COMMONWEALTH vs. RALPH E. ROGERS.

CUTTER, J. Rogers was indicted for the murder on November 6, 1964, of Mrs. Patricia Campbell. Trial took place from January 11 to 18, 1966, under G. L. c. 278, Sections 33A-33G, as amended. The jury returned a verdict of guilty of murder in the first degree with a recommendation that the death sentence be not imposed. Rogers was sentenced to life imprisonment. He appealed. The assignments of error which have been argued are outlined below.

THE PRINCIPAL EVENTS OF NOVEMBER 6, 1964.

There was little dispute concerning what took place on or before November 6, 1964, except with respect to (a) the

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activities of Rogers and an acquaintance named Tony between about 3 P.M. and 6 P.M. on that day, and (b) if relevant, the extent of Tony's acquaintance with Mrs. Campbell prior to that date. There was evidence from which the following facts could have been found.

The hideously mutilated, nude corpse of Mrs. Campbell, a woman nearly thirty-seven years of age, was found shortly after 6 P.M. on November 6, in a room rented by Rogers on the third floor of a Boston lodging house. There was evidence from occupants of the house that about 5:55 P.M. to 6 P.M. Rogers left his room (rented a week before), surrendered his key, and departed from the building, saying to the janitor that his mother was sick and that he had to go to the Cape right away. One Gage, whose room was adjacent to that of Rogers, testified that about 6:15 P.M. Rogers knocked on his door. He had stains which looked like blood on his ear and on his hands. Rogers said to Gage, "I had a fight." One Raymond who lived on the floor "right below" Rogers' room was not in the building from 3 P.M. to about 5 P.M. He heard "quite a rumpus" on the floor above him for some ten minutes just about 5 P.M. He recognized Mrs. Campbell's voice. His door to the hall was open, and about 5:45 P.M. to 6 P.M. he saw Rogers come from the floor above, step into the bathroom for five minutes, and then go downstairs. While Raymond was in his room no one went upstairs prior to the noises he heard and no one went downstairs before Rogers left.

Rogers testified that he was in his room with Mrs. Campbell as late as 2:45 P.M. to 3 P.M. Rogers gave testimony (for convenience hereafter called the alibi testimony) that he went to Tony's room in another building so that Tony could go to Rogers' room to meet Mrs. Campbell and that Tony left him for that purpose. Rogers also claimed that he returned to his own room after dark, found Mrs. Campbell's body, "got frightened," and fled. Tony was identified by Rogers in the court room during the trial. He was not called as a witness either by Rogers or by the Commonwealth.

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Rogers testified that, on the morning of November 6, Tony had introduced him to Mrs. Campbell, and that before that day he, Rogers, had seen Tony and Mrs. Campbell together on several occasions. The evidence concerning the extent of Tony's acquaintance with Mrs. Campbell was inconclusive.

Rogers admitted that he had been a heavy drinker for some time and that he and Mrs. Campbell drank frequently together during November 6. The evidence, wholly apart from the testimony (mentioned below) concerning Rogers' statements on November 17 and 18 after his arrest, warranted the conclusion that Rogers had been constantly in his room with Mrs. Campbell for at least three hours prior to 6 P.M. on November 6.

ARREST OF ROGERS AND POST-ARREST INTERROGATION.

On the evening of November 17, 1964, Rogers was arrested between 8 P.M. and 8:30 P.M. by two officers in a Boston cafe. He gave his name as James Perry. He was taken to Station 4, and was then transferred to police headquarters for fingerprinting. Later Rogers admitted his identity. [Note 1] The testimony concerning what happened after Rogers left police headquarters to return to Station 4 is conflicting.

The police testimony would have warranted the following findings. One police sergeant (now a lieutenant) testified that about 10 P.M. he informed Rogers "that he didn't have to make any statements, and that he was entitled to counsel, and a telephone call, and that he could stand mute." At Station 4, Rogers was given a chance to call an attorney. He did speak with the wife of a legislator in Barnstable. Upon failing to reach the legislator, Rogers stated that there was nobody else he would like to call. Between 10:30 P.M. and 11 P.M. another sergeant from the headquarters homicide division began interrogating Rogers. He told Rogers that he "didn't have to answer" questions and

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that he, the sergeant, would testify to Rogers' answers in court.

