Eight years after the solution of the "Boston Strangler" case, Massachusetts co-eds were terrorized by a new series of brutal rape-murders.
Unlike one strangler's crimes, all victims in the latest series were young, between 18 and 22 years of age, and none were killed in their homes. As bodies were retrieved and evidence compiled, it soon became apparent that Boston's new slayer was preying on attractive hitchhikers, selecting his victims as random "targets of opportunity."
The killer claimed his first two victims in late September 1972, picking off 18-year-old Kathleen Randall a week after she enrolled at Boston University. Last seen thumbing rides near the campus, she was found two weeks later, raped and strangled in rural New Hampshire.
Two days after Randall's disappearance, 19-year-old Debra Stevens was raped and strangled to death at Lynn, Massachusetts, her body discarded within 50 yards of home.
Victim Ellen Reich was another habitual hitchhiker. A 19-year-old sophomore at Emerson College, she lived off campus in the Back Bay area, traveling by thumb in preference to laying out the money for
The practice cost her life on November 9. Strangled and stabbed several times, she had been dead at least four days when searchers found her body on November 14, nailed inside the closet of an abandoned house in Boston's Roxbury district.
Sandra Ehramjian, age 21, also liked to hitchhike when she wasn't earning money as a Boston taxi driver. A resident of Cambridge, she vanished November 27, en route to a dentist's appointment, her strangled corpse found the next day in a culvert near Waldo Lake, in suburban Brockton.
Two days later, honor student Synge Gillespie vanished while thumbing rides in Boston. A telephone ransom demand for $25,000 brought relatives no closer to recovery of their loved one, and the Boston slayer had claimed three more victims by Christmas, all strangled or suffocated, with some stabbed for good measure.
Police got their break on December 26, when 33-year-old Anthony Jackson was arrested following a high-speed chase and shootout with Cambridge patrolmen. Booked on charges of assault with a deadly weapon, operating an automobile to endanger, and illegal possession of firearms, he was indicted for the Gillespie murder on February
A blood-soaked Cadillac, discovered in a Brockton junkyard, was believed to be the murder scene, and while evidence would remain elusive in several cases, investigators noted that the co-ed killings stopped abruptly with Jackson's arrest.
Michael Newton - An Encyclopedia of Modern Serial
Killers - Hunting Humans
COMMONWEALTH vs. ANTHONY J. JACKSON.
376 Mass. 790
September 13, 1978 - December 12, 1978
Present: HENNESSEY, C.J., QUIRICO,
BRAUCHER, KAPLAN, & WILKINS, JJ.
The defendant appeals from his conviction of armed
assault with intent to murder and unlawful carrying of a firearm.
[Note 1] He argues that he was
unfairly forced to go to trial, representing himself, in circumstances
where a continuance should have been granted and counsel appointed. We
conclude that there was no abuse of discretion in proceeding to trial on
the day designated, with the defendant acting for himself.
[Note 2] We reject, as not properly
before us, the defendant's unrelated contention that, because of certain
newspaper publicity during trial, the judge should have conducted an
individual voir dire of each empanelled juror. We do, however, set forth
the appropriate procedures which should be followed in similar
circumstances in the future.
We briefly describe the evidence because we shall
have occasion to consider whether certain of the judge's rulings
prejudiced the defense or gave rise to a substantial risk of a
miscarriage of justice.
The evidence of the defendant's guilt was
overwhelming. On December 26, 1972, one of two Cambridge police officers
in an unmarked van observed the defendant driving a Cadillac automobile
and apparently accosting a female pedestrian. The police officers in the
van followed the Cadillac automobile, which sped away. They lost sight
of it, spotted it again, and gave chase. Another police vehicle joined
the pursuit. The Cadillac automobile was found abandoned a few minutes
later. Nearby and shortly thereafter, two other police officers in a
cruiser saw a pedestrian whom they identified as the defendant. When
they approached the defendant, he drew a gun and fired at them. The
police officers returned the fire. The defendant appeared to have been
hit, but he fled on foot. A few minutes later the defendant was found
approximately three blocks away, lying in the street wounded. He was
wearing an empty holster. He told the officer who first approached him,
"I don't have the gun."
At the hospital, a spent bullet was found in the
defendant's clothing. The bullet was of the same caliber as the guns of
the officers who had been involved in the shoot-out. Keys to the
Cadillac automobile were found, along with material identifying the
defendent, in an alley between the location of the shooting and the
location of the defendant's arrest. A gun was found in that alley eight
days later. There was evidence that a bullet recovered from the scene of
the shooting had been fired from that gun.
The defendant presented no substantial evidence in
his defense. He suggested that the police had failed to investigate the
possibility of other suspects, including the registered owner of the
1. There was no abuse of discretion in denying the
defendant's requests for a continuance. At a hearing on June 3, 1976,
trial was set for June 14, 1976. The defendant requested a continuance
in order to prepare for trial, and the judge denied the request. Such a
determination will be disturbed only if there was a clear abuse of
discretion. Commonwealth v. Watkins, 375 Mass. 472 , 490 (1978), and
cases cited. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964). The
defendant has made no such showing.
The indictments in this case were handed down in
January, 1973. In June, 1973, at the defendant's request, an order was
entered deferring trial in this case, and certain other cases involving
the defendant, until the conclusion of the trial against the defendant
in the so called Reich murder case. The trial of the Reich case was
substantially delayed. This delay, as we noted in Jackson v.
Commonwealth, 370 Mass. 855 (1976), was due to the defendant's failure
to establish and maintain a satisfactory working relationship with any
of the various attorneys who had been retained by, assigned to, or
offered to the defendant. Shortly after our 1976 opinion, the order
giving priority to the Reich trial was rescinded. The judge who denied
the continuance in this case was aware of the defendant's record of
delay in the Reich case and that those delays had also prevented the
case at bar from proceeding to trial.
The defendant had no reasonable basis for being
unprepared for trial by reliance on the order deferring the trial of
this case. The order had deferred only the trial date and had placed no
restrictions on preparation for trial. Nor did the withdrawal of counsel,
approved by the judge on June 3, 1976, require a continuance. The
defendant had long known that those withdrawals were inevitable, and
they were solely the product of his own conduct. Jackson v. Commonwealth,
370 Mass. 855 (1976). See Commonwealth v. Bettencourt, 361 Mass. 515 ,
517-518 (1972); United States v. Rodriguez Vallejo, 496 F.2d 960,
964-965 (1st Cir.), cert. denied, 419 U.S. 965 (1974). The defendant was
offered new counsel at the hearing, and the trial was still eleven days
There are further grounds for upholding the denial of
a continuance. The record indicates, in addition, that the defense had
substantially prepared for trial in the six months following the
indictments. In August, 1973, the Commonwealth had presented a general
version of the events surrounding this case in a hearing on a motion to
suppress filed in another of the criminal proceedings against the
defendant. The defendant made no showing on June 3, 1976, of a
particular need for a continuance. Even now, the defendant has not
demonstrated how the denial of the continuance prejudiced him at trial.
The judge accommodated late requests for an investigator, a ballistician,
and a psychiatrist. The defendant presented his defense vigorously. He
used transcripts of prior proceedings for the purpose of impeachment,
called his own witnesses, and successfully excluded a confession which
he had given at the hospital following the shooting.
If we assume that the denial of a continuance on the
first day of trial is before us on the assignments of error, there was
no abuse of discretion for reasons already given. The defendant has made
no showing that his receipt of certain papers four days before trial was
prejudicial to him.
2. On June 3, 1976, after the trial date of June 14,
1976, was established, the judge accepted the defendant's request that
he be permitted to represent himself at trial. The defendant claims that
the judge improperly concluded that the defendant had waived his
constitutional right to counsel. The colloquy between the judge and the
defendant, portions of which are set forth in the margin,
[Note 3] plainly warrants the judge's
conclusion that the defendant knowingly and intelligently waived his
right to counsel. Indeed, he insisted on his constitutional right to
represent himself, apparently citing (although by the wrong name) and
quoting from the opinion of the Supreme Court in Faretta v. California,
422 U.S. 806 (1975). On June 4, 1976, the judge filed a statement in
which he noted that the defendant stated in open court that he wished to
proceed "pro se," and added that "if the defendant does not desire to
make use of appointed counsel, I appoint said counsel as legal advisor
in all proceedings."
The defendant was adequately aware of the seriousness
of the charges, the magnitude of his undertaking, the availability of
advisory counsel, and the disadvantages of self-representation. See
Faretta v. California, 422 U.S. 806, 835 (1975). The record shows that
the defendant was "literate, competent, and understanding." Id. The
finding of the defendant's waiver of right to counsel was fully
justified. See Fillippini v. Ristaino, 585 F.2d 1163, 1165-1167 (1st
The assertion in the defendant's brief that his
waiver of counsel was contingent on the granting of a continuance is
incorrect. The trial date was firmly established before the court
considered the question of representation, and at no time did the
defendant suggest that his waiver of counsel was contingent on a change
of the trial date.
3. The defendant makes a fleeting reference to the
judge's refusal to let him abandon his self-representation and use his
court-appointed legal advisor as defense counsel. He made such a request
on the first day of trial, and repeated it several times during the
course of the trial. Although this issue is presented to us in the
context of the defendant's claim that he never effectively waived his
right to counsel, we shall treat the defendant's assertion as a claim of
an abuse of discretion in the judge's refusal to permit him to retract
his decision to represent himself.
On June 14, 1976, before the jury were selected, the
defendant asserted that he had not had adequate time to prepare the case
and asked the judge to permit his court-appointed legal advisor to
defend him. Seemingly gone was the eloquent self-confidence of June
third--"And I ask the Court for that right [to defend myself]. If I must
sail the sea, I want to be at the helm of my own ship, Your Honor
The judge did not abuse his discretion in turning
down the defendant's request made at that late date. While we recognize
the importance of counsel, we reject any suggestion that every defendant
has an absolute right at the moment trial is to begin to retract his
decision to represent himself. See Glenn v. United States, 303 F.2d 536,
540-541 (5th Cir. 1962), cert. denied sub nom. Belvin v. United States,
372 U.S. 922 (1963). A court faced with a dilatory defendant has the
power to take reasonable measures to keep proceedings moving forward,
even if a defendant's refusal to arrange representation leaves him
without counsel. See Ungar v. Sarafite, 376 U.S. 575, 588-591 (1964);
Kates v. Nelson, 435 F.2d 1085, 1088-1089 (9th Cir. 1970); Nunn v.
Wilson, 371 F.2d 113, 117-118 (9th Cir. 1967); Glenn v. United States,
supra. These proceedings had been long delayed by the failure of the
defendant to make satisfactory arrangements for representation in other
criminal matters pending against him, and the judge had seasonably put
him to a clear choice between counsel and self-representation.
Furthermore, the defendant delayed his request for
counsel until the final moment before trial, without showing good cause
for not having made a more seasonable request. The defendant's last-minute
assertion of lack of preparation did not have to be accepted at face
value. There was ample justification for the judge to conclude that the
request was just another dilatory tactic. See Commonwealth v. Scott, 360
Mass. 695 , 699 (1971); United States v. Rodriguez Vallejo, 496 F.2d
960, 965 (1st Cir.), cert. denied, 419 U.S. 965 (1974). Even if we
assume that the defendant had the right to retract his decision to
represent himself and to seek the appointment of counsel, the delay of
the request until immediately prior to trial brought it within the broad
discretionary power of a court over requests for last-minute shifts in
representation which threaten to delay a proceeding. See Commonwealth v.
Bettencourt, 361 Mass. 515 , 517-518 (1972); Commonwealth v. Scott,
supra at 698-701; Commonwealth v. Flowers, 5 Mass. App. Ct. 557 ,
The decision of the judge was consistent with a
concern for a fair trial. The defendant had substantially prepared his
case with the assistance of counsel. He was familiar with the
Commonwealth's case against him. He had accepted a legal advisor.
In addition, the defendant has failed to prove an
abuse of discretion in the denial of his requests to change counsel
during trial. In this latter situation, a defendant's freedom to change
counsel is significantly more restricted than it is before trial has
commenced. Commonwealth v. Miskel, 364 Mass. 783 , 791 (1974), and cases
4. The defendant argues finally that he was denied a
fair trial because the judge declined to question the empanelled jurors
separately concerning the impact on them of a newspaper article which
most of them read on the morning of the second day of trial. Although
the defendant excepted to the judge's determination to question the
jurors collectively concerning this article, rather than individually,
he has not assigned the judge's ruling as error. In such a case, the
propriety of the judge's failure to interrogate each juror individually
is not before us for consideration. See Commonwealth v. Wallace, 356
Mass. 92 , 97 (1969); Commonwealth v. Chester, 337 Mass. 702 , 703
(1958). In the absence of a proper preservation of an issue for
appellate review, we would still consider whether there was a "substantial
risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass.
