Com. v. Miskel

• Decision Date: 14 March 1974
• Citation: 308 N.E.2d 547,364 Mass. 783
• Parties: COMMONWEALTH v. James Charles MISKEL, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 547

308 N.E.2d 547

364 Mass. 783

COMMONWEALTH v. James Charles MISKEL, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 3, 1973.

Decided March 14, 1974.

Albert L. Hutton, Jr., Boston, for defendant.

Lawrence L. Cameron, Asst. Dist. Atty. (Frances M. Burns, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

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

QUIRICO, Justice.

The defendant was indicted for the crime of murder in the first degree of Dario Alberghini. After a trial held subject to G.L. c. 278, §§ 33A--33H, as amended, a jury found him guilty as charged and recommended that the sentence of death be not imposed. See G.L. c. 265, § 2, as appearing in St.1951, c. 203. ¹

The case is before us on the defendant's appeal based on his assignment of two alleged errors by the trial judge, one relating to certain differences between the defendant and his trial counsel and the other to the admissibility of certain evidence. A third alleged error was expressly waived by the defendant in his brief. The appeal also transferred to this court 'the whole case for . . . (our) consideration of the law and the evidence,' as provided by G.L. c. 278, § 33E, as amended by St.1962, c. 453.

We summarize the evidence to the extent necessary for the purpose of this opinion. Dario Alberghini was shot and killed early on the morning of October 8, 1970. A young woman (herein identified only as 'Jean' testified as follows when called as a witness for the Commonwealth. She had worked as a prostitute since about January or February, 1970, turning over her earnings to the defendant. On the evening of October 7, 1970, she went to a bar off Washington Street in downtown Boston, arriving about 9 P.M. About 11 or 11:30 P.M. she called the defendant from a telephone booth nearby and told him that 'it was 'hot outside,' meaning that there were 'a lot of cops around' and that she was scared. The defendant told her to call a person who was known to both of them--herein identified only as 'Linda'--and to ask Linda whether she, Jean, could use her apartment that evening in the event she found a customer in the course of her calling as a prostitute. Linda's apartment was at an address in Dorchester.

Jean asked the defendant to meet her at Linda's apartment because she 'had had touble during that last week with different men.' She then tried to call Linda but the line was busy. She returned to the bar and about 1:30 A.M. she met Dario Alberghini. They left the bar around 2 A.M. and drove together in his car to Linda's address in Dorchester. Jean entered the apartment building alone and rang Linda's doorbell several times but received no answer. Alberghini then came into the building hallway and asked her what was taking so long. She told him she was getting no answer. She then saw him pull out a knife which he held in his hand and she screamed. The defendant appeared outside the door of the building and attempted to get in, but Alberghini tried to keep him out. The defendant ultimately did gain entrance and told Alberghini to turn around. The latter refused and made a motion at the defendant with his knife. Jean could see the defendant's lands, and saw nothing in them. The defendant and Alberghini began to fight and Jean heard a shot. She ran out of the hallway and up the street. A few seconds later the defendant caught up with her. She asked him what happened and he replied that '(t)he gun went off.' She asked him if the man was dead and he replied that he did not know. The two then walked to the defendant's mother's house near by. After arriving there she used a piece of tissue to wipe some blood off the defendant's right arm where he had been cut.

Alberghini's body was found between 5:30 A.M. and 6 A.M. on October 8, 1970, propped up in the hallway of the apartment building where Linda lived, with the left leg of his trousers ripped from the front pocket to the knee. The police arrived shortly after 6 A.M. When they lifted the victim's body to a stretcher, a pocketknife fell from his hand. The victim's wallet was later found in one of the trouser pockets, with $65 and various personal papers and cards in it.

Charles Moody testified as follows when called as a witness by the Commonwealth. He was at Linda's apartment on the night of October 7, and the defendant came there between 11:15 and 11:45 P.M. The defendant said something about meeting 'Jeannie' later. Moody offered the defendant his gun, a .22 caliber hand pistol, and the defendant accepted the offer. Moody wiped his fingerprints from the weapon, put it in a paper bag, gave it to the defendant, and the two men left the apartment together. Moody left the defendant across the street from the apartment building about midnight, and went on to visit another friend. Moody returned to Linda's apartment at 1:45 A.M. and about 2:30 or 2:45 A.M. he heard a loud noise from the side of the building at the front. Prior to hearing this noise he did not hear the door buzzer or bell ring in the apartment. Linda had previously testified that she was at home for the entire evening of October 7 and morning of October 8, and heard neither the doorbell nor the telephone ring during that time.

