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05/23/78 COMMONWEALTH v. PAUL R. CAMPBELL

May 23, 1978

COMMONWEALTH
v.
PAUL R. CAMPBELL, JR.



Middlesex. Indictments found and returned in the Superior Court on August 8, 1973. The cases were tried before Good, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

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

SYLLABUS BY THE COURT

Practice, Criminal, Directed verdict. Homicide. Malice. Evidence, Photograph, Expert Opinion.

The opinion of the court was delivered by: Abrams

Evidence at a murder trial, together with the reasonable inferences which could be drawn therefrom, was sufficient to warrant a finding that the defendant acted with malice aforethought in killing the victim. [311-313]

The Judge at a murder trial did not abuse his discretion in admitting in evidence a photograph of the deceased after surgery for a knife wound. [313-314]

At the trial of an indictment for murder by stabbing, the defendant was not prejudiced by expert testimony that the deceased's injuries resulted from a "forceful, purposeful thrust" of a knife where the witness subsequently clarified the use of the word "purposeful." [314-315]

On an indictment charging murder in the first degree Paul R. Campbell, Jr. was convicted by a jury of the murder in the second degree of his roommate, James Duffey. Campbell was also convicted of possession of a dangerous weapon (knife) and assault by means of a dangerous weapon (knife) on William Biciocchi, another roommate. In this appeal pursuant to G. L. c. 278, §§ 33A-33G, Campbell challenges only his conviction of murder in the second degree *fn1 and argues assignments of error concerning (1) the denial of his motion for a directed verdict of not guilty of murder in the second degree; (2) the admission of a photograph of the deceased after surgery; and (3) the failure of the Judge to strike a word from the testimony of the government's expert witness. We concluded that the conviction should be affirmed.

We summarize first the evidence presented by the Commonwealth. Campbell, Duffey (the victim of the homicide), William Biciocchi (the victim of the assault by means of a dangerous weapon), and one Brenda Loveless had been part of the "same crowd" for approximately six years. In 1973, Campbell, Duffey, and Biciocchi shared an apartment in Cambridge. Brenda Loveless and the defendant started dating in February of 1969. They broke off and then resumed their relationship a number of times; at one time they had been engaged to be married.

In 1971, during one of the periods in which Brenda and the defendant were not seeing each other, Brenda started dating Duffey. About six weeks prior to the homicide, she spent one night with Duffey at the apartment. After the defendant learned of this, he told a friend that he was very upset that Brenda and Duffey were seeing each other and stated that he would not do such a thing to a friend.

Shortly before the homicide the defendant and Brenda again resumed their relationship. On the night of the killing, they went to a lounge where they had a few drinks. *fn2 Later, when the defendant was driving Brenda home *fn3 and away from his apartment, Brenda asked to leave the car and walk. She got out of the car and started to walk. The defendant turned the car around and stopped near Brenda who was, at that time, opposite the apartment.

Brenda and Campbell began arguing loudly and heatedly about Brenda's feelings for the defendant and their relationship. A portion of the argument concerned Brenda's having stayed with Duffey. The defendant then forced Brenda to go into the living room of the apartment, where Duffey was asleep on the couch. Brenda and Campbell continued their quarrel, thereby partially awakening Duffey.

Before Duffey awakened, the defendant went to his own room and took a switchblade knife from a dresser drawer. On his return, Campbell found Duffey awake. Duffey moved to leave the room, but the defendant pushed him back. The defendant then repeatedly ordered Brenda and Duffey to have sexual intercourse in front of him. Brenda was hysterical and screaming. Duffey repeatedly asked, "What's going on?" The defendant continued to yell.

At this point, Biciocchi entered the room. The defendant pointed the knife at him and said, "Get back. This is none of your business. Get out of here." Biciocchi told the defendant to put the knife down, and, when Campbell did not comply, Biciocchi left to call the police.

The defendant continued screaming at Brenda and Duffey and pointing the knife at them. Brenda, the only witness other than the defendant in the room when the stabbing which followed occurred, testified that she saw Duffey "bounce onto the couch, grab his chest, and slide ...


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