556 , 563-564 (1967). In any event, even if the question were before us
fully, the judge's ruling was not an abuse of discretion and that ruling
did not unconstitutionally deny the defendant a fair trial. We see no
substantial risk of a miscarriage of justice.
On the morning of the second day of his trial, in
which the jury were not sequestered, the defendant told the judge that
there has been publicity on at least one radio station and in one Boston
newspaper, mentioning murder charges which were pending against him. The
record does not disclose what these news reports stated concerning the
defendant. We do not even have a copy of the allegedly prejudicial
newspaper article. We infer from the comments of a juror who was
discharged that the article stated, at least, that the defendant had
been indicted in three separate counties on other charges. Although the
judge rejected the defendant's request for individual questioning of the
jurors, he asked the jury collectively whether they had heard about the
case on the radio or on television during either of the first two days
of the trial. No juror responded affirmatively. When asked whether they
had seen anything about the case in an article in the Boston Globe
published on the second day of the trial, thirteen of the sixteen
empanelled jurors answered that they had. The judge then asked if "anything
that any juror [had] seen in that article caused him or her to form any
opinion or prejudice against the defendant, or in relation to this
case?" One juror answered in the affirmative. He then asked if anything
that any juror had read in that article caused him or her to form any
opinion which would prevent him or her from rendering a fair and
impartial verdict. The same juror answered in the affirmative. No other
juror answered in the affirmative. The judge immediately instructed the
jury not to read, listen to, or discuss any media reference to the case,
that cases are decided on evidence in the courtroom, and that they
should ignore the newspaper article. [Note
4] Out of the hearing of the other jurors, the judge questioned the
juror who indicated that she had been affected by the newspaper article,
and then excused her.
The defendant was not denied his constitutional right
to a fair trial. The Supreme Court of the United States, in the exercise
of its supervisory powers, has adopted a stricter standard for Federal
courts in cases involving potential juror prejudice than the
constitutional standard which applies to State courts. Compare Murphy v.
Florida, 421 U.S. 794, 797-798 (1975), with Marshall v. United States,
360 U.S. 310, 313 (1959).
The constitutional standard of fairness requires only
that the jurors be impartial and indifferent. Murphy v. Florida, supra
at 799. By this test, we see no constitutional violation. The record
fails to disclose the allegedly prejudicial publicity. It appears that
the newspaper article referred to serious charges pending against the
defendant, but had no direct bearing on any contested issue in this
case. The judge did not ignore the potential for prejudice. He made
inquiry of the jury, discovered one juror who expressed a lack of
impartiality due to the publicity, and discharged her after individual
questioning out of the presence of the other jurors. The judge did not
conduct a individual voir dire of each juror, but we do not see a threat
to the fundamental impartiality of the jury in his failure to do so. The
collective questioning of the jury brought forth one juror who conceded
the prejudicial effect of the newspaper article on her. Any inhibitory
effect of the collective questioning of the jury did not deter that
juror, and her statements "broke the ice" for any other juror who might
have been reluctant to identify him or her self as prejudiced. The judge
gave prompt cautionary instructions and later repeated them.
The same reasoning which leads us to find no
constitutional violation supports our further conclusion that the judge
did not abuse his discretion in his handling of the asserted prejudicial
publicity. We have heretofore granted trial judges wide discretion on
this subject. See Commonwealth v. Stanley, 363 Mass. 102 , 104-105
(1973); Commonwealth v. Eagan, 357 Mass. 585 , 588-589 (1970). The
circumstances of the Eagan case are quite similar to those in this case.
Although what we have said would dispose of the issue
sought to be raised if it were properly before us, we exercise our power
of general superintendence to set forth the procedures which should be
followed hereafter when a claim of potentially extraneous influence on a
jury is brought to the judge's attention after the jury are selected. We
adopt prospectively the practice which has been followed in several
Federal circuits. See, e.g., United States v. Perrotta, 553 F.2d 247,
249-250 (1st Cir. 1977). This practice seems indicated as a matter of
public policy in light of G. L. c. 234, Section 28, concerning specific
questioning of individual jurors when certain potentially prejudicial
circumstances may affect the jury selection process.
When material disseminated during trial is reliably
brought to the judge's attention, he should determine whether the
material goes beyond the record and raises a serious question of
possible prejudice. A number of factors may be involved in making that
determination, including the likelihood that the material reached one or
more jurors. See United States v. Perrotta, supra at 249. If the judge
finds that the material raises a serious question of possible prejudice,
a voir dire examination of the jurors should be conducted. The initial
questioning concerning whether any juror saw or heard the potentially
prejudicial material may be carried on collectively, but if any juror
indicates that he or she has seen or heard the material, there must be
individual questioning of that juror, outside of the presence of any
other juror, to determine the extent of the juror's exposure to the
material and its effects on the juror's ability to render an impartial
verdict. See United States v. Perrotta, supra at 249-250; United States
v. Lord, 565 F.2d 831, 838-839 (2d Cir. 1977); Margoles v. United States,
407 F.2d 727, 734 (7th Cir.), cert. denied, 396 U.S. 833 (1969). See
also the even stricter requirements expressed in the ABA Standards
Relating to Fair Trial and Free Press Section 3.5 (f) (1968) as to
material disseminated during trial, according to which all questioning
should be conducted individually and a juror should be excused if he has
been exposed to potentially prejudicial material which would furnish
grounds for a mistrial if referred to in the trial itself, and United
States v. Herring, 568 F.2d 1099, 1104-1105 (5th Cir. 1978).
[Note 1] The
defendant was convicted also of assault by means of a dangerous weapon
and of three motor vehicle offenses. These cases were placed on file,
the defendant not objecting.
[Note 2] We have
allowed the Commonwealth's motion to expand the record to include the
transcript of a pretrial hearing in this matter (referred to in the
briefs of each party) and certain transcripts or records in other
criminal proceedings involving the defendant. These documents bear on
the merits of certain issues in this case.
[Note 3] On June 3,
1976, the defendant indicated that, if counsel were allowed to withdraw,
he would represent himself. Later, the judge suggested that he was "going
to appoint counsel, a legal advisor, for you, anyway." The following
conversation then occurred:
THE DEFENDANT: "Your Honor, Barry versus California
says I have a right to try without legal counsel, without any assistance,
without any attorney sitting at the table with me; and that is a U.S.
Supreme Court, recent case, 1975."
THE JUDGE: "You are a highly intelligent person, Mr.
Jackson, but you are not trained in the--"
THE DEFENDANT: "I understand."
THE JUDGE: "You are not trained as a lawyer."
THE DEFENDANT: "I understand that, Your Honor. It
says that--the last statement of the decision says that: we bestow on
the defendant the right to defend himself--although one who defends
himself may have a fool for a client. And I ask the Court for that right.
If I must sail the sea, I want to be at the helm of my own ship, Your
Honor, without counsel."
THE JUDGE: "I will take those matters under
[Note 4] On the
fifth day of the trial, the judge gave a similar instruction to the jury.
In his final charge to the jury, the judge instructed the jury that
anything they read outside the courtroom was not evidence, that they
must decide the case only on the evidence, that indictments are not
evidence in any respect, and that "[t]he defendant cannot be found
guilty upon suspicion or conjecture." The defendant did not except to
the judge's charge nor did he request further instructions.
[Note 5] The
defendant made no claim below, and makes none here, that the judge's
failure to conduct individual questioning of each juror was a violation
of G. L. c. 234, Section 28, as amended by St. 1975, c. 335. That
statute is directed to the process of jury selection. See Commonwealth
v. Horton, ante 380, 394-395 (1978). It does not prescribe the
consequences of a failure to follow its terms. The rule of practice
which we prescribe for the handling of potentially prejudicial
circumstances arising during trial parallels that prescribed in G. L. c.
234, Section 28.
COMMONWEALTH vs. ANTHONY J. JACKSON.
384 Mass. 572
September 14, 1981 - November 13, 1981
Present: HENNESSEY, C.J., WILKINS,
LIACOS, ABRAMS, NOLAN, & LYNCH, JJ.
The defendant was convicted by a Superior Court jury
of murder in the first degree and sentenced to life imprisonment, to be
served from and after any other previously imposed sentence he was
serving or was to serve.
The defendant appeals, asserting error in (1) the
admission of evidence of other crimes he committed, (2) the trial
judge's advisory ruling that he would admit evidence of the defendant's
prior conviction, (3) the prosecutor's opening statement, (4) the
partial violation of an order sequestering witnesses, (5) the denial of
a speedy trial, (6) the denial of a motion to suppress certain physical
evidence, and (7) the admission of certain other evidence during trial.
The defendant has also asked this court to exercise its broad power of
review under G. L. c. 278, Section 33E, and order a new trial. We find
no reversible error and see no reason to order a new trial. Accordingly,
We summarize briefly the pertinent facts, reserving
elaboration of specific facts to the discussion of each of the
The body of Ellen Ann Reich, age nineteen, was found
on November 13, 1972, in a closet in an abandoned apartment at 132
Seaver Street, Roxbury. Reich had lived at 31 Massachusetts Avenue in
Boston. She was last seen on Thursday morning, November 8, 1972, by her
roommate, Eileen Wacks. Wacks testified that the victim usually
hitchhiked to Emerson College, where she attended school. One Belin
McArthur found the body while helping a friend, Mary Lee Cobb, move
furniture from her apartment at 132 Seaver Street. While waiting for the
moving truck to return, he looked around the building and saw a nailed
closet door, became curious, and pried it open. The victim's body was
Dr. George W. Curtis, medical examiner for Suffolk
County, performed an autopsy on the body on November 14, 1972. This
autopsy, in combination with a later exhumation and second autopsy,
established that the victim was killed by strangulation and two gunshot
wounds to the chest and abdomen. One bullet was retrieved from near the
victim's vertebrae, and sperm was found in the victim's vagina.
Human hairs were found on the panties and jeans of
the victim, who was white. The hair found on the victim's jeans was
determined to be negroid pubic hair, but it did not match the pubic hair
of the defendant, who is black. The head hairs found on the victim's
panties were negroid in origin, and an expert in microscopic
examinations testified for the Commonwealth that he compared them to
hair samples of the defendant and found those samples to be
microscopically alike in all identifiable characteristics.
Robert P. Spalding, special agent for the FBI in
forensic serology, testified that he examined stains in the crotch area
of the victim's jeans and found the presence of factors from blood types
"A" and "B," factors which appear when an individual is a "secretor." He
stated that a secretor has substances in his or her other bodily fluids
which indicate that person's blood type, eighty per cent of the
population are secretors, and forty per cent of the population have type
William A. Gavin, also a special agent for the FBI,
had studied a sample of the defendant's saliva, and found that he was a
secretor, and had type "A" blood. He also found type "B" blood on the
victim's sweater, jacket, and slacks. The victim had type "B" blood.
Evidence of male spermatozoa was discovered in the victim's panties,
together with traces of both "A" and "B" blood type factors. The results
of his examination were consistent with the involvement of a female
secretor with type "B" blood and a male secretor with type "A" blood.
They were also consistent with fluids from one individual having group
"AB" blood. Such individuals comprise about five per cent of the
William Tobin, a special agent for the FBI in
metallurgy, compared nails taken from the frame of the closet where the
body was found with nails from a milk carton taken from the defendant's
residence at 154 Washington Street, Dorchester. He found hundreds of
similarities between the samples, and concluded that the nails
originated from the same source.
Several Cambridge police officers testified, over the
defendant's objections and exceptions, that they pursued, exchanged
gunfire with, and arrested the defendant in Cambridge on the evening of
December 26, 1972. Officer John Conroy related that at about eight
o'clock that evening he was on cruiser patrol in Cambridge, when he
observed the defendant in a dark-colored Cadillac automobile motioning
to a young woman walking down the street. He followed the defendant's
car until the defendant suddenly "took off" at a high rate of speed.
Cambridge police Officer Joseph J. McSweeney soon thereafter spotted the
vehicle, which was empty, and located the defendant. He walked toward
the defendant, who drew a gun from a black holster, shot at the officer,
and kept firing at him while running down the street. McSweeney returned
the fire, and saw the defendant drop to one knee. He lost the defendant
for two to three minutes, but found him again, lying on the ground with
two police officers beside him. The police looked for a gun, but did not
find one. Several days later, a man who worked near the spot where the
defendant was apprehended discovered a pearl-handled, silver-colored gun
in a snowbank. This gun was turned over to the police. Test bullets
fired from this gun were matched microscopically to a bullet retrieved
from a building at the site of the Cambridge shooting incident and to
the bullet retrieved from the victim's body. Ballistics experts
concluded that all of the bullets came from the same gun.
