Com. v. Leate

• Decision Date: 28 April 1967
• Citation: Com. v. Leate, 225 N.E.2d 921, 352 Mass. 452 (Mass. 1967)
• Parties: COMMONWEALTH v. Arthur M. LEATE.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

Page 921

225 N.E.2d 921

352 Mass. 452

COMMONWEALTH v. Arthur M. LEATE.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 6, 1967.

Decided April 28, 1967.

Daniel J. O'Connor, Brockton (Eben G. Townes, Brockton, with him), for defendant.

A. Stanley Littlefield, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ. REARDON, Justice.

The defendant Arthur M. Leate, appeals under G.L. c. 278, §§ 33A--33G, his conviction of murder in the second degree on an indictment which charged him with the murder to Reimundo Colon on August 28, 1965. The case is before this court on a summary of the record, a transcript of the evidence, and assignments of error. There was evidence as follows.

The defendant was a married man and the father of three children. On Saturday, August 28, 1965, he and Mrs. Geraldine West, a married woman and the mother of three children, with whom the defendant had been keeping company since the beginning of the summer, traveled to Carver in the defendant's automobile in search of Mrs. West's sister, Nellie Cloudman. They found Nellie Cloudman about 4 P.M. at the home of one Pablo Perez-Nieves, a cranberry bog worker. The latter's home was located on Rochester Road in Carver. The deceased, Reimbundo Colon, was also present in the house. These three had been playing cards and drinking beer and ginger brandy since early that afternoon. The defendant and Geraldine West joined those in the house and all, with the exception of Mrs. West, continued to drink. The three men later went to a package store and purchased more beer and brandy. Upon their return all of them ate supper and later dancing began. At some point the defendant lay down on a couch and went to sleep. Geraldine West, who desired to leave, attempted without success to awaken him. She then left the house in search of a telephone to arrange transportation. Colon also left the house some five or ten minutes after Mrs. West. He caught up with her as she walked northerly on Rochester Road, grabbed her, knocked her to the ground, and attempted to rape her. She managed to escape and made her way to two different houses to obtain help and have the police summoned. Meanwhile Colon had returned to the Perez-Nieves house. Mrs. West's efforts to summon help proving unavailing, she flagged down an automobile in which Roger Heikkila and Frederick McLeod were riding. She entered the car, sat on the right hand side of the front seat, and was transported back to the Perez-Nieves house. When the car approached the driveway leading to the house the defendant, Colon, Nellie Cloudman and Perez-Nieves were walking up the driveway in search of Mrs. West. It was then about 9 P.M. but the evening was clear. There were no streetlights in the immediate vicinity. Mrs. West alighted from the automobile disheveled and bruised, crying hysterically, 'He tried to rape me.' When asked by the defendant to identify her attacker she pointed to Colon. The defendant then walked over to Colon and shoved him off his feet. The testimony is in conflict as to what happened immediately thereafter. Mrs. West testified that the defendant, upon hearing her accuse Colon of attacking her, went over to Colon and that the two men began to argue. She became frightened and ran into the woods. By the time she returned Colon was lying on the ground. Nellie Cloudman testified that she went after her sister. As she did so she heard a moan, and upon returning to the others she saw Colon lying on the road with blood covering the front of his T-shirt. Frederick McLeod, a passenger in the car, testified that he was sitting on the edge of the car seat with the door on the passenger side open and with one foot in the car and one out. He related how the 'tall man' went over to the man Mrs. West had pointed out and pushed him off his feet. As the smaller man jumped back on his feet the tall man, who McLeod stated resembled the defendant, backed up very close to the car. McLeod saw a knife in his hand. Upon seeing this McLeod exclaimed to Heikkila, the driver of the automobile: 'The guy's got a knife.' Heikkila told him to get back in the car and they drove off. McLeod's testimony was corroborated to a considerable extent by that of Heikkila. However, the latter neither saw the defendant push Colon nor saw a knife in the defendant's possession.

Pablo Perez-Nieves testified that after the defendant pushed Reimundo Colon to the ground the latter got up and walked toward the defendant. The defendant did not back up but walked toward Colon. When they came together Colon said, 'Ugh, ugh,' and, 'Pablo, Pablo', walked two or three steps, then fell on the road. As Colon fell to the ground Pablo saw a knife in the defendant's hand.

The defendant admitted that he pushed Colon to the ground after Mrs. West had pointed him out as her attacker. He then testified that Colon got back onto his feet and came after him with a knife. The defendant stated that he backed up as Colon pursued him, waiving the knife in his face. He grabbed Colon's wrist in an attempt to disarm him. The defendant testified that while he was twisting Colon's wrist Colon got stuck with the knife. At this point, according to the defendant, Colon backed away and stopped struggling. The defendant, not believing Colon had been seriously hurt, then prepared to leave in his automobile.

The defendant was induced to drive Colon to a hospital in Wareham by Perez-Nieves, who threatened to summon the police if he did not do so. There was testimony that on the way to the hospital Geraldine West and Perez-Nieves asked the defendant why he had done it. As soon as Colon's body was removed from the defendant's automobile at the hospital, the defendant and Mrs. West drove off. She left the defendant in Brockton where she took a bus to Boston to evade apprehension. The defendant also went into hiding. He was discovered by police on September 9, 1965, some twelve days later, in a closet in his wife's apartment and placed under arrest.

Colon was pronounced dead on arrival at the hospital. An autopsy revealed that he died as a result of a stab wound of the heart, with resulting massive shock and hemorhage. The wound was approximately four inches deep, going through the sternum and piercing the right ventricle of the heart. There was testimony that the wound was consistent with having been inflicted by a knife found some sixty feet in the woods directly opposite from where Colon's body had lain on the road. McLeod testified that the knife found in the woods looked like the one he had seen in the defendant's hand.

1. The defendant assigns as error the refusal by the trial judge to direct verdicts of not guilty of murder in the second degree and of manslaughter, and the denial of his motion for a new trial based on the foregoing assignments. The defendant was found guilty of murder in the second degree. 'Murder which does not appear to be in the first degree is murder in the second degree.' G.L. c. 265, § 1. 'Murder in the second degree is unlawful killing with malice aforethought.' Commonwealth v. Bedrosian, 247 Mass. 573, 576, 142 N.E. 778, 779; Commonwealth v. Boyajian, 344 Mass. 44, 48, 181 N.E.2d 577. Malice includes 'every * * * unlawful and unjustifiable motive' and is 'implied from any deliberate or cruel act against another, however sudden.' Commonwealth v. Webster, 5 Cush. 295, 304. Commonwealth v. Lussier, 333 Mass. 83, 92, 128 N.E.2d 569.

There was sufficient evidence from which the jury could have inferred malice. It is undisputed that the defendant, upon hearing Geraldine West's accusation, began to assault Colon by pushing him to the ground. After Colon got up on his feet Frederick McLeod saw the defendant pull a knife. Perez-Nieves then witnessed the two men come together again, following which Colon collapsed with a knife wound penetrating...