Com. v. Smith

• Decision Date: 03 April 1970
• Citation: 357 Mass. 168,258 N.E.2d 13
• Parties: COMMONWEALTH v. Paul N. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 13

258 N.E.2d 13

357 Mass. 168

COMMONWEALTH v. Paul N. SMITH.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Dec. 1, 1969.

Decided April 3, 1970.

Edward H. Stevens, Brockton, for defendant.

Robert L. Anderson, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and QUIRICO, JJ.

QUIRICO, Justice.

The defendant was tried on an indictment charging him with the crime of murder in the first degree allegedly committed on July 29, 1965. He was found guilty by a jury in March, 1966. The jury did not recommend that the sentence of death be not imposed. G.L. c. 265, § 2. On appeal this court reversed the conviction on January 4, 1968, in Commonwealth v. Smith, 353 Mass. 487, 232 N.E.2d 915. The reversal was not for any legal error in the trial, but because of this court's reconsideration and restatement of the law of insanity as affecting criminal responsibility in Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556, decided on May 16, 1967.

The defendant was brought to trial a second time and, on April 26, 1968, he was again found guilty of murder in the first degree with a recommendation by the jury that the sentence of death be not imposed. The mandatory punishment of 'imprisonment in the state prison for life' was imposed upon him. G.L. c. 265, § 2. The case was tried subject to G.L, c. 278, §§ 33A--33G, and it is here on the defendant's appeal. The defendant alleges errors by the trial court in the denial of the following motions: (1) motion for a change of venue; (2) motion to waive jury; (3) motion that prospective jurors be questioned about opinions on insanity as a defense; (4) motions for directed verdicts of not guilty by reason of insanity; and (5) motion for a new trial.

The defendant is charged with the murder of Ellen I. Gamache (victim), a five year old resident of the town of Middleboro, Massachusetts. The victim and her two brothers, eight and twelve years old, respectively, went to a public playground and swimming pool in Middleboro in the early afternoon of July 29, 1965. About 1:30 P.M. that day the victim was seated beside the defendant near the swimming pool. The defendant's car bearing New Hampshire registration plates was at the playground that afternoon. About 2:30 P.M. the car was driven by a man from the direction of the swimming pool toward the 'kiddy-corner' part of the playground where the victim's brothers had last seen her. About 3:30 P.M., the defendant drove his car to the town dump which was a couple of miles from the center of town, walked about the area and left.

About 4 P.M. the victim's brothers looked for her to go home, but they did not find her. They returned home, and looked for her in the neighborhood. About 6 P.M. their mother notified the police that her daughter Ellen was missing. She was last seen alive at the playground on the afternoon of that day. The police and many other persons engaged in an extensive search for her. Her badly decomposed body was found on August 8, 1965, in a wooded area about 1,000 feet off Montgomery Street in Lakeville, Massachusetts. It had four stab wounds. The vagina was markedly distended. There was some bleeding and hemorrhage at the point where the vagina joins the uterus. Paint chips found on a tree and on the ground near the body were similar in texture and color to the paint on the defendant's car. One chip fitted a chipped area of the paint on the left front fender of the defendant's car. A microscopic examination of debris from the front seat of the car showed the presence of dog hair and of nine different types and colors of cotton, wool and rayon fibers. A similar examination of part of the clothing on the victim's body when it was found showed the presence of the same type of dog hair and the same types and colors of fibers as found on the car seat.

For about two weeks prior to July 29, 1965, the defendant had been staying at the home of his brother in Middleboro. On that day he was at the home for about five minutes at 4 P.M. He left and returned about 7 P.M. saying he had been to Boston to see about getting into the service. About 12:05 P.M. on the next day he sold his car to one Mable for $20 and agreed to deliver it to him that evening. He never delivered it. About 3 P.M. the next day, July 31, he sold his car to a junk dealer in Newport, New Hampshire, for $15 and he took the registration plates with him at the buyer's request. The plates were found on August 10, 1965, below a bureau drawer in a hotel room in Windsor, Vermont.

