Com. v. Lussier

• Decision Date: 18 December 1973
• Citation: 305 N.E.2d 499,364 Mass. 414
• Parties: COMMONWEALTH v. Alan L. LUSSIER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 499

305 N.E.2d 499

364 Mass. 414

COMMONWEALTH v. Alan L. LUSSIER.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 1973.

Decided Dec. 18, 1973.

Laurence D. Shubow, Boston, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

This is an appeal pursuant to G.L. c. 278, §§ 33A--33G, from a conviction of murder in the first degree committed with extreme atrocity or cruelty. The defendant, aged twenty-four at the time of his arrest, argues that (1) young persons were unconstitutionally excluded from the jury in violation of the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution, (2) the verdict was based on insufficient evidence, (3) the prosecutor's summation argument was improper and prejudicial, (4) the trial court erred in failing to require the Commonwealth to elect among its theories of murder and in allowing the exclusion of jurors with strong views against capital punishment. We cannot agree.

The evidence, which was solely circumstantial as it related to the defendant's guilt or innocence, may be briefly summarized as follows. The victim, a nineteen year old third year student at Northeastern University's School of Nursing, on the evening of October 30, 1971, with her roommate and some friends went to a Halloween party on the third floor, apartment 32, at 72--74 Westland Avenue, Boston. The next night, around 7:30 P.M., she was found dead, badly beaten and bloodied in a vacant apartment, number 22, on the second floor in the same building. From six to eight weeks prior to the party the defendant Alan Lussier had occupied apartment 14 along with three other men. The four performed janitorial services in lieu of rental payments, and on the day of October 29, Lussier, along with two of his roommates, had spent time cleaning and preparing apartment 22 for prospective tenants.

Lussier had been observed at the Halloween party by a number of witnesses. He had not been invited, and was one of the few persons out of between twenty-five and one hundred in attendance who had not worn a costume. Witnesses recalled his wearing brown leather square-toed boots, blue and white striped dungarees, and a black leather motorcycle jacket. These articles of clothing, along with a purple and white pin-striped shirt and a cat-faced ring, were all later identified as belonging to Lussier. Bloodstains were discovered on these items in the course of the police investigation, but only in the case of the right boot was there sufficient quantity of blood to allow for blood group identification. The F.B.I. identified the blood as 'O positive.' Two persons at the party were determined to be within this blood group--the victim, and one William Devereaux, who had been involved in an altercation during the course of the party, and with whom the defendant, according to the testimony, had been in near or actual contact during and after the altercation.

The Devereaux incident occurred about 12:30 or 12:45 A.M. Witnesses recalled that a group of persons had assaulted Devereaux in the vicinity of the kitchen and hallway in apartment 32, and that he had been bleeding afterwards. Devereaux was later taken to a hospital for stitches and minor oral surgery. One witness described the bleeding as 'continuous' but not 'massive.' Another remembered that there were a couple of splotches of blood on the wall and on the casing of the kitchen entrance. A defence witness testified to the existence of a pool of blood in the hallway after the fight, but other witnesses either had no such recollection or described the 'pool of blood' as the sticky residue of spilled beer.

Devereaux, who himself characterized his bleeding as 'flowing every time I opened my mouth,' was 'almost positive,' but 'not absolutely 100% positive,' that Lussier had come between him and his assailant and had broken up the fight. He testified to spitting out blood as a result of his injuries but could not recall whether he had spit or dripped any blood directly onto Lussier. Other witnesses were also unable to say whether Devereaux's blood had at some point come onto Lussier's person or clothing.

Immediately after the fight, Devereaux had been ushered out into the main hallway on the third floor of the apartment building. Witnesses testified that Lussier then appeared at the scene, described himself as superintendent of the building, and ordered Devereaux off the premises. Devereaux was still bleeding at that point and, according to one witness, was close to, but not in actual contact with, Lussier. ('The kid (Devereaux) was leaning against the wall. Alan Lussier was standing on this side of him--with his hand up against the wall--like that--a foot and a half away from.') Devereaux soon left for the hospital.

