Petition for Writ of Certiorari — Nadworny v. Massachusetts

Supreme Court brief1986

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8 5 = 1 6 v4 4 x Supreme Court, U.S.

et. ED

No. | APR 11 1988

JOSEPH F. SPANIOL, JR.

In the CLERK

Supreme Court of the United States.

OcTOBER TERM, 1985.

WILLIAM NADWORNY,

PETITIONER,

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certiorari to the Supreme Judicial

Court for the Commonwealth of Massachusetts.

KENNETH J. FISHMAN,

Counsel of Record,

109 State Street,

Boston, Massachusetts 02109.

(617) 723-1980

JOHN J. JENNINGS,

FRAWLEY & JENNINGS,

56 Central Avenue,

Lynn, Massachusetts 01901.

(617) 595-3333

CHARLES M. BURNIM,

508 Donahue Building,

Beacon Hill,

41 Temple Street,

Boston, Massachusetts 02114.

(617) 723-4700 x614

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

Questions Presented.

I. The petitioner, who was convicted of murder in the sec-

ond degree, was denied due process of law by the court’s

refusal to instruct the jury on the lesser included offense of

manslaughter, where the evidence supported such a verdict.

II. The petitioner was denied his due process of law right

to a full and accurate review of his conviction of second degree

murder, where the reviewing court both failed to recognize

facts, and misstated facts critical to the substantive and due

process rights of the petitioner to a lesser included instruction

on manslaughter, and summarily refused to reconsider its mis-

apprehensions.

Ill. The court committed prejudicial error in denying the

petitioner the opportunity to produce evidence in his own de-

fense explaining a statement attributed to him and admitted as

evidence of consciousness of guilt, thus denying the petitioner

compulsory process and due process of law.

IV. The court erred in permitting evidence of statements of

the petitioner obtained in violation of his privilege against

self-incrimination where, when the petitioner was asked by a

police officer over the telephone if he knew where Lisa (the

deceased) was, responded “she overdosed five months ago,”

and then immediately said, “I don’t want to talk about it,”

which claim of silence the officer did not heed but thereafter

obtained statements from the petitioner tantamount to a confes-

sion ‘hat he “did not want to go to jail, he couldn’t hack it.”

V. The court committed prejudicial error in permitting a

document authenticated by a handwriting expert to be admitted

in evidence where such authentication was violative of the

petitioner’s privilege against self-incrimination, and where the

document provided condemning evidence of motive.

Table of Contents.

Citation to opinion below

Jurisdiction

Constitutional provisions and statutes

Statement of the case

Statement of the facts

on & NY NO —

Reasons for granting the writ

I. The petitioner, who was convicted of murder in

the second degree, was denied due process of law

by the court’s refusal to instruct the jury on the

lesser included offense of manslaughter, where

the evidence supported such a verdict 9

Theories of involuntary manslaughter and the evi-

dence 11

(1) Reckless overdose 1]

(2) Battery — unintended death 12

(3) Failure to act — undertaking rescue 13

II. The petitioner was denied his due process of law

right to a full and accurate review of his conviction

of second degree murder, where the reviewing

court both failed to recognize facts, and misstated

facts critical to the substantive and due process

rights of the petitioner to a lesser included instruc-

tion on manslaughter, and summarily refused to

reconsider its misapprehensions 15

III. The court committed prejudicial error in deny-

ing the petitioner the opportunity to produce evi-

dence in his own defense explaining a statement

attributed to him and admitted as evidence of con-

sciousness of guilt, thus denying the petitioner

il TABLE OF AUTHORITIES CITED.

compulsory process and due process of law in pre-

senting a defense

IV. The court erred in permitting evidence of state-

ments of the petitioner obtained in violation of his

privilege against self-incrimination where, when

the petitioner was asked by a police officer over

the telephone if he knew where Lisa (the deceased)

was, responded “she overdosed five months ago,”

and then immediately said, “! don’t want to talk

about it,” which claim of silence the officer did not

heed but thereafter obtained statements from the

petitioner tantamount to a confession that he “did

not want to go to jail, he couldn’t hack it”

V. The court committed prejudicial error in permit-

ting a document authenticated by a handwriting

expert to be admitted in evidence where such au-

thentication was violative of the petitioner’s privi-

lege against self-incrimination, and where the docu-

ment provided condemning evidence of motive

Conclusion

Appendix follows page 24

Table of Authorities Cited.

CASES.

Beck v. Alabama, 447 U.S. 665, 100 S. Ct. 2382

(1980)

Bell v. Watkins, 692 F.2d 999 (Sth Cir. 1982), cert. de-

nied, 464 U.S. 843, 104 S. Ct. 142 (1983)

Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038

(1973)

TABLE OF AUTHORITIES CITED. ill

Commonwealth v. A Juvenile, 396 Mass. 108, 483

N.E. 2d 822 (1985) 15

Commonwealth v. Bianco, 388 Mass. 358, 446 N.E.

2d 1041 (1983) 14

Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E.

2d 987 (1978) 18

Commonwealth v. Burke, 339 Mass. 521, 159 N.E.

2d 856 (1959) 20

Commonwealth v. Campbell, 352 Mass. 387, 226N.E.

2d 211 (1966) 13, 16n

Commonwealth v. Curtis, 318 Mass. 584, 63 N.E. 2d

341 (1945) 19n

Commorweaith v. Edmonds, 365 Mass. 496, 313 N.E.

2d 429 (1974) 17, 18

Commonwealth v. Errington, 390 Mass. 875, 460 N.E.

2d 598 (1984) 18

Commonwealth v. Forde, 392 Mass. 453, 466 N.E. 2d

510 (1984) 20

Commonwealth v. Gallant, 381 Mass. 465, 410 N.E.

2d 704 (1980) 20

Commonwealth v. Jackson, 377 Mass. 319, 386 N.E.

2d 15 (1979) 20

Commonwealth v. LePage, 352 Mass. 403, 226 N.E.

2d 200 (1967) 10

Commonwealth v. Martinez, 393 Mass. 612, 473 N.E.

2d 167 (1985) 10

Commonwealth v. McCauley, 355 Mass. 554, 246

N.E. 2d 425 (1969) 14

Commonwealth v. Nadworny, 396 Mass. 342, 486

N.E. 2d 675 (1985) l

Commonwealth v. Pierce, 138 Mass. 165 (1884) 12

Commonwealth v. Toney, 385 Mass. 575, 433 N.E.

2d 425 (1982) 18

iV TABLE OF AUTHORITIES CITED.

Commonwealih v. Webster, 59 Mass. (5 Cush.) 295,

326 N.E. 2d 905 (1850)

Davis v. Greer, 675 F.2d 141 (7th Cir.), cert. denied,

459 U.S. 975, 103 S. Ct. 310 (1982)

Dukette v. Perrin, 564 F.Supp. 1530 (D.C. N.H. 1983)

Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049 (1982) 9

In Re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970)

Look v. Amaral, 725 F.2d 4 (ist Cir. 1984)

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602

(1966)

Simpson v. Garrison, 551 F.Supp. 618 (D.C. W.D.

N.C. 1982), aff'd 705 F.2d 445 (4th Cir. 1983)

United States v. Campbell, 732 F.2d 1017 (1984)

United States v. Neiss, 684 F.2d 570 (8th Cir. 1982)

Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920

(1967)

STATUTORY PROVISIONS.

United States Constitution

Amendment 5 2, 9, 21

Amendment 6

Amendment 14 - Section |

28 U.S.C. § 1257(3)

Massachusetts General Laws

Chapter 119

§§ 39E-J

Chapter 265

§ 1

§ 13

Massachusetts Rules of Appellate Procedure

Rule 11

Rule 27

No.

In the

Supreme Court of the United States.

OCTOBER TERM, 1985.

WILLIAM NADWORNY,

PETITIONER,

¥..

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certicrari to the Supreme Judicial

Court for the Commonwealth of Massachusetts.

Petitioner prays that a Writ of Certiorari issue to review the

judgment of the Supreme Judicial Court of the Commonwealth

of Massachusetts, affirming his conviction of murder in the

second degree.

Citation to Opinion Beiow.

The opinion of the Supreme Judicial Court is reported as

Commonwealth v. Nadworny, 396 Mass. 342, 486 N.E. 2d

675 (1985), and is set forth in the Record Appendix at pp. la-

32a.' The petitioner timely petitioned the Supreme Judicial

Court for rehearing pursuant to Mass. R. App. P. 27, which

petition is set forth in the Record Appendix at pp. 33a-40a.

On February 10, 1986, his petition was denied without hearing

or modification of the court’s opinion. The notice of denial is

set forth in the Record Appendix p. 41a.

Jurisdiction.

Jurisdiction of the Court is invoked under 28 U.S.C. § 1257(3).

Constitutional Provisions and Statutes.

UNITED STATES CONSTITUTION.

Amendment 5

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, lib-

erty, or property, without due process of law; nor

shall private property be taken for public use, without

just compensation.

Amendment 6

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

‘Record Appendix is hereinafter abbreviated as “Rec. App.”

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defence.

Amendment 14 — Section |

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the Laited States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

MASSACHUSETTS GENERAL LAWS.

Chapter 265.

§ 265:1. Murder Defined

Section 1. Murder committed with deliberately

premeditated malice aforethought, or with extreme

atrocity or cruelty, or in the commission or attempted

commission of a crime punishable with death or im-

prisonment for life, is murder in the first degree.

Murder which does not appear to be in the first

degree is murder in the second degree. Petit treason

shall be prosecuted and punished as murder. The

degree of murder shall be found by the jury.

§ 265:13. Manslaughter; Punishment.’

Section 13. Whoever commits manslaughter shall,

except as hereinafter provided, be punished by im-

prisonment in the state prison for not more than

twenty years or by a fine of not more than one

thousand dollars and imprisonment in jail or a house

of correction for not more than two and one half

years. Whoever commits manslaughter while violat-

ing the provisions of sections one hundred and one

to one hundred and two B, inclusive, of chapter two

hundred and sixty-six shall be imprisoned in the stzie

prison for life or for any term of years.

Statement of the Case.

On June 9, 1983, the defendant was indicted for murder in

the first degree of one Lisa Belmonte on a date uncertain,

“between March eighteenth and July nineteenth” 1982 (Rec.

App. at 42a). By Bill of Particulars (Rec. App. ai 43a-44a)

the Commonwealth stated as to date and time, location, and

manner and means, of the alleged offense:

1. The murder occurred sometime between approximately

6:00 p.m., on March 18, 1982 when the victim, Lisa

Belmonte, was last seen alive and approximately 3:00

p.m., on July 19, 1982 when the victim’s body was

found. The Commonwealth is unable to specify further

as to the time of the murder.

2. The Commonwealth is unable to specify as to the exact

location where the murder occurred.

3. The defendant did with deliberately premeditated malice

aforethought murder Lisa Belmonte in a manner which

? There is no statutory definition of manslaughter. The statute invokes the

common law crime, merely providing a penalty. “Manslaughter is the unlawful

killing of another without malice; . . .” Commonwealth v. Webster, 59 Mass.

(5 Cush.) 295, 304, 326 N.E. 2d 905 (1850).

cannot be precisely determined due to the advanced state

of decomposition of the victim’s body when it was dis-

covered concealed in the trunk of a motor vehicle owned

by the defendant. The Commonwealth is unable to spec-

ify further as to the manner and means of the murder.

The petitioner was tried before a jury commencing on May

24, 1984. A verdict of guilty of murder in the second degree

was returned on June 12, 1984.

Petitioner filed a timely appeal to Massachusetts Appeals

Court. Upon the application of both the petitioner and the

Commonwealth, the Supreme Judicial Court granted direct

appellate review pursuant to Mass. R. App. P. 11. On De-

cember 11, 1985, the Supreme Judicial Court affirmed the

petitioner’s conviction of urder in the second degree (Rec.

App. at la-32a). The petitioner presented a timely Petition for

Rehearing (Rec. App. at 33a-40a) to the Supreme Judicial

Court pursuant to Mass. R. App. P. 27, which was denied by

the court on February 10, 1986 (Rec. App. at 41a).

Statement of the Facts.

On March 18, 1982, Lisa Belmonte, the petitioner’s seventeen

year old girl friend disappeared (Rec. App. at 4a, 6a). She was

last seen by a clinical social worker whom she was consulting

because of personal and family complications caused, in part,

by her “seeing” an older and married man, the petitioner’ (Rec.

* The petitioner was twenty-six (Tr. V4 p. 69).* Ms. Belmonte’s relationship

with the petitioner was intolerable to her parents. They forbade her to see him

(Tr. V5 pp. 31-36). Ms. Belmonte was very unhappy at home (Tr. V4 pp.

67-68, V11 p. 8). Her mother suspected her of using drugs (Tr. V5 pp. 23-26).

She ran away on a number of occasions, for several days at a time (Tr. V4

pp. 73, 75-76). She resented her parents and her sisters (Tr. V5 pp. 38, 44-45,

113), would not talk to them, and most of the time, secluded herself in her

room (Tr. V5 pp. 56-57). She was stubborn and disobedient. Her mother

sought the intervention of the court by filing a “CHINS” petition (Tr. V4 p.

78). Ms. Belmonte received counselling pursuant the “CHINS”** action at

App. at 6a). She told the social worker that she was now

seeing a former boy friend who had returned from the service,

and that she was going to see the petitioner that evening to

tell him that their relationship was over (Rec. App. at 6a; Tr.

V9 pp. 135-138).

On July 19, 1982, Lisa Belmonte’s decomposed body was

recovered from the trunk of the petitioner’s automobile (Rec.

App. at 9a-10a). Upon autopsy, there was no evidence of

violence or injury. Because of the advanced state of decompo-

sition, no cause of death could be established (Rec. App. at

10a-11a). Although sophisticated testing for the presence of

drugs or chemical poisons was performed, none were found

(Rec. App. at 11a). There was undisputed evidence that many

agents that could have caused death would have been dissipated

by the time of the analysis so as to leave no trace (Tr. V8 pp.

103-104, 118-123) (see also infra n.10). The Commonwealth’s

sole medical expert, the autopsy pathologist, testified only as

to “possible” * causes of death. They included “[s]Juffocation,

smothering, injection of different drugs, poisons, carbon

monoxide poisoning, drowning, and a large number of chem-

icals.” (Rec. App. at lla.) “[The doctor] acknowledged that

the examples of the causes of death he cited as consistent with

his autopsy findings were not exhaustive and there were other

ways Lisa could have died. He also acknowledged that each

of those examples of causes of death could have been self-in-

duced or could have occurred by accident.” (Rec. App. at 18a.)

the Family and Children’s Service of Greater Lynn, Massachusetts, from the

said clinical social worker (Tr. V4 pp. 78-80).

*“Tr.” is abbreviation for Trial Transcript, and “V” is a reference to the

transcript Volume.

** Massachusetts General Laws c. 119, §§ 39E-J, entitled, “Children in

Need of Services” (CHINS), is a statutory scheme for resort to, or intervention

by, the courts in situations of difficulty with children.

*He testified that because, “. . . I couldn’t find any medical cause of death,

these would be several possibilities.” (Tr. V8 pp. 107-108.)

The pathologist was unable to say whether any of these possible

causes was likely, or more likely than any other.°

There was evidence the petitioner was particularly infatuated

with Lisa Belmonte, and was aware she had resumed her

relationship with her former boy friend. Indeed, in early March,

he wrote to her on the subject, voicing his despondence (that

he felt “used”) and jealousy. He pleaded for her continued

companionship (Rec. App. at 5a, 14a-15a). This she was not

to give him. “Lisa sent the defendant a letter . . . in which

she made clear that if she met with the defendant again it

would only be for the purpose of saying goodbye.” (Rec. App.

at 6a.)

Upon the stage of the indefinite evidence as to cause of

death, there was laid by the prosecution two inconsistent state-

ments made by the petitioner as to how Lisa died. The petitioner

maintains that these statements, in conjunction, in particular

with the “possible” causes of suffocation and drug overdose,

required an instruction on the lesser included offense of man-

slaughter.

First Statement.

After strong suspicion by one Earl Bethune, a friend of the

petitioner, that Lisa’s body was in the trunk of the petitioner’s

*On cross-examination the doctor’s testimony concluded as follows:

Q_ And you can’t say the whole list of possibilities that you gave

when Mr. McAlary [the prosecutor] asked you whether they

did happen or didn’t happen, can you?

A I cannot.

Q_ No. I am asking you can you say it with reasonable medical

certainty that any particular one of those that you named was

indeed the cause of death?

A_ No, I cannot.

(Tr. V8 pp. 160-161.) There was no further examination by the prosecutor of

this witness.

automobile, the petitioner told Bethune that Lisa’s body was

in the trunk, and that he had wanted to tell him before. He

said that Lisa was at his apartment one night and that “someone

had injected her with an overdose” (Rec. App. at 9a; V5 p. 220,

V6 pp. 110-112) (emphasis added). He said that he was afraid

to call the police, because then Mr. Belmonte (Lisa’s father)

would know that Lisa was there and would kill him as he had

threatened. (Rec. App. at 9a; V6 pp. 73-76, 113-114.)°

Second Statement.