The defendant testified as follows. He obtained a gun from Charles Moody about midnight on the evening of October 7, and after he left Moody outside of Linda's apartment building he just walked around the area, thinking about Jean and 'worrying about her' because of what she had said about her recent troubles with her 'dates.' At some point as he was walking by Linda's building and street he heard a scream. He ran to the door of the building. He could see Jean and a man in the hallway, and he struggled with the man at the door in order to gain entrance. Once inside, he and the man stood close to one another and faced each other, neither one moving or speaking. Jean was in the corner of the hallway. He then saw something in the man's hand which caught the light. After more staring, the two men began fighting and struggling with each other, the defendant knocking off the man's glasses in the process. The defendant had the paper bag with the gun in it in his right hand. He put his hand in the bag and held the trigger of the gun but never let the bag go. Then, as the two men were 'tussling,' very close together, the gun went off. The victim put up his hands and said, 'Oh,' and slid down against the wall. Jean passed behind the defendant and went out the door. After the victim fell the defendant did not move but just looked, feeling 'shocked.' He did not tear the victim's pants. They were intact when he left the hallway. He then went out the door, 'froze a little bit' and then proceeded up the street and caught up with Jean. She wiped blood off his arm where it had been cut. At the trial he showed to the judge and jury the knife would he said he had received.

A biological chemist working for the Boston police department testified that he performed a benzidine test on the knife found in the victim's possession. The test indicated that no blood was on the knife. He also performed a Walker powder pattern test on the victim's sports jacket. This test indicated, in his opinion, that the fatal shot had been fired from more than five feet away.

The defendant assigns and argues as error (1) the refusal of the judge to permit him to discharge his court-appointed counsel during but prior to completion of the jury empanelment and (2) the admission in evidence of allegedly prejudicial opinion testimony elicited from the witness Moody by the assistant district attorney. The defendant argues further that if this court should decide there was no reversible error committed by the trial judge, it should nevertheless review the whole case under the powers conferred by G.L. c. 278, § 33E; and that considerations of justice and fairness require that it order the entry of a verdict of guilty of manslaughter and that the case he remanded to the Superior Court for the imposition of sentence. We discuss his arguments in order.

1. Alleged Error in the Trial Court's Refusal to Discharge the Defendant's Counsel and to Appoint New Counsel.

The defendant was arraigned on May 14, 1971, and his trial commenced on June 22, 1971. His trial counsel was Mr. David S. Nelson, who was appointed by a judge of the Superior Court on May 11, 1971, at the defendant's request. At the end of the first day twelve jurors had been empaneled, leaving only four alternate jurors to be selected. See G.L. c. 234, § 26B, as appearing in St. 1967, c. 285. At the opening of court the next morning, Mr. Nelson informed the judge that his client, the defendant, no longer wanted Mr. Nelson to represent him because the defendant believed Mr. Nelson was lying to him and was incapable of representing his interests.

The judge thereupon conducted a legthy and patient inquiry into the defendant's claim of unsatisfactory and 'incompetent' representation. It appeared that the specific cause of the defendant's dissatisfaction was a 'lie' purportedly told him by Mr. Nelson concerning the proper time to exercise peremptory challenges of prospective jurors: the defendant alleged that Mr. Nelson had first told him such challenges could be exercised after the whole jury panel was sworn, but had later informed him they could not. Mr. Nelson denied 'lying' to the defendant but said there might have been a misunderstanding over the question of challenges. The defendant also alleged that Mr. Nelson had lied to him on other occasions but gave to specific information about any such other incidents. Nor did he name another attorney whom he would prefer to Mr. Nelson. After further discussion, primarily with the defendant, the judge ruled that he would not permit the defendant to dismiss Mr. Nelson and that he was not going to postpone the trial. He offered the defendant the choice of being represented by Mr. Nelson or...