Com. v. Lacy

• Decision Date: 22 November 1976
• Citation: 371 Mass. 363,358 N.E.2d 419
• Parties: COMMONWEALTH v. Leonard LACY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 419

358 N.E.2d 419

371 Mass. 363

COMMONWEALTH

v. Leonard LACY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 1, 1976.

Decided Nov. 22, 1976.

Stephen Hrones, Arlington, for defendant.

Robert J. McKenna, Jr., Asst. Dist. Atty., for the Com.

REARDON, Justice.

This case is here under G.L. c. 278, §§ 33A--33G, on an appeal by the defendant from a conviction of murder in the first degree, and a subsequent sentence of life imprisonment. The facts are simply stated.

On December 14, 1973, between 11 A.M. and 12 noon, the defendant arrived and sought entrance at the apartment building located on Worcester Square, Boston, where the victim, Mrs. Lillian Fitzgerald, lived. A lodger coming to the door summoned the building custodian who, having viewed what purported to be an identification card, admitted the defendant on the basis that he was taking a survey of senior citizens and brought him to an upper floor to see the victim. Within a short time thereafter the victim, as aged woman living alone, was found crawling out of her apartment bleeding from the face. She was taken to the Boston City Hospital where she died eight days later. Two days after her death the defendant was apprehended while attempting to obtain entry to another apartment in the same manner. At trial three witnesses who had seen the defendant at the victim's apartment testified and identified him. The defendant has lodged a series of assignments of error, some of which are meritless. A discussion of them follows as they are argued serially in the defendant's brief. Additional relevant facts will be referred to as required.

1. The defendant assigns as error the admission of certain evidence which he asserts tended to prove the commission of other crimes. He first complains about testimony given by a police officer that he told the defendant 'that this was the last of the ninth inning for him, and that he would be brought to different courts, to the Dorchester Court, Roxbury Court, to the Brighton Court and again to the Municipal Court.' The trial judge ordered that that part of the testimony relating to the various courts be struck and instructed the jury to disregard it. In our view the corrective steps which were taken immediately by the judge were sufficient to negate the possibility of reversible error. Commonwealth v. Martin, 362 Mass. 243, 245, 285 N.E.2d 124 (1972). Commonwealth v. Gordon, 356 Mass. 598, 604, 254 N.E.2d 901 (1970). Furthermore, it could not be said that had the language objected to (which was ambiguous with respect to the issue of other crimes) been presented to the jury in its original form it would have been prejudicially harmful.

Secondly, the defendant objected to the testimony of a Miss Horgan that he had visited her apartment on two different occasions. The first visit, on December 22, 1974, eight days after the attack on Mrs. Fitzgerald, led to an appointment being made for a second visit two days later. On the second visit he was arrested by police officers waiting in Miss Horgan's apartment. Her testimony concerned his appearance on the visits and his use of an identification card. Again, the evidence as to the commission of other crimes is at best ambiguous. Furthermore, the testimony was highly relevant on the question of identity of Mrs. Fitzgerald's attacker. The defendant on both visits to Miss Horgan's apartment was wearing clothes which matched the description of the clothes worn by the man who entered Mrs. Fitzgerald's apartment on the day of the attack. The method of gaining entrance to the apartments of both women, through the use of a false identification card, was the same. Also the card, which Miss Horgan identified as the one shown her by the defendant on both occasions, was identified by the custodian of the Worcester Square building as the one shown to him by the man he admitted to the building and escorted to the victim's door. The purpose of admitting the testimony in question was to show the identity of the person who perpetrated the attack on the victim. The evidence was highly probative on a crucial issue in the case and as such was admissible even if it tended in some manner to show the commission of another crime. See COMMONWEALTH V. CAMPBELL, --- MASS. ---, 353 N.E.2D 740 (1976)^A; Commonwealth v. Eagan, 357 Mass. 585, 589--590, 259 N.E.2d 548 (1970); Commonwealth v. Lamoureux, 348 Mass. 390, 393--394, 204 N.E.2d 115 (1965). We further note that the judge, at the insistence of the defendant, gave appropriate limiting instructions to the jury.

