Commonwealth v. Bartolini

• Decision Date: 01 March 1938
• Citation: 299 Mass. 503,13 N.E.2d 382
• Parties: COMMONWEALTH v. BARTOLINI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 503

13 N.E.2d 382

COMMONWEALTH

v.BARTOLINI.

Supreme Judicial Court of Massachusetts, Norfolk.

March 1, 1938.

Oscar Bartolini was convicted of murder in the first degree, and he appeals.

Judgment on the verdict.Appeal from Superior Court, Norfolk County; Leary, Judge.

G. B. Lourie and J. R. Zottoli, all of Boston, for appellant.

E. R. Dewing, Dist. Atty., and G. W. Arbuckle, Asst. Dist. Atty., both of Boston, for the Commonwealth.

QUA, Justice.

On October 30, 1936, the defendant was indicted for the murder of Grayce M. Asquith at Weymouth on September 20, 1936. He was found guilty in the first degree on September 22, 1937. Sentence of death was imposed, and stay of execution was ordered on December 2, 1937.

There was evidence that on October 5, 1936, the dissevered legs of a woman were discovered at different places in the water of Boston Harbor. On October 23 a woman's head was found at still another place in the harbor. One leg was wrapped in burlap. The other leg was wrapped in a piece of green window shade and enclosed in a burlap bag. The head was wrapped in a green window shade. The questions argued upon this appeal do not require a recital of the voluminous evidence tending to identify the head and legs as portions of the body of Grayce M. Asquith or pointing toward the defendant as the person who had killed her and dismembered her body. An important part of that evidence consisted of certain finger prints and of foot prints of bare feet identified as those of the defendant impressed upon diluted human blood which had been mopped but not wholly removed from the linoleum floor of the bathroom in the cottage in which the deceased had lived, and where it could have been found that she had been killed and her body cut in pieces.

1. On November 10, 1936, the defendant filed a motion that the Commonwealth be required to furnish him photographic ‘copies' of the ‘premises' of the deceased, of finger prints of the defendant and of one Lyons, of finger prints and foot prints found on the premises of the deceased, and of the parts of the body, copies of the report of the medical examiner relative to the parts of the body and of the evidence presented to the grand jury, and the names and addresses of witnesses testifying before the grand jury. In the same motion the defendant asked that permission be given to his counsel in company with necessary experts to examine the premises, the parts of the body, the material in which they were wrapped, the report of the medical examiner, all property and other materials taken by the Commonwealth from the premises occupied by the deceased and from the home of the defendant, the ‘minutes' of the grand jury, and all exhibits introduced before them. The judge who heard and denied this motion on December 10, 1936, stated that he knew of no authority ‘for the Court's ordering the prosecutor to do anything of the nature that is called for here, at this stage of the case’ (italicizing appears in the ‘Transcript of the Evidence’); that when the objects to which the motion referred had been put in evidence they would come within the power of the court; and that fairness might then require the court to allow an examination by experts, although that might mean the suspension of the trial for a time.

On April 2, 1937, the defendant filed a second motion that permission be given to his counsel, in company with necessary experts, to examine within a reasonable time before the commencement of the trial, the parts of the body and the material in which they had been wrapped, the report of the medical examiner and all property and other materials taken by the Commonwealth from the premises occupied by the deceased and from the premises of the defendant, and all finger prints taken by the Commonwealth at the premises of the deceased. This motion was denied after hearing by another judge on July 29, 1937. The evidence at that hearing, if any was offered, is not included in the ‘transcript of the evidence’ required by G.L.(Ter.Ed.) c. 278, § 33E, to be transmitted to this court as a part of the record on appeal. So far as appears no rulings of law were requested or made.

