Com. v. Jackson

Decision Date28 January 1983
Citation388 Mass. 98,445 N.E.2d 1033
PartiesCOMMONWEALTH v. Anthony J. JACKSON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

J. Russell Hodgdon, Brockton, for defendant.

James W. Sahakian, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

On December 22, 1976, the defendant, Anthony J. Jackson, was convicted of murder in the first degree, kidnapping, rape, and unarmed robbery, and sentenced to life imprisonment at the Massachusetts Correctional Institution at Walpole on the murder conviction. 1 He challenges his convictions on direct appeal and by means of a motion for a new trial. We conclude that the defendant's claims lack merit, and, after reviewing the entire record as required by G.L. c. 278, § 33E, we conclude that the defendant is not entitled to relief on any other grounds. Accordingly, his convictions are affirmed.

The facts are summarized as follows. The victim was found dead under a bed in her apartment at One Langdon Street in Cambridge on the morning of Sunday, December 24, 1972. She was last seen alive at approximately 8 P.M. on Thursday, December 21. It was estimated that her death occurred no earlier than 11:30 A.M. on Friday, December 22. She did not report to work on Friday, and attempts to reach her by telephone and by visits to her apartment between Friday and Sunday were unsuccessful. However, at about midnight on Saturday, her car was found parked near her sister's apartment building several blocks from where the victim lived. Several .22 caliber bullet shells were found in her apartment, and spent .22 caliber bullet shells were found in her apartment, and spent .22 caliber bullet shells were found in her car. Several items were missing from her apartment.

The defendant lived in an apartment at 154 Washington Street in the Dorchester section of Boston with one Michelle Maupin, one Patricia Archer, and one Diane Dixon. Maupin and Archer testified for the Commonwealth at the trial. According to Maupin, the defendant left the apartment in the early evening on Thursday, December 21, and returned about 6 or 6:30 A.M. on Friday morning, December 22. He left again about 9 A.M., and returned about 11 A.M. He left again at 11:30 A.M. and returned at 1:30 P.M. with some furniture, which he moved into the apartment with the help of one Donald McDonald. McDonald testified that the defendant called him at 11:30 A.M., Friday, and asked him to help move some furniture, and confirmed that they picked up the furniture and returned to Dorchester at 1:30 P.M. The defendant left again about 8 P.M. and returned by car early Saturday morning, December 23. Archer's testimony was essentially consistent with Maupin's. Both testified that the defendant gave them money and items later identified as from the victim's apartment, at various times on that Friday, Saturday, and Sunday. Archer testified that she spent part of Saturday, December 23, with the defendant in an apartment he had rented under Dixon's name at 55G Codman Park. At 11:30 that night she drove past a building on the corner of Langdon Street and Massachusetts Avenue with the defendant, and he stated that he and McDonald knew a couple of girls there. The defendant's former wife, Patricia Jackson, testified that he visited her on Friday afternoon and late Saturday afternoon at her apartment.

On December 30, 1972, the victim's father received a copy of her bank statement with a cancelled check for $593 endorsed by "Robert Johnson." An expert testified that the defendant's fingerprints were on the check. The Commonwealth also introduced photographs taken by a video camera at a branch of the Coolidge Bank & Trust Company showing a black man in the teller's line. An assistant manager identified this black man as the man who brought the check to him for approval on the morning of December 22, but at trial he did not identify that man as the defendant.

The defendant was arrested on unrelated charges on December 26, 1972. In June, 1976, the defendant was convicted of armed assault with intent to murder and of unlawfully carrying a firearm in connection with that arrest. The convictions were affirmed. Commonwealth v. Jackson, 376 Mass. 790, 383 N.E.2d 835 (1978). Testimony about that arrest was admitted at the trial in the instant case, over the defendant's objections. Hair samples from a hat taken from the defendant at that arrest were found to be "microscopically like" a hair found in the victim's apartment.

Maupin visited the defendant several times between his arrest and his trial. She testified that on December 29, he told her to take several items, including two jackets and a .22 caliber rifle, from his apartment to Patricia Jackson's apartment. She did so, and also brought a .22 caliber handgun back from Patricia Jackson's apartment to the Washington Street apartment. At the defendant's request, McDonald and Patricia Jackson threw the rifle into the Charles River on January 6, 1973. They also disposed of other objects on that date at his request, including the two jackets and several of the items taken from the victim's apartment. Some of these objects, including the rifle, were later recovered by the police. Both guns were admitted in evidence at trial, over the defendant's objections.

