# Petition for Writ of Certiorari — Nadworny v. Massachusetts

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 477 U.S. 904

## Text

a ae o_o ————

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,

v.

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

16

19

21
24

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)

10

17

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
2

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-

2

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.”

3

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.

4

§ 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).

5

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

6

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.)

7

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.

8

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.”

9

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

10

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.)

1]

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

12

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.

13

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.

14

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.

15

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.

16

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.”

17

(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.

18

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:

19

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.

20

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).

21

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

22

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.)

23

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.

24

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

la

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.
© Constitutional Law, Self-incrimination, Admissions and confessions.

| 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. [ ]

2a

w
ps
ww

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

A

-

A

-

A

—

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. | ]

3a
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

4a
396 Mass. 342 34

4)

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,

a

Sa
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

6a
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.

7a
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.

8a
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

a

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.

eo

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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.

22
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-

23a
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

25a
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

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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

27a
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.

28a |
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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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

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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,’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1721%3A1. Public record. Not legal advice.