Com. v. Key

• Decision Date: 27 June 1980
• Citation: 381 Mass. 19,407 N.E.2d 327
• Parties: COMMONWEALTH v. Howard KEY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 327

407 N.E.2d 327

381 Mass. 19

COMMONWEALTH v. Howard KEY, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 3, 1980.

Decided June 27, 1980.

John Leubsdorf, Boston, for defendant.

John Kiernan, Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Chief Justice.

In March, 1978, a jury found the defendant guilty of murder in the first degree under two indictments. The jury also found that the defendant had wilfully and maliciously burned a dwelling. The court imposed two consecutive sentences of life imprisonment for the murders and a concurrent sentence of ten to fifteen years for the arson conviction. The defendant's appeal is before this court on an assignment of errors under G.L. c. 278, § 33E.

We briefly outline the evidence as presented both at the voir dire and at the trial. Certain facts, however, will be presented in more detail in connection with the defendant's various arguments. In the early morning hours of September 7, 1971, an explosion and fire occurred in the first floor apartment at 5 Cedar Street in Roxbury. Firefighters retrieved two men from the burning apartment. One had been found in the living room; the other, in the kitchen. Both men were severely burned. The hands and feet of both had been bound with wire. One had a metal and cloth gag in his mouth. The victims, Louis Fobbs and William Evans, were taken to Massachusetts General Hospital, where Evans died a few hours later and Fobbs, early in the morning of September 8.

The core of the Commonwealth's case connecting the defendant with these deaths was a series of statements attributed to Fobbs. The first statement simply blamed the defendant; the next two added that the defendant had tied the two victims, poured gasoline on them, and set them afire; the last stated that "Keys" had a gun and had rolled up his sleeve to show Fobbs the "track marks" (injection marks) on his arm before he had blindfolded the two men and poured gasoline on them. The Commonwealth also presented the testimony of a neighbor who had heard an explosion and had seen a tall, slim, black man who wore brown pants and a tan jacket run down the street. One Claude James testified that he had driven down to Cape Cod on September 6, the day before the fire, with Fobbs, Evans, the defendant, and others, and that the defendant was then carrying a gun. He described Fobbs and Evans as a homosexual couple. He stated that he had seen the defendant on Tremont Street on September 9 or 10 with a bandaged arm.

The defendant took the stand in his own behalf. He denied committing the crime and having a gun at the time the crime was committed. He testified that he was a friend of Fobbs and Evans and that he had once stayed two months at their apartment. After experiencing trouble at school, the defendant dropped out in 1970 at the age of sixteen or seventeen and went to live in New York, where he supported himself as a musician. On September 6, 1971, during one of his occasional visits to Boston, he had gone to Cape Cod with Fobbs, Evans, and others but not with Claude James. When they had returned that evening, the defendant was taken to his sister's house, where he was then staying, and he went to bed. After hearing on the radio the next morning that he was a suspect in a homicide, he returned to New York. Prior to his arrest in 1977, he lived in New York and Virginia.

The defendant alleges numerous errors with regard to his trial. He attacks on four grounds Fobbs' three statements that were designated dying declarations: (1) the trial judge employed an improper standard in his preliminary finding of admissibility; (2) the evidence did not support a finding that Fobbs had abandoned all hope of recovery; (3) the declarations were improperly admitted as evidence of the murder of any one other than the declarant; and (4) the judge's charge failed to inform the jury of the legal weaknesses of dying declarations. The defendant also contends that inadmissible and highly prejudicial evidence was used to impeach his credibility, and that he received ineffective assistance of counsel. We reject the defendant's arguments and affirm the convictions.