Later that evening the petitioner told one Debra Lewis that

Lisa was dead, that “she had overdosed” (V10 p. 141; see

Rec. App. at 9a). He said that “Lisa had come to his apartment

and started io go into convulsions” (V10 p. 142; see Rec.

App. at 9a), that “she fell on the floor and he tried to save

her himself’ (V10 p. 141; see Rec. App. at 10a’), “but she

died” (quotations are from trial transcript, emphasis added).

He said he didn’t call an ambulance because he was afraid

that if they came, and she died, the Belmontes would blame

him (Rec. App. at 10a; V10 p. 141).

Upon this evidence the jury was instructed only on murder

in the first degree and second degree. Mass. G.L. c. 265, § 1.°

The petitioner requested an instruction on the lesser included

°Mr. Belmonte had been violent to the defendant on prior occasions in

attempts to keep him from seeing his daughter. Mr. Belmonte, six foot four

inches tall, weighed 260 pounds (V11 p. 4). The jury was able to observe the

defendant. Mr. Belmonte had physically attacked the defendant, had cut the

defendant's car off, pulled the defendant from it, and beat him. And, on

Thanksgiving of 1981, he kicked in the door of the defendant’s apartment in

search of his daughter (V6 pp. 114-116, V7 p. 204, V1!1 pp. 9, 202-213, 219).

’The Supreme Judicial Court is in error in its opinion in reciting the word

“save” as “stop.” See infra, Reason II.

*The distinction between first and second degree murder, here pertinent, is

that first requires proof of a mens rea of “deliberately premeditated” malice

aforethought, whereas second requires merely “malice aforethought.”

offense of manslaughter (Rec. App. at 19a-20a, 45a), which

was refused.

It is clear that the petitioner was convicted on the strength

of his jealous motive, his possession of the body, and several

incriminating statements in the nature of consciousness of guilt

— including his statements as to how Lisa died.

The petitioner presents constitutional issues of the denial of

due process of law both in the trial court’s refusal to instruct

on the lesser included offence of manslaughter, where there

was evidence to support such a finding, and in the failure of

the Supreme Judicial Court to consider, on the petitioner’s

Petition for Reconsideration, its holding that a manslaughter

instruction was not warranted on the facts, where clear misap-

prehensions by the court of facts critical to the issue of man-

slaughter were brought to the court’s attention in such petition;

Fifth Amendment violations in the obtainment of certain of

his incriminating statements, including a compelled handwrit-

ing exemplar incorporating a testimonial informative of “right-

handedness,” which was used to authenticate his disconsolate

and plaintive letter to Lisa; and a Sixth Amendment denial of

compulsory process in precluding testimonial explanation of

one such incriminating statement.

Reasons for Granting the Writ.

I. THE PETITIONER, WHO Was CONVICTED OF MURDER IN

THE SECOND DEGREE, WAS DENIED DUE PROCESS OF LAW

by THE CouRT’S REFUSAL TO INSTRUCT THE JURY ON THE

LESSER INCLUDED OFFENSE OF MANSLAUGHTER, WHERE

THE EVIDENCE SUPPORTED SUCH A VERDICT.

In Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382 (1980),

interpreted in Hopper v. Evans, 456 U.S. 605, 102 S. Ct.

2049 (1982), this Court held that a defendant in a capital case

is entitled as a matter of due process of law to an instruction

on a lesser included offense where the evidence in the case

could reasonably support a finding of guilty of the lesser of-

fense. These cases have come to be regarded as indicative of

the requirement of such instructions in noncapital cases as

well. See Look v. Amaral, 725 F.2d 4 (ist Cir. 1984); Bell

v. Watkins, 692 F.2d 999 (Sth Cir. 1982), cert. denied, 464

U.S. 843, 104 S. Ct. 142 (1983); Davis v. Greer, 675 F.2d

141, 143-144 (7th Cir.), cert. denied, 459 U.S. 975, 103 S.

Ct. 310 (1982); United States v. Neiss, 684 F.2d 570 (8th Cir.

1982); Dukette v. Perrin, 564 F. Supp. 1530, 1534-1540 (D.C.

N.H. 1983); Simpson v. Garrison, 551i F. Supp. 618 (D.C.

W.D.N.C. 1982), aff'd 705 F.2d 445 (4th Cir. 1983).

The petitioner requested an instruction on the lesser included

offence of manslaughter. The settled law of the Commonwealth

is:

In a homicide case, the trial judge should charge

on the issue of manslaughter where any view of the

evidence will permit a finding that the offence is

manslaughter and not murder.

Commonwealth v. LePage, 352 Mass. 403, 419, 226 N.E. 2d

200 (1967). To omit such a required instruction is reversible

error. Commonwealth v. Martinez, 393 Mass. 612, 473 N.E.

2d 167 (1985). In the instant case the Supreme Judicial Court

held there was no error in not affording the petitioner a man-

slaughter instruction because:

no view of the evidence, resolving all reasonable

inferences in favor of the defendant . . . permitted

a finding of . . . involuntary . . . manslaughter.

(Rec. App. at 20a.)

With respect this conclusion is plainly wrong. It fails to

recognize evidence supportive of several theories of involun-

tary manslaughter — namely (1) recklessness, (2) unintended

death by reason of battery, and (3) failure to act, or the under-

taking of rescue.

Theories of Involuntary Manslaughter and

the Evidence.

(1) Reckless Overdose:

In rationalizing that the petitioner caused Lisa’s death, the

Supreme Judicial Court said that “[tj]he jury was free to disbe-

lieve” the defendant’s expianation that Lisa “ ‘was overdosed’

by the hand of another, or ‘overdosed’ herself.” (Rec. App.

App. at 15a.} This is, of course, true. But the court failed to

recognize that the jury was equally free to believe from the

petitioner’s statements that Lisa did overdose, and that the

petitioner was that “other” — that he had administered or

provided the drugs.*° The administration of dangerous drugs is

*There was further support for an overdose theory from the prosecution’s

case itself. The autopsy pathologist’s original findings, to which he testified,

revealed multiple pinpoint needle marks appearing on the front of the right

thigh (Rec. App. at lla; V8 pp. 72, 125-126, 137). The Supreme Judicial

Court noted:

[The doctor’s] initial examination revealed “some pitted marks .

. . . More than twenty-five” in the right inguinal area, which he

at first thought might have been needle marks. Upon microscopic

examination, he revised his opinion and testified that the marks

were caused by pressure because of the body’s positien, or by

maggots.

(Rec. App. at lla.) The jury was free to believe his original findings. In

addition, Lisa’s former boy friend (with whom she had resumed her relationship)

_ testified that he had a brief telephone conversation with Lisa shortly after ner

session with the social worker (Rec. App. at 7a; V11 p. 102), and that Lisa

said she was going to do something that he wouldn’t approve of. He testified

reckless, so that a resulting death may support a verdict of

involuntary manslaughter. it has long been the law of the

Commonwealth that involuntary manslaughter may be found

where the circumstances are not as dire, or the likelihood of

death is not so plain and strong, as in murder. Commonwealth

v. Pierce, 138 Mass. 165 (1884). Culpability for conduct is

“according to the degree of danger attending it.” /d. at 178.

This is a jury question. The jury could heave found that the

petitioner recklessly overdosed Lisa. It is clear that the jurors

were free to believe that the lack of the presence of drug or

chemical traces in Lisa’s body was by reason of the processes

of decomposition. '°

(2) Battery — Unintended Death:

Despite the indefiniteness of the evidence of cause of death,

the Supreme Judicial Court was “satisfied that no jurct could

reasonably infer” that death was by other than violent ineans

— by affirmative act of the petitioner (Rec. App. at 20a). The

court quoted the trial judge’s instruction given in the course

of the charge on murder: “unlawful killing,” “death by vio-

lence,” “caused injury to the victim by violence while she was

alive,” and “intention to inflict injury without legal justifica-

that he had told Lisa that there were only two things that he would not approve

of: “taking drugs and seeing Billy,” the petitioner (V11 pp. 120-121).* Accord-

ingly, the jury could have believed that Lisa did take drugs (at the hand of the

defendant) which caused her death.

*The Supreme Judicial Court opinion does not recite this portion of the

conversation. See infra, Reascn II.

'°There was much evidence to support this rationale for the lack of trace

findings in the prosecution case. The autopsy pathologist testified that several

types of drugs “would not be detectable by reason of decomposition,” and that

a “wide range of drugs, would be metabolized by the bacteria that live in the

body after death.” (V8 pp. 118-123.)

The Supreme Judicial Court opinion does not recite these facts. The court’s

statement that, “All the drugs tested could be expected to have registered trace

amounts if present” (Rec. App. at Ila) is not an accurate statement of the

evidence. See infra, Reason II.

tion.” Jd. at n.9. (Emphasis in original.) Battery is, of course,

“violence.” It is the settled law of the Commonwealth that

battery may be the cause of an unintended death constituting

involuntary manslaughter. Commonwealth v. Campbell, 352

Mass. 387, 398-399, 226 N.E. 2d 211 (1966).'' On the basis

of the evidence the jury could have found that the petitioner

committed a battery. Accordingly an instruction on involuntary

manslaughter was required. /d. Trauma need noi be apparent

in such a death. At any rate the jury could have found, and

perhaps did, that the lack of the presence of trauma at the site

of the battery was explained by the effects of decomposition.

Alternatively the death need not have been caused by a

traumatic battery. The autopsy pathologist testified that death

was “consistent” with “suffocation” or “smothering” (Rec.

App. at 18a). Consequently, the jury could have believed that

the petitioner, in a state of frustration caused by Lisa’s adamant

refusal tc continue their relationship, intending merely to

frighten anu intimidate her to stay with him, choked Lisa with

his hands, or smothered her with a pillow (or other object

freely available to him). See Commonwealth v. Campbell,

supra. An unintended death in the commission of a battery is

involuntary manslaughter. It has been simply and authorita-

tively put by the Supreme Judicial Court: “manslaughter is

simply a battery that causes death.” /d. at 399.

(3) Failure to Act — Undertaking Rescue:

On the evidence, the jury could have found that the peti-

tioner, either: (1) having provided Lisa with the drugs (or

having injected her) failed to summon help (having a duty to do

''In Commonwealth v. Campbell, 352 Mass. 387, 398-399, 226 N.E. 2d

211 (1966), the court held that a manual choking causing death did not preclude

an involuntary manslaughter instruction. There the court said: “We cannot

accept the Commonwealth’s. contention that no instruction on manslaughter

was necessary. . .. [W]e cannot agree that Campbell’s conduct requires that

malice be implied.” /d. at 398.

so by reason of having so placed her in peril, Commonwealth

v. Bianco, 388 Mass. 358, 371 n.2, 446 N.E. 2d 1041 (1983)

(Liacos, J., dissenting)); or (2) discovering her in a perilous

condition, undertook for selfish or untoward reasons to save

her himself rather than summon appropriate aid. Additionally,

and independent of whether or not the petitioner was the agent

of drugs, the jury could have found that undertaking rescue

in these circumstances not only precluded appropriate aid, but

was reckless. In this context the Supreme Judicial Court made

an error of significant fact (which, with other misapprehensions

of fact, is argued separately in Reason II). The court said:

The defendant telephoned Debby about 10 p.m. The

defendant told her that Lisa overdosed, that she had

gone into convulsions, that he tried to stop her, but

that if he had called an ambulance and she died, the

Belmontes would blame him. [Emphasis added. ]

(Rec. App. at 9a-10a.) The court’s misapprehension of fact

that the defendant had tried to “stop” Lisa (rather than save

her) is critical, for had the defendant tried to stop Lisa from

taking drugs, no reckless undertaking of personal rescue by

treatment could have occurred.'* However, if he had tried to

save her, reckless undertaking is presented.

The petitioner argued in his Petition for Rehearing that “ “The

[constitutional] burden of proof is on the Commonwealth to

prove every element of the offense charged.’ Commonwealth

v. McCauley, 355 Mass. 554, 559, 246 N.E. 2d 425 (1969).

Here the Commonwealth’s own evidence fairly raised the issue

'? Of further significance in the court’s misapprehension, perhaps indicative

of the court’s failure to recognize the reckless-overdose-manslaughter issue,

is the fact that had the petitioner tried to stop Lisa from taking the drug, he

could not have been the source or administrator of the drug, and thus could

not have been culpable of manslaughter on a reckless overdose theory.

of involuntary manslaughter. . . . [Accordingly] the Common-

wealth must carry its burden of proof beyond a reasonable

doubt as to each element. Cf. Commonwealth v. A Juvenile,

396 Mass. 108, 113, 483 N.E. 2d 822 (1985) [citing In Re

Winship, 397 U.S. 358, 364, 90 S. Ct. 1068 (1970)]” (Rec.

App. at 38a-39a.)

Il. THE PETITIONER WAS DENIED His DUE PROCESS OF LAW

RIGHT TO A FULL AND ACCURATE REVIEW OF HIS CONVIC-

TION OF SECOND DEGREE MURDER, WHERE THE REVIEWING

CourRT BOTH FAILED TO RECOGNIZE FACTS, AND MIS-

STATED FACTS CRITICAL TO THE SUBSTANTIVE AND DUE

PROCESS RIGHTS OF THE PETITIONER TO A LESSER INCLUDED

INSTRUCTION ON MANSLAUGHTER, AND SUMMARILY RE-

FUSED TO RECONSIDER ITS MISAPPREHENSIONS.

The opinion of the Supreme Judicial Court evidences three

misapprehensions of fact which contributed to the error (as

demonstrated in Reason I) in the court’s finding that the

petitioner was not entitled to an instruction on the lesser in-

cluded offense of manslaughter.

First, although noting that Lisa’s former boy friend had a

telephone conversation with Lisa the night she disappeared,

during which she told him “she would call him later” (Rec.

App. at 7a), the court failed to recognize the balance of her

statement: that she was going “to do something .. . [he]

woulda’t approve of” (V11 p. 120). The jury could have found

that she meant “taking drugs and seeing Billy.” See supra, n.9.

Second, the court said, “All drugs tested could be expected

to have registered trace amounts if present.” (Rec. App. at

lla.) The evidence was otherwise. See supra, n.10.

Third, the court said that the petitioner had tried to “stop”

Lisa. See supra, n.7.

It was within the jury’s prerogative to draw each of these

facts.'°

Each of these errors of fact affected the petitioner’s substan-

tive rights under the law of the Commonwealth, as argued in

Reason I respecting both reckless overdose and reckless under-

taking of rescue. It cannot be said, as the court did, that:

no view of the evidence, resolving all reasonable

inferences in favo: of the defendant . . . permitted

a finding of . . . involuntary . . . manslaughter.

(Rec. App. at 20a.)

Each of these errors of fact was critical to the petitioner’s

right to full and accurate appellate review as a matter of due

process of law. The petitioner respectfully submits that he has

been denied such review, and requests this Court to grant this

Petition for the purpose of remanding this matter to the Supreme

Judicial Court for the reconsideration that it summarily denied

the petitioner in the context of his Petition for Rehearing.

Iif. THE COURT COMMITTED PREJUDICIAL ERROR IN DENYING

THE PETITIONER SHE OPPORTUNITY TO PRODUCE EVIDENCE

IN HIS OWN DEFENSE EXPLAINING A STATEMENT ATTRIB-

UTED TO HIM AND ADMITTED AS EVIDENCE OF CONSCIOUS-

NESS OF GUILT, THUS DENYING THE PETITIONER COMPUL-

SORY PROCESS AND DUE PROCESS OF LAW IN PRESENTING

A DEFENSE.

Earl Bethune testified that in April 1982, the petitioner told

him Lisa had been seen in New Hampshire hijacking trucks

''In Commonwealth v. Campbell, supra at n.11, at 398 the court recognized

the principle that:

“The fact that the evidence may not be of a character to inspire be-

lief does not authorize the refusal of an instruction based there-

on. . . . That is a question within the exclusive province of the jury.”

(Rec. App. at 20a-21a; V5 p. 201). The petitioner attempted,

in defense, to explain the reason for this statement to Bethune

— to show that it was not a falsification in the nature of

consciousness of guilt. The petitioner’s father testified that in

April of 1982 he had had a conversation with policewoman

Clara Zamejtis (Rec. App. at 21a) at a veterans’ meeting, and

that he told his wife and the petitioner what he had learned

from Officer Zamejtis. When asked what he told the petitioner,

the prosecution objected (V13 pp. 83-84). The petitioner made

an offer of proof that the witness would testify: “I told him

that Clara Zamejtis had told me that Lisa Belmonte had been

seen up in New Hampshire hijacking trucks.”'* The judge

asked, “What was the son’s response?” and defense counsel

replied, ‘None.” The judge sustained the objection. Defense

counsel persisted:

If it pleases the Court, this is a critical piece of

evidence. The Government has attempted at the time

to say that a statement that this defendant made was

an implied admission of consciousness of guilt be-

cause he says Lisa has been seen up in New Hamp-

shire hijacking trucks. This indicates the source and

undercuts completely whether it was an implied ad-

mission and it is critical.

