Com. v. Hodge

• Decision Date: 12 June 1980
• Docket Number: No. 2,2
• Citation: 380 Mass. 858,406 N.E.2d 1015
• Parties: COMMONWEALTH v. Barry W. HODGE ().
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1015

406 N.E.2d 1015

380 Mass. 858

COMMONWEALTH v. Barry W. HODGE (No. 2).

Supreme Judicial Court of Massachusetts, Franklin.

Argued May 7, 1980.

Decided June 12, 1980.

Leonard H. Cohen, Pittsfield (David O. Burbank, Pittsfield, with him), for defendant.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

In this case we are presented with the appeal of Barry W. Hodge from a conviction of murder in the second degree. Hodge was granted a stay of execution of his life sentence by the trial judge and the Commonwealth's motion to revoke the stay was denied by a single justice of this court. We affirmed the order of the single justice. Commonwealth v. Hodge, ante --- Mass. ---, 406 N.E.2d 1010 (1980). We now consider the defendant's full appeal, including his allegations of error at the trial as well as his prayer for extraordinary relief under G.L. c. 278, § 33E.

The defendant raises the following issues in this appeal: (1) whether the trial judge erred by excluding evidence concerning the defendant's prior use of the expression, "He'll leave in a hearse," offered to demonstrate that the expression, when used in relation to the victim, did not connote a murderous intent; (2) whether the trial judge erred by admitting evidence that the defendant had previously shot at human silhouette targets with a maximum score circle located in the chest area; (3) whether the jury instruction on malice violated the due process clause of the Fourteenth Amendment to the Constitution of the United States or art. XII of the Massachusetts Declaration of Rights; (4) whether this court should exercise its extraordinary powers under G.L. c. 278, § 33E, by directing the entry of a verdict of manslaughter.

We conclude that there was no error in the judge's evidentiary rulings or charge to the jury. Furthermore, upon consideration of the law and the evidence, we find no reason to exercise our power under G.L. c. 278, § 33E, to reduce the verdict from murder in the second degree to manslaughter. Therefore, we affirm the defendant's conviction for murder in the second degree.

The facts, as relevant to this appeal, are as follows. On June 8, 1978, the defendant killed Russell D. Eugin by shooting him in the chest with a .38 caliber revolver, the bullet passing through the heart. The incident took place at Bassett Farm on Upper Road in South Deerfield. Bassett Farm had previously been the marital home of Eugin and his former wife Virginia. At the time of the shooting the defendant was living at Bassett Farm with his wife, the former Virginia Eugin, and the two children of her marriage with Russell Eugin, Candace and Daniel.

Virginia Hodge testified that in the early evening of June 8, 1978, Russell Eugin placed a telephone call to Bassett Farm and spoke with each of his children. He requested to speak to Virginia, but when Candace relayed this request, Virginia refused to come to the telephone and Candace told her father that Virginia was not at home. Several minutes after the first call, Eugin called again. He spoke first to the children, but when he stated in a loud and gruff tone that he was coming to the house Daniel gave the telephone to the defendant. The defendant testified that he asked Eugin what his problem was and Eugin replied, "You're my problem, numbnuts, and I'm coming over to take care of you once and for all." At this point Eugin hung up the telephone.

The defendant, Virginia, Candace, and Daniel repaired to the master bedroom. The defendant stated that Eugin was a moron and that if he came through the mudroom door, or if he tried to get into the house, he would leave in a hearse.

Twenty minutes after the defendant made this statement, Candace saw Eugin driving up the driveway. The defendant picked up his fully loaded .38 caliber police handgun and proceeded downstairs, through the kitchen and the mudroom and into the garage. He threw open the garage door and saw Eugin in his car, stopped in the driveway. Eugin stepped out of his car and the defendant stepped out of the garage.

According to the defendant's testimony, Eugin told the defendant that the defendant must not marry Virginia. The defendant responded by informing Eugin that they were already married. At this point Eugin became enraged and threatened to kill both the defendant and Virginia.