Patricia Archer testified that she had lived with the
defendant at 154 Washington Street from the fall of 1972 until the time
of his arrest. She identified a holster and the nickel-plated revolver
recovered from the snowbank as belonging to the defendant. She also
identified the carton containing nails found in the defendant's
apartment as the defendant's and testified that she had seen it in the
trunk of the defendant's car. Archer also testified that she had visited
132 Seaver Street once with the defendant.
Michelle Maupin, another woman living with the
defendant on Washington Street at the time of the defendant's arrest,
testified that she had known the defendant for many years. She had seen
the defendant carrying a silver gun with a pearl handle, which he
carried in a black holster. She, too, saw the carton of nails at the
Washington Street address, and visited 132 Seaver Street with the
defendant at least nine times.
Maupin visited the defendant at a hospital the
morning after he was shot, but he told her to leave so that she would
not be questioned by the police. She returned to the hospital the next
day, and the defendant asked her to pick up a gun in the snowbank in
Cambridge. He drew a map with her eyebrow pencil to locate the weapon.
Donald McDonald, a longtime friend of the defendant,
testified over the defendant's objection that he visited the defendant
at the Billerica house of correction following his arrest. On February 6
or 7, 1973, McDonald discussed with the defendant two newspaper articles
concerning an investigation into the murders of six young women, one of
whom was the victim, Reich. These articles referred to a murder in New
Hampshire, and McDonald testified that the defendant voluntarily told
him that "the one in New Hampshire was not [the defendant's]." The two
newspaper articles, with some portions excised, were admitted in
evidence. McDonald also testified that the defendant asked him to
retrieve the gun abandoned in Cambridge, and that he had seen the
defendant with a pearl-handled, silver-colored gun.
1. Evidence of the defendant's other crimes. The
defendant's primary contention on appeal is that the trial judge
committed reversible error when he admitted in evidence the defendant's
admission to McDonald and the two related newspaper articles. This
evidence, the defendant contends, tied him to the well-publicized
murders of other young, white women, creating a serious danger that the
jury's decision was based on the defendant's criminal propensity rather
than on the evidence.
The statement by the defendant to McDonald ("The one
they found in New Hampshire . . . [t]hat wasn't mine") was, in the
context of his conversation with McDonald, an indivisible admission of
the murders of five young women, including Ellen Reich. The admission is
obviously relevant to the issue of who murdered Reich, but it also
constitutes evidence of the defendant's participation in the murders of
other women. McDonald's statements and the defendant's reply were
admissible as an admission by the defendant that he killed Reich. See
Commonwealth v. Kenney, 12 Met. 235 , 237 (1847). Evidence that is
otherwise relevant to the offense charged is not rendered inadmissible
simply because it tends to prove the commission of other crimes. E.g.,
Commonwealth v. Hoffer, 375 Mass. 369 , 373 (1973).
However, where evidence of other crimes is irrelevant
to proof of the offense charged, this court has generally considered it
inadmissible, even when that evidence is the defendant's voluntary
admission. Commonwealth v. Welcome, 348 Mass. 68 , 70-71 (1964).
Commonwealth v. Valcourt, 333 Mass. 706 , 717-718 (1956). Commonwealth
v. Bishop, 296 Mass. 459 , 461-462 (1937). Commonwealth v. Kosior, 280
Mass. 418 , 423 (1932). In this case, however, the potential for unfair
prejudice to the defendant was reduced by his earlier introduction of
evidence implicating him in another, unconnected murder. We conclude
that, because the defendant, in his admission of the crime charged,
admitted to other, unrelated crimes in a manner that rendered the
admission unintelligible if references to the unrelated crimes were
omitted, the entire admission was properly admitted in evidence. This
conclusion accords with the reasoning in other jurisdictions. See, e.g.,
United States v. Wiggins, 509 F.2d 454, 462 (D.C. Cir. 1975) (dictum);
State v. Palko, 122 Conn. 529, 536, aff'd on other grounds, Palko v.
Connecticut, 302 U.S. 319 (1937); State v. Underwood, 75 Mo. 230, 236
(1881). Cf. State v. Hopkins, 117 Ohio App. 48, 52 (1962) (confession to
setting at least thirty-five fires, including that for which arson was
charged, properly admitted); Commonwealth v. Weston, 297 Pa. 382, 389
(1929) (confession that it was not the first time defendant had "done a
thing of this kind" properly admitted). The decision to admit or exclude
such an admission requires the trial judge to balance the probative
value and the prejudicial impact of the admission, and so it is within
his sound discretion. We cannot say that that discretion was abused here.
The admission of the newspaper articles was also
within the judge's discretion. The defendant's critical statement was in
response to the contents of those articles,
[Note 1] as presented to him by
McDonald. The articles therefore amounted to a declaration, admissible "because
it may give meaning and effect to the reply." Commonwealth v. Kenney, 12
Met. 235 , 237 (1847). That is, they established the context in which
the admission was made. See Commonwealth v. Labbe, 6 Mass. App. Ct. 73 ,
A trial judge should exercise caution in admitting
such prejudicial material [Note 2] in
evidence for explanatory purposes. The judge here demonstrated
appropriate caution by excising irrelevant portions and by giving a
careful, forceful instruction to the jurors, limiting their
consideration of the remainder of the articles. We presume, as we must,
that a jury understands and follows limiting instructions, Commonwealth
v. Leno, 374 Mass. 716 , 719 (1978); and their use usually renders any
error in the introduction of prejudicial evidence harmless, Commonwealth
v. Roberts, 378 Mass. 116 , 127 (1979).
The defendant also asserts as error the admission of
other evidence showing various facts [Note
3] that connected him with the other murders. Some of this evidence
was introduced for the first time by the defendant, and the balance was
so remotely related in time and effect to McDonald's testimony that
there was no risk of unfair prejudice to the defendant.
2. Defendant's prior convictions. The defendant
requested and received an advisory ruling by the judge on the
admissibility of his prior convictions should he testify. The judge told
the defendant that he would exclude his conviction for murder, but would
admit the conviction for assault with a deadly weapon that resulted from
the shooting incident in Cambridge. The defendant did not take the
stand. The defendant contends that this ruling impermissibly infringed
his right to testify on his own behalf and so denied his constitutional
right to a fair trial. Article 12 of the Declaration of Rights of the
Constitution of the Commonwealth.
The record of some prior convictions of a defendant
is admissible to impeach the defendant if he testifies. G. L. c. 233,
Section 21. We have previously indicated that a trial judge has a right
to exclude prior convictions in order to prevent unfairness to a
defendant, particularly where they are similar to the crime charged and
do not inherently pertain to the defendant's credibility. Commonwealth
v. Chase, 372 Mass. 736 , 750 (1977). We have also held, however, that,
where the judge admits proof of prior convictions, any prejudice to the
defendant is not of constitutional dimension and will not be reviewed on
appeal. Commonwealth v. Leno, supra at 717-718. See Commonwealth v. Diaz,
383 Mass. 73 (1981); Commonwealth v. Tabor, 376 Mass. 811 (1978). Thus
the defendant's argument fails. It is true also that the events
underlying the conviction which was ruled admissible by the judge were
closely related to the murder of Ellen Reich. One of the bullets the
defendant fired at the Cambridge police officers and his possession of
the pearl-handled, silver-colored pistol connected the defendant with
the murder weapon. Finally, the defendant's flight from and shooting at
the police revealed his consciousness of guilt. This evidence was
properly admitted long before the defendant's request for the advisory
ruling. Proof of the conviction would be merely cumulative, and for that
additional reason no error is shown.
3. Prosecutor's opening statement. The prosecutor, in
his opening statement, told the jury that two witnesses, Mary McIntyre
and Linda White, would testify at trial. He indicated that these two
would further link the defendant to 132 Seaver Street, McIntyre to
testify that the defendant occupied an apartment there and White to
testify that the defendant had a telephone installed there. Neither
witness was produced at trial, despite the prosecutor's efforts to
produce them, and the prosecutor justified the omission by indicating
that McIntyre's testimony would be cumulative and that White was
suffering emotional problems. The defendant's motion for a mistrial on
this ground was denied.
There was no error in the judge's denial of the
defendant's motion for a mistrial. The prosecution fully intended to
call both witnesses at the time of the opening, and therefore could
properly comment on the substance of their testimony. Cf. Commonwealth
v. Fazio, 375 Mass. 451 , 454-457 (1978) (proper to comment on testimony
of witness despite pretrial assertion by counsel that witness would
invoke privilege against self-incrimination). There is no evidence that
the prosecutor here acted intentionally or in bad faith, cf.
Commonwealth v. Killelea, 370 Mass. 638 , 648 (1976), and the cumulative
nature of the missing witnesses' testimony makes the omission harmless,
cf. Commonwealth v. Roberts, 378 Mass. 116 , 123-124 (1979).
We also note in passing that any potential prejudice
to the defendant was reduced by the prosecutor's opening remark that his
statements were not evidence, cf. Commonwealth v. Breese, 381 Mass. 13 ,
15 (1980), and by the defendant's use in closing argument of the failure
of McIntyre and White to testify.
4. Sequestration order. The judge, pursuant to a
motion by the defendant, issued an order sequestering all witnesses (with
certain immaterial exceptions). The judge permitted two witnesses who
had testified for the prosecution to remain in the courtroom during the
trial. The first, State police Officer McGuinness, resumed the witness
stand to reinforce a link in the chain of custody of test bullets fired
from the murder weapon. The second, FBI Agent Tobin, was permitted over
the defendant's objection to remain in the courtroom to assist the
prosecution in its cross-examination of the defendant's nail expert.
The sequestration of witnesses lies within the
discretion of the trial judge, and it is not error to refuse to
Commonwealth v. Vanderpool, 367 Mass. 743 , 748-749
(1975). Commonwealth v. Blackburn, 354 Mass. 200 , 205 (1968). See
Commonwealth v. Watkins, 373 Mass. 849 , 850-851 (1977). It is also
within the judge's discretion to admit or exclude the testimony of
witnesses who have violated sequestration orders. Commonwealth v.
Crowley, 168 Mass. 121 , 127-128 (1897) (defense witness's testimony
properly excluded). Commonwealth v. Hall, 4 Allen 305 , 306 (1862) (witnesses
violating order properly permitted to testify).
The judge here acted within his discretion. The
expert witness, Tobin, was not recalled to the witness stand and
therefore could not commit perjury, which is the principal evil that
sequestration orders are designed to prevent. See W.B. Leach & P.J.
Liacos, Massachusetts Evidence 78 (4th ed. 1967). Moreover, the very
nature of expert testimony makes perjury unlikely, and so it would be
proper to exempt all expert witnesses from a sequestration order. See
Commonwealth v. Hersey, 2 Allen 173 , 176 (1861). The testimony of the
police officer who resumed the stand was brief, cumulative, and directed
only at a technical link in the chain of custody. There was no
substantial danger of perjury, and any error was harmless beyond a
reasonable doubt. See Commonwealth v. Watkins, supra. See also
Commonwealth v. Parry, 1 Mass. App. Ct. 730 , 735-736 (1974).
5. Speedy trial. The defendant was indicted on April
11, 1973, and the trial began on January 10, 1978. The defendant
contends that this delay of fifty-seven months deprived him of his right
to a speedy trial and prejudiced his defense.
This is the second time this court has considered the
delay in bringing this case to trial. In Jackson v. Commonwealth, 370
Mass. 855 , 856 (1976), we confirmed a special master's finding that the
first three years of delay were attributable to the actions of the
defendant, primarily his failure to accept and work with a series of
defense attorneys assigned to assist him. We reaffirm that conclusion,
and note that the period of time between our previous opinion and this
trial was largely consumed by the trial of three other indictments
against the defendant. The balance was taken up with further
difficulties between the defendant and yet another defense attorney. The
defendant's own actions delayed the trial of this case, and he therefore
suffered no deprivation of his right to a speedy trial.
6. Motion to suppress nails. On January 19, 1973,
without a warrant, the police seized from the defendant's apartment at
154 Washington Street, a milk carton containing, among other things, the
nails that were matched to those in the frame of the closet where the
body was found. The defendant's motion to suppress these nails was
denied on the grounds that the defendant had abandoned the premises,
that the police had obtained valid consent to be on the premises, and
that the defendant lacked standing to contest the search and seizure.
The hearing judge entered subsidiary findings, none
of which is contested on appeal. The defendant had paid rent on the
apartment through January 1, 1973. He was arrested on December 26, 1972,
placed in custody, and the following day told the other residents of the
apartment to move out, and remove all of his belongings and furnishings.
