Com. v. Harrington

• Decision Date: 14 February 1975
• Citation: 367 Mass. 13,323 N.E.2d 895
• Parties: COMMONWEALTH v. John J. HARRINGTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 895

323 N.E.2d 895

367 Mass. 13

COMMONWEALTH v. John J. HARRINGTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 2, 1974.

Decided Feb. 14, 1975.

William P. Homans, Jr., Boston, for defendant.

Roger A. Emanuelson, Special Asst. Dist. Atty. (Thaddeus R. Beal, Jr., Asst. Dist. Atty., with him), for the Commonwealth.

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

BRAUCHER, Justice.

At the defendant's trial for murder and armed assault with intent to rob, the judge took the view that a death sentence was mandatory in the event of a conviction of first degree murder, and excluded from the jury those whose beliefs as to capital punishment precluded them from finding the defendant guilty of an offense punishable by death. The defendant was convicted of murder in the second degree and sentenced to life imprisonment. We hold that on the indictment before us no death sentence could have been imposed under G.L. c. 265, §§ 1, 2, and G.L. c. 279, § 5. But it was appropriate for the judge to preserve the question for decision by this court, and the defendant is not entitled to a reversal of his conviction. We express no opinion as to the proper sentence for murder 'committed in connection with the commission of rape or an attempt to commit rape.'

The crime was committed on May 2, 1973, after the decisions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972). Indictments for murder and for armed assault with intent to rob were returned on June 15, 1973, and trial began on November 12, 1973, after the decisions in Commonwealth v. LeBlanc, --- Mass. ---, --- - ---, ^a 299 N.E.2d 719 (1973); Commonwealth v. A. Juvenile, --- Mass. ---, --- - ---, ^b 300 N.E.2d 439 (1973); and Commonwealth v. Mc Laughlin, --- Mass. ---, --- - ---, ^c 303 N.E.2d 338 (1973). The judge told the jury panel that murder in the first degree is punishable by death, and that a juror would be ineligible to serve only if he 'could not under any circumstances, notwithstanding the evidence or its strength, find a defendant guilty of an offense punishable by death.' Thereafter, he excluded five prospective jurors from the jury on the ground that their views would so disable them. He did not inquire whether prospective jurors had opinions which would prevent them from recommending that the death penalty not be imposed.

There was abundant evidence of the defendant's guilt, much of it corroborated by the defendant's own testimony. There was evidence that the defendant planned to rob the victim, went to the victim's apartment in a stolen car, stabbed the victim six times, inflicting wounds four or five inches deep and killing the victim, and in the process received a stab wound himself which resulted in hopitalization.

The jury found the defendant guilty of murder in the second degree and of armed assault with intent to rob. He was sentenced to Massachusetts Correctional Institution, Walpole, for the term of his natural life on the murder indictment, and the assault indictment was placed on file. The defendant appeals under G.L. c. 278, §§ 33A--33G. He waives all assignments of error except those relating to capital punishment and the exclusion of the five jurors.

1. Capital punishment. This case and COMMONWEALTH V. BROWN, --- MASS. ---, 323 N.E.2D 902 (1975)^D, are the first cases to reach us presenting the issue whether a death sentence can be imposed under G.L. c. 265, §§ 1, 2, and G.L. c. 279, § 5, ¹ for a murder committed after the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The cases were argued on the same day, and we consider here the contentions made in both cases, including those made by friends of the court in the Brown case. The same judge presided at both trials. He interpreted the Furman case as establishing only that the provision for jury clemency in G.L. c. 265, § 2, was unconstitutional, and as leaving in force either the death penalty provided in that section or punishment under G.L. c. 279, § 5, conforming 'to the common usage and practice in the commonwealth.' The Commonwealth argues in support of the judge's rulings that the provision for a jury recommendation, inserted by St.1951, c. 203, is grammatically and historically severable, citing Opinion of the Justices, 269 Mass. 611, 615--616, 168 N.E. 536 (1929); Krupp v. Building Commr. of Newton, 325 Mass. 686, 692, 92 N.E.2d 242 (1950); Donahue v. Selectmen of Saugus, 343 Mass. 93, 96--97, 176 N.E.2d 34 (1961). See Frost v. Corporation Commn. of Okla., 278 U.S. 515, 526--527, 49 S.Ct. 235, 73 L.Ed. 483 (1929); United States v. Jackson, 390 U.S. 570, 572, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). With the offending provision excised, the argument continues, what remains is a mandatory provision for capital punishment, free of the constitutional defect found in the Furman case, as was held in State v. Dickerson, 298 A.2d 761, 764--767 (Del.1972), and State v. Waddell, 282 N.C. 431, 445, 194 S.E.2d 19 (1973). Cf. State v. Smith, 324 A.2d 203, 204 (Del.1974).

