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07/12/77 COMMONWEALTH v. ROBERT E. MARSHALL

July 12, 1977

COMMONWEALTH
v.
ROBERT E. MARSHALL



Suffolk. Indictments found and returned in the Superior Court on February 12, 1975. The cases were tried before McLaughlin, C.J.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Homicide. Practice, Criminal, Bail, Capital case, Psychiatric examination, Isolation of jury. Jury and Jurors. Insanity. Words, "Capital case."

The opinion of the court was delivered by: Wilkins

A Judge did not abuse his discretion in denying bail to a defendant charged with murder in the first degree. [66-67]

A defendant charged with murder in the first degree could not waive trial by jury in accordance with G. L. c. 263, § 6, even though at the time of his trial the death penalty could not have been imposed on him. [67]

This court would not consider a defendant's claim that certain testimony at his trial violated his privilege against self-incrimination where the defendant neither objected to nor made a motion to strike the testimony. [67-68]

At a criminal trial, a Judge did not abuse his discretion in ordering the jury sequestered, in drawing jurors from the jury pool after a special venire had been exhausted, and in allowing the jurors to separate in order to vote in a municipal election. [68-70]

Evidence at a murder trial warranted a finding that the defendant was sane at the time he committed the crime. [70-71]

At the murder trial of a defendant who raised a defense of insanity, the Judge did not err in his instructions to the jury regarding the burden of proof of insanity. [71]

The defendant was found guilty of murder in the first degree of Virginia MacDonald and Paul E. Mahoney. He argues six assignments of error relating to (1) the denial of bail, (2) the admission of testimony regarding his refusal to submit to certain court-ordered examinations, (3) the refusal to allow him to waive a trial by jury, (4) aspects of the selection and sequestration of the jury, (5) testimony by a Commonwealth witness regarding the insanity defense, and (6) the Judge's answer to a question from the jury. There was no error, and there is no occasion under G. L. c. 278, § 33E, to order a new trial or to reduce the verdicts.

The facts of the killings were testified to by two eyewitnesses, one Nancy Russell and one Robert Selvitella. About 11 A.M. on December 22, 1974, Russell, Selvitella, and the two victims were finishing breakfast in the kitchen of Selvitella's apartment in Revere, when the defendant knocked at the door. He appeared to be angry and serious, and inquired of MacDonald, who had previously dated the defendant, where she had been all night because her mother was looking for her. The defendant then turned to Mahoney, his former business partner, and said, "You took my business and now you took my girl too." There was evidence of a conversation between the defendant and MacDonald and between the defendant and Mahoney. When he was offered a cup of coffee, the defendant stated that he did not feel he was among friends. As he began to leave, he turned, spoke to MacDonald, pulled out a gun, and shot her in the arm. He then shot Mahoney twice. MacDonald, who had fallen to the floor, pleaded with the defendant not to shoot. The defendant then shot her in the face and chest. As the defendant was attempting to reload the gun, Russell and Selvitella fled. Russell testified that after she left she heard two more shots. At 12:15 P.M., the defendant appeared at the Revere police station, placed a gun on the desk of the duty officer, and said, "I think I just killed a couple of people." He claimed to have no memory of anything that happened between the time he said, "You took my business and now you took my girl too," and a time when he became aware of driving his car.

1. The defendant argues that he was denied bail in violation of his rights under the Eighth Amendment to the Constitution of the United States. Because he was charged with murder in the first degree, the matter of bail was discretionary, as we held in Commonwealth v. Carrion, 370 Mass. 408, 410-411 (1976). *fn1 We see no basis to conclude that there was any abuse of discretion in denying bail to the defendant. Moreover, at this stage of the proceedings, even if bail was denied to him improperly, the defendant would have to establish that he was prejudiced by the denial. Although he asserts that his defense was inhibited, the record does not support the claim. We see no indication that the defendant's case was prejudiced because his psychiatrists had to travel to visit him.

2. The defendant asserts that G. L. c. 263, ยง 6, which forbids waiver of jury trial in "capital" cases, did not apply to his trial because at the time of his trial the death penalty could not have been imposed on him. ...


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