The apartment was bare after January 9, 1973. The police were given
permission by the landlord to enter the apartment at any time, and the
nails were found in a pantry while a policeman was helping Archer, an
occupant of the apartment, remove her belongings. The defendant contends
that these findings are consistent with a three-week lapse in rental
payments due to his incarceration and a desire to protect his belongings.
Even if the defendant's testimony was believed by the
hearing judge, the protection of one's belongings is not inconsistent
with an intent to abandon the premises. The hearing judge's subsidiary
findings are supported by the evidence. Based on our independent review
of the application of those findings, e.g., Commonwealth v. Murphy, 362
Mass. 542 , 550-551 (1972) (Hennessey, J., concurring), we affirm the
hearing judge's conclusion that the defendant intentionally abandoned
any proprietary interest in the premises.
Abandonment leaves the defendant without standing to
contest the search and seizure since he has no interest in the property.
Brown v. United States, 411 U.S. 223, 229-230 (1973). See United States
v. Salvucci, 448 U.S. 83 (1980); Rakas v. Illinois, 439 U.S. 128 (1978).
It also renders the warrantless search, made with the landlord's
permission, reasonable. See United States v. Wilson, 472 F.2d 901,
902-903 (9th Cir. 1973). Moreover, any proprietary interest the
defendant may have retained in the apartment was shared with Archer,
whose consent rendered the seizure valid. United States v. Matlock, 415
U.S. 164, 171 (1974).
7. Admission of other evidence. Testimony was
admitted, over the defendant's objection, relating the acts for which
the witness McDonald was granted immunity and McArthur's explanation
[Note 4] to the police of his presence
in the apartment where he discovered the body. In the context of this
trial, admission of this testimony was within the sound discretion of
the trial judge. The trial judge did not abuse that discretion.
McDonald testified that he was granted immunity from
prosecution for being an accessory after the fact to any murder in which
the defendant was implicated, and for larceny of a motor vehicle. The
defendant, whose questions implied McDonald was involved in several
other murders including that of Reich, cross-examined McDonald on these
grants of immunity. The prosecutor was permitted, during the subsequent
redirect examination, to elicit the facts underlying the two grants of
Admission of this testimony was within the power of
the trial judge to control the scope of direct and cross-examination.
See Commonwealth v. Best, 381 Mass. 472 , 488-491 (1980); Commonwealth
v. Adrey, 376 Mass. 747 , 752-753 (1978). It was admissible to correct
any mistaken conclusions the jury may have drawn from the defendant's
questions as well as to rehabilitate the witness. Cf. Commonwealth v.
Howard, 8 Mass. App. Ct. 318 , 321-323 (1979). There was no possibility
of unfair prejudice to the defendant since the defendant had previously
brought out testimony linking the defendant to the primary murder in
The defendant, in his cross-examination of two
witnesses, emphasized that McArthur's presence in the fourth floor
apartment where he found the body was suspicious since he was helping a
woman move from the third floor. This theory culminated in a colloquy
with Officer Madden, [Note 5] who had
spoken with McArthur. In response to this colloquy, the trial judge
permitted the prosecutor to elicit on redirect examination McArthur's
explanation to Officer Madden of his presence on the fourth floor,
instructing the jury that this testimony was to be considered only on
the issue of why the police did not suspect McArthur.
This testimony was admissible for this limited
purpose, and as to that purpose was not hearsay. Cf. Commonwealth v.
Miller, 361 Mass. 644 , 658-659 (1972) (testimony that drug users had
mentioned the defendant's name admissible to show reason for undercover
activity against the defendant). It was relevant to rebut the defense's
theory that McArthur was in fact the murderer and that the police had
handled the investigation carelessly. Cf. Commonwealth v. Howard, supra.
In addition, the defendant's final question opened up the issue of
McArthur's statements, entitling the prosecution to have the entire
conversation in evidence. Commonwealth v. Taylor, 327 Mass. 641 , 648
8. Review under G. L. c. 278, Section 33E. The
defendant has asked us to grant him a new trial pursuant to our powers
under G. L. c. 278, Section 33E. Consistent with our duties under that
statute, we have reviewed the entire record on the law and the evidence
and conclude that the defendant is entitled to no relief under Section
[Note 1] On voir
dire, McDonald expressed some confusion about which newspaper articles
were actually discussed during his conversation with the defendant. It
is clear, however, that the defendant was responding to newspaper
articles with the same content as those introduced at trial, and the
witness testified that his conversation with the defendant concerned the
two articles admitted in evidence.
[Note 2] The
articles did not refer to the defendant by name, but did indicate that
several of the victims were college students and were last seen
hitchhiking, and that a single person was responsible. One also said a
suspect was being held in the Billerica house of correction, where the
defendant was incarcerated at the time.
[Note 3] Evidence
was admitted tending to show that the victim was last seen hitchhiking,
that the defendant was arrested after accosting a young girl, and that
the defendant was under investigation in other counties.
[Note 4] McArthur
was not located and did not testify at trial.
[Note 5] COUNSEL
FOR THE DEFENDANT: "Is it usual for a person to be moving from the
second [sic -- third] floor to go up to the fourth floor in somebody
else's apartment? You didn't find that strange or a little suspect?"
THE WITNESS: "Not when it was explained to me, it
COUNSEL FOR THE DEFENDANT: "And he explained it to
you did he not?"
THE WITNESS: "Oh yes."
COMMONWEALTH vs. ANTHONY J. JACKSON.
388 Mass. 98
October 4, 1982 - January 28, 1983
Present: HENNESSEY, C.J., WILKINS,
LIACOS, NOLAN, & O'CONNOR, JJ.
On December 22, 1976, the defendant, Anthony J.
Jackson, was convicted of murder in the first degree, kidnapping, rape,
and unarmed robbery, and sentenced to life imprisonment at the
Massachusetts Correctional Institution at Walpole on the murder
conviction. [Note 1] He challenges his
convictions on direct appeal and by means of a motion for a new trial.
We conclude that the defendant's claims lack merit, and, after reviewing
the entire record as required by G. L. c. 278, Section 33E, we conclude
that the defendant is not entitled to relief on any other grounds.
Accordingly, his convictions are affirmed.
The facts are summarized as follows. The victim was
found dead under a bed in her apartment at One Langdon Street in
Cambridge on the morning of Sunday, December 24, 1972. She was last seen
alive at approximately 8 P.M. on Thursday, December 21. It was estimated
that her death occurred no earlier than 11:30 A.M. on Friday, December
22. She did not report to work on Friday, and attempts to reach her by
telephone and by visits to her apartment between Friday and Sunday were
unsuccessful. However, at about midnight on Saturday, her car was found
parked near her sister's apartment building several blocks from where
the victim lived. Several .22 caliber bullet shells were found in her
apartment, and spent .22 caliber bullet shells were found in her car.
Several items were missing from her apartment.
The defendant lived in an apartment at 154 Washington
Street in the Dorchester section of Boston with one Michelle Maupin, one
Patricia Archer, and one Diane Dixon. Maupin and Archer testified for
the Commonwealth at the trial.
According to Maupin, the defendant left the apartment
in the early evening on Thursday, December 21, and returned about 6 or
6:30 A.M. on Friday morning, December 22. He left again about 9 A.M.,
and returned about 11 A.M. He left again at 11:30 A.M. and returned at
1:30 P.M. with some furniture, which he moved into the apartment with
the help of one Donald McDonald. McDonald testified that the defendant
called him at 11:30 A.M., Friday, and asked him to help move some
furniture, and returned to Dorchester at 1:30 P.M. The defendant left
again about 8 P.M. and returned by car early Saturday morning, December
Archer's testimony was essentially consistent with
Maupin's. Both testified that the defendant gave them money and items
later identified as from the victim's apartment, at various times on
that Friday, Saturday, and Sunday. Archer testified that she spent part
of Saturday, December 23, with the defendant in an apartment he had
rented under Dixon's name at 55G Codman Park. At 11:30 that night she
drove past a building on the corner of Langdon Street and Massachusetts
Avenue with the defendant, and he stated that he and McDonald knew a
couple of girls there. The defendant's former wife, Patricia Jackson,
testified that he visited her on Friday afternoon and late Saturday
afternoon at her apartment.
On December 30, 1972, the victim's father received a
copy of her bank statement with a cancelled check for $593 endorsed by "Robert
Johnson." An expert testified that the defendant's fingerprints were on
the check. The Commonwealth also introduced photographs taken by a video
camera at a branch of the Coolidge Bank & Trust Company showing a black
man in the teller's line. An assistant manager identified this black man
as the man who brought the check to him for approval on the morning of
December 22, but at trial he did not identify that man as the defendant.
The defendant was arrested on unrelated charges on
December 26, 1972. In June, 1976, the defendant was convicted of armed
assault with intent to murder and of unlawfully carrying a firearm in
connection with that arrest. The convictions were affirmed. Commonwealth
v. Jackson. 376 Mass. 790 (1978). Testimony about that arrest was
admitted at the trial in the instant case, over the defendant's
objections. Hair samples from a hat taken from the defendant at that
arrest were found to be "microscopically like" a hair found in the
Maupin visited the defendant several times between
his arrest and his trial. She testified that on December 29, he told her
to take several items, including two jackets and a .22 caliber rifle,
from his apartment to Patricia Jackson's apartment. She did so, and also
brought a .22 caliber handgun back from Patricia Jackson threw the rifle
into the Charles River on January 6, 1973. They also disposed of other
objects on that date at his request, including the two jackets and
several of the items taken from the victim's apartment. Some of these
objects, including the rifle, were later recovered by the police. Both
guns were admitted in evidence at trial, over the defendant's objections.
McDonald was given immunity from prosecution as an
accessory after the fact to any murders for which the defendant was
prosecuted. He testified at trial to incriminating statements the
defendant made when he visited the defendant in jail in January, 1973.
The Commonwealth also offered the testimony of Ralph Bens, one of the
defendant's jailors, regarding an inculpatory statement made by the
defendant. The defendant objected to this testimony by McDonald and Bens.
The defense was alibi. Two nurse's aides testified
that they spent a Friday or Saturday evening in December, 1972, with a
black man named Tony and a white man named Brian. McDonald sometimes
used the name Bryant Alexander. One of the women testified that she
spent the night with the black man, whom she identified at trial as the
defendant. While there was some evidence that this encounter took place
on December 22, there was other evidence that it took place several
1. The defendant objects to the admission of certain
evidence of the defendant's alleged involvement in other crimes.
Evidence of other crimes is not ordinarily admissible at trial.
Commonwealth v. Roberts, 378 Mass. 116 , 125 (1979). Commonwealth v.
Kosior, 280 Mass. 418 , 423 (1932). "However, otherwise relevant
evidence is not rendered inadmissible simply because it may indicate
that the defendant has committed another offense." Commonwealth v.
Roberts, supra. Commonwealth v. Jackson, 384 Mass. 572 , 577 (1981).
(a) The defendant first objects to the admission of
testimony about a chase and shoot-out with police which preceded his
arrest. This evidence of flight was properly admitted to show the
defendant's consciousness of guilt. Commonwealth v. Booker, 386 Mass.
466 , 469-471 (1982). Commonwealth v. Roberts, supra at 125.
Commonwealth v. Gilday, 367 Mass. 474 , 496 (1975). The fact that the
defendant was arrested on unrelated charges does not render the evidence
inadmissible, but rather goes to the weight which the jury will give to
the evidence. Commonwealth v. Booker, supra at 470. Nor is there merit
in the defendant's contention that he was unfairly prejudiced because
the judge allowed Commonwealth witnesses to describe in detail the
circumstances of his arrest. Balancing the probative value of evidence
against its possible prejudicial impact is a task committed to the
discretion of the judge. Commonwealth v. Booker, supra at 469.
Commonwealth v. D'Agostino, 344 Mass. 276 , 279, cert. denied, 371 U.S.
852 (1962). That principle controls here. We have upheld the admission
of evidence of a "running gunfight with police, in which an officer was
wounded," because the "desperate nature of the defendant's conduct . . .
lent credibility to the . . . inference of guilt of the crimes charged."
Commonwealth v. Gilday, supra. See Commonwealth v. Green, 302 Mass. 547
, 553 (1939) ("testimony of one [witness] as to the details of the
robbery [of a car]" admissible to show intensity of defendant's desire
to escape, indicating consciousness of guilt). Moreover, in this case
relevant evidence was recovered in the course of the defendant's arrest.
The jury were entitled to know how this evidence was recovered and
identified with the defendant. The judge instructed the jury that
testimony about the arrest was "not to be used by you as a basis for a
verdict of guilty in the cases that we are now trying." Jurors are
expected to follow such instructions. Commonwealth v. Stone, 366 Mass.
