Com. v. Wilborne

• Decision Date: 07 January 1981
• Parties: COMMONWEALTH v. John A. WILBORNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 192

415 N.E.2d 192

382 Mass. 241

COMMONWEALTH v. John A. WILBORNE.

Supreme Judicial Court of Massachusetts, Essex.

Argued Sept. 9, 1980.

Decided Jan. 7, 1981.

Elliot M. Weinstein, Lynn, for defendant.

Lila Heideman, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

Convicted of murder in the first degree of William Sanders, John A. Wilborne appeals to this court pursuant to G.L. c. 278, §§ 33A-33H. ¹ Wilborne argues error concerning (1) the denial of his motion for a directed verdict on the indictment for murder in the first degree; (2) the failure of the judge to instruct the jury on manslaughter; (3) the restriction of the cross-examination of a Commonwealth witness; (4) the denial of his motion to suppress a statement made to police; and (5) three rulings made by the judge concerning the conduct of the trial. Wilborne also claims that we should exercise our power under G.L. c. 278, § 33E, and reduce the verdict to a lesser degree of guilt. We affirm the convictions and conclude that there is no reason to exercise our power under G.L. c. 278, § 33E, to order a new trial or to direct the entry of a verdict of a lesser degree of guilt.

We summarize the facts. In the early morning hours of October 4, 1976, the wife of William Sanders was awakened by a loud noise and gasping sounds. She ran across the hall, where she found her husband lying in the doorway of the back bedroom, and the defendant bending over him, pulling a large knife from her husband's body.

Sanders's wife testified that the defendant, still carrying the knife, took her to the bathroom where he rinsed his right hand and wrapped it in a towel. At that time she observed deep cuts on the defendant's right hand. Sanders could be heard gasping for breath. Sanders's wife asked Wilborne to let her call an ambulance and he refused. Wilborne then took Sanders's wife to her bedroom and proceeded to assault her sexually throughout the remainder of the night. The next morning the defendant forced her to pack some things, load her car, and take him to a bank to get money deposited there by Sanders and his wife.

At the bank, the witness walked directly to a friend who was employed there and told her to call the police, saying, "This man murdered my husband." The defendant fled from the bank. Later he was found by the police hiding behind a fence in a nearby backyard. After Wilborne was arrested and booked, the officers took him to a hospital for treatment of his cut hand.

Investigating officers found Sanders's body stretched across the threshold of the back bedroom in a pool of blood. He was wearing pajamas and clutching a sheet and a blanket. He had a two-inch wound in his throat. Blood was found in the hallway, back bedroom, and bathroom. Bloodied towels were found in the bathroom and front bedroom, and a small amount of blood was found in one corner of a sheet from the wife's bed. The back bedroom was in a state of disarray; a small bed was on top of a larger bed, and a portion of the wall next to the door was caved in. In the study adjacent to the back bedroom, officers found a bloody knife with an eleven-inch blade and a five-inch wooden handle lying on top of some books. The cause of death was a stab wound of the neck, which resulted in a perforation of the subclavian artery and a lung. Other facts will be related as necessary to address the issues raised in this appeal.

1. The motion for directed verdict. At the close of the Commonwealth's case, the defendant asked the judge to direct a verdict of acquittal on the indictment alleging murder in the first degree, on the ground that there was insufficient evidence to permit the jury to infer deliberate premeditation. ² Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). "In reviewing the denial of a motion for directed verdict, we consider only the evidence introduced up to the time the Commonwealth rested its case." Commonwealth v. Borans, --- Mass. ---, --- ^a, 393 N.E.2d 911 (1979). Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). "(The) question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, --- Mass. ---, --- - --- ^b, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See Commonwealth v. Appleby, --- Mass. ---, --- ^c, 402 N.E.2d 1051 (1980).