Eugin approached the defendant and a fist fight ensued, during which Eugin seized a pitchfork and charged at the defendant. At this point the defendant drew his gun, cocking the weapon as he removed it from his holster. When Eugin approached, the defendant grabbed the pitchfork with his free hand in order to avert it. The two men struggled and the larger Eugin began to overpower the defendant. Eugin grabbed the defendant's gun hand and the gun fired into Eugin's chest. The defendant was not sure in his testimony if the weapon had fired accidentally or if he had pulled the trigger because he was about to be killed.

Although Candace and a neighbor both testified that they heard the shot neither one heard any preceding altercation. There was expert testimony from a pathologist that the muzzle of the weapon was probably between twelve and eighteen inches from Eugin's chest at the time it fired, and from a ballistician that the distance was between eighteen inches and two or three feet. The angle of the shot, which entered Eugin's chest almost at the breastbone about two inches below the nipple, was downward and to the left. Although the defendant stated that he grabbed the pitchfork in such a manner as to prevent the powerful Eugin from stabbing him with it, he suffered no burn or other injury to his hand. There was testimony from the investigating police officers as well as the defendant's own admission that the defendant had moved the body of the victim after the shooting.

There was also evidence that two months prior to the killing the defendant had told the Deerfield chief of police that he did not need to worry about Eugin because he wore a gun and knew how to use it. When, on a previous occasion, Eugin had telephoned to say that he was coming over to remove the defendant from the house the defendant waited for him until 3 A.M., wearing a gun. The Commonwealth also adduced evidence that, as a firearms instructor for the Orange police department, the defendant both learned to shoot at and taught fellow police officers to shoot at human silhouette targets with a maximum score circle located in the heart or chest area.

1. The Commonwealth presented testimony from Daniel, Candace, and Virginia, along with the defendant's own admission, that prior to Eugin's arrival at Bassett Farm the defendant stated that if Eugin came through the door he would leave in a hearse. The defendant testified that this statement implied no specific animosity or threat but was merely part of his common vernacular in circumstances where he was faced with the possibility of a physical confrontation. The defendant offered to introduce the testimony of one of his fellow police officers who had participated with him in numerous arrests involving altercations. This witness was prepared to testify that in such situations the defendant had frequently joked that an aggressor would "leave in a hearse" as a means of relaxing himself and others. The judge excluded the proffered testimony of this witness.

We conclude that in doing so the judge did not abuse his discretion. The relevance of evidence concerning the defendant's use of the expression under circumstances different from those in the instant case is questionable at best. The "burden (of showing an abuse of judicial discretion) is not met by merely arguing that on a debatable question of admissibility the judge ruled against the defendant while another judge could and might have ruled in his favor. . . . " Commonwealth v. Bys, 370 Mass. 350, 361, 348 N.E.2d 431, 439 (1976).

In the instant case the trial judge's view is reasonable and supported by analogous precedent. The judge apparently did not want to admit collateral evidence of the defendant's behavior in circumstances different from those involved in the crime lest the jury be distracted from the facts and issues at bar. See Commonwealth v. Nagle, 157 Mass. 554, 555, 32 N.E. 861 (1893). ("For the purpose of proving that one has or has not done a particular act, it is not competent to show that he has or has not been in the habit of doing other similar acts.") Commonwealth v. Webster, 5 Cush. 295, 325 (1850) ("(W) here it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things and beyond common experience; it is so manifest that the offence, if perpetrated, must have been influenced by motives not frequently operating upon the human mind; that evidence of character and of a man's habitual conduct under common circumstances, must be considered far inferior to what it is in the instance of accusations of a lower grade").

2. The Commonwealth introduced testimony by the Orange chief of police that, as a firearms instructor for the Orange police department, the defendant both learned to shoot at and taught other police officers to shoot at human silhouette targets with a maximum score circle located in the heart or chest area. The defendant argues first that this evidence should have been excluded because it was not relevant. We disagree because, as the trial judge explained, "(t)he evidence . . . was admitted for the purpose of showing the defendant's proficiency in the use of handguns and the area of the human body at which the defendant had trained himself to shoot. The information was relevant because of (sic ) the location of the wound in the victim's chest supported the Commonwealth's contention that the defendant deliberately aimed his weapon at the victim with the intent to kill him, and the...