Com. v. Jackson

Decision Date13 November 1981
Citation428 N.E.2d 289,384 Mass. 572
PartiesCOMMONWEALTH v. Anthony J. JACKSON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

J. Russell Hodgdon and John F. Palmer, Boston, for defendant.

Philip T. Beauchesne, Asst. Dist. Atty. (Alvan Brody, Asst. Dist. Atty., with him), for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant was convicted by a Superior Court jury of murder in the first degree and sentenced to life imprisonment, to be served from and after any other previously imposed sentence he was serving or was to serve.

The defendant appeals, asserting error in (1) the admission of evidence of other crimes he committed, (2) the trial judge's advisory ruling that he would admit evidence of the defendant's prior conviction, (3) the prosecutor's opening statement, (4) the partial violation of an order sequestering witnesses, (5) the denial of a speedy trial, (6) the denial of a motion to suppress certain physical evidence, and (7) the admission of certain other evidence during trial. The defendant has also asked this court to exercise its broad power of review under G.L. c. 278, § 33E, and order a new trial. We find no reversible error and see no reason to order a new trial. Accordingly, we affirm.

We summarize briefly the pertinent facts, reserving elaboration of specific facts to the discussion of each of the defendant's contentions.

The body of Ellen Ann Reich, age nineteen, was found on November 13, 1972, in a closet in an abandoned apartment at 132 Seaver Street, Roxbury. Reich had lived at 31 Massachusetts Avenue in Boston. She was last seen on Thursday morning, November 8, 1972, by her roommate, Eileen Wacks. Wacks testified that the victim usually hitchhiked to Emerson College, where she attended school. One Belin McArthur found the body while helping a friend, Mary Lee Cobb, move furniture from her apartment at 132 Seaver Street. While waiting for the moving truck to return, he looked around the building and saw a nailed closet door, became curious, and pried it open. The victim's body was inside.

Dr. George W. Curtis, medical examiner for Suffolk County, performed an autopsy on the body on November 14, 1972. This autopsy, in combination with a later exhumation and second autopsy, established that the victim was killed by strangulation and two gunshot wounds to the chest and abdomen. One bullet was retrieved from near the victim's vertebrae, and sperm was found in the victim's vagina.

Human hairs were found on the panties and jeans of the victim, who was white. The hair found on the victim's jeans was determined to be negroid pubic hair, but it did not match the pubic hair of the defendant, who is black. The head hairs found on the victim's panties were negroid in origin, and an expert in microscopic examinations testified for the Commonwealth that he compared them to hair samples of the defendant and found those samples to be microscopically alike in all identifiable characteristics.

Robert P. Spalding, special agent for the FBI in forensic serology, testified that he examined stains in the crotch area of the victim's jeans and found the presence of factors from blood types "A" and "B," factors which appear when an individual is a "secretor." He stated that a secretor has substances in his or her other bodily fluids which indicate that person's blood type, eighty per cent of the population are secretors, and forty per cent of the population have type "A" blood.

William A. Gavin, also a special agent for the FBI, had studied a sample of the defendant's saliva, and found that he was a secretor, and had type "A" blood. He also found type "B" blood on the victim's sweater, jacket, and slacks. The victim had type "B" blood. Evidence of male spermatozoa was discovered in the victim's panties, together with traces of both "A" and "B" blood type factors. The results of his examination were consistent with the involvement of a female secretor with type "B" blood and a male secretor with type "A" blood. They were also consistent with fluids from one individual having group "AB" blood. Such individuals comprise about five per cent of the population.

William Tobin, a special agent for the FBI in metallurgy, compared nails taken from the frame of the closet where the body was found with nails from a milk carton taken from the defendant's residence at 154 Washington Street, Dorchester. He found hundreds of similarities between the samples, and concluded that the nails originated from the same source.