Between 9 and 10 P.M. on August 1, 1965, the defendant arrived at the home of Mrs. Laura Selby, his former mother-in-law, at Schenectady, New York. He brought with him a brown suitcase he had taken from his brother's home. He spent the night there. The next morning an agent of the Federal Bureau of Investigation came to the house and spoke to Mrs. Selby about the defendant. The defendant was in a bedroom of the house at the time, and he remained there. After the agent left, Mrs. Selby told the defendant that the agent wanted to inquire about a little girl. The defendant said he knew nothing about a little girl. He left about ten minutes later, without his suitcase. A stain from human blood was found on the defendant's trousers in the suitcase. There were also bloodstains on a knife and a T-shirt in the suitcase, but it could not be determined whether they were from human blood. The defendant was arrested in Newbury, Vermont, on August 9, 1965.

About March 17, 1968, while the defendant was at the Plymouth County jail awaiting his second trial, he told another inmate that all he 'did to the little girl was smother her,' and that he did not stab her. He made the same statement to a psychiatrist who testified on his behalf at the second trial.

1. The first error alleged by the defendant is the denial of his motion to change the venue of the trial to Suffolk County. The motion alleged 'that due to the publicity received by way of television, radio, and newspaper publication, public opinion is such that it would be impossible for the defendant to have an unbiased jury for a fair trial either as to the guilt or innocence of the defendant, or as to the jury's recommendation as to the penalty.' The motion was not verified by affidavit. It was heard of March 28, 1968, and denied on April 3, 1968. The trial commenced on April 23, 1968.

At the hearing on the motion the defendant introduced sixty-three news items which had appeared in three newspapers in Taunton, Brockton and New Bedford. Forty-two of the items were published between July 30 and August 11, 1965. They related to the victim's disappearance, the search for her, the finding of her body and the defendant's arrest. Fourteen items published between February 3 and March 22, 1966, related to the defendant's first trial. One item published June 1, 1966, reported the denial of a motion for a new trial. Another published May 24, 1967, reported that the defendant was appealing to this court after the conviction in his first trial. Five items published on January 4 and 5, 1968, reported that this court had ordered a new trial of the case. The last item published March 14, 1968, reported that the defendant's second trial would start the following month, and referred to the earlier conviction, appeal and reversal. Counsel stipulated that a newspaper in Quincy had published an item about evidence introduced at the first trial on March 18, 1966, but it was not marked as an exhibit. The defendant presented no evidence of any radio or television publicity about the trial at the hearing on this motion.

The trial judge interrogated fifty-two veniremen individually in the empanelling of the jury of sixteen members. G.L. c. 234, § 26B. The interrogation was under oath and included all of the questions usually put to veniremen in capital cases. ¹ The judge also asked each venireman whether he had read or seen anything about the case in the newspapers which would prevent him from 'giving a fair and impartial trial to this defendant.' Only one person said he had formed an opinion on the basis of what he had heard or read, and he was excused by the court. One person who said she had read something about the case but could not recall what she had read was excused for other reasons. Five persons said that although they had read something about the case they could act fairly and impartially, and the judge declared them indifferent. Four of them were challenged by the defendant, and the fifth was seated as a juror. Since the judge excused any venireman whose answers in the voir dire examination indicated any question as to his impartiality or indifference, no venireman was challenged for cause. The defendant took no exception to the seating of any juror or to the exclusion of any prospective juror who was interrogated. He exercised only fifteen of the sixteen peremptory challenges to which he was entitled. G.L. c. 234, §§ 26, 26B and 29. As to each of the sixteen jurors who were seated, the defendant stated, through counsel, that he was 'content' with the juror, or that the juror was 'satisfactory' to him. Commonwealth v. Blackburn, 354 Mass. 200, 204, 237 N.E.2d 35.

On this record there was no error in the denial of the motion for change of venue. Most of the newspaper publicity which the defendant presented in support of his motion had occurred in two parts, one two years and the other three years before the present trial. It is apparent from the transcript of the proceedings for the selection of the jury that the publicity did not interfere with, or prevent the selection of, an impartial and unbiased jury for the second trial. The power of the court to allow a change as to the place of a trial by jury 'should be exercised with great caution and only after a solid foundation of fact has been first established.' Crocker v. Justices of Superior Court, 208 Mass. 162, 180, 94 N.E. 369, 377. There...