The defendant asserts that the evidence equally supports the theory that Sanders's wife killed him or that Sanders himself introduced the knife into the affray and was subsequently killed in the fight. Since the evidence equally supports these inconsistent propositions, the defendant argues, none is established by legitimate proof. See Commonwealth v. Croft, 345 Mass. 143, 145, 186 N.E.2d 468 (1962). See also Commonwealth v. Rhoades, --- Mass. ---, --- ^d, 401 N.E.2d 342 (1980). The defendant reaches this conclusion by claiming that the only evidence which should be considered is evidence as to what occurred prior to the stabbing. He asserts that there is no evidence on what occurred prior to the stabbing which would warrant the jury in finding that the homicide was committed with deliberately premeditated malice. We do not agree.

In this case, in addition to the nature of the injuries and the type of weapon used, there was evidence that the defendant would not let Sanders's wife call an ambulance although Sanders lay wounded and gasping for breath for at least fifteen to twenty minutes after the wound was inflicted. That evidence, if believed, is sufficient for the jury to infer "a conscious and fixed purpose to kill continuing for a length of time." Commonwealth v. Bonomi, 335 Mass. 327, 356, 140 N.E.2d 140 (1957).

Although the defendant by his cross-examination tried to suggest to the jury that Sanders's wife committed the homicide, the evidence supports the jury's conclusion that Wilborne was the person responsible for Sanders's death. To the extent that conflicting inferences are possible from the evidence, "it is for the jury to determine where the truth lies." Commonwealth v. Amazeen, 375 Mass. 73, 81, 375 N.E.2d 693 (1978). There was no error in denying the defendant's motion for a directed verdict.

2. Manslaughter instruction. The defendant asserts that the judge's failure to instruct the jury on manslaughter is reversible error. ³ The defendant argues that the jury could have found that he killed the victim upon sudden combat without malice ⁴ or that the stabbing was a consequence of wanton or reckless conduct in the course of an affray. ⁵ In support of his argument, he suggests that we consider the following bits of evidence: the disarray found in that part of the apartment he shared with Sanders, ⁶ the loud noise heard by Sanders's wife, and the defendant's wounded hand. There was no error.

A manslaughter instruction would have allowed the jury to speculate not only as to whether the defendant was reasonably roused to the heat of passion, but also as to whether a struggle in fact occurred. "In the absence of any evidence as to the circumstances of the struggle, no reasonable doubt was raised as to whether the defendant reacted on reasonable provocation. The jury could not be permitted merely to speculate on whether the defendant in the course of the struggle might have been roused to the heat of passion." Commonwealth v. Walden, --- Mass. ---, --- ^e, 405 N.E.2d 939 (1980).

The defendant suggests that since the knife was not plunged to its full length into Sanders's body, an involuntary manslaughter charge should have been given. The short answer to this contention is that there is no evidence in the record which would warrant a jury in drawing an inference that the stabbing was unintentional or the consequence of wanton or reckless conduct in the course of an affray. We conclude that the judge correctly declined to charge on manslaughter.

3. Restriction of cross-examination of a witness. In response to the defendant's motion to be furnished with evidence favorable to the accused, the Commonwealth answered that Sanders's wife had taken a polygraph test administered to her by her then counsel. ⁷ The answer stated, "The Commonwealth knows said Mrs. Sanders failed said examination but knows nothing of the substance of said examinations (sic) questions." There is nothing in the record to indicate that defense counsel made any effort to obtain the questions or talk with the polygraph examiner prior to the trial.

At trial, defense counsel cross-examined Mrs. Sanders extensively as to the details of her testimony, her relationship with her husband, and her concern over his relationship with the defendant. He vigorously cross-examined her as to inconsistencies between her trial testimony, her statements to the police, and her testimony at the probable cause hearing. Defense counsel also established that the witness had hired a lawyer specializing in criminal law at the time she was being questioned by the police. When asked, "Did you take a certain sort of scientific test with regard to this case," her answer, "Yes," was admitted over objection. Defense counsel then asked, "And was that by reason of your consultation with your attorney? Just yes or no."

At that point, the judge interrupted, instructing Mrs. Sanders that she did not have to answer if she did not wish to: "That would fall within the attorney-client privilege. You do not have to answer that question if you choose not to do so." Mrs. Sanders chose not to answer. Defense counsel asked if she were willing to waive the privilege, "so that (he might) see the questions that were asked and the answers that you gave at that test?" The government objected, and the jury was removed following a bench...