Several Cambridge police officers testified, over the defendant's objections and exceptions, that they pursued, exchanged gunfire with, and arrested the defendant in Cambridge on the evening of December 26, 1972. Officer John Conroy related that at about eight o'clock that evening he was on cruiser patrol in Cambridge, when he observed the defendant in a dark-colored Cadillac automobile motioning to a young woman walking down the street. He followed the defendant's car until the defendant suddenly "took off" at a high rate of speed. Cambridge police Officer Joseph J. McSweeney soon thereafter spotted the vehicle, which was empty, and located the defendant. He walked toward the defendant, who drew a gun from a black holster, shot at the officer, and kept firing at him while running down the street. McSweeney returned the fire, and saw the defendant drop to one knee. He lost the defendant for two to three minutes, but found him again, lying on the ground with two police officers beside him. The police looked for a gun, but did not find one. Several days later, a man who worked near the spot where the defendant was apprehended discovered a pearl-handled, silver-colored gun in a snowbank. This gun was turned over to the police. Test bullets fired from this gun were matched microscopically to a bullet retrieved from a building at the site of the Cambridge shooting incident and to the bullet retrieved from the victim's body. Ballistics experts concluded that all of the bullets came from the same gun.

Patricia Archer testified that she had lived with the defendant at 154 Washington Street from the fall of 1972 until the time of his arrest. She identified a holster and the nickel-plated revolver recovered from the snowbank as belonging to the defendant. She also identified the carton containing nails found in the defendant's apartment as the defendant's and testified that she had seen it in the trunk of the defendant's car. Archer also testified that she had visited 132 Seaver Street once with the defendant.

Michelle Maupin, another woman living with the defendant on Washington Street at the time of the defendant's arrest, testified that she had known the defendant for many years. She had seen the defendant carrying a silver gun with a pearl handle, which he carried in a black holster. She, too, saw the carton of nails at the Washington street address, and visited 132 Seaver Street with the defendant at least nine times.

Maupin visited the defendant at a hospital the morning after he was shot, but he told her to leave so that she would not be questioned by the police. She returned to the hospital the next day, and the defendant asked her to pick up a gun in the snowbank in Cambridge. He drew a map with her eyebrow pencil to locate the weapon.

Donald McDonald, a longtime friend of the defendant, testified over the defendant's objection that he visited the defendant at the Billerica house of correction following his arrest. On February 6 or 7, 1973, McDonald discussed with the defendant two newspaper articles concerning an investigation into the murders of six young women, one of whom was the victim, Reich. These articles referred to a murder in New Hampshire, and McDonald testified that the defendant voluntarily told him that "the one in New Hampshire was not (the defendant's)." The two newspaper articles, with some portions excised, were admitted in evidence. McDonald also testified that the defendant asked him to retrieve the gun abandoned in Cambridge, and that he had seen the defendant with a pearl-handled, silver-colored gun.

1. Evidence of the defendant's other crimes. The defendant's primary contention on appeal is that the trial judge committed reversible error when he admitted in evidence the defendant's admission to McDonald and the two related newspaper articles. This evidence, the defendant contends, tied him to the well-publicized murders of other young, white women, creating a serious danger that the jury's decision was based on the defendant's criminal propensity rather than on the evidence.

The statement by the defendant to McDonald ("The one they found in New Hampshire ... (t)hat wasn't mine") was, in the context of his conversation with McDonald, an indivisible admission of the murders of five young women, including Ellen Reich. The admission is obviously relevant to the issue of who murdered Reich, but it also constitutes evidence of the defendant's participation in the murders of other women. McDonald's statements and the defendant's reply were admissible as an admission by the defendant that he killed Reich. See Commonwealth v. Kenney, 12 Met. 235, 237 (1847). Evidence that is otherwise relevant to the offense charged is not rendered inadmissible simply because it tends to prove the commission of other crimes. E. g., Commonwealth v. Hoffer, 375 Mass. 369, 373, 377 N.E.2d 685 (1973).

However, where evidence of other crimes is irrelevant to proof of the offense charged, this court has generally considered it inadmissible, even when that evidence is the defendant's voluntary admission. Commonwealth v. Welcome, 348 Mass. 68, 70-71, 201 N.E.2d 827 (1964). Commonwealth v. Valcourt, 333 Mass. 706, 717-718, 133 N.E.2d 217 (1956). Commonwealth v. Bishop, 296 Mass. 459, 461-462, 6 N.E.2d 369 (1937). Commonwealth v. Kosior, 280 Mass. 418, 423, 182 N.E....

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