A police stenographer was present only after midnight during the later part of the interrogation of Rogers by the second sergeant. Interrogation of Rogers by each sergeant before midnight was not recorded. In the course of the interrogations, Rogers made admissions amounting to a confession and an acknowledgment that the alibi testimony was false. These admissions did not include any admission that-Rogers had mutilated Mrs. Campbell's body or any explanation of the circumstances of the mutilation. [Note 2] The second sergeant did not advise Rogers that he had "the right to consult a lawyer."

Police witnesses stated that Rogers, on the night of November 17, "had been drinking," that he "was under the influence of liquor," and that "his faculties had been impaired." He was "coherent in his speech" and there was no difficulty in understanding his answers. He did not fall asleep during the questioning. The police stenographer saw Rogers for about an hour and "understood him perfectly, although at times he hesitated before answering." At times during the interrogation, Rogers "stared into space" or "at the wall."

At 2 A.M. on the 18th, Rogers was "sober," and he had ceased to be under the influence of liquor about 11 P.M. Police witnesses testified that no liquor was given to Rogers in the police station, although he had been served coffee; that he had not been beaten, slapped, threatened, or physically mistreated; and that no promises had been made to him to induce him to make a statement. There was some conflict in the testimony of various police officers concerning the details of the interrogation and about who was present at various stages of it.

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Rogers' version of the circumstances of his interrogation differed from the police version in two principal respects. First, Rogers denied that he had been advised of his constitutional rights and said that he had been refused permission to make a telephone call to a lawyer whom he knew. Second, he testified (a) that he had been subjected to various forms of physical abuse; (b) that he was "pretty drunk, [but] not completely"; (c) that he had been served whiskey by the police in his coffee, and had been given the wine which had been taken from him [Note 3] upon his arrest, and (d) that he was falsely told by the first sergeant to question him that a statement was sought from him only as a "material witness" rather than as a suspect. Rogers claimed not to remember the admissions and statements made by him to the second sergeant to question him but asserted that, because of liquor and the alleged abuse, he "could have said anything."

Rogers testified that he made an exculpatory statement (essentially the alibi testimony) on the events of November 6, 1964, to the former sergeant which placed him prior to 6 P.M. on November 6, in Tony's room. He himself (in the alibi testimony) gave before the jury a similar exculpatory account of the afternoon's events.

1. The first group of assignments of error argued relates to the statements obtained following Rogers' arrest, based on the alleged denial to Rogers of the right to consult counsel, the taking of articles from Rogers' room, and the alleged failure to warn Rogers at the police station of his constitutional rights and of his statutory privilege of using the telephone (G. L. c. 276, Section 33A, as amended through St. 1963, c. 212). Rogers contends that the evidence should have been suppressed before trial and should not have been admitted at the trial. The short answer to each assignment of error is that the trial judge, after the relevant voir dire examinations (see fn. 2), and the jury, after hearing the

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testimony before them, were not required to believe Rogers' unsupported testimony tending to show that his confessions were not voluntary. The judge, and the jury as triers of the facts, heard and saw the police witnesses and Rogers. It was for them to appraise the sharply conflicting testimony. They could consider, as affecting Rogers' credibility, his long criminal record, introduced in evidence after he took the stand. The police testimony warranted the conclusion that Rogers (a) was given the opportunity to use the telephone; (b) was repeatedly warned (see Commonwealth v. Kleciak, 350 Mass. 679, 685-689, and cases cited) of his constitutional rights; (c) was afforded fair opportunity to get in touch with counsel; (d) was not induced to confess by physical maltreatment, by being furnished liquor, by threats, by promises or inducements, or by any improper method, and (e) made his confession voluntarily.

The jury could reasonably conclude that Rogers, even if influenced by liquor consumed by him prior to his arrest, did not so lose capacity to understand and to make himself understood as to render his statements involuntary. Commonwealth v. Howe, 9 Gray 110, 112. See Commonwealth v. Chapman, 345 Mass. 251, 254; annotation, 69 A. L. R. 2d 361, 365. On this subject the judge instructed the jury that they must consider whether Rogers' "condition with regard to intoxication . . . [was] such as to render the confession involuntary." No exception was taken to the charge in this respect. [Note 4]

The judge (fn. 2) and the jury were not bound to give weight to various inconsistencies (see e.g. fn. 3) in the police testimony. The discrepancies and inconsistencies could be found to be either without substantial significance or of a type to be expected when testimony is given some fourteen months after the events described.

