Com. v. Palmariello

Decision Date01 June 1984
PartiesCOMMONWEALTH v. Edward PALMARIELLO (and a companion case 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Nancy Gertner, Boston, for Edward Palmariello.

Richard W. Barry, Quincy, for Bruce Chambers.

Thomas J. Mundy, Jr., Asst. Dist. Atty. (Margaret Steen Melville, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

On October 15, 1982, a jury found both defendants guilty of murder in the first degree of the defendant Edward Palmariello's mother. The prosecution's theory was that the defendants engaged in a joint enterprise. The trial judge sentenced each defendant to the Massachusetts Correctional Institution, Walpole, for a term of life imprisonment. The defendants now appeal from these convictions. Palmariello alleges that (1) the prosecutor committed improprieties in his closing argument; (2) several evidentiary rulings were erroneous; and (3) the judge should have granted his motion for mistrial or individual questioning of the jurors because of prejudicial publicity. Both defendants argue that (1) their motions for required findings of not guilty should have been granted; (2) the judge erred by failing to instruct the jury on the Commonwealth's burden of disproving accident and (3) the court should exercise its powers under G.L. c. 278, § 33E, to vacate the verdicts and reduce them to manslaughter. We affirm the convictions of murder in the first degree.

The following facts were presented to the jury. On November 4, 1981, a group of hunters discovered a woman's body in a wooded area about 150 feet from Route 93 in southern New Hampshire. The body was facing downward in a crucifix position and was naked from the waist down, except for panties which had been partially removed. There was evidence of animal damage on one of the legs and a furrow on the front of the neck. The body was later identified as that of Marion Palmariello of East Boston. She had been dead for two to three weeks.

Marion Palmariello was about four feet, eleven inches tall, weighed between one hundred and one hundred and ten pounds, and was estimated to be between fifty and sixty years of age. She lived at 59 Marion Street, a three-decker house in East Boston, with her son, the defendant Edward Palmariello, who was seventeen at the time of the murder in October, 1981. Palmariello and the codefendant, Bruce Chambers, had been friends for approximately one year at this time, seeing each other almost every day.

The Commonwealth introduced the following evidence of hostility between the defendants and Marion Palmariello. In January, 1980, during an argument with his mother, Palmariello waved an open switchblade knife at his mother. Palmariello threatened his mother "a lot" during 1980. They had several arguments in the period between November, 1980, and February, 1981; during one argument Palmariello stated, "If I had a knife, I'd kill you." In April, 1981, Palmariello stated that he would like to have his mother "committed." He said he would kill her if he couldn't "get her committed" and that he "wouldn't feel a bit of remorse." In June, 1981, the mother of one of Palmariello's girl friends discovered that her daughter had been living at the Palmariello house and went to take her daughter home. On this occasion, Palmariello yelled at his mother that he was going to kill her for telling the girl friend's mother about her daughter. He also threw something at his mother. He then stated that "he wasn't planning on killing her then, that he had to think about it, plan it, because he wasn't going to go to jail for her or anybody else." In the summer before the murder, Palmariello had an argument with his mother concerning money. Palmariello slapped her in the stomach, swore at her, and said, "Shut up or I'm going to cut you up and put you into the toilet bowl." On September 21, 1981, Palmariello stated to his probation officer that "he couldn't stand [his mother's] nagging and that he was going to shut her up." Finally, one or two weeks before the murder, the defendants were listening to music with a friend in Palmariello's house. When Marion Palmariello yelled at her son, Chambers said, "I'd like to take his mother and tie her up and gag her and stick her on the first floor just to shut her up." Palmariello responded to his comment by laughing. A witness testified that "[i]t didn't seem to bother him at all." This evidence of hostility between the defendants and the victim was introduced to show the defendants' state of mind on October 18, 1981.

