Com. v. Shelley

• Decision Date: 23 February 1978
• Citation: 373 N.E.2d 951,374 Mass. 466
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 951

373 N.E.2d 951

374 Mass. 466

COMMONWEALTH v. Robert J. SHELLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 7, 1977.

Decided Feb. 23, 1978.

William P. Homans, Jr., Boston, for defendant.

John C. Prescott, Charles J. Hely, Asst. Dist. Attys., with him, for the Com.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS and LIACOS, JJ.

HENNESSEY, Chief Justice.

Robert J. Shelley was indicted for the killing of William C. Dubbels (Dubbels). The defendant admitted killing Dubbels, but claimed criminal irresponsibility. The jury found the defendant guilty of murder in the first degree and the statutory sentence of life imprisonment was imposed. The trial judge denied the defendant's motion for a new trial.

The defendant then appealed under G.L. c. 278, §§ 33A-33G, claiming that (1) as matter of law, the Commonwealth had not carried out its burden of proving that the defendant was sane, and that (2) the verdict was against the weight of the evidence. In a motion to amend the assignments of error, subsequently allowed by this court, the defendant raised two additional issues, namely, the propriety of the prosecutor's closing argument and the correctness of the judge's charge. Neither of these issues was the subject of a timely objection or exception at trial. The defendant also requested this court to exercise its powers under G.L. c. 278, § 33E, either to order a new trial or to direct the entry of a verdict of a lesser degree of guilt.

We have reviewed the entire record pursuant to our duties set forth in G.L. c. 278, § 33E. Under this provision, we have examined the alleged errors not subject to exception or objection at trial against the background of the entire case to determine whether a miscarriage of justice has occurred. Commonwealth v. Nordstrom, 364 Mass. 310, 314, 303 N.E.2d 711 (1973). We conclude that certain remarks made by the prosecutor in his closing argument were of such an improper and prejudicial nature as to require reversal, and a new trial.

There is no dispute as to the following facts. About 11:30 P.M. on September 2, 1975, the defendant and three friends visited the victim Dubbels, at his home. The defendant had been acquainted with Dubbels for about five months, through his employment at an all night grocery store which Dubbels managed. The visit paid to Dubbels was social in nature. There was evidence that the men talked, drank, and joked for about two hours after arriving. There was also evidence that during the evening, Dubbels expressed physical attraction to the defendant, but that his statements in this regard were not taken seriously.

About 2:30 A.M., the men who accompanied the defendant to Dubbels's house began to leave. Dubbels invited the defendant to spend the night, saying that he wanted to talk to the defendant and that he wanted the defendant to help him open the store at 7 A.M. The defendant agreed to stay.

After his friends left, the defendant went upstairs and took a shower. Dubbels then suggested that the defendant sleep in his (Dubbels's) room. The defendant agreed, got into bed beside Dubbels, and turned off the lights. Soon after, Dubbels began to make sexual advances toward the defendant. Upset, the defendant jumped out of bed and went downstairs to the kitchen for a drink. After making himself a drink, the defendant took a meat cleaver and a roasting fork out of a kitchen drawer, and went back upstairs. According to the defendant, he turned off the bathroom light so that Dubbels could not see the weapons, and then sat down on the bed. Dubbels put his arm around the defendant, whereupon the defendant attacked Dubbels, repeatedly hitting him with a meat cleaver, stabbing him with the roasting fork, choking him, and finally jumping on his head.

A few hours after the incident, the defendant made several telephone calls, including calls to the news media, to several friends, and to the police. Shortly thereafter the police arrived, briefly investigated the scene, and arrested the defendant for murder. The defendant was informed of his Miranda rights, was frisked, and then handcuffed. At the defendant's repeated insistence, the police took a statement at the scene. Subsequently, the officers took the defendant to the Franklin police station, where the defendant gave a lengthy account of the killing.

At trial, two expert witnesses produced by the defendant testified that the defendant has a paranoid personality. It was the opinion of the psychiatrist that, on the night of the killing, the defendant suffered a "dissociative reaction" which was caused by his underlying personality structure and which resulted from a "homosexual panic." He testified that the dissociative reaction was a mental disease or defect, and that, because of the dissociative reaction, the defendant was not able to conform his conduct to the requirements of the law.

The expert witness produced by the Commonwealth agreed with the conclusions that the defendant had a paranoid personality, and that, on the night of the killing, he suffered a dissociative reaction resulting from homosexual panic. It was his opinion, however, that the dissociative reaction was caused in part by the consumption of alcohol.