There was no error in the failure of the judge to instruct the jury concerning Rogers' constitutional rights and concerning the principles governing evidence seized or obtained

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in violation of statutes or constitutional provisions. Whether evidence had been unlawfully obtained was a question of law for the judge, who passed upon it after proper voir dire examinations (fn. 2). The jury need not be given instructions on such issues. Commonwealth v. LaBossiere, 347 Mass. 384, 387. Steele v. United States, No. 2, 267 U.S. 505, 510-511. Cf. Haynes v. Washington, 373 U.S. 503, 516-518. Cf. also Commonwealth v. Valcourt, 333 Mass. 706, 710-711, and connected case, Commonwealth v. Reynolds, 338 Mass. 130. The jury were afforded opportunity to hear all Rogers' testimony in chief concerning his interrogation in the police station. They were told to "consider in determining whether . . . this confession was voluntarily given . . . where it was made, when it was made, was it under such pressure or hope or fear as to raise a doubt," and "whether . . . there was inducement, promise, threat, physical abuse of any kind."

The judge during the trial followed the approved Massachusetts practice of voir dire examinations (see fn. 2) to determine whether statements by the defendant were voluntary. The trial judge, after admitting the statements, left it to the jury to decide whether they also thought the statements were voluntary, free of any influence by his preliminary finding. Commonwealth v. Marshall, 338 Mass. 460, 461-462. See Amado v. Commonwealth, 349 Mass. 716, 720-721; Jackson v. Denno, 378 U.S. 368, 378-391.

The case was tried prior to the decision in Miranda v. Arizona, 384 U.S. 436 (decided June 13, 1966), but after the decision in Escobedo v. Illinois, 378 U.S. 478 (decided June 22, 1964). The judge could reasonably have concluded from the testimony (disregarding testimony which he apparently did not believe and was not required to believe) that Rogers' statements involved no violation of principles set out in the Escobedo case. We need not decide whether, if the Miranda case were applicable, it would require us to take any different view concerning the admissibility of Rogers' statements to the police. The new principles asserted in that case by a majority of the Supreme

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Court of the United States need not be applied by us retroactively to cases where trial started before that decision. Johnson v. New Jersey, 384 U.S. 719, 726-735. Public interest in law enforcement, the impracticability of retroactive application of the Miranda principles, and the probability that police officers could not foresee the Miranda decision, cause us to refrain from applying that case to any greater extent than the Johnson case commands. See Commonwealth v. Morrissey, ante, 505, 509-511; Commonwealth v. McCambridge, ante, 516, 520-521; Commonwealth v. McGrath, post, 534, 539.

2. There was no error in admitting in evidence repulsive pictures of the mutilated corpse, which left no gruesome detail of this macabre event to the imagination. The pictures were duly authenticated. They were relevant on the issue whether the homicide was committed with extreme atrocity and cruelty. Commonwealth v. McGarty, 323, Mass. 435, 438-439. Commonwealth v. Smith, 350 Mass. 600, 607, and cases cited. [Note 5]

3. The judge adequately instructed the jury in effect that, before they drew any inference of guilt from Rogers' behavior after he left the scene of the homicide, they must "be satisfied that . . . [his] acts or words" were caused by consciousness of guilt of the crime of killing, and that their probative effect, "in connection with all the other facts established," was for the jury's determination. Commonwealth v. Connors, 345 Mass. 102, 105-106. Cf. Commonwealth v. Fancy, 349 Mass. 196, 201.

4. The testimony of Gage, that Rogers told him in the early evening of November 6 that he had been in "a fight," related to a relevant conversation in which Rogers participated close to the time of the homicide. That Gage had been drinking prior to the conversation went to the weight of the evidence. See Commonwealth v. Bonomi, 335 Mass. 327, 340.

5. Raymond's testimony concerning the "rumpus" on the floor above was admissible. He had been shown to have

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had reasonable opportunity to observe and hear. He knew and had talked with Mrs. Campbell and could recognize her voice, although he conceded that in the circumstances it was "hard to tell," and that he had some animosity toward Rogers. The weight of the evidence was for the jury.

