Com. v. Nordstrom

• Decision Date: 16 November 1973
• Citation: 364 Mass. 310,303 N.E.2d 711
• Parties: COMMONWEALTH v. Nils NORDSTROM, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 711

303 N.E.2d 711

364 Mass. 310

COMMONWEALTH v. Nils NORDSTROM, Jr.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept. 17, 1973.

Decided Nov. 16, 1973.

Malvine Nathanson, New York City, for defendant.

Barbara A. H. Smith, Asst. Dist. Atty., for the Commonwealth.

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

REARDON, Justice.

This case taken under G.L. c. 278, §§ 33A--33G, is an appeal from convictions for murder in the first degree and unlawful possession of a firearm, as well as from the denial of a motion for a new trial. The jury in returning the verdict of guilty on the murder indictment recommended that the death penalty be not imposed.

The evidence could show that the alleged murder in this case arose out of a barroom argument engaged in between Austin Jordan, the decedent, and the defendant. A bet was made and the defendant made his way to a telephone located in the barroom to procure proof for his point. He returned to announce that the telephone was our of order and was contradicted by another customer who said he had just used the telephone. The defendant was accused by Jordan and one Daley of 'welshing' on the bet. The defendant then left the bar and returned some time later after a visit to his home, at which time he stated that he 'didn't like being made fun of.' Daley, who was an off-duty police officer, as was Jordan, at this point 'frisked' the defendant, and then announced to Jordan that the defendant 'was clean.' Thereafter the defendant and Jordan engaged in some conversation and went out the front door of the cafe. A few moments later two shots approximately five to fifteen seconds apart were heard, following which Jordan came back through the front door bent over and holding his stomach. He proceeded to the end of the bar where he fell saying, 'He shot me.' He was pronounced dead at a hospital an hour later. At trial the defendant admitted shooting Jordan but maintained that the shots were fired accidentally.

1. The defendant argues that the finding that he acted with premeditation and was guilty of first degree murder constituted a miscarriage of justice, and that this court should reduce the verdict under the power granted to it in c. 278, § 33E. There was no evidence in the case to support a finding of felony murder or murder with extreme atrocity and cruelty. It is the contention of the defendant that his actions were certain to lead to his discovery and apprehension, and it was most unlikely that he would deliberately plan a himicide in such an inept and stupid fashion. He also claims that his background and character were not consistent with his forming an intention to kill Jordan merely because of a minor barroom disagreement. He argues that the evidence shows that his behavior after the first shot was motivated by fear and was not properly productive of the finding of deliberate premeditation. We, however, do not see the evidence in this case as comparable to that in Commonwealth v. Baker, 346 Mass. 107, 190 N.E.2d 555 (1963), the leading case dealing with the court's power under G.L. c. 278, § 33E, to direct the entry of a verdict of a lesser degree of guilt. Cases in which we have reduced the verdict have generally been concerned with 'a sudden combat in which the deceased was initially the aggressor,' Commonwealth v. Kendrick, 351 Mass. 203, 210, 218 N.E.2d 408, 413 (1966), or circumstances in which 'the defendant was not the aggressor; he was subjected to an angry confrontation,' COMMONWEALTH V. KINNEY, MASS. (1972), 282 N.E.2D 409,^A or a situation of 'uncontrolled anger and violent action on the part of both the defendant and the decedent,' Commonwealth v. Ransom, 358 Mass. 580, 583, 266 N.E.2d 304, 306 (1971). The jury could have found here that the defendant formed an intention to kill Jordan after their encounter and did not execute his plan until after he had left the bar, procured a gun and returned. We have only the defendant's story of what occurred between Jordan and himself outside the bar before the shooting but, unlike the cases referred to above, there was no persuasive evidence of any aggressive action by Jordan. Compare Commonwealth v. Rollins, 354 Mass. 630, 635, 241 N.E.2d 809 (1968). Absent evidence of fear of sudden attack or aggression, and with the evidence that the defendant had an opportunity to form a prior intent, we would be unwarranted in disturbing the verdict. We followed this course in the face of considerably more compelling evidence for reducing a verdict in Commonwealth v. Smith, Mass. (1973), ^b 292 N.E.2d 877. We thus cannot agree with the defendant's contention that his lack of intelligent planning and his peaceful character make this an appropriate case for changing the decision of the jury. There is no dispute that the defendant had an argument with Jordan, was insulted and ridiculed by him, went home, returned with his gun, shot the victim twice, and fled home. This evidence was sufficient to warrant a finding of premeditation. Compare Commonwealth v. Bearse, 358 Mass. 481, 265 N.E.2d 496 (1970).

2. The defendant also attacks allegedly improper statements made by the prosecutor in the closing arguments. It is asserted that the prosecutor made five statements purporting to be factual which had no basis in the evidence and thereby prejudiced the defendant's case before the jury. The most complete statement of the law on this matter is found in Commonwealth v. Sherman, 294 Mass. 379, 2 N.E.2d 477 (1936), in which the defendant had objected to the interruption of his counsel's closing argument by the judge. With respect to the testimony of a witness who had typed an alleged confession and had stated that the paper and copies had been removed and reinserted in the typewriter several times, defence counsel stated in his closing argument: 'I say it is impossible to put any four sheets of paper and three sheets of carbon . . ..' Id. at 390, 2 N.E.2d at 483. The issue was whether the judge's interruption and admonition of counsel's statement of personal belief was proper. The court held that it was. 'He may not properly in argument make a statement of fact 'purporting to be on his personal knowledge or . . . concerning which the inference well might be drawn that he had personal knowledge.' Doherty v. Levine, 278 Mass. 418, 419, 180 N.E. 168. . . . (Other citations omitted.) It may be that the language of counsel was susceptible of the interpretation that his words 'I say,' by which he prefaced his last statement before the interruption, meant 'I contend,' 'I submit' or 'I argue,' but an 'inference well might be drawn that he had personal knowledge' of the fact stated.' Id. at 391, 2 N.E.2d at 484.

While this rule has been frequently cited, there appear to be no occasions when such extraevidentiary remarks by a prosecutor were considered grounds for overturning a conviction. Normally such statements are adequately neutralized by a timely curative instruction or a general reminder by the judge that the arguments of counsel are not evidence. See Commonwealth v. O'Toole, 351 Mass. 627, 635--636, 223 N.E.2d 87 (1967); Commonwealth v. Balakin, 356 Mass. 547, 553, 254 N.E.2d 422 (1969); COMMONWEALTH V. DE CHRISTOFORO, MASS. (1971) , 277 N.E.2D 100.^C In this case, however, no such remedial steps were taken since counsel made no objection, requested no instruction, and saved no exception.

The state of affairs raises conflicting considerations. Normally in appeals under G.L. c. 278, §§ 33A--33G, nothing is before the court unless an exception is properly saved. See Commonwealth v. Foley, 358 Mass. 233, 236, 263 N.E.2d 451 (1970). We reaffirm our holding in that opinion. On the other hand, as the defendant argues, the failure to object and possibly obtain a curative instruction was the very thing which permitted the...