Com. v. Richmond

• Decision Date: 21 December 1976
• Citation: 358 N.E.2d 999,371 Mass. 563
• Parties: COMMONWEALTH v. Stephen Edward RICHMOND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 999

358 N.E.2d 999

371 Mass. 563

COMMONWEALTH

v. Stephen Edward RICHMOND.

Supreme Judicial Court of Massachusetts.

Argued Nov. 1, 1976.

Decided Dec. 21, 1976.

Robert B. Shumway, Worcester, for defendant.

Daniel F. Toomey, Asst. Dist. Atty., for the Commonwealth.

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

REARDON, Justice.

The defendant was convicted of murder in the first degree and rape on indictments lodged against him in the Superior Court in Worcester County and was thereafter sentenced. He now brings an appeal under G.L. c. 278, §§ 33A--33G. He has alleged a number of errors in his assignment, none of which commends itself to our attention save one. In that assignment he alleges that the introduction in evidence of certain photographs resulted in prejudicing his cause to the point where a reversal is warranted. We agree.

A jury could have found that the defendant, having raped and murdered the victim on January 11, 1975, left her nude body in a snow bank where it was discovered on January 16, 1975, by a passerby. At that time the body was covered with snow when the witness saw a 'big Weimaraner just over the banking . . . tugging on something.' This turned out to be a face of a corpse which had been severely mutilated as a result, prior to the retrieval of the body by the State police. Subsequently pictures of the corpse, including the damaged head, were exhibited to the jury over objection and exception, and we have viewed them. There is no question that while certain of the injuries to the victim in the neck and head area were sustained before death, as testified by a pathologist, much of the injury depicted in the photographs was post mortem and not the result of the assault on the victim while living.

We have had occasion recently to review the law in this area in Commonwealth v. Bys, --- Mass. ---, ---, ^a 348 N.E.2d 431, 438 (1976), and we there made reference to the fact that '(c)ounsel have cited no case in which this court has held that it is error to admit photographs or slides of the victim's body in the trial of an indictment charging an unlawful homicide by violence.' We referred also to our prior comments on the 'paucity, and perhaps the absence, of any such holding by this court.' In Commonwealth v. McGarty, 323 Mass. 435, 438, 82 N.E.2d 603, 606 (1948), on the argument that the sight of certain photographs would inflame the jury, we said, 'A similar contention has often been made in homicide cases, but it has never been sustained where the photographs had evidential value upon a material matter.' Repeated reference has been made in our cases to the discretion of the trial judge in admitting gruesome photographs. As we stated in Commonwealth v. D'Agostino, 344 Mass. 276, 279, 182 N.E.2d 133, 135 (1962), 'Whether such evidence was so inflammatory in nature as to outweigh its probative value and preclude its admission is a question to be determined by the trial judge in the exercise of his sound discretion.' In the Bys case we stated that 'a defendant who claims an abuse of that discretion assumes a heavy burden.' Id. at ---, ^b 348 N.E.2d at 439. It is in light of the foregoing considerations that we recite what happened in this case.

When the question of admission of the photographs of the victim first arose, the judge indicated that he was prepared to exclude pictures of post mortem injuries (described by defense counsel as '(h)ere's a girl with her entire face bitten away'). The judge then observed, 'I may allow photographs that show her body, but anything that is going to show her face...