1. Both the Commonwealth and the defendant agree that ordinarily "in appeals under G.L. c. 278, §§ 33A-33G, nothing is before the court unless an exception is properly saved." Commonwealth v. Nordstrom, 364 Mass. 310, 314, 303 N.E.2d 711, 713 (1973). In regard to alleged impropriety in the prosecutor's closing argument, however, we have recognized that the failure to object and possibly obtain a curative instruction may be the very thing which permits the remarks to have their maximum prejudicial effect. Id. See Commonwealth v. Earltop, --- Mass. ---, ---, ^a 361 N.E.2d 220 (1977). Consequently, "(g)iven the broad powers of review granted the court in capital cases under G.L. c. 278, § 33E, it is proper for us to examine the alleged prejudicial statements against the background of the entire case to determine if a miscarriage of justice has occurred." Commonwealth v. Nordstrom, supra. See Commonwealth v. Earltop, supra; Commonwealth v. DeChristoforo, 360 Mass. 531, 536, 277 N.E.2d 100 (1971).

2. The defendant challenges two aspects of the prosecutor's closing argument as unfair and prejudicial. The defendant first contends that the prosecutor's remarks concerning the credibility of his expert witnesses improperly insinuated that these witnesses were "bought." ¹ Secondly, the defendant asserts that the prosecutor impermissibly attempted to refute the defense of criminal irresponsibility by calling on his own personal knowledge with regard to incidents irrelevant to the case. We conclude that both lines of argument were improper and that the argument as to the credibility of the expert witnesses, standing alone, was so prejudicial in nature as to require reversal.

First, the prosecutor's remarks as to the experts were based on facts not in evidence. The argument essentially urged the jury to discount the testimony of the defendant's expert witnesses because they were paid large fees by the defendant's family. There was evidence that the witnesses were paid by the family, but there was no evidence that they received anything more than their usual fees. Thus, to urge an inference that the expert testimony was purchased by the defendant was improper and unfair.

Second, the argument attempted impermissibly to play on the prejudices of the jurors. Suggestions were made, albeit in disclaimer form, that the expert witnesses were "mercenary soldiers" and "prostitutes." Further, characterizations of psychological testing techniques as "well-meaning ink-blot tests . . . mice . . . goblins," could only have been made for their emotional impact. Such elements of irrationality and irrelevance introduced into the trial can only serve to make it less likely that the jury will return a verdict based on fair, calm consideration of the evidence. See Commonwealth v. Burnett, --- Mass. ---, --- - ---, ^b 353 N.E.2d 665 (1976); Commonwealth v. Graziano, 368 Mass. 325, 332, 331 N.E.2d 808 (1975); Commonwealth v. Perry, 254 Mass. 520, 531, 150 N.E. 854 (1926); ABA Standards Relating to the Prosecution Function § 5.8(c) (Approved Draft 1971).

The most important factor in our reasoning is that this is not a case in which overreaching argument was confined to collateral issues only, Commonwealth v. Nordstrom, 364 Mass. 310, 316, 303 N.E.2d 711 (1973), wherein either overwhelming evidence of the defendant's guilt, or adequate curative instructions from the judge, might have rendered the prosecutorial misconduct harmless error. See Commonwealth v. Nordstrom, supra; Commonwealth v. Richards, 363 Mass. 299, 309-310, 293 N.E.2d 854 (1973); Commonwealth v. DeChristoforo, 360 Mass. 531, 538, 277 N.E.2d 100 (1971) (overwhelming evidence of guilt neutralizing prosecutorial misconduct). See also Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Commonwealth v. Earltop, --- Mass. ---, ---, ^c 361 N.E.2d 220 (1977); Commonwealth v. Gouveia, --- Mass. ---, ---, ^d 358 N.E.2d 1001 (1976); Commonwealth v. Burnett, --- Mass. ---, ---, ^e 353 N.E.2d 665 (1976); Commonwealth v. Borodine, --- Mass. ---, ---, ^f 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977); Commonwealth v. Nordstrom, 364 Mass. 310, 313, 303 N.E.2d 711 (1973); Commonwealth v. D'Ambra, 357 Mass. 260, 262, 258 N.E.2d 74 (1970) (curative instructions neutralizing prosecutorial misconduct). Rather, the comments went to the very heart of the case. They struck, and struck impermissibly, at the defendant's sole defense, and sought to impeach his only witnesses.

Thus, although it is true that the judge clearly and correctly instructed the jury that opening and closing statements of counsel are not evidence, we conclude that such instructions could not have served to neutralize the...