Chambers testified that on that day, he and Palmariello were painting the second floor walls and repairing the plaster on the third floor walls of the Palmariello house. They worked from approximately 7 P.M. to 8 P.M., on the third floor. When Chambers finished working, he walked into the kitchen, where the mother was watching television. Palmariello ended a telephone conversation and announced that he was taking some paint downstairs, contrary to his mother's wishes. She said, "Eddie [Palmariello], don't start," and Chambers said, "I'll hold her." Chambers was standing behind her, holding a cord he had been using to measure the holes in the wall. He threw the cord over her head as she got up to get the paint. Chambers was "meaning to hold her," and "meaning for [the cord] to go around her waist." The cord was pulled out of Chambers' hands as she was going forward. She fell, and her head hit the floor. After determining that she was dead, Palmariello suggested that they call the police, and Chambers said, "You're just as much at fault as I am."

There was considerable evidence of consciousness of guilt. Chambers testified that, after the murder, the defendants removed the victim's jewelry to make it appear that she had been robbed, and they put her body in a box. They stole a car, placed the box in the car, and drove off on the highway. Eventually, they stopped, carried the body over a fence, and dragged it through the woods.

Several witnesses testified to statements by Palmariello that showed consciousness of guilt. In the period following his mother's death, Palmariello stated that he did not know where his mother was, that she might be at her father's house, in the hospital, or in New Hampshire. He also filed a missing person report with the police on October 23, and caused his probation officer to report the situation to the Department of Social Services.

There was testimony that on the day after the murder the defendants were in the company of Chambers' sister and one of her friends at Chambers' sister's house. The friend, who was also a girl friend of Palmariello, testified that Chambers' sister asked her, "Did they tell you what happened?" and that she answered, "Yes." The witness testified that Chambers' sister "said that they were crazy and that this is all we know about it and that we keep our mouth shut." The witness also testified that later that day she was present in the Palmariello house with the defendants and that they were playing cards in the kitchen when she asked the defendants "where it had happened." She told the jury that "they both" said that it had happened in the chair she was sitting in. The witness testified that she jumped up from the chair and that "they" laughed when she did so. She also said that Palmariello stated that Chambers had been "wicked nervous." The witness further testified that Chambers then demonstrated "how he did it." The witness showed the jury what Chambers did in giving that demonstration to her. She also testified that, when she asked if the victim had struggled, Palmariello said, "She didn't know what hit her," and Chambers "just went 'Blah.' "

There was evidence that on November 7, the defendant Chambers, after learning that girl friends of the defendants knew about Palmariello's mother, said to them, "You better keep your mouth shut or you won't have a mouth to shut." Later, when Chambers was alone with his girl friend, he stated that "he didn't know why he did it and he wasn't insane." The next day, during an argument with his girl friend, Palmariello stated, "I know you know about what I did to my mother."

There was testimony that on November 10, another girl friend of Palmariello discovered a strobe light at his house, which she had seen him handling the day before. Taped inside the strobe light box was a bag containing jewelry. When she later spoke with Palmariello about this jewelry, he said, "Well, don't give it to nobody. Keep it, because it can get yourself into trouble. If you tell anybody you have it, you're going to get yourself into trouble." Some of this jewelry belonged to the victim.

Three medical experts testified as to the cause of the victim's death. The doctor who performed the autopsy stated that the deceased had a furrow on her neck one quarter inch wide and one quarter inch deep, from ear to ear, with characteristics which are "consistent with a cord of some type." Sustained pressure was required to create such a furrow. His opinion was that ligature strangulation was the cause of death. He also noted injuries to the victim's forehead, chest, and neck, which were independent of the ligature injury and occurred prior to death. The defendants' expert, while agreeing that sustained pressure had been applied to the ligature, would not express an opinion as to the cause of death because of three lung diseases which he said could have contributed to the victim's death: emphysema, asthma and pneumonia. The Commonwealth's rebuttal expert testified that the victim died as a result of ligature strangulation, and that the lung diseases merely hastened her death. He said that "a sustained, great force was applied on the neck."

1. The Prosecutor's Closing Argument.

Palmariello argues that the prosecutor made several improper...

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