Finally, there was no error in the admission of a jail identification card offered by the Commonwealth to show the appearance of the defendant shortly after his arrest (short hair, clean shaven) after the defendant had introduced a similar card with a later picture showing him to have a different appearance (Afro hair style and beard). It appears that the jail card introduced by the defendant was offered and admitted in its entirety and contained some entries which would indicate his commission of other crimes. The judge ordered certain portions of the card introduced by the prosecution masked (these were generally words and phrases which did not appear on the card offered by the defense). The remaining entries of which the defendant complains appear to be largely cumulative of those he himself had put before the jury through the jail card he had earlier introduced. In the circumstances no reversible error is shown. Commonwealth v. Izzo, 359 Mass. 39, 43, 267 N.E.2d 631 (1971).

2. The defendant objects to that portion of the judge's charge in which the judge told the jury that it was open to them to find the defendant guilty of murder in the first degree on a finding of 'extreme atrocity and cruelty.' The jury were charged also on the other two grounds for murder in the first degree, namely, murder committed with 'deliberately premeditated malice aforethought' and murder committed 'in the commission or attempted commission of a crime punishable with death or imprisonment for life.' G.L. c. 265, § 1. As we have stated, '(s)ince any destruction of human life invariably includes some atrocity or cruelty, one cannot easily separate degrees of cruelty or atrocity by precise legal rules.' Commonwealth v. Connolly, 356 Mass. 617, 628, 255 N.E.2d 191, 198, cert. denied, 400 U.S. 843, 91 S.Ct. 87 27 L.Ed.2d 79 (1970). Under our cases the inquiry focuses both on the defendant's actions, in terms of the manner and means of inflicting death, and on the resulting effect on the victim, in terms of the extent of physical injury and the degree of suffering endured. However, in the final analysis the issue must be left largely to the deliberation of the jury 'who, as the repository of the community's conscience, can best determine when the mode of inflicting death is so shocking as to amount to extreme atrocity or cruelty.' Id. at 628, 255 N.E.2d at 198. See Commonwealth v. Harrison, 365 Mass. 235, 310 N.E.2d 599 (1974); ^b Commonwealth v. Devlin, 126 Mass. 253, 255 (1879).

In this case the victim was in her early eighties. The defendant was a young man, apparently not slight of build. The jury could have found from testimony by the associate medical examiner that the injuries she sustained were consistent with 'at least three' blows. Another doctor testified that there were multiple blows. The physical condition of the victim was such that a social worker who had seen the victim from time to time prior to her injury stated that in viewing her in the hospital she did not at first recognize her because of her pitiable physical condition. There was other evidence along the same line. The jury would have been warranted in finding that the assault which produced the victim's eventual death was more than ordinary atrocity and cruelty. See Commonwealth v. Connolly, supra; Commonwealth v. Knowlton, 265 Mass. 382, 388, 163 N.E. 251 (1928).

3. An assignment that it was error for the judge to refuse to admit evidence of the regulations of the Boston police department as to the internal procedures for conducting lineups is without value, for such evidence was irrelevant and properly excluded.

4. A complaint is made that it was error to refuse to exclude a witness's in-court identification of the defendant. The witness was the building custodian who had admitted the defendant to the building on December 14 after being shown a card which purported to identify him as a social worker. This witness gave the police a description of the defendant later that day and was subsequently summoned to the police station to view a lineup. The defendant was in the lineup, being at that time a suspect in this case and having been arrested on another matter. The witness failed to point out the defendant in the lineup, and stated at trial that he was fearful and intoxicated at the time he was at the police station and actually had not looked at the persons in the lineup. This latter testimony was corroborated by a Boston police officer. Later, having been shown a group of eight to ten photographs, he correctly identified the defendant, as he did at a probable cause hearing. Also, subsequent to the lineup and prior to trial the witness was shown the false identification card with the defendant's picture which the defendant had on his person at the time of his arrest. The witness identified the card as the one shown to him by the man he admitted to the building on the date of the attack on the victim. His identification at the time of trial was positive. This identification was based on a face-to-face meeting with the defendant at the time he made his fatal visit and on his conversation with him. He compared the photograph on the ID card which the defendant carried with the defendant who stood before him. He explained his failure to identify the defendant at the lineup. The defendant asks us to adopt a per se exclusionary rule condemning as constitutionally...