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January 27, 1978


Hampden. Indictments found and returned in the Superior Court on June 5, 1974. The cases were tried before Moriarty, J.

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


Practice, Criminal, Directed verdict, Mistrial, Charge to jury. Evidence, Other offense, Collateral matter, On cross-examination, Photograph, Judicial discretion. Witness, Impeachment. Identification. Constitutional Law, Assistance of counsel. Homicide.

The opinion of the court was delivered by: Liacos

Even though the testimony of two witnesses at the trial of indictments for murder and arson was confusing and uncertain there was sufficient evidence to warrant a finding of guilty. [296-297]

The fact that a prosecution witness in a criminal case alluded to unrelated criminal conduct by the defendant did not require a mistrial where the Judge immediately instructed the jury to disregard the remark and defense counsel sought no additional cautionary instructions as part of the Judge's charge. [297-299]

Where a defendant charged with arson and murder testified that he was not in possession of gasoline on the day preceding the fire, there was no error in admitting, for the purpose of impeaching the defendant's testimony, evidence that he had been carrying gasoline in an orange soda bottle the day before the fire. [299-300]

A criminal defendant who was permitted to consult with an attorney for only a very brief time during a pre-trial lineup was not denied his Sixth Amendment rights where neither a criminal complaint, an indictment, nor other formal charge had been issued against the defendant [300-302]; nor was he denied due process of law by the fact that he was the only individual in the lineup with a blue jacket, especially where the identifying witnesses knew the defendant for some time prior to the crime [303-304].

At a criminal trial a Judge did not abuse his discretion in refusing to allow the defendant to cross-examine a witness as to whether she was scheduled to go to court on a charge involving unlawful possession of a gun. [305]

At a murder trial, there was no error in the admission of photographs of the deceased's body. [305-306]

At a murder trial, evidence that the defendant had poured gasoline on the deceased and set him on fire and that as a result the deceased had leapt from a fifth floor window to his death warranted submission to the jury of the issue whether the decedent had been killed with extreme atrocity or cruelty. [306-308]

The defendant was tried and found guilty by a jury on two indictments, one charging that he wilfully and maliciously set fire to the Mayflower Hotel in Springfield, and the other charging him with murder in the first degree of one Robert Stokes. On September 21, 1974, the Judge sentenced the defendant to imprisonment for life on the indictment for murder in the first degree and fifteen to twenty years on the indictment for arson; he ordered the sentences to be served concurrently at the Massachusetts Correctional Institution at Walpole.

On appeal to this court, the defendant raises seven issues with respect to alleged errors of the trial Judge in (1) denying the defendant's motion for a directed verdict, (2) denying the defendant's motion for a mistrial based on statements made by the witness Marilyn Olmstead, (3) admitting the testimony of the witness Robert James, (4) admitting evidence of in-court and out-of-court identifications of the defendant, (5) restricting the cross-examination of Marilyn Olmstead, (6) admitting in evidence certain photographs of the deceased, and (7) refusing to instruct the jury that this case was not a murder committed with extreme atrocity or cruelty.

We hold that there was no reversible error. We find no basis to modify the jury verdict under G. L. c. 278, § 33E.

We summarize the evidence in its aspect most favorable to the Commonwealth. Commonwealth v. Klein, 372 Mass. 823, 824 (1977). Both the defendant and Stokes were residents of the Mayflower Hotel in Springfield. They occupied adjoining rooms on the fifth floor. In the early morning of April 7, 1974, the defendant and Stokes quarreled in the corridor outside Stokes's room. During this argument Stokes warned the defendant, "If I catch you in my room again again, I'll kill you." The defendant responded to this threat by saying: "M. F., you ain't going to be doing nothing to me." There was a physical altercation between the two men which was broken up by other persons, including the night manager of the hotel. The night manager then asked the defendant to vacate his room and leave the hotel. This incident occurred approximately at 1:30 a.m. The defendant left the premises shortly thereafter. There was evidence that subsequently at a nearby automobile garage a man wearing a hat, bluish jacket, and dark pants -- clothing similar to that worn by the defendant -- purchased gasoline in a can between 2 and 3 a.m.

About 3 a.m. a fire broke out in the deceased's room. Expert testimony was to the effect that the cause of the fire was by "human design." The Commonwealth presented several witnesses linking the defendant to this crime. Marilyn Olmstead, occupant of the room next to the deceased's room, testified that at approximately 3 a.m. she opened her door after detecting the odor of gasoline and saw the defendant in dark pants and a blue jacket outside her door. One Robert Shumate testified he heard the victim in his room "screaming" and "hollering" that he was burning. The screams were described as "ungodly." Linda Washington, who occupied a room two doors from the deceased, testified that after noticing the fire she opened her door and saw the defendant standing in the hallway holding a can in his hand. She then fled the hotel, crossed the street, and observed the deceased jump from his fifth floor window and fall forty-five to fifty feet to the street below.

Shortly thereafter the police found the deceased in the alley by the rear of the hotel. His hair smelled of gasoline. An autopsy later revealed that the victim died from a broken neck, other multiple fractures, and lacerations of the lung, liver, and spleen. The body had extensive second and third degree burns of the back and neck and on all four extremities. There was evidence that the victim was still alive when he fell to the street but died almost immediately thereafter. At approximately 5:15 a.m. on the morning of the fire the defendant was arrested wearing a hat, blue jacket, and dark pants. His hands had the odor of gasoline.

The defendant took the stand in his own behalf and also presented several witnesses to ...

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