(V13 pp. 84-85.) Apparently, the judge labored under the

belief that the statement had to qualify as an “adoptive admis-

sion.” He did not appreciate that the statement was not being

offered as hearsay, but to show the state of mind induced in

the defendant so as to account in turn for his statement to

Bethune. This evidence was admissible. See, Commonwealth

‘Time of death could not be established (Rec. App. at 10a). As a matter

of fact it was entirely possible for Lisa to have run away to New Hampshire

for some period of time.

v. Edmonds, 365 Mass. 496, 313 N.E. 2d 429 (1°74); Com-

monwealth v. Errington, 390 Mass. 875, 880, 460 N.E. 2d

598 (1984). The defendant was denied his constitutional rights

of compulsory process and fair trial to present evidence in his

own defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.

Ct. 1920 (1967); Chambers v. Mississippi, 410 U.S. 284, 93

S. Ct. 1038 (1973); Commonwealth v. Bohannon, 376 Mass.

90, 94, 378 N.E. 2d 987 (1978).

The Supreme Judicial Court noted “some merit” in the argu-

ment, but held that because of the “substantial additional evi-

dence of consciousness of guilt” there was no prejudice (Rec.

App. at 21a). However, the assumption of such additional

evidence does not lessen the error, or render it harmless. The

petitioner was convicted in large measure because of such

evidence, and the incriminating connotation that the prosecu-

tion placed on them. If the petitioner could have rebutted a

guilty mind in the making of the instant statement, the jury

may have had a different mind as to the truth and therefore

the connotation of his other statements. Declarations of con-

sciousness of guilt are at best “equivocal.” See (Rec. App. at

30a), Commonwealth v. Toney, 385 Mass. 575, 585, 433 N.E.

2d 425 (1982).'° Here, the integrity of the fact finding process

is so at risk, that the error was prejudicial.

'S In Commonwealth v. Toney, 385 Mass. 575, 585, 433 N.E. 2d 425 (1982),

the court issued caution, and directed instructions concerning the use of evidence

of consciousness of guilt: “We think that a judge should instruct the jury (1)

that they are not to convict a defendant on the basis of evidence of flight or

concealment [consciousness of guilt] alone... .”

The petitioner claimed error in the failure of the trial judge to follow this

directive. The Supreme Judicial Court found no error, but noted that “the

instruction given in the case at bar was not a model of clarity regarding the

fact that a defendant may not be convicted on consciousness of guilt evidence

alone, .. .” (Rec. App. at 30a). Most of the case against the petitioner was

in the nature of acts or declarations of consciousness of guilt, including the

possession of Lisa’s body. The petitioner had urged to the court below:

This is a case which presses a very substantial risk of a miscarriage

of justice, evoking, the highly emotional and irrational reaction:

IV. THE CourT ERRED IN PERMITTING EVIDENCE OF STATE-

MENTS OF THE PETITIONER OBTAINED IN VIOLATION OF HIS

PRIVILEGE AGAINST SELF-INCRIMINATION WHERE, WHEN

THE PETITIONER WAS ASKED BY A POLICE OFFICER OVER

THE TELEPHONE IF HE KNEW WHERE LISA (THE DECEASED)

WAS, RESPONDED “SHE OVERDOSED FIVE MONTHS AGO,”

AND THEN IMMEDIATELY SAID, “I DON’T WANT TO TALK

ABOUT IT,” WHICH CLAIM OF SILENCE THE OFFICER DID

Not HEED BUT THEREAFTER OBTAINED STATEMENTS FROM

THE PETITIONER TANTAMOUNT TO A CONFESSION THAT HE

“Dip Not WANT TO GO To JAIL, HE COULDN’T HACK IT.”

The petitioner moved to suppress statements which were

violative of his privilege to remain silent. The motion was

denied (Rec. App. at 26a-27a, 46a-49a). A police officer, who

was at the petitioner’s parent’s home in pursuance of the inves-

tigation, spoke with the petitioner on the telephone. Prior to

the conversation the officer had information that Ms. Belmonte

had overdosed, was dead, that her body was in the trunk of

the defendant’s car, and that the defendant had left the Bethune

premises in the car (Rec. App. at 46a-47a; V7 pp. 16-18).

The officer’s purpose in speaking with the petitioner was

to learn more (V7 pp. 16-18). He asked the petitioner if he

knew where Lisa was. The petitioner responded, “She over-

“If the defendant had Ms. Belmonte’s body, he must

have killed her.”

It is a case, in the nature of things, which depends for its justice

upon the integrity of an appellate court, free from the heat of battle

of the trial arena, tc dispassionately and rationally examine whether

“(t]he material evidence discloses . . . [any and sufficient] basis

for the conclusion that the deceased met death by the act of the

defendant.”” Commonwealth v. Curtis, 318 Mass. 584, 587 [63

N.E. 2d 341] (1945).

The preclusion of evidence to the petitioner, which had the potential of

broadly impacting on the prosecution’s proof, was a most egregious violation

of the petitioner’s mght to a fair trial.

dosed five months ago,” and then immediately said, “J don’t

want to talk about it.” (Rec. App. at 47a; V7 p. 18) (emphasis

added). This was a clear claim by the defendant of his privilege

against self-incrimination. Despite this assertion of the

privilege, the officer persisted by asking about Ms. Belmonte’s

whereabouts, and where the petitioner’s car was located. The

petitioner remained silent.'° Then the officer coaxed, cajoled,

and intentionally took advantage of the defendant’s feelings

of isolation, and confusion, by telling him that his family was

“in back of him and loved him,” and asked him if he would

come home or meet the officer somewhere (Rec. App. at 47a;

V7 p. 18). The officer testified that he wanted to get the

defendant to talk (V7 p. 18). The defendant replied to this that

he “did not want to go to jail,” that he “couldn’t hack it,” and

that he needed time to think and might contact the officer later

(V6 p. 219; Rec. App. at 48a). These statements of the defend-

ant were admitted against him (V6 p. 219).

The defendant’s desire to remain silent should have been

respected. The privilege may be asserted irrespective of cus-

tody. See, Commonwealth v. Burke, 339 Mass. 521, 531-533,

159 N.E. 2d 856 (1959). “The statements made to [the defend-

ant over a telephone] by the police officer were, . . . designed

to undermine [the, defendant's earlier] decision to remain si-

lent. . . .” Commonwealth v. Jackson, 377 Mass. 319, 326,

386 N.E. 2d 15 (1979). “The fact that the police used any

form of interrogation after the assertion of the right to remain

silent would itself have required suppression of the resulting

statement.” Commonwealth v. Forde, 392 Mass. 453, 455,

466 N.E. 2d 510 (1984). See also, Commonwealth v. Gallant,

381 Mass. 465, 468, 410 N.E. 2d 704 (1980) (insufficient

‘The officer did not testify to the fact of inquiring about the defendant’s

automobile, and the defendant’s resulting silence, at the trial, but had so

testified at the hearing on the motion to suppress, and the motion judge so

found (Rec. App. at 47a).

passage of time between the assertion of the privilege and

police pursuance of interrogation). In the instant matter the

Supreme Judicial Court found no error stating that “Miranda

wamings are necessary only for custodial interrogations.”

(Rec. App. at 27a.) With respect the court misses the issue.

Custody merely triggers the requirement to warn pursuant to

Miranda. It is elementary that the availability of the Fifth

Amendment protection against self-incrimination is not limited

to “custody” contexts. The court’s reliance upon Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), to find no

violation of the right to remain silent, was error. And it was

error of substantial dimension. The petitioner’s statements that

he “didn’t want to go to jail”, that he “couldn’t hack it’,

amount to confessions, understandable as “I did it, but I don’t

want to go to jail.”

V. THE COURT COMMITTED PREJUDICIAL ERROR IN PERMIT-

TING A DOCUMENT AUTHENTICATED BY A HANDWRITING Ex-

PERT TO BE ADMITTED IN EVIDENCE WHERE SUCH AUTHEN-

TICATION WAS VIOLATIVE OF THE PETITIONER’S PRIVILEGE

AGAINST SELF-INCRIMINATION, AND WHERE THE DOCUMENT

PROVIDED CONDEMNING EVIDENCE OF MOTIVE.

Exhibit #5, a letter purporting to be written by the petitioner

to Lisa Belmonte, was admitted over objection (Rec. App. at

Sa; V7 pp. 46-48, 76). It figured largely (Rec. App. at Sa) in

the court’s rationale of the evidence against the petitioner,

especially as to his motive, in particular his jealousy, and his

feelings of being “used.” '’ The letter was authenticated by a

'° The court wrote:

[T]he jury could infer that Lisa went to see the defendant on March

18, 1982, to end their relationship. The jury could have believed

that the defendant knew Lisa was seeing Curt [her former boy

friend] regularly, that she did not wish to see the defendant, and

handwriting expert, a state police trooper, who testified on the

basis of an exemplar furnished over objection by the petitioner

upon the pre-trial motion of the Commonwealth (Rec. App.

at 50a-56a). The basis of the objection is that the exemplar,

in the fashion it was obtained, contained significant testimonial

characteristics and accordingly was violative of the defendant’s

privilege against self-incrimination. Two exemplars, Exhibit

#8 and #9, each contained the typed statement: “The above

are samples of my handwriting with my right/left hand. I

normally write with my right/left hand.” (Rec. App. at 21a-

2a.) The petitioner was obliged to copy the statement selecting

“left” or “right,” thus declaring his natural hand. He stated

“right.”

The expert testified that this information on the exemplar

was the only way to know which hand had been used (V7 pp.

128-130), that it was helpful in determining whether the subject

is feigning, and that he employed the information in making

his judgment as to whether Exhibit #5 had been written by

the petitioner (V7 pp. 134-135).'* The petitioner’s motion to

strike on the basis of this violation was denied (V7 p. 135).

that she felt the relationship was over. They could also infer that

the defendant was still in love with her and wanted to see her very

badly but that he also felt “used.” This evidence permitted the

jury to conclude that the defendant, being jealous, feeling “used,”

and unhappy and understanding that Lisa wanted to terminate their

relationship, had a motive to kill her.

(Rec. App. at 5a-6a, 15a-i6a.)

'*In conclusion defense counsel asked the expert:

Q_ So you used that determination where a person told you he

used his right hand in making your judgment in deciding that

the handwriting on the letter and on the note and on the envelope

were made by the same person who wrote the two exemplars?

A Yes.

(V7 p. 134.)

Clearly, the informative statements required of the defendant

on the exemplar were “testimonial message[s] in addition to

a physical display” and were violative of protections against

self-incrimination. See United States v. Campbell, 732 F.2d

1017, 1021 (1st Cir. 1984).

The Supreme Judicial Court held that there was no violation

because the petitioner’s statement of righthandedness was

“trivial” and does ‘not incriminate.’” (Rec. App. at 23a.)

Again the petitioner is obliged to observe that this is error,

and a very narrow reading of the reach of the right against

self-incrimination. The communication was important in the

process of authentication of the source cf evidence of motive

that figured so significantly in the case against the petitioner.

How can it be regarded as “trivial”, or non-incriminating?

How could the court say that “[t]he defendant’s righthanded-

ness has absolutely no direct bearing on his guilt or innocence

in this case.” (Rec. App. at 23a-24a.)

The court further demeans the importance of the communi-

cation by stating that, “The Commonwealth, however, was

possessed of that knowledge as well [righthandedness], since

a State trooper witnessed the detendant’s execution of the

handwriting exemplar and testified at trial.” (Rec. App. at

21a, n.12.) The trooper was the expert witness who performed

the authentication at trial and who testified to the significance

of “knowing” from the petitioner his natural hand. The sugges-

tion that because the expert observed the making of the exemp-

lar he could have made the authentication, begs not only the

issue, but the facts. The fact is that the trooper’s observation

was not the basis of his opinion. Had his opinion been based

on observation, the trooper’s credibility on “righthandedness”

would have been in issue. As a result of the Fifth Amendment

violation the issue was conclusively determined. The testimo-

nial message by the petitioner thus aided the prosecution.

Clearly there was prejudice, and it was not harmless in view

of the condemning manner in which the letter was employed.

Conclusion.

For the several reasons set forth above, the petitioner respect-

fully prays that a Writ of Certiorari issue from this Court to

review the judgment of the Supreme Judicial Court of the

Commonwealth of Massachusetts.

Respectfully submitted,

KENNETH J. FISHMAN,

Counsel of Record,

109 State Street,

Boston, Massachusetts 02109.

(617) 723-1980

JOHN J. JENNINGS,

FRAWLEY & JENNINGS,

56 Central Avenue,

Lynn, Massachusetts 01901.

- (617) 595-3333

CHARLES M. BURNIM,

508 Donahue Building,

Beacon Hill,

41 Temple Street,

Boston, Massachusetts 02114.

(617) 723-4700 x614

Appendix.

Table of Contents.

Supreme Judicial Court Opinion

Commonwealth v. Nadworny, 396 Mass. 342 (1985) la

Petition for Rehearing 33a

Denial of Petition for Rehearing 4la

Order 42a

Bill of Particulars 43a

Portions of Defendant’s Requests for Instructions 45a

Findings and Ruling on Motion to Suppress 46a

Transcript of Hearing on Commonwealth’s Motion tc

Compel Handwriting Exemplar Before Linscott, J. 50a

Appendix. 396 Mass. 342

Commonwealth v. Nadworny.

COMMONWEALTH vs. WILLIAM NADWORNY.

Essex. September 11, 1985. — December 11, 1985.

Present: HENNESSEY, C.J., Liacos, NOLAN, LYNCH, & O'Connor, JJ.

Homicide. Evidence, Consciousness of guilt, State of mind, Expert opinion,

E > Handwriting exemplar, Scientific test, Photograph. Practice, Criminal,

» Instructions to jury, Voluntariness of inculpatory statements, Dismissal.

| Although the cause of a young woman's death was not ascertainable by an

| examination of her body, the jury at a murder trial could properly find

beyond a reasonable doubt that her death had occurred by homicide,

where the evidence allowed the inferences that she was not depressed

or inclined toward self-destruction on the day she was last seen alive,

that she had been in good health and did not die of natural causes, and

that no accident had occurred, and where there was ample testimony

placing the victim at the defendant’s apartment around seven o’clock

on a certain evening, as well as testimony that the defendant had acknowl-

edged that her death had occurred on the evening in question. [ ]

evidence at a murder trial was sufficient to permit the jury to find

riminal agency on the part of the defendant, where they could conclude

at he had a motive to kill the victim because he was disturbed and

alous over the ending of his romantic relationship with the victim and

here they could also infer from the evidence that the victim had met

her death in the defendant’s apartment and in his sole presence and that

~ she died in such a manner that the defendant was prompted to seek an

nlawful alibi, secrete the body, and conceal the cause of death. [ ]

murder trial, there was sufficient evidence, including the circumstances

bf the defendant’s concealment of the victim’s body during a period of

our months and the defendant’s statement to a friend that he hoped an

utopsy would not reveal anything, to permit the jury to find that the

Jefendant had acted with the requisite malice. [ ]

ough, owing to the advanced state of decomposition of a young woman's

body, a pathologist could not determine the time or cause of her death

ith reasonable medical certainty or eliminate death by natural causes,

it was permissible for him to testify, at the trial of one accused of

urdering her, that her death “could have” been caused by, or was

consistent with” various possible occurrences. [ ]

396 Mass. 342

Commonwealth v. Nadworny

There was no merit to a criminal defendant's contention that the judge at

his trial for murder had, in effect, instructed the jury that the defendant's

failure to obtain medical help for the victim could constitute murder in

the second degree and that, therefore, the judge was required to instruct

them on manslaughter. [ |

Although certain testimony proffered by a criminal defendant might properly

have been admitted as tending to rebut an inference that one of his

remarks revealed consciousness of guilt, its exclusion did not prejudice

the defendant in view of the substantial additional evidence that the

defendant had demonstrated consciousness of guilt. [ _ J

No infringement of a criminal defendant's privilege against self-incrimina-

tion resulted from a court order that he furnish an exemplar of his

handwriting, following which the exemplar, containing the sentence, “I

normally write with my right hand,” was produced by him in the presence

of a State police officer, where the exemplar was, in itself, physical,

and not testimonial, evidence, and where the testimonial aspects of the

defendant's deciaration of righthandedness were, in the circumstances

of the case, trivial and nonincriminating. [ ]

a murder trial, testimony by a State chemist that chemical tests had

detected the presence of blood on the floor of certain storage bins in the

defendant's apartment building and in the trunk of his automobile, but

that the age of the stains and whether they were of human origin could

not be determined, was merely cumulative, and its admission was not

prejudicial to the defendant, where it was uncontested that the victim's

body had been stored for some time in the trunk of the automobile,

where there was other testimony tending to prove that the body had also

been concealed for a time in one of the bins, and where there was

testimony that, when discovered, the body was covered with bloodlike

secretions. | ]

a murder trial, the judge acted within his discretion in admitting in

evidence photographs depicting the victim’s body in an advanced stage

of decomposition, where the state in which the body was found was

evidence of malice and consciousness of guilt, and where the photographs

assisted the jury in understanding a pathologist's testimony. | ]

a murder trial, the judge did not abuse his discretion by admitting in

evidence a photograph of the victim taken while she was alive. where

the photograph was relevant on the question of identification and as tending

to show that death due to ill health or suicide was unlikely. [ |

There was no error in the denial of a criminal defendant's pretrial motion

to suppress, On due process and self-incrimination grounds, certain state-

ments made by him during a telephone conversation with a police officer,

inasmuch as the defendant was not in custody when the conversation

—

occurred; nor, in the circumstances, did the defendant's interjection of

the words, “I don’t want to talk about it,” at one point in the conversation

render involuntary all of his statements that followed. | ]

344 396 Mass. 342

Commonwealth vy. Nadworny

At a murder trial during which evidence was received as to the defendant's

statements to police during a noncustodial conversation, the judge acted

within his discretion in excluding proffered testimony to the effect that

the police had not preceded the conversation with Miranda warnings,

where other testimony was adequate to preserve the issue of the volun-

tariness of the defendant's statements for the jury's determination. | :

At a criminal trial, there was no error in the judge's instructions to the jury

on the issue of the voluntariness of the defendant's incriminating state-

ments. | ]

At a criminal trial, the judge adequately instructed the jury concerning the

proper consideration of evidence of consciousness of guilt. | }

A criminal defendant's motion to dismiss the indictment against him was

correctly denied, where he made no showing that the integrity of the

grand jury was impaired or that other extraordinary circumstances existed

that might render the indictment vulnerable. | }

INDICTMENT found and returned in the Superior Court De-

partment on June 9, 1983.

