Com. v. Mandeville

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation386 Mass. 393,436 N.E.2d 912
Decision Date03 June 1982

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436 N.E.2d 912
386 Mass. 393

Supreme Judicial Court of Massachusetts, Suffolk.
Argued Feb. 3, 1982.
Decided June 3, 1982.

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[386 Mass. 394] William J. Leahy, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty. (Peter J. Muse, Legal Asst. to the Dist. Atty., Boston, with him), for the Commonwealth.

Before [386 Mass. 393] HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

[386 Mass. 394] HENNESSEY, Chief Justice.

The defendant appeals his convictions of murder in the first degree and armed assault with intent to murder. He claims error with respect to the following matters: (1) the exclusion of evidence which allegedly tended to implicate another person in the murder; (2) the exclusion of the defendant's proffered explanation of a statement elicited from him on cross-examination; (3) the admission in evidence of statements made by the defendant to the police following his arrest; (4) the reading to the deliberating jury of the stenographer's notes of the testimony of three prosecution witnesses; (5) the jury instructions on the elements of malice and intent; and (6) the admission

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of allegedly confidential communications between the defendant and a psychologist. In addition, the defendant asks this court to order a new trial or reduce the verdict pursuant to G.L. c. 278, § 33E, on the grounds that there was improper argument by the prosecutor and that there was substantial evidence of the defendant's mental impairment. For the reasons stated below, we affirm the judgments.

[386 Mass. 395] The evidence at trial tended to show that at approximately 10:30 P.M., on February 14, 1976, the defendant entered the apartment of his girl friend, Emily Kincaid, found her in bed with another woman, and shot them both. Emily was killed, and the other woman, Donna Lucas, was seriously wounded. Donna Lucas testified at trial but could only give a general description of the assailant, who was apparently masked, and could not identify the defendant. Among the witnesses for the Commonwealth was Charles St. Jean, a neighbor of the defendant. He testified that at 9 P.M., on February 14 the defendant came to St. Jean's apartment and asked to borrow St. Jean's .22 caliber derringer. The defendant took the gun and eight bullets, and before leaving fired one shot into the wall. The spent projectile recovered from the wall of St. Jean's apartment had markings that were similar to those found on the projectiles recovered from Emily Kincaid's body. St. Jean also testified that the following day the defendant came to his apartment with the gun looking "white and really jumpy," and told him that "(h)e blew his girl friend away, and a guy that was with her in bed." St. Jean then told the defendant to take the gun and the bullets and leave. The gun was never recovered.

Mr. Paul Conley, an attorney who was employed as a staff psychologist at the Dimock Community Health Center, and who was an acquaintance of the defendant, also testified for the Commonwealth. 1 Mr. Conley testified that on the afternoon of February 15, 1976 (the day after the murder), the defendant telephoned him at his home and said that he was thinking of committing suicide by taking an overdose of drugs. When asked why he was planning to kill himself, the defendant indicated to Mr. Conley that he had found his girl friend in bed with another woman and that he had killed them both. At Mr. Conley's suggestion, the defendant went that evening to Mr. Conley's home to talk. [386 Mass. 396] There the defendant again told Mr. Conley that he had shot his girl friend and another woman, and said that the shooting had occurred on the previous evening at 10:15 P.M. After they discussed the situation for several hours, the defendant returned to his apartment, and a few hours later he swallowed approximately seventy antihistamine pills. The following morning the defendant again called Mr. Conley, and Mr. Conley arranged to have the defendant go to the Harvard Community Health Center. From there he was transferred to Glenside Hospital for psychiatric treatment. A mental health worker at the hospital, John Schafer, testified that during the defendant's stay at the hospital the defendant told him "he had killed his girl friend and her friend was a vegetable." There was also testimony given by an emergency medical technician, Thomas Seeley, who accompanied the defendant to Glenside Hospital. Seeley testified that, when the defendant was asked why he was going to the hospital, he replied, "I am going to beat it," and that the defendant asked him whether if he "told a shrink that he had committed a crime, would the shrink in turn have to notify the police department."

The defendant took the stand and denied that he had shot Emily Kincaid or Donna Lucas. He stated that on the evening of the murder, he went to a drugstore to look at magazines, took a walk, and went to bed. The next morning he went to Emily Kincaid's apartment, saw the bodies of the two women, and left. He admitted to having a key to the apartment at the time. He testified that he then went to St. Jean's

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apartment in order to borrow a gun to kill someone; however, he left without the gun. The defendant admitted talking to St. Jean, Mr. Conley, the emergency medical technician, and the mental health worker, but he denied making the admissions that they attributed to him.