506 , 512-513 (1974). Commonwealth v. Ciminera, 11 Mass. App. Ct. 101 ,
105 (1981). We conclude that there was no error in the admission of
evidence describing the defendant's arrest.
(b) The defendant next objects to the admission in
evidence of two .22 caliber guns, on the ground that they were
irrelevant. Although the victim was not shot, .22 caliber shells were
found in her apartment and car. Since it thereby appeared that one or
both guns might have been used in the commission of the crimes of
kidnapping or rape, the guns were relevant. Commonwealth v. O'Toole, 326
Mass. 35 , 39 (1950). Compare Commonwealth v. Banuchi, 335 Mass. 649 ,
654 (1957) (when defendant was charged with arson, it was error to admit
knife with which defendant allegedly threatened wife). It was not
necessary to provide expert ballistics testimony linking the shells with
the defendant's guns. There was testimony establishing that the shells
and guns were of the same caliber, and that shells of the smae caliber
were found in the defendant's apartment; the jury could infer that the
shells were connected with the defendant's guns. See Commonwealth v.
O'Toole, supra. The absence of expert testimony expressly linking the
shells with the guns went only to the weight of the evidence. Cf.
Commonwealth v. Ellis, 373 Mass. 1 , 5 (1977) (absence of murder weapon
did not preclude admission of expert testimony comparing shell found
near murder scene to shells allegedly fired from the same gun).
Alternatively, the fact that the defendant asked McDonald to dispose of
one of the guns was admissible to show consciousness of guilt.
Since the guns were relevant, it was within the
judge's discretion to admit them in evidence if he found their probative
worth outweighed their prejudicial impact, even though they might tend
to show that the defendant had committed another crime. See Commonwealth
v. Booker, 386 Mass. 466 , 469-470 (1982); Commonwealth v. D'Agostino,
344 Mass. 276 (1962). We see no basis on which to interfere with his
decision. We note that the judge gave strong limiting instructions at
the time the challenged evidence was introduced, which cured any
possible error. See Commonwealth v. Stone, supra.
(c) The defendant's third objection is that the judge
improperly allowed McDonald and Bens to testify to statements the
defendant made which implicated him in other crimes.
[Note 2] The jury could reasonably
have inferred that these statements were admissions by the defendant to
the murder of the victim in this case. As such they were relevant, even
though they tended to implicate the defendant in other crimes. See
Commonwealth v. Jackson, 384 Mass. 572 , 577 (1981); Commonwealth v.
Roberts, 378 Mass. 116 , 125-126 (1979); Commonwealth v. Deschamps, 1
Mass. App. Ct. 1 , 3 (1972). The contested statements simultaneously
represented admissions to the murder of the victim in this case and
implicated the defendant in other crimes. "We conclude that, because the
defendant, in his admission[s] of the crime charged, admitted to other,
unrelated crimes in a manner that rendered the admission[s]
unintelligible if references to the unrelated crimes were omitted, the
entire admission[s] [were] properly admitted in evidence." Commonwealth
v. Jackson, supra at 578. A judge has discretion in considering the
admissibility of evidence of other crimes. Id. Commonwealth v. Deschamps,
supra. Here, the judge carefully balanced the probative value of these
statements against their prejudicial impact, and redacted portions of
the statements. We see no abuse of discretion.
(d) The defendant last objects to references by
several police officers testifying at trial to prior trials of the
defendant, and to a reference by an FBI fingerprint analyst to "prior-arrest
fingerprint cards on file." These references were brief and scattered,
and were not elicited in bad faith. In each case, the defendant either
failed to object to the reference, or succeeded in having it struck, in
several instances with appropriate and curative instructions. We
conclude that the defendant was not prejudiced by these references to a
previous arrest and trial.
2. Prior to the trial, the defendant moved that the
Commonwealth be ordered to provide him with a sample of McDonald's hair.
After discussion, the judge denied the motion without prejudice to the
defendant's renewing it "[i]f it becomes more material during the course
of this trial." The defendant asserts that this was reversible error,
because it unfairly denied him an opportunity to present evidence that
might have buttressed his theory that McDonald killed the victim.
The defendant relies in part on his rights to cross-examination
and compulsory process under the Sixth Amendment to the United States
Constitution, as applied to the States through the Fourteenth Amendment.
Washington v. Texas, 388 U.S. 14 (1967). See Chambers v. Mississippi,
410 U.S. 284, 294-295 (1973); Commonwealth v. Bohannon, 376 Mass. 90 ,
94 (1978). However, the defendant has not referred us to any case which
extends these Sixth Amendment guaranties beyond testimonial evidence to
the production of real evidence of the type sought here. Moreover, the
defendant has not shown that the judge prevented him from introducing
this evidence at trial. The defendant failed to establish that he could
not have obtained a hair sample from McDonald on his own. In addition,
his failure to renew the motion at trial suggests that the defendant
chose to abandon his attempt to get a hair sample from McDonald.
The defendant's reliance on Commonwealth v. Balliro,
349 Mass. 505 , 516-518 (1965), is similarly misplaced. In Balliro, we
held that, under art. 12 of the Massachusetts Declaration of Rights, the
Commonwealth could not prevent defense counsel from interviewing
individuals who were being held by the Commonwealth as material
witnesses. Here, the Commonwealth does not seek to prevent the defendant
from obtaining access to evidence in the Commonwealth's control which
should be available to both sides; rather, the defendant seeks to compel
the Commonwealth to obtain evidence for him from an independent third
party. Cf. Commonwealth v. Campbell, 378 Mass. 680 , 702 (1979) (prosecutor
not obliged to obtain Department of Correction records for defendants).
We will not extend Balliro to this situation, particularly absent a
showing that the defendant was unable to obtain a hair sample on his own.
But see Evans v. Superior Court, 11 Cal. 3d 617, 623-626 (1974) (in
circumstances of case, denial of defense request for line-up was abuse
3. In Estelle v. Williams, 425 U.S. 501 (1976), the
Supreme Court held that it is unconstitutional to compel a defendant to
stand trial in identifiable prison clothing. The defendant contends that,
because the judge would not authorize funds to buy him new clothes, he
was unconstitutionally compelled to appear in identifiable prison garb
during the voir dire of prospective jurors. He argues that, since he had
no proper clothes and was unable to pay for such clothing, the State had
a constitutional obligation to provide him with funds to buy suitable
clothing. See Bentley v. Crist, 469 F.2d 854, 856 (9th Cir. 1972). Cf.
Commonwealth v. Tessier, 371 Mass. 828 (1977) (State not required to pay
for indigent to have independent blood-alcohol test). The Supreme Court
has not addressed this issue, nor has it applied Estelle v. Williams,
supra, to pretrial proceedings. But see Boswell v. Alabama, 537 F.2d
100, 102-103 & n.7 (5th Cir. 1976); Gaito v. Brierley, 485 F.2d 86,
88-90 (3d Cir. 1973).
We do not consider these issues now, because we
conclude, after a careful review of the record, that the defendant was
not compelled to wear his prison clothes. It appears that the defendant
had an adequate wardrobe; he claimed his clothing no longer fit him. The
judge questioned this claim, and asked defense counsel to verify it and
to explore the possibility of altering the defendant's clothing, before
he authorized funds for new clothes. It was never clearly established
that the clothing did not fit. After several discussions of the issue,
defense counsel could report only that the clothes were "[t]oo small, I
think." However, it appears that the defendant came to trial on one
occasion wearing one of his old suits. We note that during voir dire
defense counsel stated that the problem did not have to be resolved "today
or tomorrow, but this case is going to take a long time." The entire
record suggests that the judge tried to work with defense counsel to
resolve the problem, and would have been willing to authorize funds if
he had found it was necessary. Thus, even assuming that the State is
obliged to provide suitable clothing during voir dire to a defendant
unable to afford such clothing, we find no constitutional violation on
this record. In any event, given the overwhelming evidence of the
defendant's guilt, any error relating to the defendant's clothing was
harmless beyond a reasonable doubt. See Estelle v. Williams, supra at
506-507; Chapman v. California, 386 U.S. 18, 21-24 (1967).
4. The defendant contends that extensive, prejudicial
pretrial publicity deprived him of his constitutional right to a fair by
"a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S.
717, 722 (1961). Murphy v. Florida, 421 U.S. 794, 799 (1975).
Commonwealth v. Jackson, 376 Mass. 790, 799 (1978). The existence of
pretrial publicity does not alone indicate that an impartial jury cannot
be empanelled. Dobbert v. Florida, 432 U.S. 282, 302-303 (1977). Murphy
v. Florida, supra at 800. Nor need qualified jurors be "totally ignorant
of the facts and issues involved." Id. Dobbert v. Florida, supra.
Commonwealth v. Blackburn, 354 Mass. 200 , 204 (1968). The question is
whether there are "any indications in the totality of circumstances that
[the defendant's] trial was not fundamentally fair." Murphy v. Florida,
supra at 799. Dobbert v. Florida, supra at 303.
The defendant submitted a pretrial exhibit containing
approximately 216 newspaper and three magazine articles published
between December 27, 1972, and September 1, 1976. In his findings on the
motion for a new trial, the judge found that these articles reported the
death of the victim in this case and of several other young women, the
investigation into these deaths and speculation that one person might be
responsible, the defendant's indictments in 1973 for four murders, the
defendant's frequent changes of counsel, and the postponements of his
trial. The judge found that these articles were generally factual in
nature, and were not inflammatory. Moreover, most of the publicity had
dissipated well before the defendant's trial; only five of these
articles were published in 1975, and only three in 1976, the year of the
trial. These factors have been considered significant in cases holding
that a defendant was not unfairly prejudiced by pretrial publicity. See
Murphy v. Florida, supra at 802; Commonwealth v. Smith, 357 Mass. 168 ,
173 (1970); Commonwealth v. McLaughlin, 352 Mass. 218 , 225 cert. denied,
389 U.S. 916 (1967); United States v. Gullion, 575 F.2d 26, 30 (1st Cir.
The judge carefully questioned each prospective juror
to determine whether he or she had gained any information about the case
from the news media, and whether he or she was prejudiced thereby. See
Commonwealth v. Gilday, 367 Mass. 474 , 492 (1975); Commonwealth v.
Smith, supra at 172; United States v. Gullion, supra at 30-31. Cf.
Commonwealth v. Vitello, 367 Mass. 224 , 236-237 (1975) (even in face of
frequent and vigorous newspaper publicity up to the date jury were
empanelled, sufficient to question venire and seated jury rather than
each prospective juror individually). The record shows that, while some
individuals knew that the defendant was charged with other crimes, most
knew nothing about the case or knew only the defendant's name, the
victim's name, and the charge. See Murphy v. Florida, supra;
Commonwealth v. Smith, supra at 173. The jury were sequestered after
empanelling. See Commonwealth v. Gilday, supra; Commonwealth v. Vitello,
supra at 237. We conclude that the judge did not abuse his discretion in
relying on these measures to secure an impartial jury. See Commonwealth
v. Subilosky, 352 Mass. 153 , 158 (1967). There is no indication in the
totality of circumstances that the defendant was denied a fair trial.
5. The defendant claims that the prosecution failed
to disclose exculpatory evidence within its control, in violation of
Brady v. Maryland, 373 U.S. 83 (1963). See Commonwealth v. Ellison, 376
Mass. 1 , 21 (1978). The disputed evidentiary items were a Brockton
police report and portions of Archer's and Maupin's criminal records.
The defendant admits that he filed only a general request for
exculpatory evidence. He argues that this general request should, in
effect, be combined with other motions filed requesting production of "state,
county or police department reports," and of probation records of
witnesses, and treated as a specific request for the disputed items. We
disagree. A specific request must "provide the Commonwealth with notice
of the defendant['s] interest in a particular piece of evidence."
Commonwealth v. Wilson, 381 Mass. 90 , 109 (1980). See Commonwealth v.
Pisa, 372 Mass. 590 , 595, cert. denied, 434 U.S. 869 (1977); United
States v. Sheehan, 442 F. Supp. 1003, 1008 (D. Mass. 1977). Whatever the
merits of the defendant's argument in other circumstances, the requests
for broad categories of evidence (police reports and probation records)
made here did not give the prosecutor such notice. Accordingly, we
review the defendant's claims under the standard of materiality for a
general request: "[I]f the omitted evidence creates a reasonable doubt
that did not otherwise exist, constitutional error has been committed.
This means that the omission must be evaluated in the context of the
entire record." United States v. Agurs, 427 U.S. 97, 112 (1976).
