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08/26/77 COMMONWEALTH v. SIEGFRIED GOLSTON

August 26, 1977

COMMONWEALTH
v.
SIEGFRIED GOLSTON



Suffolk. Indictment found and returned in the Superior Court on December 11, 1975. The case was tried before McLaughlin, C.J.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ.

SYLLABUS BY THE COURT

Homicide. Death. Proximate Cause. Evidence, Opinion: expert, Cross-examination; Judicial discretion. Practice, Criminal, Charge to jury, Fair trial, Continuance, Examination of jurors.

The opinion of the court was delivered by: Braucher

At the trial for the murder of a man hit on the head with a baseball bat, the mortal wound necessitating removal of a large portion of his skull, the use of an artificial respirator, which twice was removed without the victim's attempting to breathe, and the use twice of an electroencephalogram, which did not reveal any brain activity, following which the respirator was finally removed seven days after the assault and the victim's heart stopped, the Judge, accepting the definition of death as "cessation of life" or "ceasing to exist," rightly charged the jury that "as a matter of law, the occurrence of a brain death . . . satisfies the essential element . . . of murder . . . of the death of the victim. Brain death occurs when . . . there has been a total and irreversible cessation of spontaneous brain functions and further attempts at resuscitation or continued supportive maintenance would not be successful in restoring such functions"; conviction of the defendant of murder in the first degree was supported by answers of the jury that the element of death was satisfied by the proof of a brain death and that the brain death of the victim occurred before the artificial life support was disconnected. [251-255]

This court announced that it will feel free to re-examine the justification for the rule that "to constitute criminal homicide the victim of the assault must die within a year and a day from the time of the infliction of the mortal wound." [255]

Any error in the submission to the jury of the issue of the "brain death" of the victim of a mortal assault who was dead on the date an artificial respirator was finally disconnected by a doctor seven days after the assault was harmless beyond a reasonable doubt where the same evidence would have been considered on the issue whether the doctor's conduct was an independent supervening cause of death, and the outcome of the trial, conviction of the defendant of murder in the first degree, would have been the same. [256-257]

At the trial for the murder of a man hit on the head who suffered a "brain death" prior to removal of an artificial respirator, there was no abuse of discretion in the admission of opinion testimony by doctors who were not neurologists [257]; an expert witness was properly allowed to answer a question to be determined by the jury [257]; the scope of cross-examination of expert witnesses was properly restricted [258]; a harmless answer of a defense expert on cross-examination did not prejudice the defendant [258]; and medical testimony as to the general acceptance of the "brain death" standard was directly relevant [258].

At the trial for the murder of a white man in Dorchester by a black man, there was no abuse of discretion in the denial of the defendant's motion for a continuance because "Boston had been plagued by racial violence" [258-259]; the defendant's motion to dismiss the venire because it contained only four blacks out of sixty persons was properly denied [259]; and there was no abuse of discretion in the Judge's overruling the defendant's challenge for cause, and finding indifferent, a prospective white juror with respect to whom a peremptory challenge was exercised by the defendant, who later exhausted all such challenges [259].

At a murder trial, testimony from a Commonwealth witness as to the sound made by the defendant's blow to the victim's head was properly admitted. [259]

Evidence at a murder trial, including evidence of the great and unusual violence with which the victim was struck a single blow in the head by the defendant, who said he did it "For kicks," disclosed no error in the submission to the jury of the issue of murder in the first degree committed with extreme atrocity or cruelty. [259-260]

Upon appeal from a conviction of murder in the first degree of a victim hit on the head with a single blow of a baseball bat, there was no merit in the defendant's contention that he did not intend to kill or to inflict serious bodily harm. [260]

At a murder trial, there was no error in the submission of special questions to the jury not tending to lead the jurors step by step to a verdict of guilty. [260-261]

The defendant appeals his conviction of murder in the first degree. Among numerous other errors, he claims that the death of the victim was not properly established. We hold that the trial Judge correctly accepted the medical concept of "brain death"; alternatively, any error in this respect was harmless beyond a reasonable doubt. We ...


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