The defendants and friends of the court maintain that only the Legislature can institute a system of mandatory capital punishment, that the provision for a jury recommendation is not severable from the provision for capital punishment, and that application of a mandatory death penalty in these cases would be ex post facto and therefore unconstitutional. Moreover, they say, several elements of discretion remain under a system of mandatory capital punishment, any one of which would be fatal under the principles on which the Furman case rests: the prosecutor's discretion as to whom and what to charge, plea bargaining, jury discretion to acquit or to convict of a lesser offense (particularly second degree murder), executive clemency, and the discretionary power of the chief justice of the Superior Court to assign particular judges to preside over particular trials. Finally, it is contended apart from the Furman case that any death penalty is 'cruel and unusual' under the Eighth and Fourteenth Amendments to the Constitution of the United States and 'cruel or unusual' under the Declaration of Rights of the Massachusetts Constitution, art. 26. Cf. People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972), cert. den. 406 U.S. 958 (1972).

Both within and without Massachusetts and both before and since the Furman case, capital punishment has been the subject of exhaustive investigation, voluminous literature and extensive debate. In the view we take of the present situation, a brief summary of the Massachusetts history will suffice here. See Report and Recommendations of the Special Commission Established for the Purpose of Investigating and Studying the Abolition of the Death Penalty in Capital Cases, 1959 House Doc. No. 2575; note, The Death Penalty in Massachusetts, 8 Suffolk U.L.Rev. 632 (1974); Comment, 54 B.U.L.Rev. 158 (1974); note, Discretion and the Constitutionality of the New Death Penalty Statutes, 87 Harv.L.Rev. 1690 (1974).

In the early years of the Commonwealth the number of capital crimes was reduced until only murder remained after the enactment of St.1852, c. 259. Revised Statutes c. 125, § 1 (1836), provided: 'Every person, who shall commit the crime of murder, shall suffer the punishment of death for the same.' Statutes 1858, c. 154, introduced for the first time a distinction between murder in the first degree and murder in the second degree. The distinction was substantially that now found in G.L. c. 265, § 1, the punishment for murder in the first degree was death, the punishment for murder in the second degree was imprisonment for life, and the degree of murder was to be found by the jury.

In Commonwealth v. Gardner, 11 Gray 438, 443 (1858), the 1858 statute was applied to a murder committed before its enactment, and Chief Justice Shaw said for the court: 'The substitution of imprisonment for life, in place of death, is a mitigation in the eye of the law; it is everywhere so regarded; it is on that ground that the executive power of commutation is founded. . . . Had this been previously the reverse, that is to say, had murder in the second degree been punishable by a penalty less severe than that declared by the new statute; for instance, had the former law punished it by imprisonment in the State prison for ten years, and the new statute extended the punishment to twenty years; it would clearly have been ex post facto, unconstitutional and void.'

Abolition of the death penalty for murder has been proposed and rejected numerous times, beginning in 1831. 1831 House Doc. No. 15. But from 1858 to 1951 the death sentence was the only punishment for first degree murder. From 1900 to 1947, 101 persons were convicted of first degree murder, and sixty-five were executed; there have been no executions in Massachusetts since 1947, but by the time of the Furman decision there were twenty-three people under death sentences. In 1951 our statute took substantially its present form, permitting the jury, as part of a verdict of guilty of murder in the first degree, to recommend that the sentence of death be not imposed. G.L. c. 265, § 2, as appearing in St.1951, c. 203. See Commonwealth v. McNeil, 328 Mass. 436, 440--442, 104 N.E.2d 153 (1952). The punishment was then to be imprisonment for life without parole. No such recommendation was to be made if the murder was committed in connection with the commission of rape or an attempt to commit rape.

So the matter stood when the Furman case was decided on June 29, 1972. Each of the nine Justices wrote a separate opinion in that case, and the only rationale provided by the court consists of citations to Georgia and Texas statutes and cases and one sentence in the per curiam opinion announcing the result: 'The Court holds that the imposition and carrying out of...