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07/06/78 COMMONWEALTH v. JAMES F. BLAIKIE

July 6, 1978

COMMONWEALTH
v.
JAMES F. BLAIKIE, JR.



Norfolk. Indictment found and returned in the Superior Court on January 26, 1976. The case was tried before McGuire, J.

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

SYLLABUS BY THE COURT

Homicide. Evidence, Relevancy and materiality, Judicial discretion. Practice, Criminal, Mistrial, Discovery, Disclosure of statements by defendant, Argument by prosecutor. Witness, Prosecutor as witness, Expert witness.

The opinion of the court was delivered by: Liacos

Evidence at a murder trial was sufficient to warrant a finding that the defendant acted with deliberate premeditation in killing the victim. [605-606]

Where a criminal trial ended in a mistrial after a police officer testified as to statements made by the defendant which the prosecution had unintentionally failed to disclose as required by a pretrial discovery agreement, the award of a new trial, accompanied by pretrial disclosure of all the defendant's statements, remedied the effect of the prejudicial testimony at the first trial, and the prosecution was not limited at the second trial to only those statements disclosed prior to the first trial. [606-608]

At a criminal trial, there was no error in the Judge's refusal to allow defense counsel to call the prosecutor as a witness for the purpose of impeaching the testimony of two police officers where there was no showing that the prosecutor's testimony would be relevant, material, and not cumulative. [608-610]

The Judge at a murder trial did not err in refusing to permit the defense to reopen its case for the second time in order to present expert witnesses on the sole issue of rigor mortis where the witnesses had no personal knowledge of the condition of the victim's body. [610-611]

The Judge at a murder trial did not err in failing to instruct the jury that the prosecutor in her closing argument improperly suggested the existence of a large loan as the motive for the killing where the suggestion could be reasonably inferred from the evidence, the defendant did not request a specific curative instruction, and the Judge instructed the jury that such arguments are not to be considered as evidence. [611-613]

The defendant appeals under the provisions of G. L. c. 278, §§ 33A-33G, from a conviction of murder in the first degree. The defendant argues on appeal that the trial Judge erred in (1) denying the defendant's motion for a directed verdict of not guilty on so much of the indictment as charged murder in the first degree; (2) denying the defendant's motion to suppress statements, based on an alleged breach of a discovery agreement; (3) refusing to allow the defendant to call the prosecutor as a witness; (4) denying the defendant permission to reopen his case on surrebuttal; and (5) failing to instruct the jury that the prosecutor's closing argument contained statements of fact not based on the evidence.

We conclude that there was no error. After reviewing the case on the law and the evidence, we also conclude that the defendant is not entitled to relief under G. L. c. 278, § 33E. We briefly summarize the evidence presented at trial by the prosecution before turning to the defendant's assignments of error.

The arrest of the defendant followed the discovery in November, 1975, of the corpse of twenty-seven year old Caesar D. DeWilde. The police found the deceased buried in a dry well located in the basement of a house in Brookline, owned and occupied by the defendant from April of 1974 to April of 1975. To reach the body, the police had to break through a layer of concrete, then two to three inches of coal and an eighteen-inch layer of sand. Beneath three large green plastic garbage bags lay the body of DeWilde in a curled-up position. His head was encased in a bloodied plastic bag, bound around his neck with a wire and string; the back portion of his body was covered with an "egg shell" thin layer of concrete lime. This layer remarkably retarded the normal decomposition process, well preserving the body for identification purposes. The autopsy revealed that DeWilde had been shot once in the back of the head with a .38 caliber bullet. Dr. Bigelow, the medical examiner, testified that DeWilde had been dead for at least six months prior to the discovery of the corpse by the police.

It was in January of 1975 that the police had begun their search for DeWilde. Responding to a report by DeWilde's mother that her son was missing, the police sought information as to DeWilde's whereabouts from the defendant. The defendant had known DeWilde for several years. DeWilde was impressed by Blaikie's apparent financial success as evidenced by his large home in Brookline, his new cars, and his sailboat. In reality, the defendant was living beyond his means, for he was deeply in debt. In early December, 1974, the defendant had borrowed $6,000 from DeWilde to be repaid on February 12, 1975. There also was evidence, offered to show the state of mind of the deceased, that a week before his death DeWilde loaned the defendant an additional large sum of money. According to his friends, DeWilde was thus "uptight" and worried that he would "lose everything."

On January 14, 1975, DeWilde, owner of a foreign auto repair business, was playing "nickel" poker during his lunch break with Matthew Chaet, who rented garage space to DeWilde. At approximately quarter past twelve, DeWilde received a telephone call. Elated by the telephone message, DeWilde slapped Chaet on the back and yelled, "He's got it. Jimmy's got it." About five minutes later the telephone rang again, and Chaet heard DeWilde say after taking the ...


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