Com. v. O'Neal

• Decision Date: 18 April 1975
• Citation: 367 Mass. 440,327 N.E.2d 662
• Parties: COMMONWEALTH v. Robert E. O'NEAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 662

327 N.E.2d 662

367 Mass. 440

COMMONWEALTH v. Robert E. O'NEAL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 3, 1975.

Decided April 18, 1975.

William P. Homans, Jr., Herbert Jacobs, Boston, with him, for the defendant.

Roger A. Emanuelson, Asst. Dist. Atty., for the Commonwealth.

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

TAURO, Chief Justice.

The defendant appeals pursuant to G.L. c. 278, §§ 33A--33H, from his conviction of murder in the first degree. The jury found the defendant guilty of deliberately premeditated murder committed in the course of armed robbery and rape and the trial judge imposed the mandatory sentence of death. G.L. c. 265, § 2. The defendant's principal challenge here is not to his conviction, but rather to the statutorily mandated sentence of death. In this context, we address the constitutionality of a general statute requiring a death sentence for a murder committed during a rape. Consequently, our decision is limited to this issue and not to a discussion of standards applicable to particular sentences imposed by judges exercising their discretionary sentencing powers under other statutes. Before reaching that issue, however, we dispose of his preliminary attack on the verdict itself.

From the evidence, the jury could have found the following: The defendant came to the door of the apartment occupied by the victim and her son Earl. The victim answered the door and the defendant entered the apartment. He went into Earl's room holding a gun in one hand and the victim's wrist in the other. He told Earl not to move. Earl, who suffered from muscular dystrophy was confined to his bed, unable to move or call for help. The victim and the defendant went toward the rear of the apartment. After twenty minutes, the defendant returned alone to Earl's room, took money and other items, and stabbed Earl in the abdomen and neck. The defendant made statements about not wanting to leave anyone who could call the police.

Shortly thereafter, a nephew of the victim came to the apartment and found the victim on her bed, partially undressed with tissues stuffed in her mouth. She was dead. Evidence of sperm was found in both her vaginal and rectal areas. Earl, seriously injured, was taken to the hospital.

The defendant surrendered to the police a few days after the homicide. He made voluntary statements admitting that he entered the apartment, but said he could not remember what happened. He admitted that he might have taken some money and stabbed a man lying in bed. The defendant agreed to be taken to the hospital where he was observed by Earl who positively identified the defendant as the man who stabbed him.

1. The defendant contends that there was insufficient evidence from which the jury could have found that the murder was committed in the course of rape. He also argues that the charge to the jury was incorrect and prejudicial in this regard. We disagree.

If, from the evidence, the jury could properly have found that the defendant killed the victim 'either in reducing her to helplessness prior to forcible sexual intercourse . . . or in stilling her outcries during such intercourse,' Commonwealth v. Gricus, 317 Mass. 403, 412, 58 N.E.2d 241, 246 (1944), they would have been warranted in returning a verdict of murder committed in the course of rape. From the evidence, the jury could have inferred that the defendant stuffed the tissues in the victim's mouth to keep her quiet while he had intercourse to keep her against her will. Such an inference would be both 'reasonable and possible.' Commonwealth v. Medeiros, 354 Mass. 193, 197, 236 N.E.2d 642 (1968), cert. den. sub nom., Bernier v. Massachusetts, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699 (1969); Commonwealth v. Montecalvo, --- Mass. ---, ---, ^a 323 N.E.2d 888 (1975). This is not a case, like Commonwealth v. Costa, 360 Mass. 177, ^b 274 N.E.2d 802 (1971), where there was no evidence that the sexual abuse occurred before the homicide. Accordingly, there was no error in submitting this issue to the jury. Cf. Commonwealth v. McGrath, 358 Mass. 314, 318--319, 264 N.E.2d 667 (1970).

Additionally, the charge to the jury on this issue was correct. The judge charged the jury essentially in the language of the Gricus case, ¹ and we believe the instructions provided adequate guidance.

2. The defendant forcefully argues that we should invalidate the death sentence here because it involves jury discretion and thus violates Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The defendant would have us treat this case in the same manner as COMMONWEALTH V. A JUVENILE, --- MASS. ---, 300 N.E.2D 439 (1973)^C. However, this is a very different case, and we do not believe the 'discretion' analysis applies.

