Com. v. Harrison

• Decision Date: 16 March 1961
• Citation: 173 N.E.2d 87,342 Mass. 279
• Parties: COMMONWEALTH v. Tucker HARRISON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 87

173 N.E.2d 87

342 Mass. 279

COMMONWEALTH v. Tucker HARRISON.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Jan. 3, 1961.

Decided March 16, 1961.

Justin G. Cavanaugh, Springfield, for defendant.

Matthew J. Ryan, Jr., Dist. Atty., Springfield (Leonard E. Gibbons, Asst. Dist. Atty., Holyoke, with him), for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

WHITTEMORE, Justice.

The defendant was found guilty of murder in the first degree of his wife, Mary Harrison, without recommendation by the jury that the sentence of death be not imposed. G.L. c. 265, § 2. A death sentence was imposed and execution of the sentence was stayed. The defendant filed a claim of appeal under G.L. c. 278, § 33B, with twenty-five assignments of error, of which the eighth, twenty-third, and twenty-fourth are waived.

There was evidence to show the following: The defendant and his wife were living, separately, in Springfield; the wife lived in an apartment with their two daughters (aged thirteen and twelve years at the time of trial, June, 1960), and the defendant lived in a rooming house. On the evening of November 25, 1959, the defendant, who earlier had been drinking wine and beer, telephoned his wife and said that he was coming to the apartment. Soon after he arrived the defendant left to buy oil for the stove. Upon his return, sometime before 10 P.M., the defendant talked with his wife as to whether she had just been talking on the telephone with 'her man.' The defendant then asked his older daughter to make up the bed in the back room for him, and when his wife objected, the defendant walked toward the door, turned, and pulled a revolver from his pocket. The defendant then said 'Well, today is your last day,' pushed his wife to the floor, fired three shots into her body, and then fired one shot into his head.

There was no significant conflict in the testimony of the defendant's conduct on the day of the shooting. One of the daughters testified that the defendant fired the shots and to what he said before doing so; this was corroborated by the defendant's confession. Ernest Woodard, an acquaintance who had been doing paper hanging in the apartment, testified that the defendant came to the apartment bringing two bottles of beer which Woodard had requested by telephone. The wife asked the defendant if he had been drinking. He said he had not but had lost a lost of sleep. The defendant was playing with the younger daughter who was on the couch beside her sister; the wife and the defendant each said they would pay the $5 for the paper hanging; the wife paid; there were no angry words; it 'looked like happiness to me.' A restaurant keeper, William S. Orr, testified that at about 8:45 P.M. on November 25, 1959, the defendant asked him to hold his gun for him saying 'I don't know what I might do * * * I don't feel good * * *. I might do something * * * I'll be sorry for it after'; the defendant came back an hour later saying 'I feel better now. I'm all right' and took back the gun; he seemed better; he appeared either drunk or sick when he first brought the gun; 'he didn't seem right.' Sam Hickson testified to driving the defendant to the filling station and back; he thought the defendant was sick; he 'didn't look like the ordinary man'; he could not say the defendant was drunk; 'he acted all right.' The police officers testified that when they came to the apartment the defendant asked for a towel to wipe the blood from his face; he said he could walk down stairs and did so with the help of the officers. Several hours after the shooting, at the hospital, the defendant gave a detailed confession to officers. Some weeks before the shooting the defendant's daughters had heard him say in his wife's presence that he had a gun. One of them heard him say he was going to use it.

The defendant did not testify. The evidence for the Commonwealth and for the defendant showed that the defendant was of low intelligence, possibly or probably epileptic, with a history of mental or emotional disturbance, and that in 1958 he had been committed for a period to the Northampton State Hospital following an attack on his wife with a hammer which resulted in two gashes on her head. At the time of the shooting the defendant was barred from living with his wife under the terms of a probation order.

The chief issue tried was the defendant's sanity. The defendant contends that the judgment should be reversed for assigned errors and also because the defendant at the time of the trial was unable to assist in his own defense and, in respects to be discussed, did not have a fair trial.

I.

The specific assignments show no prejudicial error.

Assignment 1. There was no error in denying the defendant's motion to ask each prospective juror questions as to his belief about insane criminals. Questions in additional to those prescribed by statute are permitted only in the discretion of the trial judge. Commonwealth v. Taylor, 327 Mass. 641, 647, 100 N.E.2d 22; Commonwealth v. Bonomi, 335 Mass. 327, 334-335, 140 N.E.2d 140; Commonwealth v. Geagan, 339 Mass. 487, 504, 159 N.E.2d 870, certiorari denied 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152.

