Home COMMONWEALTH vs. JAMES E. FLOWERS (and a companion case between the same parties).

357 Mass. 94

February 2, 1970 - February 27, 1970

Hampden County

Present: WILKINS, C.J., SPALDING, KIRK, SPIEGEL, & REARDON, JJ.

No error under Witherspoon v. Illinois, 391 U.S. 510, appeared at the trial of an indictment for first degree murder in excusing from service on the jury certain veniremen whose answers to questions by the judge indicated "general objections to the death penalty or . . . conscientious or religious scruples against its infliction" which would have prevented them from rendering a just verdict or finding the defendant guilty.

TWO INDICTMENTS found and returned in the Superior Court on August 22, 1967.

The cases were tried before Macaulay, J.

Edward L. Donnellan for the defendant.

Matthew J. Ryan, Jr., District Attorney, for the Commonwealth.


REARDON, J. The defendant was convicted of murder in the first degree and armed robbery of James A. Bryce in

Page 95

Springfield. He was sentenced to death on the first degree murder charge and was also given a sentence on the charge of armed robbery. The trial was subject to the provisions of G. L. c. 278, Sections 33A-33G. Bryce, a sixty-seven year old man, worked part time at the Summit Package Store and was the victim of a holdup in the late evening of July 13, 1967, at a time when he was alone in the store. The defendant was one of several participants in the crimes which led to Bryce's death by gunshot.

The defendant, whose brief was prepared and filed prior to our decision in Ladetto v. Commonwealth, 356 Mass. 541 , has argued thirteen assignments of error based on Witherspoon v. Illinois, 391 U.S. 510. They all have to do with the exclusion from the jury of certain veniremen "because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." The Illinois statute, which was challenged in the Witherspoon case, was discussed in comparison with G. L. c. 278, Section 3, in the 1969 Ladetto case, and the differences between the two statutes were noted. In the light of that discussion we see no error in excusing the prospective jurors referred to in the defendant's assignments. Examination of the responses given by them on voir dire indicates, as the Commonwealth contends, that their views would prevent them from rendering a just verdict, or finding the defendant guilty. In certain instances their answers were not clearly responsive to the inquiry by the trial judge.

Consonant with the duty imposed upon us by G. L. c. 278, Section 33E, we have considered the whole case on the law and the evidence. The conduct of the trial was exemplary. We are of opinion that justice does not require a new trial.

Judgments affirmed.