After these events, about 1;15 A.M., Lussier, the victim, one James Yurkus and a Wayne Fricke were engaged in a conversation in the kitchen of apartment 32. Yurkus had met the victim previously, and Fricke had known her for at least two years as student at Northeastern. Both testified that the group had remained in the kitchen for fifteen or twenty minutes. Yurkus recalled that the victim at some point during the conversation remarked to Lussier that all the superintendents she knew were 'freaky,' but when he asked her if he appeared that way, she answered, 'No.' About 1:30 A.M., the group moved into the living room where Fricke cleared an area for himself and the victim to sit. He testified that about fifteen minutes later, Lussier said to the victim, 'I'd like to talk to you for a few minutes.' Lussier then took her hand and they went out into the hallway of apartment 32, where the victim sat down in a chair. Fricke, who had intended to walk the victim home after the party, observed the two talking in the hallway for the next fifteen minutes, until approximately 2 A.M. at which point they stood up, joined hands, and left the apartment through the back door. The victim was never seen alive again.

Kathleen Bahm lived in apartment 12, directly below apartment 22 where the victim's body was later found. She testified that around two fifteen she heard people, more than one, running in the apartment upstairs, and that five minutes later she heard a 'loud thud as though someone fell.' Her roommate, Sherry Klein, gave the same testimony.

According to Bryan McMahon, one of the defendant's roommates, Lussier came back to apartment 14 about two thirty, picked up some clothes, and departed for the apartment of his girl friend. Her testimony was that Lussier had come by that night, but she did not remember the time, and that he was there when she awoke the next morning. Witnesses testified to seeing Lussier return to his apartment building around 4 A.M.

That morning about eleven, Lussier knocked on the door of apartment 32 and spoke with a Charles Bell. Bell, who knew Lussier only as someone who worked around the building, testified that Lussier said something to the effect that he, Lussier, had had quite a bit to drink at the party the night before, and inquired if there had been any trouble during the course of the evening.

By 7 P.M. the victim's roommate had not heard from her and was concerned about her whereabouts. She called Andrew Hildreth, another resident of apartment 32, who in turn went down to apartment 14 to ask Lussier whether he had seen the victim. Lussier said he had not seen here, nor had he left the party with her.

Shortly thereafter, about 7:30 P.M., the severely battered and bloody body of the victim was discovered in apartment 22 by Sherry Klein and her roommates.

Miss Klein testified that the victim's body was in the approximate location where she had heard the 'thud' in the early morning. The group then contacted Lussier and his roommates in apartment 14 and told them what they had discovered. At the request of one of the members of the group, Lussier telephoned the police. His demeanor, according to Miss Klein, was calm.

The police arrived at eight thirty and began examining the scene. With the exception of the victim's hat, headband, and shoes, none of her clothing was found. A bloody footwear impression was discovered in the carpet near the body. A piece of bloodstained toilet tissue was found behind the toilet in the bathroom, and scrape marks were detected on the edge of a nearby sink. Along with Lussier's clothing, described earlier, and a blood-free chair leg, these items constituted the whole of the Commonwealth's physical evidence connecting Lussier with the crime.

Lussier was arrested on the same night, soon after the police discovered his bloodstained boots in apartment 14. At police headquarters, Lussier made a statement in which he admitted speaking to the victim in the kitchen at the party in apartment 32, but he denied sitting and speaking with her at any other time, and maintained that they had not left the party together.

At the trial, three expert witnesses testified as to the results of their examination of the victim's body, the defendant's clothing, and other objects found at the scene of the crime. Dr. George Curtis, Suffolk County medical examiner, who arrived at the murder scene at 10:30 P.M., testified to what he observed during his examination of the victim's body, and used photographic exhibits and slides to explain his observations. He placed the time of death somewhere between twelve midnight and seven in the morning of October 31, 1971. In his opinion, the cause of death was 'multiple blows to the head.' These injuries, he said, were consistent with the victim being kicked in the nose, eyes, forehead and probably the neck by a person wearing a boot. He also felt that the chair leg discovered in apartment 22, if used as a striking instrument, was consistent with some of the injuries. On cross-examination, Dr. Curtis acknowledged...