6. Instructions concerning the alibi testimony were given in connection with a full charge on the subject of the Commonwealth's burden of proof beyond a reasonable doubt and of the proper consideration of circumstantial evidence. The jury were told that the Commonwealth "must show . . . that the defendant was the murderer" and "that the accused had the opportunity and means to commit the crime." The specific instructions with respect to the alibi testimony were given in language closely similar to that found in Commonwealth v. Webster, 5 Cush. 295, 319. See Commonwealth v. Geagan, 339 Mass. 487, 518, cert. den. 361 U.S. 895. The charge taken as a whole did not place any improper burden of proof upon Rogers.

The judge did not have to give, in the language of certain requests, instructions in effect that evidence, as consistent with innocence as with guilt, was insufficient to sustain a conviction. Apart from the circumstance that the evidence as a whole was hardly susceptible of any such neutral interpretation, the judge's instructions concerning the Commonwealth's burden of proof were ample.

7. There was no evidence of significant provocation or naturally caused, sudden anger leading to the brutal killing of this woman who was only five feet three inches tall and weighed only 108 pounds. The essentially indisputable evidence about the multiple and serious injuries to Mrs. Campbell showed action which would have been impossible without some intent on the part of the killer sufficient to constitute malice aforethought. If this killing had been done by one who was sober, the act could only have been murder. Even if the killer had been sufficiently drunk so that the killing could reasonably be found not to constitute first degree murder on the basis of "deliberately premeditated malice aforethought" (see G. L. c. 265, Section 1), this killer's act

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would involve at least malice aforethought not deliberately premeditated, and would not be converted into manslaughter. Commonwealth v. Soaris, 275 Mass. 291, 299-300. Commonwealth v. Hartford, 346 Mass. 482, 490-491. See Commonwealth v. Peterson, 257 Mass. 473, 477-478. Cf. Commonwealth v. Houston, 332 Mass. 687, 690-691. There was no evidential basis for finding Rogers guilty only of manslaughter, and the judge could properly thus instruct the jury.

8. The judge charged that "murder implies atrocity and cruelty of the guilty party." He then proceeded, "But there are degrees of criminality in this respect, even in the . . . taking of a human life," and pointed out that it was for the jury to determine "whether the crime was committed with such savagery or brutality as to constitute murder committed with extreme atrocity or cruelty . . . one of the three grounds for arriving at a first-degree murder." The first sentence quoted above was in general in the language of Commonwealth v. Devlin, 126 Mass. 253, 255. See Commonwealth v. Vaughn, 329 Mass. 333, 337.

The evidence did not make it necessary or appropriate for the trial judge to give a requested instruction that, if the jury found the victim died from strangulation, subsequent mutilation of the corpse could not be considered on the issue of cruelty and atrocity. The medical testimony was in effect that no single cause of death could be identified and that the mutilation was done at about the time of the other injuries when Mrs. Campbell was "probably alive or in a dying phase." See Commonwealth v. Bartolini, 299 Mass. 503, 516.

The judge was not required by the evidence before him to give instructions concerning the motive of the murder. It is not argued that the judge excluded any evidence offered which was relevant to motive or that he precluded the jury's consideration of such evidence. Motive was not an essential element of any crime charged. See Commonwealth v. Goldenburg, 315 Mass. 26, 33. Motive (or its absence) was, of course, irrelevant on the issue whether the killing was

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first degree murder because accomplished with "extreme atrocity or cruelty." G. L. c. 265, Section 1.

9. The judge charged that what the jury "did observe on the view is evidence to be . . . weighed . . . like any other evidence." Although what is seen on a view, in a "strict and narrow sense" is not evidence (see Commonwealth v. Dascalakis, 246 Mass. 12, 29-30), it may be used in reaching a verdict. Commonwealth v. Mercier, 257 Mass. 353, 365. See Berlandi v. Commonwealth, 314 Mass. 424, 451-452. No exception was taken with respect to anything which happened during the view.

10. In view of Fisher v. Swartz, 333 Mass. 265, 268-271, it may well be that more expeditious methods of introducing Rogers' confession in evidence could have been pursued. See Commonwealth v. Dougherty, 343 Mass. 299, 306. In any event, there was no error (after the voir dire; see fn. 2) in permitting the sergeant who conducted the interrogation to use the transcript very fully to refresh his recollection.

11. After review of the entire transcript and record (see G. L. c. 278, Section 33E, as amended through St. 1962, c. 453), we perceive no reason in justice for disturbing the judgment. See Commonwealth v. Smith, 350 Mass. 600, 613.

Judgment affirmed.