Com. v. Pettie

• Decision Date: 16 July 1973
• Citation: 363 Mass. 836,298 N.E.2d 836
• Parties: COMMONWEALTH v. Robert L. PETTIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 836

298 N.E.2d 836

363 Mass. 836

COMMONWEALTH v. Robert L. PETTIE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 2, 3, 1973.

Decided July 16, 1973.

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

Louis M. Nordlinger, Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Justice.

This is an appeal by the defendant under G.L. c. 278, §§ 33A--33H, after trial on an indictment charging him with murder in the first degree on which a jury returned a verdict of guilty of manslaughter.

On October 4, 1970, at 4:40 A.M., a call was received at Boston City Hospital for an ambulance to go to a certain address in Roxbury. One Gallagher, the ambulance driver, and one Morris, the ambulance medical aide, arrived at the premises about 4:50 A.M. The defendant, who had called for the ambulance, met them in front of the building and led them up to the second floor where he told them, in effect, that his girl friend had taken an overdose of pills. Morris, the medical aide, found the body of the deceased woman lying on a couch in the apartment. He checked and found no vital signs. When the question of an overdose of drugs was being discussed, the defendant went into the bedroom and returned with two empty vials bearing the designations 'BCH' and 'Harrison Pharmacy.' These were turned over to the police shortly thereafter.

The defendant and the deceased woman had been living together at the Roxbury address for about two and a half months next prior to the date of her death. They were not married to each other.

The Commonwealth contended that the cause of the woman's death was 'manual strangulation.' The defendant contended that death resulted from a self-administered overdose of a drug called Noludar, possibly combined with Darvon and alcohol. The two drugs had been prescribed for the alleged victim by a doctor at the Boston City Hospital, the prescription having been filled at the Harrison Pharmacy on September 30, 1970, four days before the woman's death. One prescription was for thirty capsules of Noludar, 300 milligrams each, and a second for thirty capsules of Darvon compound 32. The Noludar was to be taken one a day for sleep and the Darvon to be taken as needed for pain.

Dr. George W. Curtis, Suffolk County medical examiner, testified that he performed an examination and autopsy on the deceased at approximately 1 P.M. on October 4, 1970. He described various black and blue marks which he found on the body of the deceased on the left side of the breast, the left shoulder, the back of the left hand and on the upper and lower parts of the left leg. He said he had observed eight superficial abrasions on the side of the neck and four linear bruises on the left lateral neck under the jaw. He then described a marked hemorrhage which he observed in the internal part of the throat beneath the external marks previously referred to, and added that he found the lungs heavy with fluid and water. He testified that, in his opinion, the deceased 'came to her death as a result of asphyxia by manufal strangulation, homicide.' The doctor said, in substance, that this opinion was based upon the marks he observed on the woman's neck, the massive hemorrhage he observed internally in her throat, and the fact that the lungs were heavy with blood and fluid.

There was evidence from which the jury could conclude that the deceased woman's blood contained .14 per cent alcohol and (from the defendant's testimony and the evidence of a prescription) that she had ingested 26 Noludar capsules. Dr. Goodof, a pathologist, stated his opinion that that combination of circumstances would be expected to produce death. He further testified that the finding of wet, heavy lungs could have been produced by severe depression of the nervous system by drugs as well as asphyxia from strangulation. There was other evidence that a person who dies from an overdose of sleeping pills or sedatives actually dies from asphyxiation.

The Commonwealth presented as a witness, John J. McHugh, a chemist who was chief of the laboratory at the Department of Public Safety. He testified that specimens from the woman's urine, blood, bile, and stomach contents were turned over to him for analysis on October 5, 1970, by the medical examiner, Dr. Curtis. On the following day the two empty pill bottles, referred to earlier, were likewise turned over to him. The labels on these bottles indicated that one bottle had contained thirty Noludar capsules and the other, thirty Darvon capsules, and that the contents had been prescribed for the woman on September 30, 1970. McHugh testified that, despite the fact that these specimens had been sent to him along with the empty pill bottles, he nevertheless did not conduct a test to determine whether the deceased had ingested a quantity of Noludar. He said that he threw the stomach contents and the bottles away.

In its effort to show that, if the woman died as the result of manual strangulation, the defendant was the only person who had the opportunity to do it, the Commonwealth offered evidence through police officers relative to the condition of the doors and windows in the apartment. One officer testified that on October 5 and 6 he observed undisturbed dust on the windowsills. He described the doors leading into and out of the apartment and the locks thereon. On cross-examination of this officer, evidence was adduced which tended to show that the officer was in error concerning his testimony about a door which led from the kitchen out to the rear hallway. Comparison of photographs which the officer had taken, and which he contended showed both sides of the door, indicated that the pictures did not in fact depict opposite sides of the same door.

The defendant argues two assignments of error: one which relates to a comment the trial judge made during defence counsel's closing argument to the jury, and another which alleges error in the trial judge's instructions to the jury on the issue of reasonable doubt.

1. We consider first the assignment of error argued by the defendant as related to a comment which the trial judge interposed during defence counsel's closing argument to the jury. There was no error.

Early in his closing argument the defendant's attorney made references to some law enforcement authorities perhaps having an 'axe to grind,' and to some persons who 'may have harbored some interest and tried to do a little patchwork.' He then argued at some length as to the uncertainty of the police investigation concerning the doors and windows, and security in general, of the apartment. He emphasized the alleged police error as shown in the photographs of the door. He referred to 'sloppy' investigation and asked the jury if the police procedure was 'fair' to the defendant. He argued at even greater length as to the failure of the Commonwealth to make tests upon the body, and particularly the stomach contents, for the presence of harmful drugs. His emphasis at times was upon the knowledge by the police of the defendant's contention concerning drugs as the cause of death from the very beginning of the case, as corroborated by the empty pill bottles. He stressed the fact of the Commonwealth's exclusive control over the body of the deceased. At several junctures he raised the question as to whether the authorities were 'fair' to the defendant, or whether the defendant was dealt with 'fairly.'

The judge at this point interrupted the argument. There had been no objection by the assistant district attorney. The following colloquy then took place within the...