On September 1, 1937, the defendant filed a third motion that permission be given to his counsel, in company with necessary experts, to examine the same objects and document mentioned in the second motion. This motion was heard at the opening of the trial before a third judge. In denying the motion the judge stated that he would give counsel for the defendant an opportunity to examine the articles and document mentioned in the motion when they were presented in court and to make ‘such a study of them as is reasonably necessary.’ He added that he would see that counsel for the defendant should have ‘ample opportunity to inspect and examine any and all articles or documents, or anything else that is offered in evidence.’ So far as appears all of the tangible objects to which the motions refer were offered in evidence, except the parts of the body, and there is nothing to show that the Commonwealth still had those parts in its possession at the times when the motions were filed, or when they were heard, or at the time of the trial.

We do not discover in the proceedings on these motions any error affecting adversely the interests of the defendant. This court said in Commonwealth v. Jordan, 207 Mass. 259, 265, 93 N.E. 809, 811, that ‘it was within the discretion of the court to grant or refuse’ a somewhat similar motion; and that there is no rule of law which requires the Commonwealth to disclose the evidence upon which it relies or which gives the defendant the right to ask such disclosure. See People v. Supreme Court, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200; 3 Wigmore on Evidence, 2d Ed., § 1863; and cases collected in 52 A.L.R. 207. Even if the judge who heard the first motion mistakenly believed that he had no power to grant any part of it at that time, no harm was done. The second and third motions in substance covered nearly the same ground as the first motion. So far as appears no ruling of law was made in connection with these motions and their denial on discretionary grounds would be clearly within the power of the court. The second motion was denied long before the trial. So far as appears the defendant had the benefit of the discretion of the second judge at that time under conditions then existing. In so far as the later motions did not fully cover the subject matter of the first one, the denial of the first motion, by the statement of the judge himself, was not final, but amounted at most only to a postponement of action until the trial. The trial judge made it plain at the beginning of the trial that he would fully protect the defendant's rights. There was a view of the premises occupied by the deceased. Photographs of the premises and of objects in question were freely used. The medical examiner testified and was cross-examined at great length. A list of the names and addresses of witnesses who testified in this case before the grand jury appears among the copies of documents filed in the clerk's office, and we do not understand that the defendant now contends that he did not have these names. See Commonwealth v. Edwards, 4 Gray, 1, 5;Commonwealth v. Ventura, Mass., 1 N.E.2d 30. G.L.(Ter.Ed.) c. 277, § 9. He had no right to examine ‘minutes' of the grand jury or evidence taken before or exhibited to them. Commonwealth v. Goldberg, 212 Mass. 88, 91, 92, 98 N.E. 692;Commonwealth v. Gettigan, 252 Mass. 450, 464, 148 N.E. 113. At no time during the trial was the defendant refused any request for an opportunity to examine anything introduced in evidence or within the possession or control of the Commonwealth. The essential thing is that the defendant shall have full and adequate opportunity to prepare his defence and to meet all evidence against him. From a reading of the entire evidence we are satisfied that such opportunity was not denied to this defendant, and that he was not prejudiced by any delay in his opportunity to examine anything.

What has been said is sufficient to show that in the matter of these motions there was no violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States. A privilege which is denied the statute of a right by the great weight of common law authority cannot be deemed a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 90 A.L.R. 575;Jordan v. Massachusetts, 225 U.S. 167, 32 S.Ct. 651, 56 L.Ed. 1038;Commonwealth v. Millen, 289 Mass. 441, 487, 194 N.E. 463. There is a wide gulf between this case and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527.

2. On November 10, 1936, the defendant moved for a bill of particulars as to the exact time, place, means and manner of the commission of the crime. The motion was allowed. The Commonwealth replied, in substance, that the exact time and place were unknown to it; that the means and manner of commission of the crime were ‘The use and application of a heavy instrument or weapon on various parts of the head of Grayce Asquith, a true description of said instrument or weapon at the present time being unknown to the Commonwealth’; and that the Commonwealth was unable to specify further. On September 7, 1937, the trial judge denied a motion of the defendant for further specifications, and also a motion to quash the indictment for failure of the Commonwealth to furnish full and proper particulars or specifications in conformity with the original order.

The indictment itself was in two counts, both alleging that the crime was committed on September 20, 1936, at Weymouth, and the second count adding that it was committed by striking the deceased over the head with an instrument a true description of which was to the grand...