Commonwealth v. Collins, 386 Mass. 1 , 9-10 (1982). Commonwealth v.
Wilson, supra at 107.
(a) In the course of their investigation of the death
of one Sandra Ehramjian, officers of the Brockton police department
interviewed one Adelle Swirsky, who worked at a jewelry store in
Brockton. The officers' report states that "she can recall Jackson being
in the store . . . around the Wednesday or Thursday before Christmas of
'72." However, at the hearing on the defendant's motion for a new trial
in the instant case, Mrs. Swirsky testified that the defendant was at
the store sometime between 12 noon and 2 P.M. on Saturday, December 23,
There was no evidence that the district attorney's
office for the northern district, which prosecuted the instant case,
knew of the Brockton police report. As part of its attempt to coordinate
and facilitate investigations into the deaths of several young women,
including the victim in this case and Sandra Ehramjian, the Attorney
General's office had collected over 2,400 pages of information. The
Brockton police report was in these files under the name Sandra
Ehramjian, and was disclosed at the defendant's trial for her murder.
That trial took place after the trial in the instant case.
The police report was not exculpatory on its face in
the instant case, since the victim was seen alive at 8 P.M. on Thursday,
December 21. In any event, we conclude that disclosure was not required
because the police report was not material. At best, it could have led
to an alibi for a small portion of the afternoon of Saturday, December
23, 1972. In light of the overwhelming evidence of the defendant's guilt,
this was not sufficient to raise a reasonable doubt that did not
otherwise exist. United States v. Agurs, supra.
(b) The defendant contends that the prosecution
failed to disclose portions of Archer's and Maupin's criminal records,
which would have established that at the time of her testimony at the
defendant's trial, Archer was charged with uttering a false prescription
and falsely making a prescription, and that Maupin, under the alias
Margaret Tatum, was under a suspended sentence on prostitution charges
when she made statements to the police incriminating the defendant. The
defendant argues that these records were exculpatory and material
because they would have tended to show that Archer and Maupin had reason
to cooperate with the Commonwealth in the instant case.
Evidence tending to show that important government
witnesses are biased is exculpatory within the meaning of Brady v.
Maryland, 373 U.S. 83 (1963). See Giglio v. United States, 405 U.S. 150
(1972); Commonwealth v. Ellison, 376 Mass. 1 , 22 (1978). However, the
defendant does not suggest that the Commonwealth made any promises or
inducements to Archer or Maupin based on the charges described in the
records, and the judge found in considering the motion for a new trial
that no such promises were made. Mere proof of the existence of criminal
records falls far short of establishing bias.
Moreover, while evidence that tends to show that a
government witness is biased is exculpatory, "[w]here it is . . .
cumulative . . . courts generally reject the contention that such
evidence is material . . . so long as the defense had an adequate
opportunity to impeach the witness by other means" (citations omitted).
Zeigler v. Callahan, 659 F.2d 254, 266 (1st Cir. 1981). See Commonwealth
v. Bernard, 6 Mass. App. Ct. 499 , 508-509 (1978), S. C. 378 Mass. 24
(1979); United States v. Imbruglia, 617 F.2d 1, 7 (1st Cir. 1980);
United States v. Shelton, 588 F.2d 1242, 1248 (9th Cir. 1978), cert.
denied, 442 U.S. 909 (1979). Archer testified that, when she gave
statements to the police, she was under arrest for the murder of
Charlene Sustakowsky, and that the judge who dismissed the charges (in
June of 1974) told her that nothing would happen to her as long as she
cooperated. She testified that charges against her for receiving stolen
goods and for prostitution and lewdness were also dismissed, in the
former case with a promise from the police to "see what we can do." She
also testified that she was a prostitute.
Archer's testimony established that she had good
reason to wish to curry favor with the Commonwealth. Similarly, the jury
heard testimony that Maupin was a prostitute and that she was involved
in the Sustakowsky murder. In light of this testimony, the judge
correctly concluded in his findings that Archer and Maupin were placed
in their "proper setting," and that the disputed evidence "would have
been . . . repetitious and cumulative." We cannot say that the records
were sufficient to raise a reasonable doubt that did not otherwise exist.
United States v. Agurs, supra.
6. The defendant argues that the judge impermissibly
refused to allow him to impeach Maupin with her prior juvenile record.
Davis v. Alaska, 415 U.S. 308 (1974). Commonwealth v. Ferrara, 368 Mass.
182 (1975). The record does not establish that the judge denied any such
request, and, after the hearing on the motion for a new trial, the judge
found that the request, if any, was not renewed after Maupin had
testified. The defendant's failure to renew his request vitiates any
alleged error. Commonwealth v. Adams, 374 Mass. 722 , 732-733 (1978),
and cases cited. Moreover, we agree with the judge that the "record
would have added little, if anything, to defendant's efforts to impeach
the witness. There was ample testimony concerning her character and
involvement in another murder." Thus, the defendant was not prejudiced
by his inability, if any, to impeach Maupin with this record.
7. The defendant contends that he was denied the
effective assistance of counsel because his trial counsel did not
impeach Patricia Jackson with certain prior inconsistent statements, and
did not cross-examine Maupin on the extent of her involvement in the
In evaluating a claim of ineffective assistance of
counsel, we consider whether "the conduct of [the] lawyer was 'measurably
below that which might be expected from an ordinary fallible lawyer.'. .
. In addition . . . , our cases usually require a demonstration of
prejudice resulting therefrom." Commonwealth v. Rondeau, 378 Mass. 408 ,
412 (1979), quoting Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974).
Commonwealth v. Daigle, 379 Mass. 541 , 544 (1980).
The defendant's trial counsel testified at the
hearing on the defendant's motion for a new trial. He stated that he did
not cross-examine Patricia Jackson with her prior inconsistent statement
because it was basically consistent with her trial testimony, and he
knew the prosecutor would rehabilitate the witness. He also testified
that he did not probe Maupin on her involvement in the Sustakowsky
murder because he thought it might reveal the defendant's involvement in
We conclude that defense counsel made sound tactical
decisions not to bring out this information on cross-examination. The
record reveals that defense counsel was well prepared throughout the
lengthy and complex trial, and made every effort to put on the best
possible defense. We agree with the judge's ruling on the motion for a
new trial that defense counsel's "representation of his client was more
than merely adequate. The defendant was very capably represented."
8. We have considered the defendant's claims at
length, and conclude that they lack merit. After review of the entire
record pursuant to G. L. c. 278, Section 33E, we find no basis on which
to disturb the verdict of guilty of murder in the first degree.
Denial of motion for new trial affirmed.
[Note 1] The
defendant was also sentenced to imprisonment at the Massachusetts
Correctional Institution at Walpole, for a term of not more than ten nor
less than five years for kidnapping, not more than thirty nor less than
twenty years for rape, and not more than thirty nor less than twenty
years for unarmed robbery, the sentences to be served concurrently after
the expiration of the sentence for murder in the first degree.
[Note 2] The
defendant challenges the admission of the following statements. Bens
testified that, when he read to the defendant a copy of his indictment
for the victim's murder, the defendant responded: "Wait until the spring
thaw. You will find more." McDonald testified that he and the defendant
discussed newspaper items which related the facts of the murder, and
that the defendant responded: "There's couple they don't even know about."
McDonald also testified that the defendant stated: "I was becoming more
professional with every one . . . [;] the more you do a thing, the
better you get at it. I was getting bolder and bolder."
[Note 3] The
defendant argues that the report would have attacked Archer's
credibility, because she testified that she was with the defendant at
that time. His assertion is not supported by the record, as Archer
testified that she "was not with him totally all that time" on Saturday,
December 23, 1972. We also note that the judge found that the defendant
called the store from Dorchester at 10 A.M. on December 23, and that
this evidence would have been inculpatory, since it contradicted the
defendant's alibi evidence which placed him in New Hampshire until at
least 11 A.M. on that day.
COMMONWEALTH vs. ANTHONY J. JACKSON.
391 Mass. 749
February 6, 1984 - May 1, 1984
Present: WILKINS, LIACOS, ABRAMS, NOLAN, & LYNCH, JJ.
On November 22, 1978, the defendant, Anthony J.
Jackson, was convicted of murder in the first degree and kidnapping. He
was sentenced to life imprisonment and a term of from nine to ten years
to be served consecutively at the Massachusetts Correctional Institution
at Walpole. Both sentences were to be served from and after any
sentences previously imposed.
The defendant appeals, claiming that he was denied
his right to a fair trial by an impartial jury (1) because of
prejudicial pretrial publicity, and (2) because the trial judge failed
to excuse for cause jurors who were allegedly biased in favor of the
police. He also claims error in the refusal of the judge to exclude from
evidence (3) an admission allegedly made by the defendant which linked
him to four other murders, (4) testimony by police concerning the
defendant's conduct at the time of his arrest, and (5) portions of two
tape recorded telephone conversations. We conclude that the defendant's
claims lack merit, and, after reviewing the entire record as required by
G. L. c. 278, Section 33E, we conclude that he is not entitled to relief
on any other ground. Accordingly, we affirm his convictions.
The facts are summarized as follows. The body of
Damaris Synge Gillispie, a twenty-two year old college student, was
found on February 3, 1973, in a heavily wooded area of Billerica. She
had been strangled to death. The autopsy indicated that her death
occurred on or about November 29, 1972, the date on which she was last
seen by her roommate at their apartment in Cambridge.
The victim left her apartment at 6:45 P.M. to go to
her job at the Jazz Workshop in Boston. She was wearing open-toed, cork-soled
shoes, a hooded brown fur coat with the initials "DSG" embroidered on
the lining, a moonstone ring made from one of her grandfather's cuff
links, and a turquoise and silver ring. When she failed to return to the
apartment by the next morning, her boyfriend reported her missing to the
Cambridge police and notified her family.
The victim's family tried to locate her by
publicizing her disappearance. They arranged for newspaper and
television coverage and for the distribution of leaflets containing two
photographs of the victim, her description, and a "hotline" telephone
number at her apartment. Three telephones were installed with a
recording system to record incoming telephone calls.
The defendant lived at 154 Washington Street in
Dorchester with three women: Patricia Archer, Michelle Maupin, and Diane
Dixon. According to Archer, who testified for the Commonwealth, she
returned home at approximately 11:30 P.M. on the night of November 29,
1972. The defendant was at the apartment. He told Archer that he had
killed someone and had been driving all night with a body in his car (a
1967 gold Cadillac automobile with a dark vinyl top). He asked her to
help him clean up the blood in his car before it dried, which she did.
The defendant subsequently gave Archer a pair of shoes which had cork
soles, worn heels, and spots of blood on them. When she went to put the
shoes in the defendant's car, she noticed a moonstone ring and a silver
and turquoise ring in the ashtray.
The owner of a dry cleaners located about one block
from the defendant's apartment testified that the defendant had left a
hooded brown fur coat to be cleaned. It appeared to have blood stains in
the lining. The initials "DSG" were embroidered on the inside of the
coat. The owner stated that he told the counter clerk to give it back to
the defendant because it was fur and could not be cleaned.
On December 6, 1972, the victim's brother and one of
her roommates were manning the hotline telephone at the victim's
apartment. Each of them received a telephone call from an unknown male
who provided information about the victim's jewelry, her friends, and
her family. During the first conversation, after some introductory
remarks, the caller had said, "You know, I know the phone is tapped --
I'm hep to that, but I'm going to get in touch." During the second call,
the caller had said, "I know the thing is being taped, but that's cool
too." Numerous witnesses identified the voice of the caller as that of
The defendant was arrested on unrelated charges on
December 26, 1972. In connection with that arrest, he was convicted of
armed assault with intent to murder and of unlawfully carrying a firearm.
Testimony about the arrest was admitted at the trial in the instant
case, over the defendant's objections.
Subsequent to his arrest, the defendant was visited
by Donald McDonald, who testified for the Commonwealth. According to
McDonald's testimony, the defendant told him to get a green metal box
from the defendant's former wife and burn the contents, because among
the contents were things that could convict him of murder. McDonald and
the defendant's former wife threw the box from the Longfellow Bridge
into the Charles River. It was subsequently recovered by the police and
was found to contain over two hundred photographs of nude women, one of
whom was the victim.
During a subsequent visit by McDonald, he and the
defendant discussed a newspaper article depicting six murdered women.
The defendant told McDonald, "The one in New Hampshire, that's not
mine," and, "You know . . . I've got more respect for the FBI."
Shortly before the trial, a full page political
advertisement promoting the then district attorney's campaign for
reelection appeared in various newspapers in Middlesex county. This
advertisement, as well as a leaflet distributed throughout Middlesex
county, credited the incumbent district attorney with obtaining the
first conviction against the "hitchhike murderer." The hitchhike murders
received extensive publicity in late 1972 and 1973, as did the
defendant's trials in 1976, 1977, and 1978. Publication of the
advertisement and distribution of the leaflets took place after the
judge had admonished counsel "not to discuss this matter with the Press.
