COMMONWEALTH vs. EDWARD F. DALTON, SR.

NOLAN, J. The defendant was found guilty of murder in the first degree. In this appeal, the defendant argues: (1) that the trial judge committed error when he admitted in evidence a photograph of the victim's body; (2) that the charge to the jury was inadequate for failure to include instructions on manslaughter; (3) that the judge abused his discretion by refusing to appoint experts or investigators with respect to certain tape recordings used at the trial; (4) that a juror may have been biased; (5) that the judge should have appointed an expert to investigate the effects of the defendant's medical condition; (6) that the defendant was inadequately represented by counsel; and (7) that there was insufficient evidence to support a conviction of murder in the first degree and that, consequently, the judge erred in denying the defendant's motion, made at the conclusion of the Commonwealth's evidence, for a directed verdict of not guilty of murder in the first degree. The defendant requests, finally, that this court reduce his conviction or order a new trial pursuant to our powers under G. L. c. 278, Section 33E.

We hold that the judge committed no error and that the defendant was adequately represented. We conclude, however, that the verdict should be reduced to murder in the second degree pursuant to our powers under Section 33E, for reasons which will appear later in this opinion.

The jury could have found the following facts. On May 23, 1977, at approximately 5 A.M., police and fire department personnel, summoned by the defendant, arrived at the Brockton home of the defendant and his wife, Elizabeth R. Dalton, the victim. Dalton led the police and emergency squad to the bedroom where they found his wife lying in bed. She was bleeding from the head. A .22 caliber rifle was found in the room. Mrs. Dalton was taken to the hospital and died on May 25, 1977, of a gunshot wound to the head.

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The defendant at first claimed that his wife had committed suicide. An autopsy ruled out the possibility of a self-inflicted wound. After the autopsy, the police interviewed the defendant. The defendant said he went to sleep with his wife and was awakened by a loud noise. He saw blood on his wife and found the rifle on the bed between them. At the conclusion of the interview, the defendant was arrested. He repeatedly denied shooting his wife.

Since 1972, the defendant had suffered from epilepsy. Because of his seizures he had been taking dilantin, phenobarbitol, and demerol. The defendant claimed that during some seizures he became violent. He maintained that he had no memory of events on the night in question subsequent to going to bed, until he was awakened by a loud blast and discovered his injured wife.

1. Photograph. The defendant challenges the admission of a photograph taken in the course of an autopsy of the victim. [Note 1] We conclude that the judge did not abuse his discretion in admitting it.

The Commonwealth introduced the black and white photograph, which showed the entry wound in the victim's head, to rebut the defendant's original claim that the victim committed suicide. The defendant concedes that the part of the photograph depicting the wound was "arguably relevant" but objects to the part of the photograph showing the victim's upper torso. We have examined the photograph and found it not inflammatory. It was, also, relevant to a material issue. Even if it were inflammatory, "[t]he fact that photographs may be inflammatory does not render them inadmissible if they possess evidential value on a material

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matter." Commonwealth v. Stewart, 375 Mass. 308, 385 (1978), and cases cited. Notwithstanding the fact that the photograph depicted the wound after an autopsy, we conclude that the judge acted within his discretion consistent with the guidelines set out in Commonwealth v. Bastarache, 382 Mass. 86, 105-106 (1980). Cf. Commonwealth v. Allen, 377 Mass. 674, 679-680 (1979) (photographs of victim's crotch not relevant and possibly prejudicial); Commonwealth v. Richmond, 371 Mass. 563 (1976) (abuse of discretion to admit photograph of a victim with face mutilated by dogs).

2. Charge to the jury. The defendant argues that the judge was required to give instructions to the jury on manslaughter. [Note 2] We disagree.

The defendant theorizes that if a defendant has epilepsy, a judge must instruct a jury that the defendant may have had an epileptic seizure at the time of the killing and that, therefore, he may not have been able deliberately to premeditate or to act with malice aforethought. We recognize that an instruction on manslaughter is required where any view of the evidence would support a finding of manslaughter. Commonwealth v. Burke, 376 Mass. 539, 542 (1978). However, in the circumstances of this cases, there was no evidence that the defendant killed his wife during a seizure or under any conditions which negate malice. The judge committed no error by not instructing the jury on manslaughter.

3. Tapes. The defendant claims that the police or prosecution tampered with the tape recordings of an interview of the defendant by police shortly after the victim's death. He argues that the judge abused his discretion by refusing to appoint, at the Commonwealth's expense, an engineer to examine the tapes and that the judge further abused his discretion by later refusing to allow an engineer to have

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access to the tapes at the defendant's expense. Such access was requested during the presentation of evidence in a hearing on a motion for a new trial. We therefore treat the defendant's request, as did the trial judge, in the context of the discovery provisions of Mass. R. Crim. P. 30 (c) (4), 378 Mass. 900 (1979).