A pretrial motion to suppress evidence was heard by Andrew

R. Linscott, J., and the case was tried before Robert A. Barton, J.

The Supreme Judicial Court granted requests for direct ap-

pellate review.

John J. Jennings (Charles M. Burnim with him) for the

defendant.

Dyanne Klein Polatin, Assistant District Attorney (Frederick

B. McAlary, Assistant District Attorney, with her) for the Com-

monwealth.

LyncH, J. On June 12, 1984, a jury convicted William

Nadworny of murder in the second degree. He was sentenced

to a term of life imprisonment at the Massachusetts Correctional

Institution at Cedar Junction. The defendant filed a timely

notice of appeal and later sought a stay of execution of sentence

in the Appeals Court, which was allowed. Both parties filed

applications for direct appellate review with this court. We

granted both applications, and we affirm the conviction.

The defendant challenges his conviction on numerous

grounds. He contends that the trial judge erred in not allowing

his motions for required findings of not guilty. He also argues

that the judge erred in failing to instruct the jury as to voluntary

396 Mass. 342 34

Commonwealth v. Nadwormy

and involuntary manslaughter. Next, he chailenges the judge's

jury charge regarding consciousness of guilt and alleges error

in the judge’s failure to establish a procedure for the admission

and use of evidence of consciousness of guilt. In addition, he

maintains that the judge committed several errors in the admis-

sion and exclusion of evidence. He further argues that it was

an error to admit certain of the defendant's statements; to |

preclude him from establishing that he had not received

Miranda warnings; and to fail to instruct the jury adequately

on factors relative to the voluntariness of statements made by

the defendant to the police. Finally, the defendant claims that

the combined effect of several of the alleged evidentiary errors

raises a substantial risk of a miscarriage of justice.

We state the evidence in some detail, because the case against

the defendant was largely circumstantial. Lisa Belmonte was

a seventeen-year-old student at Lynn Classical High School

and lived with her family at 14 Breed Square in Lynn. The

defer.dant was twenty-six years old, and until November, 1981,

had lived next door to the Belmontes with his wife.

During the summer of 1981, Lisa and the defendant became

romantically involved. Throughout the fall of 1981, the defend-

ant would visit Lisa during her school lunch period almost

every day and often picked her up at school. In November,

1981, the defendant separated from his wife and moved to a

nearby apartment at 20 South Street, Lynn.

In the fall of 1981, as Lisa began to see more and more of

the defendant, her behavior at home began to change. On the

weekend prior to Thanksgiving, 1981, Lisa ran away from

home and stayed at the defendant’s apartment. She was found

hiding in one of the basement storage bins in the defendant's

apartment building.

As a result of this and other episodes of running away, Lisa’s

mother and father filed a petition under G. L. c. 119, §§ 39E-

39J (1984 ed.) (CHINS), at Lynn District Court, and Lisa was

referred to the Family and Children Services of Greater Lynn

for counselling.

During this period, Lisa’s schoolwork appeared relatively

unaffected. Lisa was an “A student,” her work was excellent,

346 396 Mass. 342

Commonwealth v. Nadworny

and she was very attentive and sociable in school. She missed

several weeks of school during the fall of 1981, yet she

promptly made up the work. Her teachers saw no indication

that during the school year of 198i, Lisa was a drug or alcohol

user.

Lisa was in good health. She had never been hospitalized

overnight. In September of 1981, she had a lump removed

from her breast. Prior to this, a case of swollen glands when

Lisa was in junior high school was her most serious episode

of illness. The doctor who discovered the lump testified that

he gave Lisa a complete physical on September 24, 1981, and

that Lisa was in good health, except for the lump. A test for

diabetes was also performed at this time and proved negative.

In January, 1982, Curt Willis, a former boyfriend of Lisa’s

who was then stationed in England with the United States Air

Force, informed Lisa that he was to be discharged in March.

At the beginning of 1982, Lisa’s behavior improved and her

mother testified that she was “back to her old self.” In early

March, Lisa picked Curt up at Logan International Airport and

the two began seeing each other almost every day from then.

until Lisa’s disappearance on March 18, 1982.

in January and February, 1982, there was a diminution of

contact between Lisa and the defendant. Lisa’s classmate and

close friend, Debra Ann Lewis, testified that the defendant

and Lisa were less frequently seen together during this period,

and that, when the defendant would drive by and offer Lisa a

ride, Lisa would turn the defendant down. At the end of Feb-

ruary, the defendant told Debby that he loved Lisa and “couldn't

bear it if they broke up,” and asked Debby to tell Lisa that he

wanted to see her. The defendant repeated these feelings to

Debby Lewis during the course of more conversations through-

out early March of 1982.

Presumably in response to a perceived lessening of Lisa's

interest in their reiationship, the defendant sent her a letter in

early March. In it, he acknowledged the change in their relation-

ship and the pain it caused him, the fact that Lisa was see.ng

Curt Willis “almost every night,” and that the defendant felt

“used” by her. He asked Lisa to telephone him so that they

could get together.

ee ee

396 Mass. 342 347

Commonwealth v. Nadworny

Lisa sent the defendant a letter! which was received by him

sometime during the beginning of March, in which she made

clear that she intended to end their relationship and that if she

met with the defendant again it would only be for the purpose

of saying goodbye.

On March 18, 1982, Lisa attended a previously scheduled

5 P.M. appointment with Patricia Thompson, a clinical social

worker and the counsellor Lisa had been seeing at the Family

and Children Services of Greater Lynn. Patricia Thompson

testified that Lisa “seemed in excellent spirits. She seemed to

be functioning well in all areas of her life.” Lisa seemed alert,

and her morale was. “excellent.” Lisa told her that she was

planning to break off the relationship with the defendant, had

sent a letter to the defendant telling him of her intentions, and

that the defendant had written back asking for one more meeting

with her. Patricia Thompson ard Lisa agreed that Lisa was

improved enough to discontinue regularly scheduled counsel- |

ling sessions. Lisa discussed the fact that she was again dating

Curt Willis. Lisa stated that she intended to go over to the

defendant’s apartment immediately after the counselling ses-

sion and break off the relationship. Lisa and Patricia Thompson

“kind of rehearsed” what Lisa might say to the defendant.

Patricia Thompson testified that Lisa was going to say “good-

bye” and tel! the defendant that she was going to continue to

see Curt. Lisa left Patricia Thompson’s office just before 6

P.M., seeming calm, cheerful, and perfectly normal.

‘At trial, two copies of this letter were admitted in evidence. Two days

after Lisa disappeared, the defendant allegedly told Lisa's mother that he

“had a letter from Lisa and it was all torn up and in his barrel . . . but he

would tape it together and send it to” her. Lisa’s mother identified the copy

introduced by the Commonwealth as an exact copy of the letter she received

from the defendant two weeks after this conversation. The copy the Com-

monwealth had provided to defense counsel in compliance with pretrial

discovery was identical in substance, but was pieced together differently

from the copy offered at trial by the Commonwealth. Both copies were

read to the jury over defense counsel’s objections, but a challenge to the

introduction of both letters was not raised on appeal and is therefore treated

as waived. We observe, however. that the judge gave an appropriate clarify-

ing instruction.

348 396 Mass. 342

Commonwealth vo Nadworny

Curt Willis received a telephone cal! from Lisa at approxi-

mately 6 P.M. on March 18. She told him that she would call

him later. Curt and Lisa had plans to go to a birthday party

together on Friday, March 19. About 7 P.M., this same evening,

Lisa telephoned Debby Lewis. Lisa told Debby that “she [Lisa]

and Billy [the defendant] was talking [sic]. Debby noticed

nothing unusual in Lisa’s tone.

Earl Bethune, who worked with the defendant and was also

a close friend, telephoned the defendant’s apartment at 7 P.M.

on March 18, 1982, to see if he could spend the night there.

The defendant told him not to come. “Lisa’s here,” he said,

“[w]hy don’t you come over in a couple of hours She’s going

to be leaving shortly.” Earl Bethune could hear a girl’s voice

over the telephone during this conversation. At about nine

o'clock that nignt, Earl went to the defendant’s apartment. He

saw the defendant’s car parked outside the apartment house

and saw a light on in the defendant’s apartment. Earl pushed

the defendant’s door buzzer persistently, but he received no

answer. Lisa did not return home that night. She was never

again seen alive by family or friends. ;

At about noon on March 19, 1982, Debby called the defend-

ant and asked him where Lisa was. He replied that she was

probably at school, and that she had left his apartment at 9:30

the night before.

At approximately 6 P.M., March 19, 1982, Earl Bethune

went with the defendant to the defendant’s apartment. Earl

noticed a large red-brown stain on the defendant’s white living

room rug, which had not been there earlier in the week. The

defendant said that someone had thrown up on the rug.* The

defendant’s door buzzer sounded and Lisa’s sister, Stephanie,

and Curt Willis could be seen on the defendant’s television

security monitor. The defendant said that if anyone asked where

the defendant was the night before, Earl should say he was

with the defendant. The defendant then let Stephanie and Curt

in and told them that he did not know where Lisa was, and

* Several days later, the defendant told Earl that the stain was caused by

someone spilling beer on the carpet.

396 Mass. 342 349

Commonwealth v. Nadworay

had not seen her in weeks. After Stephanie and Curt left, the

defendant told Ear] that he had broken up with Lisa the night

before and “she got bummed out and left.”

The following morning, March 20, 1982, the defendant

asked Earl to “alibi” for him if anyone asked where he was

on the evening of March 18, 1982. At about 4 P.M. on the

same day, Lisa’s mother came to the defendant’s apartment

with Stephanie. Seeing the visitors on his television monitor,

the defendant told Earl not to let them in because they wanted

to “know where Lisa was” and he “didn’t know” and “didn’t

want nothing to do with them.” Earl nevertheless opened the

door and the defendant told Lisa’s mother he had no idea where

Lisa was. The defendant then told Lisa’s mother that Lisa had

telephoned him the night before and told him that a friend of

hers had given her some money and that she was at the Carriage

House Motel on Route 1. The Belmontes drove out to the

Carriage House immediately, but found no sign of Lisa.

After Lisa disappeared on March 18, 1982, Debby Lewis

kept in contact with the defendant daily, trying to “figure out

where [Lisa] could be.” The defendant accused Debby of know-

ing where Lisa was. After Lisa had been missing a few weeks,

the defendant told Earl Bethune that Lisa had been seen in

New Hampshire “hijacking trucks.”

In the beginning of April, 1982, Carol Fumicello, the man-

ager of 20 South Street, noticed a terrible odor coming from

the basement storage area. She traced the smell to bin number

7 which was locked. Bin number 8 was open and when she

looked inside, she saw a dark, sticky, liquid substance on the

floor, seeping out from under the wall separating bin number

8 from bin number 7. She asked Dana Bates, the building’s

maintenance man, to come down to the basement with her.

He stated that the strong odor smelled like a dead body. Bates

was coincidentally a Saugus police officer and had encountered

dead bodies in the course of his police work. The owner of

bin number 7 told Fumicello that he had lent the bin to the

defendant. The defendant toid Fumicello that he was storing

a chemical adhesive for vinyl car roofs and would clean the

bin that day. The next day Bates found the odor much improved

. Ga

350 396 Mass. 342

Commonwealth v. Nadworny.

and saw that an absorbent material was on the floor of bin

number 8.

Also in the beginning of April, 1982, the defendant asked

Earl Bethune if he could store a 1971 Ford Maverick automobile

in Earl’s yard because the defendant’s father’s funeral business

needed extra parking space.

On July 19, 1982, Earl Bethune was working on the roof

of his garage with Tom Odgers, his tenant, and a carpenter.

They smelled a strong odor coming from the vicinity of the

car. When they examined the car, they found flies all around

the cracks in the trunk and a more powerful odor. Tom Odgers

said it “smells like a dead body.” When Earl telephoned the

defendant to obtain the trunk keys he was told that the smell

was only garbage. Earl asked Tom to pry the trunk open. When

Tom had opened the trunk lid four to six inches, the defendant

drove up, ran to the car, slammed down the trunk lid and asked

Tom what he was doing. The defendant then entered Earl’s

kitchen and asked him “‘not to say anything to anybody,” “Lisa

was in there [in the trunk].” He said Lisa was at his apartment

one night and someone had injected her with an overdose. The

defendant said he had been waiting to tell Earl for a tong time,

and that he did not know what to do. He had been afraid to

telephone the police because he was afraid of Lisa’s father.

The defendant told Earl that he (the defendant) “wasn’t sup-

posed to be with [Lisa],” and that her father had said that if

he found out the defendant had been with Lisa, he would kill

the defendant. The defendant drove away in the Maverick.

Around 6 p.M., Earl and his wife Vanessa called the defend-

ant’s father, Richard Nadworny, and told him what had hap-

pened. The defendant’s father telephoned the Lynn police,

who proceeded to attempt to locate the defendant and his

Maverick. During the course of a telephone conversation that

evening, Vanessa Bethune said to the defendant, “If you didn’t

kill her [Lisa] and she died of an overdose, why den’t you

turn yourself in? You have nothing to hide.” He answered, “I

can’t do that. I don’t know what I am going to do.” The

defendant telephoned Debby about 10 p.m. The defendant told

her that Lisa overdosed, that she had gone into convulsions,

10a

396 Mass. 342 351

Commonwealth v. Nadwomy.

that he tried to stop her, but that if he had called an ambulance

and she died, the Belmontes would blame him. He told Debby

that Lisa was dead and added that “he wasn’t in his right

mind,” and that no one would ever find him.

About 10:15 p.mM., the defendant called his parents’ home.

After talking with the defendant, the defendant’s mother handed

the receiver to Officer Swiniarski of the Lynn police. The

officer identified himself and asked the defendant about Lisa.

The defendant replied, “She overdosed five months ago. I

don’t want to talk about it.”

Shortly after midnight, July 20, 1982, two Lynn police of-

ficers, Sergeant Jackson and Chief Courtney, answered a call

from the defendant’s father, and went to the Nadworny family

home. The defendant was with his family in the living room.

Sergeant Jackson asked the defendant what he wanted to talk

to him about. The defendant answered that “[s}he was very

sick.” Chief Courtney asked, “When was the iast time you

saw Lisa Belmonte?”, and the defendant responded, “Haven't

you heard? She overdosed and was in the trunk of the car.”

At this point, the defendant was given Miranda warnings and

placed under arrest.

The defendant’s Maverick was located in a car lot in Saugus.

It was towed to Lynn Hospital, where a large canvas bag was

removed from the trunk. After the canvas bag was cut open,

several layers of plastic bags were also cut to reveal the maggot

covered body of Lisa Belmonte.* Twenty-five feet of electrical

cord bound the body into fetal position and wrapped the hands

and feet together. The body was covered in bloodlike secre-

tions.

Doctor Khalid Butt, an assistant pathologist ai Lynn Hospital

performed an autopsy on the body on July 20, 1982. He could

determine no cause or time of death due to the body’s advanced

state of decomposition. However, he found no evidence of

significant hematomas or gross injuries on the neck or throat,

in the pleural cavity or the abdominal cavity, the back or the

chest or on her lower legs. He found no major trauma to the

head. Similarly, there were no large scars, injuries, or bullet

‘The identity of the body is not contested.