. . . I mean the entire district attorney's office." The defendant's
motion to dismiss for prosecutorial misconduct was denied by the judge.
The judge conducted an extensive voir dire of the
jury. It lasted seven days and involved eighty-eight potential jurors.
Several jurors were excused for cause and the judge allowed the
defendant and the Commonwealth each to exercise twenty-two peremptory
challenges. The judge refused to exclude for cause six jurors
peremptorily challenged later by the defendant who had expressed a
predisposition to credit police testimony.
1. Pretrial publicity. The defendant argues that his
right to a fair trial by an impartial jury has been jeopardized by
extraneous and prejudicial influences. His argument breaks down into two
distinct claims: first, that prosecutorial misconduct warranted the
dismissal of the defendant's indictments, and, second, that the
extensive pretrial publicity mandated a change of venue.
The judge acknowledged that "[a]t the very least
there was lack of good judgment on the part of the prosecutor," in
permitting the publication and distribution of the political
advertisement which referred to the "hitchhike murders," despite the
fact that neither the defendant nor the victim was mentioned by name. He
ruled, however, that the advertisement did not add significantly to the
problem of prejudicial publicity that already existed. Absent prejudice
to the defendant as a result of the advertisement, the actions of the
prosecutor did not so seriously impair the defendant's right to a fair
trial as to warrant dismissal of the charges. "Whether an indictment
should be dismissed upon the defendant's motion where the prosecution
has acted improperly, turns primarily on the ability of the defendant to
obtain a fair trial after, and in light of, the impropriety."
Commonwealth v. Lamm Hue To, ante 301, 312-313 (1984). The record before
us does not indicate that the political advertisement had any
prejudicial effect in addition to or distinguishable from that caused by
publicity due to the extensive media coverage of the hitchhike murders
and subsequent trials. The defendant was not mentioned by name and, in
some versions of the advertisement, the paragraph concerning the
defendant was only one of several. Although it is possible that some
jurors might have identified the defendant with the hitchhike murders as
a result of this text, it is more likely that any knowledge of the
jurors that the defendant was connected with other murders arose from
other pretrial publicity.
The defendant argues however that the prosecutorial
misconduct involved here warrants the sanction of dismissal of the
indictments whether or not the defendant was prejudiced. He relies on
our holding in Commonwealth v. Manning, 373 Mass. 438 (1977). In that
case, Federal agents talked to the defendant and criticized the way his
lawyer was handling his defense. Although the defendant's relationship
with his lawyer was not jeopardized and there was no actual prejudice,
this court ruled that dismissal of the indictment was appropriate. The
purpose of the sanction was not to rectify harm done to the defendant,
because there had been none; the point was to discourage government
agents from such deliberate and insidious attempts to subvert the
defendant's right to a fair trial by impairing his relationship with his
attorney. The misconduct in Commonwealth v. Manning, supra at 444, was
"so pervasive as to preclude any confident assumption that proceedings
at a new trial would be free of the taint." The deliberate actions of
the prosecutor in the instant case, while ill-advised, and possibly
contrary to the provisions of S.J.C. Rule 3:07, DR 7-107, as appearing
in 382 Mass. 788 (1981), [Note 1] and
II ABA Standards for Criminal Justice, Fair Trial and Free Press,
Standards 8-1.1, 8-2.1 (2d ed. 1982), do not rise to the level of
seriousness of the misconduct in Commonwealth v. Manning, supra, and do
not warrant the ultimate sanction of dismissal of the indictments.
The defendant also argues that the extensive pretrial
publicity about the defendant and other crimes with which he was
associated (publicity due only in small part to the advertisement
published by the district attorney's reelection campaign) mandated a
change of venue. The existence of pretrial publicity does not alone
indicate that an impartial jury cannot be empanelled. Dobbert v.
Florida, 432 U.S. 282, 302-303 (1977). Jurors need not be absolutely
ignorant of the facts and issues involved in a case to be able to make
an impartial judgment. Id. The judge carefully questioned each
prospective juror to determine whether he or she had any information
about the case, either from the news media or from conversations with
other prospective jurors, and whether he or she had formed an opinion or
was prejudiced thereby. The record shows that most jurors had no prior
knowledge of the case. [Note 2] When
answers were unclear or indicated knowledge, the judge asked further
questions. He also made further inquiries at the request of counsel.
None of the jurors selected indicated that he or she had an opinion
about the case which would affect his or her ability to consider the
evidence impartially. "The dominant consideration . . . is not the views
to which the jurors have been exposed; it is what is their commitment,
if any, in their own opinions, or their own expressions." Commonwealth
v. Subilosky, 352 Mass. 153 , 158-159 (1967). See Commonwealth v. Gilday,
367 Mass. 474 , 491-492 (1975). The judge has broad discretion to
decide, after conducting the voir dire, whether jurors have been
contaminated by extraneous information. Commonwealth v. Brown, 386 Mass.
17 , 30 (1982). We conclude that the judge did not abuse his discretion
in relying on the measures he took to ensure the defendant an impartial
jury. There is no indication in the totality of the circumstances that
the defendant was denied a fair trial because of pretrial publicity.
Murphy v. Florida, 421 U.S. 794, 799 (1975).
2. Juror prejudice. During the jury selection process,
the judge inquired of each prospective juror whether he or she would be
more likely to believe the testimony of a police officer than that of a
lay witness. The judge found indifferent six jurors who indicated a
predisposition to credit police testimony, and the defendant exercised a
peremptory challenge to excuse each one. The defendant argues that the
judge's failure to excuse these jurors for cause violated his right to a
fair and impartial jury.
The record shows that the judge was thorough in his
examination of the six jurors who expressed some disposition to give
greater credit to police testimony. Four of the six jurors gave detailed
explanations of their predisposition, and, after extensive questioning
of all six by the judge, each indicated that he or she could follow
instructions to consider the evidence impartially. The judge did not
abuse his discretion in refusing to excuse these jurors for cause.
By statute, a judge may have an obligation to examine
prospective jurors fully with respect to possible bias or prejudice. G.
L. c. 234, Section 28 [Note 3] Whether
a juror should be excused on the basis of the results of an examination
is within the discretion of the judge. Commonwealth v. Hobbs, 385 Mass.
863 , 873 (1982). Even if a juror originally indicates that he or she
might give more weight to the testimony of a police officer than to that
of a lay witness, such a response would not necessarily disqualify a
person. Cf. Commonwealth v. Nickerson, 388 Mass. 246 , 249 (1983). See
People v. Macias, 44 Colo. App. 203, 205 (1980); State v. Baldwin, 388
So. 2d 664, 671 (La. 1980); State v. Williams, 617 S.W.2d 98, 99 (Mo. Ct.
App. 1981). Contra Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim.
3. Evidence of other crimes. The defendant contends
that it was reversible error for the judge to allow Donald McDonald to
testify about a conversation he had with the defendant regarding a
newspaper article which contained pictures of six murdered women.
McDonald testified that the defendant said, "The one in New Hampshire,
that's not mine. You know me better than that. I've got more respect for
the FBI." The argument that this testimony should have been excluded
because the admission, which is obviously relevant to the issue of who
murdered Gillispie, also constitutes evidence of the defendant's
participation in other murders, was raised and rejected in Commonwealth
v. Jackson, 384 Mass. 572 , 577-579 (1981), and we will not go over that
Here, the defendant also objects to the admission of
the testimony because, he alleges, it was not clear that the defendant
and McDonald were referring to the same newspaper article and the
testimony, therefore, lacked sufficient indicia of reliability. It is
clear from the transcript of the voir dire that the judge was satisfied
that the prosecution had laid a sufficient foundation for the admission
of this evidence. Although the article was not physically present during
the conversation between the defendant and McDonald, there was testimony
from which the jury could infer that they were referring to the same
article, the only one with pictures of the six slain women. See
Commonwealth v. Jackson, 384 Mass. 572 , 578 n.1 (1981). The decision to
admit the evidence on the basis of this foundation was within the
discretion of the trial judge. See
Commonwealth v. Williams, 378 Mass. 217 , 229 (1979);
Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660 , 673 (1980).
4. Evidence of the defendant's arrest. The
defendant's claim that evidence of the chase and shoot-out with police
on December 26, 1972, which preceded his arrest should have been
excluded has also been before this court before. See Commonwealth v.
Jackson, 388 Mass. 98 , 103 (1983). There we said that the evidence of
flight was properly admitted to show the defendant's consciousness of
guilt. Id. The defendant attempts to distinguish the present case on the
basis of the proximity of the flight to the time fixed for the murder.
In Commonwealth v. Jackson, 388 Mass. 98 (1983), the murder was
committed between December 22 and December 24, 1972. The arrest occurred
at the most four days later. On the other hand, the murder of Gillispie
was estimated to have occurred on November 29, 1972, approximately one
month prior to the arrest. The defendant argues that the probative worth
of this evidence is undercut because the one-month hiatus and the
intervening murder of another woman suggest that, if the defendant was
feeling guilty on December 26, it was not because of the Gillispie
murder. The relevancy of evidence of flight in such circumstances is
within the discretion of the trial judge and his finding will not be
disturbed unless it is palpably unreasonable. See Commonwealth v. Sawyer,
389 Mass. 686 , 700 (1983); Commonwealth v. Booker, 386 Mass. 466 ,
469-470 (1982), and cases cited. It was not unreasonable for the judge
in this case to conclude that the defendant had in his mind on December
26 all of the crimes for which the police might be interested in
The defendant's objection that this testimony should
not have been admitted because it was prejudicial in that it portrayed
the defendant as a "guntoting desperado" and described the defendant's
attempts to persuade a woman to get into his car is also without merit.
"Balancing the probative value of evidence against its possible
prejudicial impact is a task committed to the discretion of the judge."
Commonwealth v. Jackson, 388 Mass. 98 , 103 (1983). We see no reason to
disturb the judge's decision to admit the evidence.
5. The admission of tape recorded telephone
conversations. Finally, the defendant argues that the judge committed
reversible error when he admitted in their entirety recordings of two
telephone calls made by the defendant to the victim's brother and
roommate. These recordings were the subject of our decision in
Commonwealth v. Jackson, 370 Mass. 502 (1976), where we held that they
were lawfully recorded under G. L. c. 272, Section 99, and that portions
of them could be admitted in evidence. The defendant argues that what we
held to be admissible in 1976 was only that part of each tape after the
defendant acknowledged that he knew the telephone call was being
recorded. Id. at 505. Even if this interpretation of our holding is
correct the admission of both tapes in their entirety does not
constitute reversible error. First, the defendant did not make timely
objection to the admissions. On the third day of the trial the
recordings were played twice before the jury and were admitted as
exhibits without objection. The record shows that counsel was aware that
portions of the recordings had been suppressed. On the fifth day, the
defendant moved for a mistrial and to strike the suppressed portions of
the recordings. "[W]hen something occurs which constitutes the basis for
requesting a mistrial it must be called to the attention of the judge
immediately, or when the aggrieved party first learns of it, . . . If
this is not done seasonably, the incident may not be availed of later as
the basis for a claim of appellate review." Commonwealth v. DiPietro,
373 Mass. 369 , 387 (1977). Furthermore, the portion of each call that
occurred before the defendant stated that he knew the calls were being
taped is quite brief and contains no conversation of substance that
would be prejudicial to the defendant. Therefore, the admission of those
portions of the telephone calls not dealt with in Commonwealth v.
Jackson, 370 Mass. 502 (1976), did not prejudice the defendant.
6. Review under G. L. c. 278, Section 33E. We have
considered the defendant's claims at length and conclude that they lack
merit. After review of the entire record pursuant to G. L. c. 278,
Section 33E, we find no basis on which to disturb the verdict of guilty
of murder in the first degree.
[Note 1] DR 7-107
states, in pertinent part: "(B) A lawyer or law firm associated with the
prosecution or defense of a criminal matter shall not, from the time of
the filing of a complaint, information, or indictment, the issuance of
an arrest warrant, or arrest until the commencement of the trial or
disposition without trial, make or participate in making an
extrajudicial statement that a reasonable person would expect to be
disseminated by means of public communication and that relates to:
"(1) The character, reputation, or prior criminal
record (including arrests, indictments, or other charges of crime) of
". . . .
"(D) During the selection of a jury or the trial of a
criminal matter, a lawyer . . . shall not make or participate in making
an extrajudicial statement that a reasonable person would expect to be
disseminated by means of public communication and that relates to the
trial, parties, or issues in the trial or other matters that are
reasonably likely to interfere with a fair trial . . . ."
