of the bodies between 5 and 6 P.M. His opinion concerning the time of death was based on [398 Mass. 809] rigidity, body temperature, the internal condition of the bodies, the absence of decomposition, the clearness of the eyes, and data provided by the medical examiner and police officers who saw the bodies earlier in the day.

1. The defendant's first argument on appeal concerns a claim of ineffective assistance by trial counsel. 3 The Commonwealth introduced testimony of three medical experts who testified as to the probable time of death. Drs. Pallotta and Katsas testified as indicated above. Dr. Dominic J. DiMaio, the retired chief medical examiner for the city of New York, testified that, in his opinion, the time of death was six to ten hours before the time that the bodies were found at 10:50 A.M., resulting in a time of death between 1 and 5 A.M. The defense introduced the testimony of Drs. George Hori, medical examiner in Middlesex County, and John F. Devlin, formerly associated with the office of the chief medical examiner in New York City, 4 both of whom had testified at the prior trials. Dr. Hori testified that he could not make a determination of time of death on body temperature alone. Under questioning by trial counsel he stated that, assuming rigor mortis was "complete" at noon, death could have occurred at 6 A.M., 7 A.M., or 8 A.M. Trial counsel then posed a hypothetical question that asked Dr. Hori, using the "standard formula," 5 to determine the time of death assuming that rigor mortis was complete at 5 P.M. and that a rectal temperature of seventy-eight degrees Fahrenheit was recorded for the victims at that time. Dr. Hori responded that the time of death would be fourteen hours prior [398 Mass. 810] to 5

Page 1157

P.M. On cross-examination, Dr. Hori conceded that fourteen hours prior to 5 P.M. was 3 A.M. This testimony was not entirely consistent with that given by Dr. Hori at the second trial. At that time, Dr. Hori testified that death could have occurred between 9 and 10 A.M. and that, at the very earliest, death may have occurred between 5 and 6 A.M.

On redirect examination, Dr. Hori stated that he had been subpoenaed to testify at the trial, that he had met trial counsel for the first time that day and that he had never talked to him before that day. At the hearing on the motion for a new trial, he stated that he was not as well prepared as he expected to be because he was not planning to testify. He stated that, on the day before he testified, he received a copy of the testimony he had given at the second trial, had read, but not studied it. He did not review the autopsy report prior to testifying, but did speak with the defendant by telephone the previous evening.

The defendant argues that trial counsel's failure to prepare his own expert witness and the poor use of hypothetical questions constituted serious incompetence and inattention under our standard for ineffective assistance of counsel enunciated in Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878 (1974). 6 He claims that because time of death was a crucial issue in the case, trial counsel's failure to present medical evidence supporting the defendant's claims deprived the defendant of an otherwise substantial defense. We disagree. Under our opinion in Saferian, we held that assistance of counsel is ineffective where "there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." [398 Mass. 811] Id. at 96, 315 N.E.2d 878. Furthermore, the failure to render effective assistance must have "likely deprived the defendant of an otherwise available, substantial ground of defence." Id.

Trial counsel's preparation of the expert witness for testifying in this case did not deprive the defendant of his right to effective assistance of counsel. Trial counsel stated at the hearing on the motion for a new trial that he had discussed the case with the attorneys who represented the defendant at both the first and second trials and had read the testimony of Dr. Hori given at the second trial. Although he did not discuss the case with Dr. Hori prior to trial, trial counsel did meet with the doctor in the court house on the morning he testified and determined that he had received the transcript of the previous testimony and was familiar with it. Furthermore, trial counsel told Dr. Hori that counsel expected that the doctor would give essentially the same testimony that had been given at the second trial. See Commonwealth v. Sellon, 380 Mass. 220, 226-227, 402 N.E.2d 1329 (1980); Commonwealth v. Hamm, 19 Mass.App.Ct. 72, 76-78, 471 N.E.2d 416 (1984); United States v. Decoster, 624 F.2d 196, 209 (D.C.Cir.), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979) ("A claim of failure to interview a witness may sound impressive in the abstract, but it cannot...

To continue reading

Request your trial
79 practice notes
  • Com. v. Scott
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 17, 1990
    ...sub nom. Bumpus v. Gunter, 452 F.Supp. 1060 (D.Mass.1978). See Commonwealth v. Haas, 373 Mass. 545, 562, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986). The decision to grant a bifurcated trial is within the sound discretion of the judge. Commonwealth v. Siegfriedt, 402 ......
  • Com. v. McDermott, No. SJC-09130.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 13, 2007
    ...of constitutional dimension, they are open for review." Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 b. Warrantless search of defendant's apartment and subsequent search and seizure made pursuant to warrant. Prior to trial, the d......
  • Com. v. Martin
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 12, 2005
    ...be considered in determining probable cause to obtain search warrant); Commonwealth v. Haas, 373 Mass. 545, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986) (unwarned statements solicited from suspect in custody may not be considered in determining probable cause for arres......
  • Com. v. Berry
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 14, 1995
    ...v. Corriveau, supra, 396 Mass. at 326, 486 N.E.2d 29, quoting Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986). After carefully reviewing the judge's findings and the record in the present case, we conclude that the evidence suppor......
  • Request a trial to view additional results
79 cases
  • Com. v. Scott
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 17, 1990
    ...sub nom. Bumpus v. Gunter, 452 F.Supp. 1060 (D.Mass.1978). See Commonwealth v. Haas, 373 Mass. 545, 562, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986). The decision to grant a bifurcated trial is within the sound discretion of the judge. Commonwealth v. Siegfriedt, 402 ......
  • Com. v. McDermott, No. SJC-09130.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 13, 2007
    ...on issues of constitutional dimension, they are open for review." Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 b. Warrantless search of defendant's apartment and subsequent search and seizure made pursuant to warrant. Prior to trial, ......
  • Com. v. Martin
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 12, 2005
    ...be considered in determining probable cause to obtain search warrant); Commonwealth v. Haas, 373 Mass. 545, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986) (unwarned statements solicited from suspect in custody may not be considered in determining probable cause for arres......
  • Com. v. Berry
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 14, 1995
    ...v. Corriveau, supra, 396 Mass. at 326, 486 N.E.2d 29, quoting Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986). After carefully reviewing the judge's findings and the record in the present case, we conclude that the evidence suppor......
  • 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