1. Evidence Tending to Implicate Another Person in the Crime.

The defendant sought to have Paul Kincaid, who was Emily's estranged husband at the time of the murder, testify as to certain telephone conversations between Paul and [386 Mass. 397] Emily. Paul would have testified that Emily, on several occasions during the two or three weeks prior to the murder, telephoned Paul and stated that one O'Brien would not leave her apartment and was threatening her, and that she asked Paul to help her in ejecting him. The Commonwealth objected on the ground that the testimony was inadmissible as a husband-wife conversation, and the judge excluded it on that ground. See G.L. c. 233, § 20. Also excluded was Paul's testimony that, when Sergeant Griffin, an investigating officer, told Paul of his wife's murder, Paul stated that he would "take care of" O'Brien, and "get that son of a bitch."

With respect to the conversations between Emily and Paul Kincaid, the defendant argues that the Commonwealth failed to show that the conversations were private, and that the burden of proving that a husband and wife conversation was private rests on the objecting party. Cf. K. B. Hughes, Evidence § 125, at 109 & n.33 (1961). We need not decide this issue, for even if we assume that the ground relied on by the judge was erroneous, we conclude that the evidence was not admissible for other reasons, stated below. It is the general rule that no error will be found when an incorrect specific objection is sustained, if some other proper ground for exclusion exists. Rubin v. Arlington, 327 Mass. 382, 385, 99 N.E.2d 30 (1951). 1 J. Wigmore, Evidence § 18, at 342 (3d ed. 1940). 2 Where the evidence is inadmissible on one ground, the fact that the judge relied upon some other incorrect ground for excluding the evidence should not require reversal, since a retrial would probably only result in the exclusion of the evidence on the proper ground.

[386 Mass. 398] The evidence of what Emily said to Paul on the telephone was inadmissible hearsay. The defendant does not call to our attention any exception to the hearsay rule that might apply here, and we find none. 3 The statements made by Emily to Paul were also excludable on relevancy grounds for the same reasons that we discuss below in relation to Paul Kincaid's statement to Sergeant Griffin.

The statements made by Paul Kincaid to Sergeant Griffin when he was told of his wife's murder, that he would "take care of" O'Brien, were properly excluded as irrelevant and tending to mislead the jury. 4 The conclusion to be drawn from those

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statements, that Paul suspected O'Brien as the murderer, would have no tendency to prove that O'Brien was actually the murderer. See Commonwealth v. Vitello, 376 Mass. 426, 440, 381 N.E.2d 582 (1978) ("(e) vidence is relevant if it renders the desired inference more probable than it would be without the evidence"), and authorities cited. See also Proposed Mass.R.Evid. 401 (July, 1980). At most, it was an expression of opinion concerning O'Brien's involvement in the murder, and regardless of its hearsay character, was inadmissible for that reason. Commonwealth v. Hesketh, 385 Mass. 153, 161-162, 434 N.E.2d 238 (1982). Commonwealth v. Ross, 339 Mass. 428, 435, 159 N.E.2d 330 (1959). Such an opinion would only have served to confuse the jury.

The defendant argues that the exclusion of the evidence concerning O'Brien deprived him of the opportunity to [386 Mass. 399] present his defense, thereby denying him a fair trial. In support of this argument he cites various cases holding that a defendant may introduce evidence to show that another person committed the crime. E.g., Commonwealth v. Keizer, 377 Mass. 264, 268, 385 N.E.2d 1001 (1979); Commonwealth v. Graziano, 368 Mass. 325, 329, 331 N.E.2d 808 (1975); Commonwealth v. Murphy, 282 Mass. 593, 185 N.E. 486 (1933). The weakness of the defendant's argument is that only the threats allegedly made by O'Brien to Emily had any relevance to this end, and these statements were hearsay and lacked any particular indicia of reliability. Contrast Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). No other evidence was proffered which in any way connected O'Brien with the crime. Even if the evidence of O'Brien's threats was not objectionable as hearsay, it would nevertheless be too conjectural and misleading properly to be put before the jury. In Commonwealth v. Abbott, 130 Mass. 472, 475-476 (1881), it was said that "(t)he existence of...

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