352 se 396 Mass. 342

Commonwealth v. Nadworny.

marks on the lower legs and arms and no gross injury to the

torso. The internal examination of the chest and abdominal

cavity, and of the organs contained therein, revealed no sugges-

tion of disease. Dr. Butt testified that in his opinion “‘it is

extremely unlikely [Lisa] died of natural causes,”* and unlikely

she had any heart disease.

Dr. Butt’s initial examination revealed “some pitted marks

. more than twenty five” in the right inguinal area, which

he at first thought might have been needle marks. Upon micro-

scopic examination, he revised his opinion and testified that

the marks were caused by pressure because of the body’s po-

sition, or by maggots. Dr. Butt testified on cross-examination

that this area is “not the common area where people use to

hide [drug injections] from other people.” No track marks

typical of drug abuse injection were found on the arms or legs,

and no pills were detected in the stomach. An analysis of the

liver on July 20, 1982, by a toxicologist for the State Depart-

ment of Public Safety reveaied no drugs. In December, 1982,

a Federal Bureau of Investigation examiner from the Chemistry/

Toxicology Unit in Washington, D.C., analysed a liver speci-

men using very sensitive equipment® and no evidence of the

four drug groups tested for was found. All cf the drugs tested

for could be expected to have registered trace amounts if pres-

ent.

Dr. Butt testified that the condition of the body was consistent

with death four months prior to autopsy. Indications of cause

of death were consistent with “[s]uffocation, smothering, injec-

tion of different drugs, poisons, carbon monoxide poisoning,

drowning, and a large number of chemicals.”

*Dr. Butt’s opinion on this issue was based on his findings during the

autopsy, as well as these facts he was asked to assume by the assistant

district attorney: That Lisa was a seventeen year old who had never been

hospitalized except as an outpatient for swollen glands in 1979 and for

removal of a lump in her left breast in September, 1981, and that on

September 21, 1981, she had a complete physical examination and was

found to be a normally healthy sixteen year old at that time.

* The toxicologist testified that one technique employed, gas chromotog-

raphy - mass spectrometry, measured quantities of drugs in nanograms. He

defined a nanogram as “about one-thirty billionth of one ounce.”

12a

396 Mass. 342 353

Commonwealth v. Nadwory.

In mid-August, 1982, the defendant told Earl Bethune that

on the evening of March 18, 1982, the defendant came home

from work and found Lisa dead on the floor of his apartment

and that he did not telephone the police because he was afraid

Lisa’s father would kill him. When Earl asked the defendant

what the autopsy revealed, the defendant replied, “Nothing.

Hopefully they won’t find anything.” The defendant also men-

tioned that since he had helped his father, who was a funeral

director, there really “wasn’t that much” to Carrying a dead

body.

From the beginning of 1983, through the summer of that

year the defendant spent time at Rockerfeller’s Bar in Lynn

and became friendly with a customer, Thomas Pagano, and

later with a bartender, Patricia Flynn. In July, 1983, the defend-

ant discussed Lisa’s death and the Commonwealth’s case

against him with Pagano. The defendant said that on March

18, 1982, he had come home from a ski trip and found Lisa

dead on his floor. He had picked her up, put her in a canvas

bag, wrapped it with some cords, and carried it to the dumpster

in the basement of his building. He explained the fact that

blood was found on Lisa’s body by saying that “it is possible

[for blood] to come out of a body just because it is dead.” He

mentioned that the main evidence the Commonwealth was

using against him was “blood stains from Lisa’s body” found

on the floor of his apartment and in the basement. He also

added that Lisa did not take drugs. Patricia Flynn testified that

in July, 1983, the defendant toid her that he found Lisa dead

wien he came home from skiing. He said the body was all

black and surrounded by vomit. He said he called “Hell’s

Angels types” to dispose of the body, he supplied ropes and

bags, and they took care of it. He stated that Lisa dic not take

drugs, but that he felt she “shot up insulin” and that there was

a family history of diabetes and insulin. During a later conver-

sation, he explained the vomit by saying that ‘‘a body throws

up after it dies.”

1. Denial of motions for a required finding of not guilty. In

reviewing the denial of motions for a required finding of not

guilty in a criminal case we “consider whether ‘the evidence

13a

354 396 Mass. 342

Commonwealth v. Nadwomy

is insufficient as a matter of law to sustain a conviction on the

charge.” Commonwealth v. Salemme, 395 Mass. 594, 595

(1985), quoting Mass. R. Crim. P. 25 (a), 378 Mass. 896

(1979). The motion should be denied if ‘all the circumstances

including inferences [that are not too remote according to the

usual course of events] are of sufficient force to bring minds

of ordinary intelligence and sagacity to the persuasion of [guilt]

beyond a reasonable doubt.” C ommonwealth v. Shuman, 391

Mass. 345, 350 (1984), quoting Commonwealth v. Latimore,

378 Mass. 671, 676 (1979). We view the evidence in the light

most favorable to the Commonwealth. Commonwealth v. Ful-

ler, 394 Mass. 251, 254 (1985). Commonwealth v. Latimore,

supra at 676-677. The defendant contends the evidence against

him is insufficient to prove cause of death, criminal agency,

and malice aforethought.

a. Cause of death. The fact that the cause of death was not

ascertainable from the body does not of itself preclude the

Commonwealth from proving that the victim’s death was by

violence and the criminal agency of the defendant beyond a

reasonable doubt. See Commonwealth v. Webster, 5 Cush.

295, 308-309 (1850). Although the case against the defendant

is largely circumstantial it is well-settled that such evidence is

competent to establish guilt beyond a reasonable doubt. Com-

monwealth v. Fuller, supra. Commonwealth vy. Rojas, 388

Mass. 626, 629 (1983). Commonwealth v. Montecalvo, 367

Mass. 46, 54 (1975), and cases cited therein. To “conclude

otherwise would mean that a criminal could commit a secret

murder, destroy the body of the victim [or secrete it until

advanced decomposition obscured the cause of death], and

escape punishment despite convincing circumstantial evidence

against him or her.” Wilkins v. State, 96 Nev. 367, 374 (1980),

citing People v. Scott, 176 Cal. App. 2d 458 (1959), appeal

dismissed and cert. denied, 364 U.S. 471 (1960). See Regina

v. Onufrejczyk, 1 Ai! E.R. 247 (1955).

The jury had ample evidence from which they could reason-

ably conclude that Lisa met her death by violent means in the

defendant’s apartment on the evening of March 18, 1982,

sometime after 7 P.M. The testimony of Patricia Thompson,

l4a

396 Mass. 342 355

Commonwealth v. Nadworny

Earl Bethune, Curt Willis, and Debby Lewis all tended to

show that Lisa was at the defendant’s apartment at around 7

P.M. On that evening and that was the last time she was seen

alive. Testimony by several witnesses, including that of Earl

and Vanessa Bethune and Debby Lewis tended to establish

that the defendant himself acknowledged Lisa’s death in his

apartment that evening. The defendant first told Earl that the

large red-brown stain Earl noticed on the defendant’s rug on

March 19 was vomit, but later asserted it was a beer stain.

Thomas Pagano testified that the defendant told him that the

Commonwealth’s evidence against him included “blood stains

from Lisa’s body” found on his apartment floor. The jury could

infer from this evidence that the stain on the rug was Lisa’s

blood.

The jury could properly find that Lisa’s death was not the

result of suicide. Patricia Thompson testified that not only was

Lisa happy and functioning well in all areas with excellent

morale on March 18, but also that she determined that Lisa’s

outlook was positive enough for regularly scheduled counsel-

ling sessions to be terminated. Both Curt Willis, who spoke

with Lisa at 6 P.M., and Debby Lewis, who talked with her

at seven o’clock that night, said she sounded normal. Lisa had

made plans to go to a party with Curt on the coming Friday

and her mother indicated that Lisa was alert, friendly, and

performing well during March. The jurors could infer that Lisa

was not depressed or inclined toward self-destruction on March

18 and that she did not kill herse!f.

The jury could also reasonably infer that Lisa did not die

of natural causes. She suffered no major illnesses and had

undergone no surgical procedures except for the removal of a

lump in her breast. There was no indication in the testimony

of her mother, friends, and other people who knew her that

she was in ill health. In fact, her mother testified that her

health had been good. On September 24, 1981, Lisa had been

given a complete physical examination and was found to be

in good general health, aside from the lump. She also tested

negative for diabetes on that date. Dr. Butt testified that based

on his autopsy and the above information it was extremely

15a

356 396 Mass. 342

Commonwealth v. Nadworny.

unlikely that Lisa died of natural causes. Moreover, the jury

could properly infer that Lisa’s death was not caused by acci-

dent. There was no evidence of accident. Dr. Butt testified

that there was no evidence of major trauma to the body or

broken bones, no pills were found in the stomach, and no large

cranial hematomas. The defendant explained to his friends that

she “was overdosed” by the hand of another, or “overdosed”

herself. The jury were free to disbelieve this versicn of the

events that evening. See Commonwealth v. Campbell, 378

Mass. 680, 689-690 (1979); see also United States v. Systems

Architects, Inc., 757 F.2d 373, 377 (ist Cir.), cert. denied,

54 U.S.L.W. 3223 (Oct. 8, 1985) (“The Government. . .

need not exclude every reasonable hypothesis of innocence,

provided the record as a whole supports a conclusion of guilt

beyond a reasonable doubt”).

b. Agency. There was also sufficient evidence for the jury

to find criminal agency on the part of the defendant. A “web

of convincing proof can be made up of inferences that are

probable, not necessary.” Commonwealth v. Best, 381 Mass.

472, 483 (1980). Commonwealth v. Lanoue, 392 Mass. 583,

590 (1984) (allowable inferences need not be necessary or

inescapable). The jury could have found that, during January

and February of 1982, the close, romantic relationship between

the two had begun to cool, Lisa was pulling back and the

defendant was disturbed and unhappy at the turn of events.°

From Lisa’s letter and her statement to Patricia Thompson,

the jury could infer that Lisa went to see the defendant on

March 18, 1982, to end the relationship.’ The jury could have

believed that the defendant knew Lisa was seeing Curt regu-

larly, that she did not wish to see the defendant, and that she

These findings are supported by the testimony that during this period

Lisa and the defendant were seen together less frequently and that she would

turn down rides offered by him; that the defendant repeatedly expressed his

concern about his lack of contact with Lisa, his desire to speak with her,

his love for her, and that he could not bear to have the relationship broken off.

’The defendant contends that this testimony was admitted as evidence

of Lisa’s state of mind, relevant to the defendant's motive. He argues that

the statemeni is insufficient to demonstrate that in fact she so informed the

l6a

396 Mass. 342 357

Commonwealth v. Nadwormy

felt the relationship was over. They could also infer that the

defendant was still in love with her and wanted to see her very

badly but that he also felt “used.” This evidence permitted the

jury to conclude that the defendant, being jealous, feeling

“used,” and unhappy and understanding that Lisa wanted to

terminate their relationship, had a motive to kil! her. From his

own statements the jury could have concluded that he was in

Lisa’s presence when she died and from other evidence, that

he was the only person present.

The jury, therefore, could have reasonably inferred that the

defendant killed Lisa in his apartment on March 18, 1982, and

immediately began his efforts to conceal her body. They could

have believed that the defendant requested that Earl Bethune

“alibi” for him and that the defendant told inconsistent stories

concerning Lisa’s condition when he saw her on March 18.

There was ample evidence to support the conclusion that from

the moment of her death to the time of its discovery, Lisa’s

body was either in the defendant's apartment, in the storage

bin controlled by him, or in the trunk of his car. The jury

could have considered the great length of time and manner in

which the body was secreted as indicative of the defendant’s

attempts to conceal evidence of his criminal act.

In sum, therefore, the jury could infer that Lisa met her

death at the hands of the defendant in his apartment and in his

sole presence. They could infer that the manner in which the

defendant killed her caused her to bleed and that she died in

such a way that the defendant was prompted to seek an untruth-

ful alibi and to secrete the body or conceal the cause of death.

c. Malice. Where the “crime charged is murder, the requisite

mental state is malice aforethought.”” Commonwealth v. Scanlon,

defendant. See Commonwealth v. Borodine, 371 Mass. |, 8-9 (1976), cert.

denied, 429 U.S. 1049 (1977). The jury, however, would have been war-

ranted in inferring that Lisa had communicated her intent to break off the

relationship based on comments to that effect in her letter to him. Addition-

ally, if “the victim was willing to tell third persons that her relationship

with the defendant had deteriorated and that she had told or would tell the

defendant that their relationship would end, it is inferable . . . she communi-

cated her feelings to the defendant.” /d. at 8, citing Mutual Life Ins. Co.

v. Hillmon, 145 U.S. 285, 295-296 (1892).

17a

358 396 Mass. 342

Commonwealth ». Nadworny

373 Mass. 11, 18 (1977). We have already shown that the

jury could have found that Lisa met her death at the hands of

the defendant in his apartment on the evening of March 18,

1982, because of his dissatisfaction with the course of their

love affair. On the basis of these findings the jury could infer

that the defendant intentionally caused her death and that the

requisite malice was therefore present. Commonwealth v.

Webster, 5 Cush. 295 (1850). See Commonwealth v. Forde,

392 Mass. 453, 456 (1984); Commonwealth v. Scanlon, supra;

Commonwealth v. Mangum, 357 Mass. 76, 85 (1970). Addi-

tional evidence exists from which the requisite malice can be

found. The intent to inflict an injury may be inferred from,

among other things, the condition of the body and the disposal

of evidence. Commonwealth v. Amazeen, 375 Mass. 73, 81

(1978). The jury could properly have found that the nature and

circumstances of the defendant's concealment of the body and

its decomposed condition were indicative of his intent to harm

Lisa. The defendant was the son of a funeral director and had

helped his father with his work. Comments about a body's

tendency to secrete fluids such as blood and vomit-like sub-

stances after death revealed his knowledge of a body’s postmor-

tem changes. His statement to Earl Bethune that he hoped the

autopsy would not reveal anything, and the careful way the

body was tied, compacted, and wrapped in two layers of plastic

within a canvas bag and concealed for four months could prop-

erly be viewed by the jury as evidence that he injured Lisa

intentionally and used his understanding of the decomposition

process to cover up evidence which would reveal his intentional

act, if the body was discovered soon after death.

2. Pathologist’s testimony. The defendant contends that it

was error to admit certain testimony of Dr. Butt since he could

not determine time or cause of death to a reasonable medical

certainty. The defendant alleges that Dr. Butt could not and

did not testify to at least a degree of probability and instead

testified only as to “possibilities.” He maintains that the evi-

dence was prejudicial because it allowed the expert as well as

the jury to speculate. See Hachadourian’s Case, 340 Mass.

81, 86 (1959); Nass v. Duxbury, 327 Mass. 396, 401-402

(1951). We disagree.

396 Mass. 342 359

Commonwealth v. Nadworny

Dr. Butt acknowledged that the examples of causes of death

he cited as consistent with his autopsy findings were not exhaus-

tive and there were other ways Lisa could have died. He also

acknowledged that each of those examples of causes of death

could have been self-induced or could have occurred by acci-

dent. Of itself, the possibility that there could have been other

causes of the victim’s death does not render his opinion inad-

missible. See Commonwealth v. Tatro, 4 Mass. App. Ct. 295,

305 (1976). It is, of course, true that when evidence tends

equally to sustain either of two inconsistent propositions,

neither of them can be said to be established by legitimate

proof. Commonwealth v. Salemme, 395 Mass. 594, 601

(1985). Commonwealth v. Fancy, 349 Mass. 196, 200 (1965).

Commonwealth v. McLeod, 394 Mass. 727, 747 (1985), and

cases cited therein. As already noted, however, there was other

evidence besides Dr. Butt’s testimony upon which the jury

could reasonably rely to infer that death was not the result of

suicide or accident. See Commonwealth v. McLeod, supra.

Dr. Butt testified that the victim’s death could have been

caused by and was “consistent with” “[s]uffocation, smother-

ing, injection of different drugs, poisons, carbon monoxide

poisoning, drowning, and a large number of chemicals.” Use

of phrases “consistent with” and “could have” does not render

Dr. Butt’s testimony incompetent. See Commonwealth v.

Perez, 357 Mass. 290, 304-305 (1970); Commonwealth v.

Donoghue, 266 Mass. 391, 396 (1929); Commonwealth v.

Cantor, 253 Mass. 509, 513 (1925); Commonwealth v. A

Juvenile, 365 Mass. 421, 437 (1974), and cases cited. Cf.

Commonwealth v. Polian, 288 Mass. 494, 501 (1934). Al-

though such testimony is not evidence that death occurred in

the manner stated, evidence “ ‘tending to show that there was

nothing in the conditions disciosed at the autopsy inconsistent

with the theory of the case based upon the other testimony

offered by the Commonwealth . . . [is] competent.’. . . The

‘other testimony’ can be entirely circumstantial. . . . A jury

could consider testimony of this character in excluding a

hypothesis as to how a death was caused.” Commonwealth v.

Burke, 339 Mass. 521, 530-531 (1959), quoting Common-

wealth v. Cantor, supra.