[Note 2] Although
there had been an immense amount of publicity at the time of the murders
in 1972 and 1973, and then around the time of the subsequent trials (see
Commonwealth v. Jackson, 384 Mass. 572 , and Commonwealth v.
Jackson, 370 Mass. 502 ), most of the publicity had dissipated
before the beginning of the instant trial; the only articles published
around the time of the trial concerned the empanelment of the jury.
[Note 3] General
Laws c. 234, Section 28, as amended through St. 1975, c. 335, states in
pertinent part: "[I]f it appears that, as a result of the impact of
considerations which may cause a decision or decisions to be made in
whole or in part upon issues extraneous to the case, including . . .
possible preconceived opinions toward the credibility of certain classes
of persons, the juror may not stand indifferent, the court shall . . .
examine the juror specifically with respect to such considerations,
attitudes . . . [or] opinions."
ANTHONY JACKSON VS. KAY LONGCOPE & another.
394 Mass. 577
February 6, 1985 - April
Present: HENNESSEY, C.J.,
WILKINS, NOLAN, LYNCH, & O'CONNOR, JJ.
The plaintiff, Jackson, was subject to substantial
criminal sentences, including a life sentence for murder in the first
degree, when on May 20, 1977, the Boston Globe, a newspaper published by
the corporate defendant, printed an article allegedly libelous of
Jackson and written by the defendant Longcope. We conclude that Jackson
was libel-proof at the time of the publication and, therefore, affirm
the summary judgment entered for the defendants.
The allegedly libelous article appeared in the Boston
Globe approximately one month after a Plymouth County jury found Jackson
not guilty of the 1972 rape and murder of a twenty-one year old
Cambridge woman. The article set forth statements from various jurors as
to why the jury had returned verdicts of not guilty. The article pointed
out that the jurors did not know that in December, 1976, Jackson had
been convicted of the murder, rape, unarmed robbery, and kidnapping of
Ruth A. Hamilton, a twenty-three old art teacher, or that he had been
convicted in June, 1976, of crimes associated with a shootout with
Cambridge police officers. The article stated that the shootout occurred
"during a stolen car chase." It recited that Jackson was under
indictment for the slaying of two other young women. It referred to a
series of 1972 slayings as "the hitch-hike murders," adding that all the
women were raped and strangled.
On May 24, 1977, Jackson wrote a letter to the
defendant Longcope demanding a correction of the statement that the
shootout with the Cambridge police occurred during a stolen car chase
and the statement that all the victims of "the hitch-hike murders" were
raped and strangled. He asserted that the car was not stolen, that not
all the hitch-hike murder victims were raped, and that not all were
strangled. Jackson brought his action in May, 1979. In his amended
complaint, filed in July, 1979, Jackson alleged that substantially the
same statements were untrue. The amended complaint alleged libel and a
now abandoned claim of invasion of privacy.
The defendants filed a motion to dismiss the
complaint for failure to state a claim upon which relief can be granted.
Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The motion judge
accepted the recommendation of a special master that the motion to
dismiss should be treated as a motion for summary judgment and, so
treated, should be allowed. We transferred Jackson's appeal here on our
We assume in Jackson's favor that the newspaper
article was libelous and that the material before the motion judge did
not warrant the conclusion that all the libelous statements in the
article were substantially true. On the other hand, Jackson's
considerable criminal record, as to which there is no dispute of
material fact, bars him from recovering damages for libelous statements
concerning his criminal activities. For the purposes of this case, we
shall rely only on Jackson's criminal record and other circumstances
established at the time of the libelous publication. We thus leave open
the question whether events subsequent to libelous publication, proving
a plaintiff's serious criminal misconduct prior to the publication, may
be considered in determining whether a plaintiff is libel-proof.
This court has had little occasion to consider
whether a particular libel plaintiff may have such a notorious
reputation that he is incapable of recovering damages in a libel action,
and, therefore, may be characterized as libel-proof. In Lyons v. New
Mass Media, Inc., 390 Mass. 51 , 61 (1983), the defendants argued that
the plaintiff was libel-proof as a matter of law because of prior
adverse publicity, but this court rejected the argument on the facts
presented. The principle has been recognized elsewhere and has been
applied to justify dismissal of defamation actions where the substantial
criminal record of a libel plaintiff shows as a matter of law that he
would be unable to recover other than nominal damages. See Cardillo v.
Doubleday & Co., 518 F.2d 638, 639-640 (2d Cir. 1975); Wynberg v.
National Enquirer, Inc., 564 F. Supp. 924, 928 (C.D. Cal. 1982), and
cases cited. As the court said in the Wynberg case, "Depending upon the
nature of the conduct, the number of offenses, and the degree and range
of publicity received, there comes a time when the individual's
reputation for specific conduct, or his general reputation for honesty
and fair dealing is sufficiently low in the public's estimation that he
can recover only nominal damages for subsequent defamatory statements."
Id. The principle might apply to a habitual criminal (see Cardillo v.
Doubleday & Co., supra), or to a criminal notorious for one criminal act
(see James Earl Ray v. Time, Inc., 452 F. Supp. 618 [W.D. Tenn. 1976],
aff'd mem., 582 F.2d 1280 [6th Cir. 1978]).
Although a libel plaintiff who cannot prove damages
is normally entitled to an award of nominal damages if he establishes
that he was libeled (see W.L. Prosser & W.P. Keeton, Torts Section 116A,
at 845 [5th ed. 1984]), courts have generally considered First Amendment
rights as predominating in cases of this character and have denied a
libel-proof plaintiff the right to try to prove his case and recover
simply nominal damages. See Cardillo v. Doubleday & Co., supra at 640,
quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974); Wynberg
v. National Enquirer, Inc., supra at 928; James Earl Ray v. Time, Inc.,
supra at 622. It has been suggested that, under First Amendment
principles, at least as to a public figure, such as Jackson, proof of
actual damages may be required and thus nominal damages may not be
awarded. See W.L. Prosser & W.P. Keeton, Torts, supra; Restatement (Second)
of Torts Section 620 comment c (1977).
In any event, we accept the principle that a libel-proof
plaintiff is not entitled to burden a defendant with a trial in which
the most favorable result the plaintiff could achieve is an award of
nominal damages. Although we accept the principle that a convicted
criminal may have such a poor reputation that no further damage to it
was possible at the time of an otherwise libelous publication, it must
be clear, as a matter of law, that the reputation of a plaintiff, even a
convicted felon, could not have suffered from the publication of the
false and libelous statements. See Marcone v. Penthouse Int'l, Ltd., 577
F. Supp. 318, 333 (E.D. Pa. 1983), rev'd on other grounds sub nom.
Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072 (3d Cir.
1985); Sharon v. Time, Inc., 575 F. Supp. 1162, 1168-1169 (S.D. N.Y.
1983). We turn, therefore, to the question whether the plaintiff Jackson
By the time of the publication challenged by Jackson,
he had already been convicted of various crimes.
[Note 2] In 1976, Jackson had been
found guilty of armed assault with intent to murder and unlawful
carrying of a firearm, arising out of a 1972 running gunfight with
Cambridge police officers. We affirmed that conviction. Commonwealth v.
Jackson, 376 Mass. 790 (1978).
Later in 1976, Jackson had been convicted of murder
in the first degree, kidnapping, rape, and unarmed robbery of a woman in
December, 1972. Jackson was sentenced to various terms of incarceration
for these convictions. He received a sentence of life imprisonment
without the possibility of parole for the murder conviction. On both the
conviction for rape and unarmed robbery, he was sentenced to not more
than thirty nor less than twenty years, the sentences to be served
concurrently after the expiration of the sentence for murder in the
first degree. We affirmed these convictions. Commonwealth v. Jackson,
388 Mass. 98 (1983). In that appeal, Jackson claimed that pretrial
publicity had deprived him of a fair trial. He submitted an exhibit to
the trial judge in that case setting forth scores of newspaper articles
published between December 27, 1972, and September 1, 1976. These
articles reported, among other facts, the deaths of the victim and
several other other women and the defendant's indictment for four
murders. Id. at 109. [Note 3]
We know from this record of Jackson's criminal
activity that, at the time of the libelous publication in this case,
Jackson had been convicted of numerous serious crimes. He was serving a
life sentence for murder, without the possibility of parole, with
consecutive sentences of long duration to be served after the expiration
of that life sentence. He was under indictment for other murders. There
had been substantial publicity concerning the various crimes with which
Jackson was charged and for which he had been convicted. Jackson himself
in his complaint challenged as factually wrong only the newspaper
article's statements that the shootout with the Cambridge police
involved a stolen car chase and that all the victims of the 1972
slayings were raped and strangled. Jackson claimed he was not involved
in a stolen car chase, that in two other cases there were no rape
charges pending, and not all the women were strangled. By his silence
concerning the notoriety of the "hitchhike murders," his prior
convictions and sentences, and the stated pendency against him of two
other murder indictments, Jackson concedes that he had been convicted of
one of the "hitch-hike murders," had been sentenced to long terms of
incarceration in the Massachusetts Correctional Institution at Cedar
Junction, and had two other murder indictments pending against him. In
the circumstances, Jackson was libel-proof.
Jackson complains that the motion judge improperly
treated the defendants' motion to dismiss under Mass. R. Civ. P. 12 (b)
(6), as a motion for summary judgment under Mass. R. Civ. P. 56, 365
Mass. 824 (1974), without giving him a reasonable opportunity to present
opposing material, by affidavit or otherwise. See Stop & Shop Cos. v.
Fisher, 387 Mass. 889 , 893 (1983); White v. Peabody Constr. Co., 386
Mass. 121 , 126-128 (1982). Jackson discussed the libel-proof issue in
his memorandum in opposition to the defendants' motion to dismiss, which
was filed in response to the defendants' memorandum in support of their
motion to dismiss. We see no basis for concluding that Jackson was
prejudiced or unfairly surprised by the judge's treatment of the matter
under rule 56, nor does Jackson indicate what he could have offered to
counter the facts considered, which are basically facts of which the
judge took judicial notice.
[Note 1] Globe
[Note 2] It is
proper on a motion for summary judgment to recognize those facts of
which a judge may take judicial notice, including criminal cases
involving a party. See 10A C.A. Wright & A.R. Miller, Federal Practice
and Procedure Section 2723 (1983); Matter of Welansky, 319 Mass. 205 ,
210 (1946); Flynn v. Brassard, 1 Mass. App. Ct. 678 , 681 (1974).
It may not have been necessary to treat the motion to
dismiss as a motion for summary judgment. The only facts outside the
complaint that are involved are those of which judicial notice may be
taken. It seems reasonable to take judicial notice of facts when
considering a motion to dismiss under Mass. R. Civ. P. 12 (b) (6). See 5
C.A. Wright & A.R. Miller, Federal Practice and Procedure Section 1367,
at 685 (1969), discussing Fed. R. Civ. P. 12 (c) (judgment on the
[Note 3] This court
has dealt with other matters involving Jackson. In June, 1976, we upheld
a lower court decision to permit the introduction in evidence of certain
incriminating, recorded telephone conversations between Jackson and the
brother of Damaris Synge Gillispie, for whose murder and kidnapping the
defendant had been indicted in February, 1973. Commonwealth v. Jackson,
370 Mass. 502 (1976). After the publication involved in this case,
Jackson was convicted of these charges in 1978, and we affirmed the
convictions. Commonwealth v. Jackson, 391 Mass. 749 (1984). In our
opinion, we noted that "[t]he hitchhike murders received extensive
publicity in late 1972 and 1973, as did the defendant's trials in 1976,
1977, and 1978." Id. at 753.
In April, 1976, we considered Jackson's challenges to
lower court rulings concerning his representation by counsel with
respect to his April, 1973, indictment for the murder of Ellen Ann Reich.
Jackson v. Commonwealth, 370 Mass. 855 (1976). Jackson was convicted of
the Reich murder in 1978, after the publication involved in the case
before us, and we upheld the conviction. Commonwealth v. Jackson, 384
Mass. 572 (1981).
Finally, in Jackson v. Commissioner of Correction,
388 Mass. 700 (1983), we upheld a decision of the Commissioner of
Correction to transfer Jackson from a medium security correctional
facility to a maximum security facility. In that opinion, it appears
that in the summer of 1976 approximately eight inmates of the
Massachusetts Correctional Institution at Cedar Junction entered
Jackson's cell, beat him, and poured a disinfectant in his eyes. Id. at
701. Jackson feared for his safety if returned to the prison at Cedar
Junction. Even in that segment of society, Jackson appears to have had a
reputation not universally respected.