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07/28/77 COMMONWEALTH v. THOMAS F. MCINERNEY

July 28, 1977

COMMONWEALTH
v.
THOMAS F. MCINERNEY



Norfolk. Indictment found and returned in the Superior Court on October 4, 1974. The case was tried before McNaught, J.

Hennessey, C.j., Quirico, Kaplan, Wilkins, & Liacos, JJ. Hennessey, C.j., Dissenting in part.

SYLLABUS BY THE COURT

Homicide. Malice. Evidence, Acceptance or rejection of testimony, Admissions and confessions, Presumptions and burden of proof. Practice, Criminal, Charge to jury. Insanity. Words, "Deliberately premeditated malice aforethought."

The opinion of the court was delivered by: Quirico

At a murder trial evidence that the defendant intentionally put a cord around the victim's neck and applied force until he saw blood come out of her nose and mouth, without any lawful excuse or justification for his acts, was sufficient to permit the jury to find the malice required for murder in the first or second degree, even though the Commonwealth's only proof of the homicide consisted of the defendant's admissions which were coupled with denials by him of any intention to hurt or kill the victim. [140-148]

There was no error in a Judge's instructions to the jury at a murder trial on the subjects of malice and the burden of proof even though the Judge referred on occasion to the "presumption" of malice. [148-151]

At a murder trial, evidence that the defendant had sought medical treatment for impotence, that he told a friend, "I don't fit in this world and they're going to lock me up," and that he had taken some pills was not sufficient to require instructions to the jury on the defense of insanity. [151-153]

Where evidence at a murder trial was insufficient to support an inference or finding of deliberate premeditation on the part of the defendant, the Judge erred in denying the defendant's motion for a directed verdict of acquittal on so much of the indictment as charged murder in the first degree. [153-154] Hennessey, C.J., Dissented in part.

The defendant was indicted for the crime of murder in the first degree of Cynthia M. Hartford (victim). The case was submitted to the jury with instructions by the trial Judge that they could return one of four alternate verdicts: not guilty, guilty of murder in the first degree, guilty of murder in the second degree, or guilty of manslaughter. The jury returned a verdict of guilty of murder in the first degree, whereupon the defendant was sentenced to imprisonment for life, the sentence to be served from and after a life sentence which he was then serving. *fn1 The case is now before us on the defendant's appeal under G. L. c. 278, §§ 33A-33G.

The appeal raises four issues with respect to which the defendant alleges that the Judge committed error. They are: (a) whether there was sufficient evidence of malice to permit the case to be submitted to the jury on the charge of murder in either degree, (b) whether the Judge correctly instructed the jury that they might infer malice from the use of a deadly weapon "unless by the circumstances the jury considers that it has been disproved," (c) whether the Judge correctly declined to instruct the jury on the defense of insanity and that they might return a verdict of not guilty by reason of insanity, and (d) whether there was sufficient evidence of premeditated malice to permit the case to be submitted to the jury on the charge of murder in the first degree.

We conclude that there was error in the Judge's denial of the defendant's motion for a directed verdict of acquittal on so much of the indictment as charges murder in the first degree and that he is entitled to a reduction of the verdict to one of guilty of murder in the second degree, that there was no error by the Judge in any other respect, and that the defendant is entitled to no relief under G. L. c. 278, § 33E.

There was an abundance of evidence implicating the defendant in the killing of the victim. Most of it was in the form of admissions made by the defendant to a number of his friends and acquaintances in the first two days following the killing and repeated by them in their testimony as witnesses at the defendant's trial. *fn2 The following is a brief summary of the evidence.

The defendant and the victim met at a lounge in Boston about 6:30 P.M. on August 14, 1974, and they were there together until they left about 1 A.M. on August 15, 1974. During that period the defendant drank about six servings of beer and the victim about six "wine coolers." When they left the lounge the victim drove the defendant in her car to a point in Brookline where the defendant had left his car, and from that point they agreed to go in their separate cars to her apartment in Quincy. After arriving there they had a few drinks of beer and then attempted to have sexual intercourse but were unable to do so because of the defendant's long-standing problem of impotency and his inability to copulate.

The victim laughed at the defendant and told him she had wasted her evening. He asked her to stop laughing at him and she continued, so he put his hand over her mouth to stop her. She still continued to laugh and he slapped or struck her. She started to yell and tried to leave. He then grabbed a piece of cord or twine from a table, wrapped it around her neck, and applied pressure. He saw blood coming from her nose and mouth and thought he had killed her. He put her body on a couch and then left the apartment.

In leaving the apartment the defendant wiped the doorknob to eliminate fingerprints and took with him the empty beer cans and the victim's pocketbook. He disposed of the victim's automobile driving license and the keys to her apartment and automobile by throwing them away in some tall grass and shrubbery at the rear of the apartment complex where he lived. The police found the items there on August 19, 1974.

A medical expert attributed the death of the victim to "asphyxia due to strangulation by ligature," and he expressed the opinion that her death had occurred sometime between 1 A.M. and 1 P.M. on August 15, 1974.

In the late afternoon or early evening of August 17, 1974, the defendant, accompanied by four of his friends, was driven to the home of an officer of the Quincy police department and turned himself in and was placed under arrest.

Additional evidence will be summarized, as necessary, in the Discussion of the several errors alleged by the defendant.

1. Malice. On the subject of malice the defendant argues, in the alternative, first, that there was no evidence from which the jury could find that the killing of the victim was with "malice aforethought" (G. L. c. 265, § 1), and therefore it could not be murder in either degree, and, second, that if there was any evidence indicating such malice, the verdict was against the weight of the evidence. We disagree.

We dispose of the second part of the defendant's argument by saying that, if there was any evidence from which the jury could infer malice, it was not error for the Judge to refuse to limit the jury verdicts to either one of not guilty or one of guilty of manslaughter. However, in such a situation it would be appropriate for us to consider that matter in the ...


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