1. We turn now to a consideration of the various claims relating to the dying declarations.

a. The defendant first argues that the judge utilized an improper standard in admitting Fobbs' statements as dying declarations. Under traditional Massachusetts procedure, the judge and then the jury are to determine whether the requirements for a dying declaration have been established by a preponderance of the evidence. Commonwealth v. Polian, 288 Mass. 494, 498-499, 193 N.E. 68 (1934). Since an awareness of impending death is essential to the admissibility of dying declarations, a judge must determine whether that condition exists before a declaration is admitted. Id. at 497, 193 N.E. 68. Commonwealth v Dunker, 363 Mass. 792, 794, 298 N.E.2d 813 (1973). The judge made the following findings as to Fobbs' state of mind when he made the statements: "I am satisfied that he was under the impression, turned out to be right, that his chances of living were minimal at the time when he made these statements to Sergeant Whalen." "Fobbs knew he was about to die imminently." "Fobbs understood that he wasn't going to make it past morning." "Fobbs had been informed and understood that death was imminent and inevitable as most things are." "Fobbs knew that his death was imminent." "Fobbs knew about and was certain that he was about to die in a short time." The defendant argues that these findings were deficient because the judge did not find that Fobbs had abandoned all hope and lacked even the slightest expectation of recovery. ¹ See Commonwealth v. Bishop, 165 Mass. 148, 153, 42 N.E. 560 (1896). We disagree. There was no dilution of the traditional standard. The judge obviously appreciated that "consciousness of . . . certain doom" is the sine qua non of admissibility, Shepard v. United States, 290 U.S. 96, 100, 54 S.Ct. 22, 24, 78 L.Ed. 196 (1933), and gave this element the "careful attention" it required. Commonwealth v. Nolin, 373 Mass. 45, 50, 364 N.E.2d 1224 (1977). We do not disturb his preliminary findings of admissibility. See Commonwealth v. Monahan, 349 Mass. 139, 161, 207 N.E.2d 29 (1965); Commonwealth v. Hoff, 315 Mass. 551, 553, 53 N.E.2d 680 (1944); 5 J. Wigmore, Evidence § 1442 at 298-301 (Chadbourn rev. 1974).

b. The defendant also argues that the evidence does not support the finding that Fobbs had abandoned all hope of recovery. He relies specifically on Fobbs' only transcribed statement, which was taken in the hospital's Burn Unit the afternoon after the fire. In his statement Fobbs would not directly acknowledge that he was about to die. ² We think it is clear that a declarant need not expressly state that he has abandoned every last flicker of hope. See Commonwealth v. Viera, 329 Mass. 470, 473, 109 N.E.2d 171 (1952). Apprehension of impending death may be inferred from surrounding circumstances, even if the declarant has made no explicit statement on the matter. Id. Commonwealth v. Dunker, 363 Mass. 792, 795, 298 N.E.2d 813 (1973). In the case at bar, there was clearly sufficient evidence for both the judge initially and the jury ultimately to find the requisite elements with regard to each statement that was introduced. When Officer Matthews told Fobbs of his imminent death while they were in the ambulance on the way to the hospital, Fobbs answered, "That's what I thought," or words to that effect. Then at the hospital Dr. Tofield told Fobbs that he would die within twenty-four to forty-eight hours, and Fobbs replied, "Well, that's the way it is." When in response to his repeated inquiry, Nurse Smyth told Fobbs that he was dying, Fobbs became reflective and asked to telephone his grandfather. Thus, at times relevant to the declarations at issue, a police officer, a physician, and a nurse apprised Fobbs of his impending death. See Commonwealth v. Nolin, 373 Mass. 45, 50, 364 N.E.2d 1224 (1977); People v. Borella, 312 Ill. 34, 44, 143 N.E. 471 (1924). In two of these instances he affirmed and adopted their appraisals; in the third, his actions were consistent with those of a man facing imminent death. Even Fobbs' responses to Sergeant Whalen, relied upon by the defendant as evidence of uncertainty and hope for survival (see note 2 supra ), were not necessarily inconsistent with Fobbs' belief in the imminence of his death. Dr. Tofield testified that such responses are consistent with the abandonment of hope in that a person who knows that he is about to die will characteristically respond so as "to comfort the people around him" and to spare their sensibilities.

In addition to Fobbs' own remarks and reactions, there was testimony from those who observed him. Doctors Ott and Tofield, Nurses Bierbaum and Smyth, and Officer Matthews, each concluded that Fobbs realized he was about to die. It has been recognized that opinion evidence from a witness who has observed the dying declarant's condition and attitude is a valuable aid to the judge and jury. See, e. g., Howard v. State, 113 Neb. 67, 68, 201 N.W. 968 (1925); State v. Gallagher, 4 Wash.2d 437, 445, 103 P.2d 1100 (1940).

Moreover, there is general recognition that the declarant's sense of impending death may be inferred from the character of his injury. E. g., Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 53-54, 36 L.Ed. 917 (1892); United States v. Mobley, 421 F.2d 345, 347 (5th Cir. 1970); People v. Pollock, 31 Cal.App.2d 747, 755, 89 P.2d 128 (1939); State v. Morran, 131 Mont. 17, 32, 306 P.2d 679 (1957); Bishop v. State, 92 Nev. 510, 518, 554 P.2d 266 (1976); State v. Bowden, 290 N.C. 702, 712, 228 S.E.2d 414 (1976); Commonwealth v. Cooley, 465 Pa. 35, 43, 348 A.2d 103 (1975). Fobbs was alert, oriented, and rational, and could see for himself the full extent...