Assignment 2. There was no error in the admission of a .38 caliber Smith and Wesson revolver. Commonwealth v. Giacomazza, 311 Mass. 456, 470, 42 N.E.2d 506. Commonwealth v. Bonomi, 335 Mass. 327, 341, 140 N.E.2d 140. See Commonwealth v. Lee, 324 Mass. 714, 719, 88 N.E.2d 713; Commonwealth v. O'Toole, 326 Mass. 35, 39, 92 N.E.2d 618. The order in which evidence is admitted is in the discretion of the judge. Commonwealth v. Cataldo, 326 Mass. 373, 377, 94 N.E.2d 761. Here an officer testified that he took the weapon from the couch and later turned it over to Captain McCarthy; another officer testified he had taken the weapon from the defendant and placed it on the couch; and the captain later identified the revolver as the one turned over to him by the first officer.

Assignment 3. Dr. Arthur A. Pava, called by the Commonwealth, had testified to the defendant's head wound and the operation he performed on it. An exception was taken to the exclusion of the defendant's question in cross-examination of what the physician would expect normally would happen 'from this wound.' Passing several grounds which sustain the exclusion of the question as and when put, it is sufficient to note that, in the course of the cross and redirect examination which followed, the question was in substance answered. The witness testified that the defendant's injury was 'tantamount to * * * a frontal lobotomy,' the effect of which, if surgically performed, and sometimes if the result of an injury, is to destroy an area of the brain which controls the personality, 'our awareness of right or wrong, our insight, our judgment'; lobotomies are performed to relieve pain and 'in psychiatric institutions * * * to control otherwise uncontrollable individuals * * * [so that] these people become very docile * * * apathetic * * * easily led'; he would expect after a frontal lobotomy that the patient would be considerably more placid, 'apathetic to events * * * to be unresponsive * * * emotionally quite flattened * * *; they are easily malleable'; he saw the defendant daily or oftener for the twelve or fifteen day period of the defendant's hospitalization after the operation; conversation with him was 'principally a monologue' by the physician; the defendant became and remained in this period a 'very placid, apathetic individual' who sat on his bed 'with no complaints, no statements, no remarks of any kind.' It would be hard to say whether the defendant sustained 'a complete lobotomy.' If the frontal lobe is not completely removed the patient will have 'a degree of emotions' and may not be 'so easily led'; he had not seen the patient after his discharge.

Assignment 4. At the close of the voir dire to determine the admissibility of the defendant's confession, the defendant asked to recall Dr. Pava on the issue of the defendant's mental capacity and his traumatic shock. The judge ruled 'not at this time.' This was within the discretion of the judge at this preliminary hearing. Commonwealth v. Reagan, 175 Mass. 335, 338, 56 N.E. 577. Commonwealth v. Sheppard, 313 Mass. 590, 604, 48 N.E.2d 630, certiorari denied 320 U.S. 213, 63 S.Ct. 1450, 87 L.Ed. 1850. Commonwealth v. Valcourt, 333 Mass. 706, 710, 133 N.E.2d 217.

Assignments 5, 6 and 7. These exceptions raise the issue of the admissibility of the confession. It was made at the hospital before the operation on the defendant's head, in brief part shortly after the murder while the defendant lay on the emergency cart in the emergency room and in greater part beginning at 5:15 A.M. on November 26, the operation following on that day at about 12:45 P.M. The defendant then had a bullet in his head and a severe brain injury. However, according to the police officer's testimony he understood the inquiries and gave understandable answers. The substance of the answers was written on a typewriter by an officer present, and the resulting account was read to the defendant in the presence of a nurse. Several times during the reading the defendant was asked to repeat what had been read to him and he did so 'word for word.' The defendant then signed the statement. The essence of the confession was at the first brief interview. 'I asked him * * * his name * * * and he told me 'Tucker Harrison.' I asked him what happened at the apartment and he said, 'I shot her.' He said, 'She was talking to her man on the telephone and I shot her.'' It was not error to admit the confession. On the testimony of the officer the defendant's physical and mental condition 'was not such as to deprive him of the faculty of consciousness of the physical acts performed by him, of the power to retain them in his memory, or of the capacity to state them with reasonable accuracy.' Commonwealth...