McDonald was given immunity from prosecution as an accessory after the fact to any murders for which the defendant was prosecuted. He testified at trial to incriminating statements the defendant made when he visited the defendant in jail in January, 1973. The Commonwealth also offered the testimony of Ralph Bens, one of the defendant's jailors, regarding an inculpatory statement made by the defendant. The defendant objected to this testimony by McDonald and Bens.

The defense was alibi. Two nurse's aides testified that they spent a Friday or Saturday evening in December, 1972, with a black man named Tony and a white man named Brian. McDonald sometimes used the name Bryant Alexander. One of the women testified that she spent the night with the black man, whom she identified at trial as the defendant. While there was some evidence that this encounter took place on December 22, there was other evidence that it took place several weeks earlier.

1. The defendant objects to the admission of certain evidence of the defendant's alleged involvement in other crimes. Evidence of other crimes is not ordinarily admissible at trial. Commonwealth v. Roberts, 378 Mass. 116, 125, 389 N.E.2d 989 (1979). Commonwealth v. Kosior, 280 Mass. 418, 423, 182 N.E. 852 (1932). "However, otherwise relevant evidence is not rendered inadmissible simply because it may indicate that the defendant has committed another offense." Commonwealth v. Roberts, supra. Commonwealth v. Jackson, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 2196, 2201, 428 N.E.2d 289.

(a) The defendant first objects to the admission of testimony about a chase and shoot-out with police which preceded his arrest. This evidence of flight was properly admitted to show the defendant's consciousness of guilt. Commonwealth v. Booker, 386 Mass. 466, 469-471, 436 N.E.2d 160 (1982). Commonwealth v. Roberts, supra 378 Mass. at 125, 389 N.E.2d 989. Commonwealth v. Gilday, 367 Mass. 474, 496, 327 N.E.2d 851 (1975). The fact that the defendant was arrested on unrelated charges does not render the evidence inadmissible, but rather goes to the weight which the jury will give to the evidence. Commonwealth v. Booker, supra 386 Mass. at 470, 436 N.E.2d 160. Nor is there merit in the defendant's contention that he was unfairly prejudiced because the judge allowed Commonwealth witnesses to describe in detail the circumstances of his arrest. Balancing the probative value of evidence against its possible prejudicial impact is a task committed to the discretion of the judge. Commonwealth v. Booker, supra at 469, 436 N.E.2d 160. Commonwealth v. D'Agostino, 344 Mass. 276, 279, 182 N.E.2d 133, cert. denied, 371 U.S. 852, 83 S.Ct. 90, 9 L.Ed.2d 86 (1962). That principle controls here. We have upheld the admission of evidence of a "running gunfight with police, in which an officer was wounded," because the "desperate nature of the defendant's conduct ... lent credibility to the ... inference of guilt of the crimes charged." Commonwealth v. Gilday, supra. See Commonwealth v. Green, 302 Mass. 547, 553, 20 N.E.2d 417 (1939) ("testimony of one [witness] as to the details of the robbery [of a car]" admissible to show intensity of defendant's desire to escape, indicating consciousness of guilt). Moreover, in this case relevant evidence was recovered in the course of the defendant's arrest. The jury were entitled to know how this evidence was recovered and identified with the defendant. The judge instructed the jury that testimony about the arrest was "not to be used by you as a basis for a verdict of guilty in the cases that we are now trying." Jurors are expected to follow such instructions. Commonwealth v. Stone, 366 Mass. 506, 512-513, 320 N.E.2d 888 (1974). Commonwealth v. Ciminera, 11 Mass.App. 101, ---, 414 N.E.2d 366 (1981). We conclude that there was no error in the admission of evidence describing the defendant's arrest.

(b) The defendant next objects to the admission in evidence of two .22 caliber guns, on the ground that they were irrelevant. Although the victim was not shot, .22 caliber shells were found in her apartment and car. Since it thereby appeared that one or both guns might have been used in the commission of the crimes of kidnapping or rape, the guns were relevant. Commonwealth v. O'Toole, 326 Mass. 35, 39, 92 N.E.2d 618 (1950). Compare Commonwealth v. Banuchi, 335 Mass. 649, 654, 141 N.E.2d 835 (1957) (when defendant was charged with arson, it was error to admit knife with which defendant allegedly threatened wife). It was not necessary to provide expert ballistics testimony linking the shells...

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