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360 396 Mass. 342

Commonwealth v. Nadwory

Neither is the testimony rendered speculative because the

pathologist could not give an opinion on a specific cause of

death. The significance of his opinion testimony was that the

body's state of decomposition made it impossible to ascertain

a cause of death with any more certainty and to eliminate death

by disease or natural causes. Based on the discussion above,

we conclude that it was not error to admit Dr. Butt’s testimony.

We observe that even had admission of this testimony been

vitor, any possibility of prejudice was removed by p1.dent

instructions by the judge to the jury prior to and during Dr.

Butt’s testimony as an expert witness.

3. Request for instructions on manslaughter. The defendant

contends that the judge’s charge to the jury allowed a reasonable

juror to believe that failure of the defendant to obtain medical

help for the victim could constitute murder in the second degree.

He argues, therefore, that the failure of the judge to instruct

on involuntary and voluntary manslaughter while permitting

the jury to convict the defendant of murder for failure to act,

was improper. He claims the judge further erred in declining

to give a requested instruction clarifying that the law imposes

no duty on the defendant to act.* We disagree and find no error.

The defendant’s allegation that the judge’s instructions per-

mitted the jury to conclude the defendant could be convicted

of murder in the second degree for failure to act focuses on

portions of the charge stating that intent to kill “is not a neces-

sary element of second degree murder” and that “malice in

murder means a knowledge of such circumstances that accord-

ing to common experience there is a plain and strong likelihood

that death will follow the contemplated act.” In assessing the

sufficiency of jury instructions, we consider the charge in its

eniirety “to determine the ‘probable impact, appraised realisti-

cally . . . upon the jury’s factfinding function.’ ” Common-

wealth v. Richards, 384 Mass. 396, 399-400 (1981), quoting

* The instruction requested by the defendant was: “You may not find the

defendant guilty of any crime by reason of any failure or omission to act

because the law imposes no duty on the defendant to take any action to

preserve the life of another.”

20a

396 Mass. 342 361

Commonwealth v. Nadworny

United States v. Wharton, 433 F.2d 451, 457 (D.C. Cir. 1970).

See Commonwealth v. Silva, 388 Mass. 495, 507 (1983).’

Reviewing the charge as a whole, we are satisfied that no

juror could reasonably infer that failure to act was a permissible

basis for a second degree murder conviction in this case. There

was, therefore, no error in the judge’s refusal to instruct on

manslaughter. Similarly, the judge did not err in denying the

defendant’s request for an instruction clarifying the defendant’s

lack of obligation to act.

A judge “may not charge on a hypothesis not supported by

the evidence,” Commonwealth v. Vanderpool, 367 Mass. 743,

746 (1975); Commonwealth v. Campbell, 352 Mass. 387, 392

(1967), and no view of the evidence, resolving all reasonable

inferences in favor of the defendant, Commonwealth v. Vander-

pool, supra, permitted a finding of either involuntary or volun-

tary manslaughter.

4. Exclusion of evidence. At trial, Earl Bethune testified

that in April, 1982, the defendant said that “someone told him

’ The judge instructed the jury that “to prove murder in the second degree

the Commonwealth must establish beyond a reasonable doubt . . . [pJumber

one: That there was an unlawful killing of Lisa Belmonte by this Defendant”

(emphasis added). This was repeated. In defining unlawful killing, the judge

said, “The term unlawful killing refers to the absence of justification or

excuse. For example, a killing is justified if authorized by law, as during

a lawful battle in 1 lawful war or by a person acting in self-defense. If a

killing is not excused in situations such as these however, the killing is

unlawful.” The judge then stated the following passage twice. “Further. . .

the evidence must not only prove beyond a reasonable doubt a death by

violence, but must also exclude — and that is exclude — beyond a reasonable

doubt death by suicide, natural causes and accident” (emphasis added). The

judge went on to state that “[aJ]n injury to another human being is not

unlawful whe occasioned by acts of misfortune. The burden of proof is

on the Commonwealth to prove beyond a reasonable doubt that the conduct

of this Defendant was unlawful, that he caused injury by violence to the

victim while she was alive. If the Commonwealth fails in its burden to prove

that the Defendant's actions were unlawful and that the Defendant caused

injury by violence to the victim while she was alive, then you need not

proceed further, but must return a verdict of not guilty” (emphasis added).

As part of the definition of malice, the judge stated that it “is an intention

to inflict injury without legal! justification. Whether a killing is actually

committed with malice aforethought is determined from the nature and the

quality of the act which attends the killing” (emphasis added).

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362 396 Mass. 342

Commonwealth v. Nadworny

that [Lisa] was seen in New Hampshire hijacking trucks.”

Later, the defendant sought to introduce evidence that his father

had been told this by Lynn police officer Clara Zameyjtis in

April, 1982, and that his father had communicated the content

of the discussion with Officer Zamejtis to the defendant. The

defendant maintains that the judge wrongfully excluded this

evidence, since it was offered to show the defendant’s state

of mind when he made the statement which would tend to

rebut any inference that the defendant’s remark to Earl Bethune

was evidence of consciousness of guilt. See Commonwealth

v. Bohannon, 376 Mass. 90, 94 (1978). This argument has

some merit. We are satisified, however, that there is ample

and substantial additional evidence of consciousness of guilt

in this case to remove any possibility of prejudice to the defend-

ant even if the excluded testimony might have served to blunt

an inference that the defendant’s comment to Earl Bethune

demonstrated consciousness of guilt.'”

5. Handwriting exemplars. The defendant contends that the

admission of the letter purportedly written by him to Lisa

constituted prejudicial error. He argues that in complying with

the court order to furnish handwriting exemplars, he was com-

pelled to violate his privilege against self-incrimination. We

shall treat this claim as an invocation of the privilege under

the Fifth Amendment to the United States Constitution. ''

The handwriting exemplars were produced in the presence

of a State police trooper. As part of the process, the defendant

was required to copy the following two sentences, which in-

volved his selection of the term “right” or “left” hand in each

sentence he rewrote:

“We note that had the defendant's father’s testimony been admitted and

been believed, the jury could nevertheless have reasonably concluded that

the defendant had repeated Officer Zamejtis’ information to Earl Bethune

knowing Lisa was already dead, intending to disguise his own guilt.

‘At trial, the defendant objected to the admission of the handwriting

exemplar and moved to strike the handwriting expert’s testimony on Fifth

Amendment grounds. On appeal, however, the defendant does not specify

whether he alleges error under the Federal or State Constitutions, or both,

and simply claims violation of his “privilege against self-incrimination.”

We consider only the Federal constitutional question as no objection under

the Massachusetts Constitution was raised at trial.

396 Mass. 342 . 363

Commonwealth v. Nadworny

“The above are samples of my handwriting with my (right/

left) hand. I normally write with my (right/left) hand.”

It is these sentences which the defendant maintains were tes-

timonial and violative of his privilege against self incrimina-

tion.

It is established that the privilege of an accused not to be

compelled to be a witness against himself protects only against

the compulsion of incriminating “communications” or “test-

imony” and does not operate against compulsion “which makes

a suspect or accused the ‘source of real or physical evidence.’ ”

Commonwealth v. Brennan, 386 Mass. 772, 776 (1982), quot-

ing Schmerber v. California, 384 U.S. 757, 764 (1966). It is

equally well-settled that handwriting constitutes “real or phys-

ical” evidence and thus does not come within the constitutional

privilege protecting against compelled communications. Gil-

bert v. California, 388 U.S. 263, 266-267 (1967). A “mere

handwriting exemplar, in contrast to the content of what is

written, like the voice or body itself, is an identifying physical

characteristic outside [the privilege].” /d., citing United States

v. Wade, 388 U.S. 218, 222-223 (1967).

This court has held that “ ‘testimonial’ evidence, for the

purpose of Fifth Amendment analysis, is evidence which re-

veals the subject’s knowledge or thoughts concerning some

fact." Commonwealth v. Brennan, supra at 778. Arguably,

under this definition, the information sought by requiring the

defendant to choose between “left” and “right” was more than

mere “physical evidence” of the identifying characteristics of

his penmanship, '* since the defendant was compelled to reveal his

The phrase “[t]he above are samples of my handwriting with my right

hand” may also be testimonial according to the Brennan definition. It reveals

the defendant’s knowledge concerning a fact, which is, that he wrote it

with his right hand. The Commonwealth, however, was possessed of that

knowledge as well, since a State trooper witnessed the defendant's execution

of the handwriting exemplar and testified at trial. This evidence is also very

similar in kind to other compelled behavior found to be nontestimonial, as

in field sobriety tests, where an accused is forced to exhibit his physical

characteristics for observation by a police officer. See Commoawealth v.

Brennan, supra at 779. Even if we considered the information that the

defendant completed the handwriting exemplar with his right hand testimo-

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364 396 Mass. 342

Commonwealth v. Nadworny.

subjective knowledge of his “righthandedness.” To compel

disclosure of knowledge of this sort is different from requiring

the defendant to furnish an exemplar which discloses only the

manner in which he forms his words and letters. See United

States v. Campbeli, 732 F.2d 1017, 1021-1022 (1st Cir. 1984)

(to require the defendant to produce a handwriting exemplar

by taking dictation would compel him to reveal his spelling.

The resulting implied message, “ [t]his is how I spell it,” would

be testimonial. “{S]pelling is an intellectual process as distin-

guished from the pure physical habit or characteristics that

make handwriting demandable” ). Cf. United States v. Pheas-

ter, 544 F.2d 353, 372 (9th Cir. 1976), cert. denied sub nom.

Inciso v. United States, 429 U.S. 1099 (1977) (spelling and

penmanship are both acquired through learning and both may

tend to identify a defendant as author of a document, yet neither

involve protected communication).

Even evidence which is both testimonial and compelled is

not protected by the privilege if such evidence is “trivial” and

does “not incriminate.” Commonwealth v. Hughes, 380 Mass.

583, 590, cert. denied, 449 U.S. 900 (1980). See id., citing

Fisher v. United States, 425 U.S. 391, 411-413 (1976). We

conclude that the defendant’s declaration of his righthandedness

is not protected under this standard.

The informational aspects of the exemplar were trivial

since what is in issue is not whether the defendant writes

with his right or left hand. Commonwealth v. Hughes, supra.

Fisher v. United States, supra. Neither is the information

that the defendant usually writes with his right hand in-

criminating. The defendant’s righthandedness has absolutely

nial evidence, it is clearly trivial and nonincriminating and therefore unpro-

tected by the Fifth Amendment privilege. The question of which hand the

defendant actually used to complete the exemplar was “a foregone conclu-

sion” having been observed and thus added “little or nothing” to the Com-

monwealth’s information. See Fisher v. United States, 425 U.S 391, 411

(1976); Commonwealth v. Hughes, 380 Mass. 583, 590, cert. denied, 449

U.S. 900 (1980); and discussion infra at 364-365.

24a

396 Mass. 342 365

Commonwealth v. Nadworny

no direct bearing on his guilt or innocence in this case. This

is not a case where a weapon was used in a manner indicating

a righthanded or lefthanded assailant, nor as in Commonwealth

v. Hughes, supra, a case where the defendant is compelled to

reveal the existence of a fact which is an essential element of

the Commonwealth’s case (possession of a gun). The cases

cited in Hughes similarly involve situations where the nexus

between the incrimination of the defendant and the testimonial

evidence compelled from him was more direct and immediate

than in the instant case. /d. at 590-592. See, e.g., United

States v. Campos-Serrano, 430 F.2d 173, 176 (7th Cir. 1970),

cert. denied, 404 U.S. 1023 (1972) (defendant indicted for

knowing possession of forged alien registration card. To pro-

duce the card was tantamount to compelled production of “the

crime itself”). Therefore, even if the declaration of righthand-

edness is conceded to be testimonial, the compelled disclosure

of this information does not violate the Fifth Amendment.

6. Bloodstains; benzidine reagent test. A Department of

Public Safety chemist testified, over the defendant’s objection,

that he obtained positive reactions for the presence of blood

when he performed a benzidine reagent test for blood in the

trunk of the defendant’s Maverick and on the floor of the

basement storage bins number 7 and number 8. He could not

determine how long the blood had been present, or whether

any of the blood was human or animal. Further tests were

performed to establish whether in fact the blood was human,

but the results proved inconclusive.

This court has upheld admission of test results evidencing

the presence of blood where it has not been possible to ascertain

whether the blood is human or animal. We have said that this

lack of conclusiveness is a matter of the weight of the evidence

and not of its admissibility. Commonwealth v. Murray, 359

Mass. 541, 549 (1971). In cases both before and after Murray,

however, similar evidence has been held to be inadmissible.

See Commonwealth v. Healy, 393 Mass. 367, 382 (1984);

Commonwealth v. Horton, 376 Mass. 380, 396-397 (1978),

cert. denied sub nom. Wideman v. Massachusetts, 440 U.S.

923 (1979); Commonwealth v. Burke, 339 Mass. 521, 535

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366 396 Mass. 342

Commonwealth v. Nadworny

(1959). We do not decide whether the facts of the case would

be controlled by Murray or Burke since the defendant suffered

no prejudice from the admission of the evidence. The chemist’s

testimony was merely cumulative. Fumicello and Bates both

testified that they saw a dark, sticky liquid on the floor of bin

number 8, seeping from bin number 7 and Bates’ statement

that the odor resembled that of a dead body, was evidence

from which the jury could infer the stain in the bins was blood.

Moreover, the fact that Lisa’s body was stored for at least

some length of time in the trunk of the defendant’s Maverick

is not contested. This fact, combined with testimony that the

body was covered with bloodlike secretions, permitted the

inference that the stain in the trunk was Lisa’s blood. Any

error in the admission of the chemist’s testimony under these

circumstances was not prejudicial. See Commonwealth v.

Sazama, 339 Mass. 154, 159 (1959).

7. Photographs. Postmortem photographs were admitted de-

picting the badly decomposed body of the deceased in the fetal

position in which it had been bound. Portions of the

bloodstained plastic bag in which the body had been wrapped

were visible. The defendant argues that it was error to admit

these pictures as they were inflammatory and of no probative

value.

The admission of photographs is committed to the sound

discretion of the trial judge and we have rarely reversed a

conviction because of the production of photographs of a vic-

tim. Commonwealth v. Westmoreland, 388 Mass. 269, 279

(1983), and cases cited. See Commonwealth v. Richmond, 371

Mass. 563, 564 (1976); Commonwealth v. Allen, 377 Mass.

674, 679 (1979). This is not a case where the photographs

showed the body as altered in the course of an autopsy, which

this court has said may present special problems. Common-

wealth v. Bastarache, 382 Mass. 86, 106 (1980). The fact

that photographs may be inflammatory does not bar their admis-

sion if they possess evidentiary value on a material matter.

Commonwealth v. Stewart, 375 Mass. 380, 385 (1978). Com-

monwealth v. Allen, supra. In this case, the state in which the

body was found, bound into a position which would best effec-

tuate transportation and concealment, as well as its advanced

396 Mass. 342 367

Commonwealth v. Nadworny

state of decomposition, was evidence of malice and conscious-

ness of guilt and thus probative of guilt. Moreover, the pictures

were relevant to assist the jury in understanding the

pathologist's testimony, particularly as to the fact that the de-

composition prevented establishing precise cause and time of

death. See Commonwealth v. Todd, 394 Mass. 791, 796 (1985)

(although a pathologist testifies as to cause of death, oral tes-

timony describing the victim’s injuries may be supplemented

with photographs). The judge was careful to give a limiting

instruction when the photographs were presented to the jury,

see Commonwealth v. Repoza, 382 Mass. 119, 128-129 (1980),

and diligently reviewed the photographs, eliminating one as

redundant, see Commonwealth v. Todd, supra. The judge did

not abuse his discretion in admitting the photographs.

The defendant further objects to the admission of a photo-

graph of Lisa taken while she was alive. He contends that the

contrast between the decedent’s “youthful and smiling face”

and the “gruesome” visage in the postmortem photographs was

inflammatory and prejudicial. We cannot agree that the judge

abused his discretion in the circumstances. The photograph

was relevant on the question of identification and as tending

to show that death due to ill health or suicide was unlikely.

Although during the trial the defendant offered to stipulate to

the indentity of the body to avoid admission of the picture,

and subsequently did so stipulate, a judge may generally “admit

relevant evidence even if a party has agreed te stipulate to the

fact that the offered evidence tends to prove.”” Commonwealth

v. Bastarache, supra. See Commonwealth v. Todd, supra,

citing Commonwealth v. Stirling, 351 Mass. 68, 71 (1966).

8. Motion to suppress. Prior to trial, the defendant moved

to suppress certain statements including those allegedly made

by him over the telephone to Officer Swiniarski. The motion

was denied and the statements were later admitted at trial. The

defendant argues that the remarks were involuntary and violated

his due process rights and his privilege against self incrimina-

tion.