The primary focus of the defendant's attack is Commonwealth v. Gardner, 11 Gray 438 (1858), where Chief Justice Shaw explained the degrees of murder as being for the purpose of mitigation of punishment. The defendant reasons that the statute, G.L. c. 265, §§ 1 and 2 (in so far as the death penalty is involved), is therefore unconstitutional constitutional under Furman, as it allows the jury to have discretion in determining whether the death penalty shall be imposed. While this analysis appears plausible at first glance, there are serious problems connected with its use.

The only crime in Massachusetts carrying the death penalty is rape-murder. When, in a proper case, the jury have found as a fact that a murder was committed in the course of a rape or attempted rape, the death penalty is automatically imposed. The jury, if properly charged, have no discretion to find mitigating circumstances or a lesser degree of culpability (first degree versus second degree). The facts determine the outcome.

Of course, a jury may choose to disregard evidence that the murder was committed in the course of a rape in order to avoid imposition of a death penalty. Cases in which juries ignore proper judicial instructions are not unknown. Cf. Commonwealth v. Mutina, --- Mass. ---, --- - ---, ^d 323 N.E.2d 294 (1975). Indeed, it is possible to argue from such cases that the process of jury fact-finding, in itself, introduces unconstitutional discretion to a murder trial which results in a death sentence.

Such an argument cannot be accepted. The essence of our system of criminal jurisprudence is trial by jury. In assigning the crucial fact-finding function to the jury, we assume that they will find the facts according to the evidence and apply the law to the facts in the light of the judge's charge. We assume, further, that the result of the jurors' deliberations will be a reliable one. If now we single out an occasional 'rogue' jury or emphasize the mistakes which human fallibility occasionally causes jurors to make, we may discredit our entire criminal jury system. If the jury's 'discretion' to find that a murder was committed in the course of rape is unconstitutional, why is their 'discretion' to find the defendant guilty or not guilty of any crime itself not subject to the same infirmity?

This same argument applies to the other elements of discretion cited by the defendant. ² Currently plea bargaining and prosecutorial discretion are necessary aspects of our criminal justice system and their legality should not be questioned in this regard. Furthermore, furman can be read to apply only to jury discretion, thus making irrelevant the arguments as to the use of discretion in other areas.

Applying the defendant's 'discretion' analysis to the instant case, it is difficult on this record to envision what more the judge could have done to protect the rights of the defendant. The judge charged the jury on all possible verdicts and then told them: 'You, however, are not concerned with the disposition of the case. Your responsibility is to bring in verdicts in accordance with the evidence and the law' (emphasis added). The jury could not have received the impression (despite the defendant's statutory argument) that they were free to return whatever verdict they chose, regardless of the evidence, in order to assure or avoid imposition of a certain sentence.

If the charge raises any problem, it lies in the fact that the judge told the jury that only rape-murder carries the mandatory death sentence, but we believe the judge's cautionary language following this statement cured any possible defect in that regard.

For the foregoing reasons, we do not believe the 'discretion' analysis is applicable to this case.

3. The defendant argues that the mandatory death penalty for rape-murder is unconstitutional as violative of the proscription of cruel and unusual punishment found in the Eighth Amendment to the United States Constitution. The defendant first argues that, although mandatory, the sentence is subject to discretion at many stages of the criminal proceedings, and thus falls within the express prohibitions of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). He argues alternatively that, even if not discretionary, the death penalty itself is cruel and unusual and violates the Eighth Amendment. ³

Both parties, in briefs and oral arguments, focus on whether the death penalty is violative of the Eighth Amendment. This question has long been the subject of considerable discussion and debate. In the recent past the debate has been greatly accelerated. Numberous volumes have been written on the subject, both for and against capital punishment. Illustrative of the breadth and depth of the work in this area are the various opinions of the Justices in the Furman case, as well as articles by former Associate Justice Arthur Goldberg. See Goldberg, The Death Penalty and the Supreme Court, 15 Ariz.L.Rev. 355 (1973). See also Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773 (1970). Entire books have been published on this limited...