The judge ruled, and we agree, that the defendant's affidavits filed under Mass. R. Crim. P. 30 (c) (3) failed to establish a prima facie case for relief. [Note 3] No evidentiary hearing was necessary on this aspect of the motion for a new trial because no substantial issue was presented to the court. See Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981). "Rule 30 (c) (4) of the Massachusetts Rules of Criminal Procedure allows the judge to `authorize such discovery as is deemed appropriate.' Thus, the extent of discovery allowed is properly left to the judge's discretion." Id. at 261. There was neither error nor abuse of discretion.

4. Impartiality of juror. The trial judge also denied the defendant's motion for funds for a private investigator to determine the impartiality of one of the jurors. [Note 4] The juror in question was an employee of the same department of the city of Boston as the defendant's brother-in-law and sister-in-law. The judge asked the juror if he had ever heard of

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the case or had had any contact with any witnesses. The juror's answers to these questions were in the negative. Nothing was presented to the judge with respect to this issue other than the coincidence of employment. Any claim of prejudice under such circumstances is speculative and raises no substantial issue. The judge committed no error in refusing to allow a postverdict interview of the juror.

5. Defendant's medical condition. The record is significantly silent as to any evidence that the defendant suffered an epileptic seizure during the incident. Therefore, the judge did not abuse his discretion by refusing to appoint an expert to investigate whether Dalton could have committed the act during an epileptic seizure.

6. Effective assistance of counsel. The defendant argues that, by failing to request a manslaughter instruction and by failing to object to the introduction of the photograph, his trial counsel inadequately represented him. In light of our decision on these points, trial counsel did not fall "measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The trial judge committed no error by not giving a manslaughter instruction or by allowing the introduction of the photograph in evidence. For a defendant to raise successfully a claim of ineffective assistance of counsel, he must show that better work would have accomplished something material for the defense. Cepulonis v. Commonwealth, 384 Mass. 495, 502 (1981). Dalton has made no such showing here.

7. Sufficiency of the evidence. The defendant argues that the Commonwealth produced insufficient evidence to sustain a verdict of murder in the first degree. He claims there was no evidence adduced at trial of deliberate premeditation and that the judge committed error in his denial of the defendant's motion for a directed verdict of not guilty of murder in the first degree.

We place no burden of proof on the defendant when we frame the issue as "whether the evidence, in its light most favorable to the Commonwealth, was sufficient to permit

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the jury to infer deliberate premeditation." Commonwealth v. Blaikie, 375 Mass. 601, 605 (1978). To prove deliberate premeditation the Commonwealth has to show that the defendant reflected upon his resolution to kill. Commonwealth v. Soares, 377 Mass. 461, 469, cert. denied, 444 U.S. 881 (1979). Commonwealth v. Blaikie, supra at 605.

We conclude that the evidence of deliberate premeditation was sufficient for the jury's consideration. The victim was shot in the back of the head while apparently lying on her side facing away from the defendant. There was a loaded gun in the bedroom. [Note 5] There was evidence of prior beatings of the victim by the defendant, though the latter attempts to exculpate himself by explaining them in terms of his furnishing masochistic pleasure to his wife. This evidence was sufficient for the jury to find deliberate premeditation. Cf. Commonwealth v. Blaikie, supra at 606 (single shot in back of victim's skull lends credence to finding of deliberate premeditation). See Commonwealth v. Carroll, 412 Pa. 525 (1963).

8. Review under Section 33E. While the evidence of premeditation was legally sufficient to put the issue before the jury, it was by no means overwhelming. Under some such circumstances, we have previously reduced verdicts of murder to the second degree pursuant to our power and duty under Section 33E. See Commonwealth v. King, 374 Mass. 501 (1978); Commonwealth v. Vanderpool, 367 Mass. 743 (1975); Commonwealth v. Williams, 364 Mass. 145, 151-152 (1973).

We find it useful to compare the facts in this case with those factors found to be influential in prior decisions where verdicts of murder were reduced to a lesser degree of guilt. There are indications which point to a generally good relationship between the defendant and the victim. See Commonwealth v. Seit, 373 Mass. 83, 94 (1977); Commonwealth v. Jones, 366 Mass. 805, 808 (1975). They had been married thirty-three years. Their family included a grown

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daughter and son. Both the defendant and the victim were plagued with poor health. The victim was suffering from an aneurysm which left her unsteady on her feet. Because of this condition she used a quad cane. The defendant was no medication for the treatment of epilepsy. No motive for this killing has surfaced. We may consider the fact that the defendant was a hard worker with no prior criminal record. See Commonwealth v. Vanderpool, supra at 750. Apart from the presence of the gun in the bedroom, the record does not reveal any plan or scheme for the killing. There is no showing of a quarrel before the victim and defendant retired to bed on the night of the killing.

We recognize that our power to mitigate verdicts under Section 33E is to be used sparingly. Nevertheless, we feel that such action is warranted in this case and that a verdict of guilty of murder in the second degree would be "more consonant with justice." Commonwealth v. Baker, 346 Mass. 107, 109 (1963).

The case is remanded to the Superior Court where the verdict and sentence will be vacated; a verdict of guilty of murder in the second degree will be entered and sentence of "imprisonment in the state prison for life" will be imposed, as provided in G. L. c. 265, Section 2.

So ordered.