The motion judge’s finding that the defendant’s statements

were not made during custodial interrogation and that no |

Miranda rights therefore attached was clearly warranted and

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368 396 Mass. 342

Commonwealth v. Nadworny.

is dispositive. Miranda warnings are necessary only for custo-

dial interrogations. Oregon v. Mathiason, 429 U.S. 492, 494-

495 (1977). Commonwealth v. Bryant, 390 Mass. 729, 736

(1984). The defendant was not subjected to custodial interro-

gation and therefore his reliance on cases concerning continued

interrogation in custodial situations where an accused has as-

serted the right to remain silent, e.g., Commonwealth v.

Jackson, 377 Mass. 319, 326 (1979); Commonwealth v. Forde,

392 Mass. 453, 455 (1984), is inapposite. Cf. Commonwealth

v. Burke, 339 Mass. 521, 532-533 (1959).

There remains the question whether certain of the defendant's

statements to Officer Swiniarski were voluntary. At one point

in the telephone conversation the defendant said, “I don’t want

to talk about it.” See Commonwealth v. Mahnie, 368 Mass.

662, 679 (1975), cert. denied, 425 U.S. 959 (1976). The

motion judge found that the defendant’s statements later on in

the conversation in no way “contravene[d] due process volun-

tariness” and were free of coercion. The motion judge had an

ample basis for finding that nothing in the exchange between

Officer Swiniarski and the defendant resulted in the will of

the defendant being “overborne” so that what he said could be

considered involuntary. See Rogers v. Richmond, 365 U.S.

534, 544 (1961); Schneckloth v. Bustamonte, 412 U.S. 218,

226 (1973).

9. Relevance of evidence of no Miranda warnings to question

of voluntariness before the jury. The motion judge found that

the defendant’s statements made during Sergeant Jackson and

Chief Courtney’s visit to the Nadworny family home on July

20, 1983, were not made during custodial interrogation and

that no right to Miranda warnings attached.

The defendant now argues that the trial judge committed

prejudicial error in interrupting his cross-examination of

Sergeant Jackson" and prohibiting Jackson from answering the

In his brief, the defendant mistakenly states that his objection to the

trial judge’s cross-examination was “of the police officer who obtained the

incriminating statements over the telephone.” That officer was Swiniarski.

The substance of the brief, and the defendant’s citations to the transcript,

make clear that his objection concerns the cross-examination of Sergeant

Jackson.

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396 Mass. 342 369

Commonwealth v. Nadwomy

question, “And yet when you spoke to [the defendant], you

didn’t advise him of his right to remain silent in any way?”

The defendant alleges that the question whether Miranda rights

had been given during Jackson’s colloquy with the defendant

was relevant to a jury determination of voluntariness. We find

no error.

We agree with the motion judge that the portion of the

defendant’s conversation with Sergeant Jackson and Chief

Courtney up through the defendant’s response that Lisa was

in the trunk, was not custodial interrogation. The motion judge

found that the conversation took place at the defendant’s fam-

ily’s home, at the defendant’s request, and involved an officer

who knew the defendant and his family well. See Miranda v.

Arizona, 384 U.S. 436, 444 (1966); Oregon v. Mathiason,

supra, and see discussion in Commonwealth v. Bryant, 390

Mass. 729, 736-739 (1984).

During a bench conference, the trial judge acknowledged

that the question of voluntariness was a live issue before the

jury and ruled that the entire conversation between Sergeant

Jackson and the defendant could be admitted in evidence on

the issue of voluntariness. This included defense counsel's

question, “Before you asked [the defendant] where Lisa Bel-

monte was, did-you tell him of the thought that was in your

mind, that he was a suspect of some kind?” to which Jackson

replied, “No.” Jackson’s response to the defense counsel’s

question about whether he apprised the defendant of his right

to remain silent early in the conversation was the only informa-

tion excluded. The judge ruled that the question whether

Miranda warnings had been or should have been given at the

outset of the conversation had been litigated during the proceed-

ings on pretrial motions and decided by the motion judge.

While this court has said that evidence bearing on whether

Miranda warnings were given is relevant in determining

whether a confession is voluntary, such observations were made

in cases involving custodial interrogation where Miranda warn-

ings are required. See Commonwealth v. Chung, 378 Mass.

451, 458-459 n.9 (1979); Commonwealth v. Tavares, 385

Mass. 140, 153 n.19, cert. denied, 457 U.S. 1137 (1982).

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370 396 Mass. 342

Commonwealth v. Nadworny.

Where statements are made during conversation where Miranda

warnings are not required, it is within the judge’s discretion

to exclude testimony concerning the giving or failure to give

Miranda warnings as long as the judge preserves the basic

issue of voluntariness for the jury. We conclude that the requis-

ites of Commonwealth v. Harris, 371 Mass. 462, 469 (1976),

were complied with.

10. Request for instructions: voluntariness. The defendant

contends that the trial judge erred in refusing to give his re-

quested instruction on the question of voluntariness of in-

criminating statements. Specifically, he maintains that he re-

quested “trickery” and “cajoling” be among the factors the jury

be required to consider on this issue and that the absence of

reference to these terms in the instructions given was error.

The judge was obligated to instruct the jury that “the Common-

wealth has the burden of proving beyond a reasonable doubt

that the [statements were] voluntary and that the jurors must

disregard [them] unless the Commonwealth has met its bur-

den.” Commonwealth v. Tavares, supra at 152. Considering

the judge’s charge as a whole, we are satisfied that he met

this obligation See Commonwealth v. Lowe, 391 Mass. 97,

110-111. cert. denied, 105 S. Ct. 143 (1984). Moreover, there

was no evidence of “trickery” or “cajoling” to indicate that

the requested instruction might have been required. Neverthe-

less, the judge’s charge did discuss “coercion or force, either

physical or psychological.” There was no error.

11. Jury instruction: consciousness of guilt. The defendant

asserts that the judge failed to instruct the jury concerning the

proper consideration of evidence of consciousness of guilt. He

alleges that the judge committed error by neglecting to charge

that the defendant may. not be convicted on such evidence

alone, and that the judge failed to satisfy this court’s directives

set out in Commonwealth v. Toney, 385 Mass. 575, 585 ( 1982).

There was no error.

Commonwealth v. Toney, supra, states that a judge should

instruct a jury “(1) that they are not to convict a defendant on

the basis of evidence of flight or concealment alone, . . . and

(2) that they may, but need not, consider such evidence as one

396 Mass. 342 — 371

Commonwealth v. Nadworny.

of the factors tending to prove the guilt of the defendant”

(citations omitted). The judge’s instructions concerning “false

statements and concealment” are set out in full in the margin."*

The charge, as given, adequately cautioned the jury “concern-

ing the equivocal nature” of such evidence. /d. In Toney, this

court recognized that concealment, flight, and other such acts

“may often be prompted by something other than feelings of

guilt . . . [and] that feelings of guilt may be present without

actual guilt in neurotic, as well as so called ‘normal,’ people.”

Id. The judge here did address these concerns. Although the

instruction given in the case at bar was not a model of clarity

regarding the fact that a defendant may not be convicted on

consciousness of guilt evidence alone, the instruction contained

the substance of what we required in Toney. The judge stated

that “[uJnder no circumstances may you presume the Defendant

guilty from his false statements or concealment” and that “[y]ou

should consider and weigh evidence of false statements end

concealment . . . in connection with all the other evidence in

this case . . .” (emphasis added).

The defendant also contends that the judge erred in refusing

to give a requested instruction that acts and statements indicat-

ing consciousness of guilt be knowingly made, in that they

must follow and not precede the crime. There was no error.

'* The judge instructed as follows:

“False statements and concealment, if in fact you should find there were

false statements and concealment — by a person after a crime has been

committed, or after a defendant has been accused of a crime may be moti-

vated by a variety of factors which are actually consistent with innocence.

Such evidence does not create an inference of guilt, nor does the person’s

false statement or concealment necessarily reflect feelings of guilt. Further-

more, since innocent persons sometimes have feelings of guilt, such feelings

do not necessarily reflect actual guilt. While you may consider false state-

ments and concealment as one circumstance tending to show feelings of

guilt, and while you may also consider feelings of guilt as evidence tending

to show actual guilt, you are not required to do so. Under no circumstances

may you presume the Defendant guilty from his false statements or con-

cealment. You should consider and weigh evidence of false statements and

concealment, if you find, in fact, that there is any by this Defendant in

connection with all the other evidence in this case, and give it such weight

as in your judgment it is fairly entitled to receive.”

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372 396 Mass. 342

Commonwealth v. Nadworny.

While we do not decide whether such an instruction was re-

quired, we observe that the judge referred to “false statements

and concealment” at the outset of this instruction in the context

of being “after a crime has been committed, or after a defendant

has been accused of a crime” (emphasis added).

Additionally, the defendant maintains that the amount of

consciousness of guilt evidence in this case required the judge

to institute special procedures to insure the “legitimate use” of

such evidence and to control prejudice. He argues that it con-

stituted prejudicial error for the judge to deny his motion in

limine, motion concerning order of trial, motion to bifurcate,

and his request for a limiting instruction at the close of the

Commonwealth’s opening, which all concerned the introduc-

tion of evidence of consciousness of guilt. As discussed, the

judge adequately instructed the jury on this matter in his charge.

No additional procedures were required under the cir-

cumstances. There was no error.

12. Denial of motion to dismiss the indictment. The defendant

claims that his motion to dismiss the indictment was errone-

ously denied as the only evidence of cause of death was hearsay

given by a State police corporal and “impermissible and prejud-

icial information as to bloodstains” (i.e., the positive benzidine

reagent test which did not determine whether the blood was

human). We disagree. As a “general rule . . . a court should

not inquire into the adequacy or competency of the evidence

upon which an indictment is based . . . [except] when it appears

that the integrity of the grand jury process has been impaired.”

Commonwealth v. Salman, 387 Mass. 160, 166 (1982), and

cases cited. An indictment based in whole or in part on hearsay

evidence before a grand jury may stand. Commonwealth v. St.

Pierre, 377 Mass. 650, 655 (1979). The defendant has failed

to show that the integrity of the grand jury was impaired, or

that “extraordinary circumstances” existed which might render

the indictment vulnerable. See id. at 656, quoting Common-

wealth v. Comins, 371 Mass. 222, 224 (1976), cert. denied,

430 U.S. 946 (1977).

13. Conclusion. Neither is there any basis to sustain the

defendant’s allegation of substantial risk of a miscarriage of

32a

396 Mass. 342 373

Commonwealth v. Nadworny.

justice through the combined effect of several of the alleged

evidentiary errors.

Judgment affirmed.

33a

Petition for Rehearing

January 8, 1986

Mr. Chief Justice Edward F. Hennessey

Supreme Judicial Court

New Court House

Pemberton Square

Boston, Ma. 02108

Re: Commonwealth v. Nadworny, 396 Mass. 342 (1985)

Subj: Petition for Rehearing

Dear Mr. Chief Justice Hennessey:

The defendant respectfully petitions this court for rehearing

pursuant to Mass. Rule App. Proc. 27. On December 11,

1985, this court affirmed the defendant’s conviction for murder

in the second degree. The court has allowed the defendant’s

motion for extension of time to file this petition to January 8,

1986.

Involuntary Manslaughter

With respect, the court’s opinion does not meet the defend-

ant’s claim that he was entitled to an instruction on involuntary

manslaughter.

The court states (immediately after treating the defendant’s

claim that an involuntary manslaughter instruction was required

on a theory of the defendant’s failure to act) that “no view of

the evidence, resolving all reasonable inferences in favor of

the defendant . . . permitted a finding of . . . involuntary. . .

34a

manslaughter.” Commonwealth v. Nadworny, 396 Mass. 342,

361 (1985).

With respect this conclusion is plainly wrong. First, it is

wrong because it appears to be premised on a non sequitur —

the court says that because a “failure to act” theory of liability

was not allowed by the charge as to second degree murder,

there was no error in not offering a manslaughter instruction

on the basis of failure to act. Second, it is wrong because it

fails to recognize evidence supportive of several other theories

of involuntary manslaughter. Third, it was wrong because it

partakes of errors of fact in the opinion.

I. Non Sequitur

The defendant had argued, not only in part, that in as much

as the judge had permitted the jury to convict on second degree

murder on a theory of the defendant’s failure to obtain medical

help, the judge should have instructed on involuntary man-

slaughter on the same theory, “according to the degree of

danger attending it,” a jury question. Commonwealth v. Pierce,

138 Mass. 165, 178 (1884). The court responded to this man-

slaughter argument by noting that the charge on second degree

murder required a finding of death by means of “violence.”

Commonwealth v. Nadworny, at 351 n.9. Therefore, “no juror

could reasonably infer that failure to act was a permissible

basis for a second degree murder conviction in this case.” /d.

at 361. The court then concluded, “[t]here was, therefore, no

error in the judge’s refusal to instruct on manslaughter. (See

court’s analysis on issue commencing on page 360.) The fact

that the judge may have precluded a second degree murder

conviction on the basis of a failure to act does not respond to

the issue of whether there was evidence to support a manslaugh-

ter instruction on that theory.

35a

Il. Other Theories

Furthermore, a conclusion that a theory of failure to act was

precluded, does not respond in the least to whether there was

evidence which required an involuntary manslaughter instruc-

tion on any other theory. There was evidence, and there were

other theories as demonstrated below — namely theories of

(1) recklessness, of (2) unintended death by reason of battery,

and of (3) failure to act, or of the undertaking of rescue. See

Defendant’s Brief pp. 66-68.

Ill. Errors of Fact

The defendant suggests that the court’s failure to fully con-

sider the several theories supporting an involuntary manslaugh-

ter instruction was not only as a result of the court’s narrow

approach to the issue, tied as it was to the second degree

murder analysis, but was by errors of significant fact: one clear

error in the recitation of facts, and, an omission.

The irst is in the court’s rendition that:

The defendant telephoned Debby about 10 p.m. The

defendant told her that Lisa overdosed, that she had

gone into convulsions, that he tried to stop her, but

that if he had called an ambulance and she died, the

Belmontes would blame him.

Commonwealth v. Nadworny, at 350-351. (Emphasis addea)

The evidence was that the defendant had said that he had tried

to save her. See Defendant’s Brief p. 14 and Commonwealth’s

Brief p. 23.

The second was the court’s failure to note that in the call

that Curt Willis received from Lisa she told him that she “was

36a

going to do something that he wouldn’t approve of,” Defend-

ant’s Brief pp. 8-9, and that “Willis had told her there were

only two things that he would not approve of, taking drugs

and seeing Billy, the defendant. (vll pp120-121)” /d. at 9.

These errors of fact were significant as demonstrated below.

Theories of Involuntary Manslaughter and The Evidence

(1) Reckless Overdose:

While it is true, as the court stated, that “[t]he jury was free

to disbelieve” the defendant’s explanation that Lisa “ ‘was

overdosed’ by the hand of another,” Commonwealth v. Nad-

worny, at 356, the jury was equally free to believe that the

defendant was that “other.” The jury was free to take so much

of the defendant’s statement to this effect — to believe that

he had administered or provided the drugs.

Furthermore, they could have found an overdose by believ-

ing Dr. Butt’s original findings of needle marks, and his tes-

timony that death was consistent with drugs or chemicals.

They were free to believe that the lack of the presence of any

drug or chemical trace, however sophisticated the analysis,

was by reason of the processes of decomposition. There was

much evidence to support this rationale for the lack of trace

findings — both in the prosecution and defense cases. (See

e.g. Defendant’s Brief, p. 28, Dr. Butt’s testimony that several

types of drugs “would not be detectable by reason of decom-

position,” and that a “wide range of drugs, would be

metabolized by the bacteria that live in the body after death.”)

The court’s recitation that “ali of the drugs tested for could be

expected to have registered trace amounts if present,” Com-

monwealth v. Nadworny, at 352, does not dispose of the jury’s

prerogative to find that drugs had been the cause of death, and,

that for the reascns mentioned, they could not be discovered.

37a

Finally (although the court failed to mention it), the fact

that Lisa said she was going to do something that Curt Willis

would not approve of, and that that something could have been

the taking of drugs (and here at the hand of the defendant),

was a fact for the jury supportive of this theory.

(2) Battery — Unintended Death:

The court’s satisfaction that the jury could not have found

that death was by other than violent means, far from putting

to rest the concerns of the necessity of an involuntary man-

slaughter instruction, serves to further point out the need —

violence (battery) may be the cause of an unintended death

constituting involuntary manslaughter. See Commonwealth v.

Campbell, 352 Mass. 387, 398-399 (1967) (Choking of victim

causing death did not preclude involuntary manslaughter in-

struction. “We cannot accept the Commonwealth’s contention

that no instruction on manslaughter was necessary .. . . [W]e

cannot agree that Campbell’s conduct requires that malice be

implied.”) On the basis of the evidence the defendant could

have committed a battery as Mr. Justice Liacos appeared to

suggest in his query of the Commonwealth from the bench

during oral argument. This required an involuntary manslaugh-

ter instruction. Jd. (The jury could have found that the lack

of the presence of trauma at the cite of the battery was explained

by the effects of decomposition.)

Alternatively (as the court noted), Dr. Butt testified that

death was consistent with “suffocation” or “smothering.” Com-

monwealth v. Nadworny, at 359. On the evidence, the jury

could have believed that the defendant, in frustration, intending

merely to frighten and intimidate Lisa into staying with him,

choked her with his hands, or smothered her with a pillow (or

other object freely available to him). See Commonwealth v.

Campbell, supra. An unintended death in the commission of

38a

a battery is involuntary manslaughter. As this court has stated,

“manslaughter is simply a battery that causes death.” /d. at 399.

“The [constitutional] burden of proof is on the Common-

wealth to prove every element of the offense charged.” Com-

monwealth v. McCauley, 355 Mass. 554, 559 (1969). Here

the Commonwealth’s own evidence fairly raised the issue of

involuntary manslaughter. “If on any view of the evidence in

a prosecution for murde, the issue of manslaughter is open, it

must be submitted to the jury,” id., and the Commonwealth

must carry its burden of proof beyond a reasonable doubt as

to each element. Cf. Commonwealth v. A Juvenile, 396 Mass.

108, 113 (1985).

(3) Failure to Act — Undertaking Rescue:

On the evidence, including the statements attributed to the

defendant, the jury could have found that the defendant, either

(1) having provided Lisa with the drugs (or having injected

her) failed to summon help (having a duty to do so by reason

of having so placed her in peril, Commonwealth v. Bianco,

388 Mass. 358, 371, n.2 (Liacos, J., dissenting)), or (2) dis-

covering her in a perilous condition, undertook for selfish or

untoward reasons to save her himself rather than summon

appropriate aid.

Additionally, and independent of whether or not the defend-

ant was the agent of drugs, the jury could have found that

undertaking rescue in these circumstances not only precluded

appropriate aid, but was reckless. The court’s misstatement of

fact that the defendant had tried to “stop” Lisa (rather than

save her) is significant, for had the defendant tried to stop her

no reckless undertaking of personal rescue by treatment could

have occurred.

39a

Conclusion

The defendant respectfully suggest that the court has taken

a mistakenly myopic view in its involuntary manslaughter

analysis. Although the court professes to have viewed the

evidence in the light most favorable to the defendant on the

issue of the necessity of an involuntary manslaughter instruc-

tion, it truly has not. The defendant implores this court to

reconsider its opinion from this perspective.

Respectfully submitted,

By his attorneys,

John J. Jennings Charles M. Burnim

Frawley & Frawley 508 Donahue Building

56 Central Avenue Beacon Hill

Lynn, Ma. 01901 41 Temple Street

Tel. No. 595-3333 Boston, Ma. 02114

Tel. 723-4700 x614

Certificate of Service

I, Charles M. Burnim, Esq., hereby certify that I have

caused a copy of the foregoing to be served upon Dyanne

Klien Polatin, Assistant District Attorney, by mailing the same

to her, postage prepaid, at Office of the District Attorney,

Masonic Building, 70 Washington Street, Salem, Ma. 01907,

this January 8, 1986.

40a

Under the penalties of perjury.

Charles M. Burnim

508 Donahue Building

Beacon Hill

41 Temple Street

Boston, Ma. 02114

(617) 723-4700 x614

4la

SUPREME JUDICIAL COURT For THE COMMONWEALTH

ROOM 1412 COURT HOUSE

BOSTON, MASSACHUSETTS 02108

(617) 725-8055

JEAN M. KENNETT FREDERICK J. QUINLAN

Clerk Assistant Clerk

February 10, 1986

Charles M. Burnim, Esq. John J. Jennings, Esq.

508 Donahue Building Frawley & Jennings

Beacon Hill 56 Central Avenue

41 Tempie Street Lynn, MA 01901

Boston, MA 02114

Re: Commonwealth vs. William Nadwormy

Supreme Judicial Court No. SJC-3873

Your Petition for Rehearing in the above captioned appeal

has been considered by the court and is denied.

Very truly yours,

Dolores G. Dupré

for Jean M. Kennett, Clerk

c.c.: Robert J. Bender, Asst. Dist. Atty.

Dyanne Klein Polatin, Asst. Dist. Atty.

Essex County D.A.’s Office

70 Washington Street

Salem, MA 01970

42a

COMMONWEALTH OF MASSACHUSETTS

ESSEX, to wit:

At the SUPERIOR COURT, begun and holden at Salem,

within and for said County of Essex, on the First Monday of

May in the year of our Lord one thousand nine hundred and

eighty-three THE JURORS for the Commonwealth of Mas-

sachusetts upon their oath present, that

William Nadworny

of Lynn in said County of Essex, on a date between March

eighteenth and July nineteenth in the year of our Lord one

thousand nine hundred and eighty-two at Lynn in the County

of Essex aforesaid did assault and beat Lisa Belmonte, with

intent to murder her, and by such assault and beating did

murder Lisa Belmonte against the peace of the Commonwealth

aforesaid, and contrary to the form of the statute in such case

made and provided.

A TRUE BILL:

/s/ Kevin M. Burke /s/ William A. Vachon

District Attorney. Foreman of Grand Jury.

43a

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT DEPARTMENT

NO. 06060

COMMONWEALTH )

VS ) BILL OF PARTICULARS

WILLIAM NADWORNY _)

Now comes the Commonwealth in the above entitled matter

and specifies the following in regards to the indictment charg-

ing the defendant with Murder:

1. The murder occurred sometime between approximately

6:00 p.m., on March 18, 1982 when the victim, Lisa

Belmonte, was last seen alive and approximately 3:00

p.m., on July 19, 1982 when the victim’s body was

found. The Commonwealth is unable to specify further

as to the time of the murder.

2. The Commonwealth is unable to specify as to the exact

location where the murder occurred.

3. The defendant did with deliberately premeditated malice

aforethought murder Lisa Belmonte in a manner which

cannot be precisely determined due to the advanced state

of decomposition of the victim’s body when it was dis-

covered concealed in the trunk of a motor vehicle owned

by the defendant. The Commonwealth is unable to

specify further as to the manner and means of the murder.

44a

FOR THE COMMONWEALTH

/s/

FREDERICK B. McALARY

ASSISTANT DISTRICT ATTORNEY

for the Eastern District

One Brown Street Court

Salem, Massachusetts 01970

(617) 745-6610

45a

PORTIONS OF DEFENDANT’S REQUESTS

FOR INSTRUCTIONS.

52. Now manslaughter. Within these indictments which

charge first degree murder, there is, although not expressly

mentioned in the statute, a lesser contained crime of man-

slaughter. Manslaughter is the unlawful killing of one human

being by another, without malice aforethought. That is the

primary distinction to remember between murder and man-

slaughter. Murder requires an unlawful killing, as does man-

slaughter, but murder requires an unlawful killing with malice

aforethought. Manslaughter requires it to be with malice

aforethought.

46a

COMMONWEALTH OF MASSACHUSETTS

ESSEX, SS SUPERIOR COURT

CRIMINAL ACTION

No. 6060

COMMONWEALTH

WILLIAM NADWORNY

FINDINGS AND RULING

ON MOTION TO SUPPRESS

On July 19, 1983, Lynn Police Officer Swiniarski, a patrol-

man, was on cruiser duty in Lynn. While on duty he was

notified to go to 798 Washington Street, Lynn, the home and

funeral establishment of Richard Nadworny.

Swiniarski knew the Nadworny family well. The family

included Richard Nadworny’s son, the defendant.

At the home, he spoke to defendant’s parents.

At this time and for some peiod [sic] before, Swiniarski had

been investigating the case of a missing person. The missing

person was Lisa Belmonte, age about 17. Swiniarski knew

that Lisa and defendant had been going together; that Lisa’s

family did not approve of the relationship; that Lisa’s family

contended that defendant had secreted Lisa.

As a result of talking to defendant’s father, the officer went

to 95 New Park Strett [sic], Lynn. He arrived there at about

7 p.m. After talking to several people there, joined by another

policeman, he proceeded to drive around Lynn looking for

defendant’s 1971 Ford Maverick.

peel

47a

At New Park Street Swiniarski had learned that defendant's

car had been parked in the driveway for some time; that a very

strong oder [sic] came from the car; that an unsuccessful effort

to open the trunk by people there had disclosed what appeared

to be suitcases and a large yellow trash vag. Defendant had

been requested by residents at 95 New Park Street to move

the car. Defendant had driven away in the car on the afternoon

of July 19, 1983.

It occurred to Swiniarski that Lisa might be dead and might

be in the trunk of the car. He was interested in finding the

car. He considered that defendant might be involved in the

disappearance of Lisa. He was dealing with possibilities.

Around 10 p.m. that same night, Lynn police headquarters

notified Swiniarski to return to the Nadworny home.

Upon arrival Swiniarski was greeted by defendant’s parents,

grandparents and defendant’s sister. He now learned that de-

fendant had telephoned from somewhere and said he was con-

templating suicide.

While at the home the telephone rang. Defendant's sister

answered. She handed the phone to defendant’s mother. After

some talk on the phone, defendant’s mother told Swiniarski

that her son wanted to talk to him.

I find the following conversation now took place between

the officer and defendant on the telephone.

After the officer had identified himself, the officer asked the

defendant how he was doing. The defendant asked the officer

how he was doing. The defendant said he had a lot to think

about. The officer asked him, “Do you know where Lisa is?”

Then the defendant answered, “She overdosed five months ago,

I don’t want to talk about it.” The officer said, “Where is Lisa

or where is the car” Defendant made no answer to this ques-

tion. The officer then said that the defendant’s family was [in]

back of him and loved him and asked the defendant if he would

come home or meet the officer somewhere. Defendant replied

48a

to this that he did not want to go to jail, that he could not

hack it and that he needed time to think and might contact the

officer later.

Next, defendant said he wanted to talk to his mother again.

The phone was handed back to Mrs. Nadworny.

The next day, a little after noon, Sergeant Jackson of the

Lynn police department, received a telephone call from defend-

ant’s father. Jackson also knew the Nadworny family well.

The father said defendant was at home and wanted to talk

to Jackson. Jackson received permission from the father to

bring along Officer Courtney of the Lynn police department.

Jackson knew something of the investigation of Lisa’s dis-

appearance. He did not know she was dead. He did not know

her body was in the trunk of defendant’s car.

The officers went at once to the Nadworny home. There,

surrounded by his family, Jackson as a result of defendants

request talked to defendant.

The conversation was as follows:

The officer asked defendant what he wanted to talk about.

The defendant replied, “She was very sick.” The officer said,

“Who?” The defendant answered, “Lisa.” Officer Courtney

then asked when he had last seen her. Defendant replied,

“Haven’t you heard, she overdosed and is in the turnk of the

car.”

There is no reason to suppress any of the above statements

by defendant.

These statements were not made during any custodial inter-

rogation. Miranda v. Arizona, 384 U.S. 436 (1966). No right

to Miranda attached on these facts. See discussion Common-

wealth v. Bryant, 390 Mass. 729, 736-743 (1984).

Furthermore, none of these statements in any way contravene

due process voluntariness. Officer Swiniarski had a genuine

and sincere interest in trying to prevent defendant from com-

mitting suicide. Nothing said, including the few comforting re-

49a

marks, in any way had the effect of resulting in the will of

defendant being overborne so that what he said could in any

way be considered involuntary. The police did not seek out

defendant for conversation. The defendant through his family

sought the police. What he said was said freely without any

coercion. What he said was certainly not the result of any type

of trickery on the part of the police.

The Motion to Suppress is Denied in its entirety.

Dated: April 30, 1984 /s/

Andrew R. Linscott

Justice of the Superior Court

50a

[1-35]

TRANSCRIPT OF HEARING ON COMMONWEALTH’S

MOTION TO COMPEL HANDWRITING EXEMPLAR

BEFORE LINSCOTT, J.

APRIL 20, 1984

MR. McALARY: There is one motion. There is an order.

And there is an affidavit attached to it.

THE COURT: What is your objection?

MR. JENNINGS: May I put my position on the record,

your Honor? From the first instance I object to the entire

motion because I do not agree with the whole thing of Gilbert

against California, upon which the motion is based. And I

desire to [I-36] preserve my client’s rights to the extent that

might be at some later time reversed.

I will, however, recognizing that Gilbert against California

for the moment is the law of the land, agreed, while preserving

my objection that the Court may order that my client fill in

the portions of the exemplar down through line — the line

which says 8877 Hough Avenue, South — H-O-U-G-H.

The next sentence requires a testimonial declaration by my

client which is protected by the Fifth Amendment.

THE COURT: Wait a minute, you lost me. I got so fascinated

by the thought that the Judges of the Supreme Court of the

United States are moving along into the late *70’s and you

think the law might change some day if we live long enough

— that I didn’t follow your statement. And you’re looking at

this page, are you?

MR. JENNINGS: Yes, your Honor.

THE COURT: Where are you on it?

Sla

MR. JENNINGS: If you read down the page, two-thirds of

the way down you will see a notation that says 8877 Hough

Avenue, South.

THE COURT: Yes.

[I-37] MR. JENNINGS: It appears to me on a reading of

it from there up they are exemplars which in the reading of

the Gilbert Case are nothing more than a line-up and therefore,

your Honor, on the prepared state of the law would be justified

in making an order over my otjection that my client fill those

out.

THE COURT: Oh, you don’t like the above samples?

MR. JENNINGS: Those required testimonial declarations.

THE COURT: What do you say to that?

MR. McALARY: I think it’s absurd, your Honor. I think

his objection to that, your Honor, is absurd. These are hand-

writing exemplars. No one is holding them to the truth other

than the fact it is his handwriting, that it’s an informational

type sentence so down the road it can be ascertained whether

it was written with his right or left hand.

It just puts that statement in writing. We are not asking for

any type of testimonial here. We are asking for an exemplar,

that is all that sentence contains.

THE COURT: Tell me again why you want that.

[I-38] MR. McALARY: Your Honor, I am in contact with

a handwriting expert by the name of John Swanson out of

Weymouth, Massachusetts. He is a well recognized expert in

the area. I discussed with him this particular exemplar. He is

familiar with this one and it’s used by the United States Postal

Inspectors as well as himself. It’s been used in the past by

him. He wants it filied out entirely, basically because down

the road he needs to know whether this person is a right or

left handed person. And in fact, have that put in the statement.

There is nothing of a testimonial nature of the sentence that

is being requested here. It’s only informational so the hand-

§2a

writing exemplar can take that into consideration while doing

his thorough analysis.

MR. JENNINGS: May it please the Court, I have filled out,

had my client fill it all out, as I have said, and I am ready to

furnish that now.

MR. McALARY: Your Honor, I object.

MR. JENNINGS: According to the order of the Court.

MR. McALARY: I would object to accepting that particular

exemplar. I have the State Police [I-39] Officer here. Obvi-

ously if we have evidentiary problems at trial, I had a State

Police Officer here to witness the taking of the exemplar.

Further, in talking to the handwriting analyst, he would like

two handwriting exemplars, duplicates taken from the Defend-

ant.

I would ask that format be followed. I appreciate my brother

anticipating that this motion would be granted in preparing

this in advance. I feel it’s totally unacceptable under the cir-

cumstances.

THE COURT: You want him to do this twice?

MR. McALARY: That’s correct. I would like it observed

by my State Police Officer who is here and who will be prepared

to testify at trial if that issue arises concerning the authenticity.

THE COURT: When do you want to do it?

MR. McALARY: Right now.

THE COURT: Where?

MR. McALARY: We could do it here in the chambers down-

Stairs, in the library. I think it should be done here or downstairs.

MR. JENNINGS: If your Honor please, my brother made

a motion to get something and I just gave it to the Court. Now

his problem is he wants [I-40] more than what he asked for.

He now tells you he wants a second copy. Because I have

given you what he asked for, he now tells you he wants scme

Officer watch my client do it. He didn’t ask for that in his

motion. He asked for neither. He got exactly what he asked

53a

for. And I suggest he shouldn’t be allowed now to ask for

more. He has more than enough to get his opinion now.

THE COURT: The Court will now make the following order.

On the motion, the motion is allowed. I appreciate the thought

involved in submitting the writing as has been done by Defend-

ant’s attorney.

However, I order that the handwriting examplars [sic] be

done here or downstairs or in one of the offices; that it be

done in the presence of the witness that the Government asks

to observe it and that they be done in duplicate and in entirety

as requested.

MR. JENNINGS: Will your Honor note my objection to

the ruling, number one? Number two, mark the document as

an Exhibit on the motion so that it will be preserved for the

record? And number three, stay the entering of the operation

of the order for one week to allow me to determine whether

[1-41] I should apply under Rule — Chapter 21 i to the Supreme

Judicial Court for Relief from the order, since my client com-

plied with the order therein? There will be no effective remedy

thereafter.

THE COURT: No. I think a week is too long.

MR. JENNINGS: I have already told your Honor that I am

supposed to start a trial next week.

THE COURT: I appreciate that, but time is moving along

here and I just can’t do that. This can be marked as an Exhibit

in this motion. You have no objection to that?

MR. McALARY: I have no objection to that being marked.

I do object to anything further that my brother has moved for

concerning a stay of execution of this order.

(Exhibit No. 4, Handwriting

exemplar, marked)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.