In Commonwealth v. Schnopps (1983), the trial court rejected George Schnopps's provocation argument and he was convicted of first degree murder. At a retrial, Schnopps was convicted again of first degree murder. The Massachusetts Supreme Judicial Court affirmed.

Commonwealth v. Schnopps 459 N.E.2d 98 (Mass. 1983)

History

George Schnopps, the defendant, was convicted before the Superior Court, Berkshire County, Massachusetts, of first-degree murder of his estranged wife and of unlawfully carrying a firearm. At a retrial, the defendant, Schnopps, again was convicted of first-degree murder, and he appealed again. The Massachusetts Supreme Judicial Court affirmed.

ABRAMS, J.

Facts

On October 13, 1979, George Schnopps fatally shot his wife (Marilyn) of 14 years. The victim and Schnopps began having marital problems approximately six months earlier when Schnopps became suspicious that his wife was seeing another man. Schnopps and his wife argued during this period over his suspicion that she had a relationship with a particular man, whom Schnopps regarded as a "bum." On a few occasions Schnopps threatened to harm his wife with scissors, with a knife, with a shotgun, and with a plastic pistol.

A few days prior to the slaying, Schnopps threatened to make his wife suffer as "she had never suffered before." However, there is no evidence that Schnopps physically harmed the victim prior to October 13.

On October 12, 1979, while at work, Schnopps asked a coworker to buy him a gun. He told the coworker he had been receiving threatening telephone calls. After work, Schnopps and the coworker went to Pownal, Vermont, where the coworker purchased a .22-caliber pistol and a box of ammunition for the defendant. Schnopps stated he wanted to protect himself and his son, who had moved back with him.

Schnopps and his coworker had some drinks at a Vermont bar. The coworker instructed Schnopps in the use of the .22-caliber pistol. Schnopps paid his coworker for the gun and the ammunition. While at the bar Schnopps told the coworker that he was "mad enough to kill." The coworker asked Schnopps "if he was going to get in any trouble with the gun." Schnopps replied that "a bullet was too good for her, he would choke her to death." Schnopps testified that his wife had left him three weeks prior to the slaying. He claims that he first became aware of problems in his 14-year marriage at a point about six months before the slaying. According to Schnopps, on that occasion he took his wife to a club to dance, and she spent the evening dancing with a coworker.

On arriving home, Schnopps and his wife argued over her conduct. She told him that she no longer loved him and that she wanted a divorce. Schnopps became very upset. He admitted that he took out his shotgun during the course of this argument, but he denied that he intended to use it.

During the next few months, Schnopps argued frequently with his wife. Schnopps accused her of seeing another man, but she steadfastly denied the accusations. On more than one occasion Schnopps threatened his wife with physical harm. He testified he never intended to hurt his wife but only wanted to scare her so that she would end the relationship with her coworker.

One day in September 1979, Schnopps became aware that the suspected boyfriend used a "signal" in telephoning Schnopps's wife. Schnopps used the signal, and his wife answered the phone with "Hi, Lover." She hung up immediately when she recognized Schnopps's voice. That afternoon she did not return home. Later that evening, she informed Schnopps by telephone that she had moved to her mother's house and that she had the children with her. On that day she moved to her mother's home and took their three children with her. (The children were two daughters, age thirteen and age four, and a son, age eleven.)

On October 6, the son returned to his father's home. She told Schnopps she would not return to their home. Thereafter she "froze me out" and would not talk to him. During this period, Schnopps spoke with a lawyer about a divorce and was told that he had a good chance of getting custody of the children due to his wife's "desertion and adultery."

On the day of the slaying, Schnopps told a neighbor he was going to call his wife and have her come down to pick up some things. He said he was thinking of letting his wife have the apartment. This was the first time Schnopps indicated he might leave the apartment. He asked the neighbor to keep the youngest child with her if his wife brought her so he could talk with his wife.

Schnopps told his wife that he wanted his children at home and that he wanted the family to remain intact. Schnopps cried during the conversation, and begged his wife to let the children live with him and to keep their family together.

His wife replied, "No, I am going to court, you are going to give me all the furniture, you are going to have to get the Hell out of here, you won't have nothing." Then, pointing to her crotch, she said, "You will never touch this again, because I have got something bigger and better for it."

Schnopps said that these words "cracked" him. He explained that everything went "around" in his head, that he saw "stars." He went "toward the guns in the dining room." He asked his wife, "Why don't you try" (to salvage the marriage). He told her, "I have nothing more to live for," but she replied, "Never, I am never coming back to you."

The victim jumped up to leave and Schnopps shot her. He was seated at that time. He told her she would never love anyone else. After shooting the victim, Schnopps said, "I want to go with you," and he shot himself.

Shortly before 3:00 p.m., Schnopps called a neighbor and said he had shot his wife and also had tried to kill himself. Schnopps told the first person to arrive at his apartment that he shot his wife "because of what she had done to him."

Neighbors notified the police of the slaying. On their arrival, Schnopps asked an officer to check to see if his wife had died. The officer told him that she had, and he replied, "Good." A police officer took Schnopps to a hospital for treatment of his wounds. The officer had known Schnopps for 29 years. Schnopps said to the officer that he would not hurt a fly. The officer advised Schnopps not to say anything until he spoke with a lawyer.

Schnopps then said, "The devil made me do it." The officer repeated his warning at least three times. Schnopps said that he "loved his wife and his children." He added, "Just between you and I, I did it because she was cheating on me." The victim died of three gunshot wounds to the heart and lungs. Ballistic evidence indicated that the gun was fired within two to four feet of the victim. The evidence also indicated that one shot had been fired while the victim was on the floor.

The defense offered evidence from friends and coworkers who noticed a deterioration in Schnopps's physical and emotional health after the victim had left Schnopps. Schnopps wept at work and at home; he did not eat or sleep well; he was distracted and agitated. On two occasions, he was taken home early by supervisors because of emotional upset and agitation. He was drinking.

Schnopps was diagnosed at a local hospital as suffering from a "severe anxiety state." He was given Valium. Schnopps claimed he was receiving threatening telephone calls. Schnopps and the Commonwealth each offered expert testimony on the issue of criminal responsibility.

Schnopps's expert claimed Schnopps was suffering from a "major affective disorder, a major depression," a "psychotic condition," at the time of the slaying. The expert was of the opinion Schnopps was not criminally responsible.

The Commonwealth's expert claimed that Schnopps's depression was a grief reaction, a reaction generally associated with death. The expert was of the opinion Schnopps was grieving over the breakup of his marriage, but that he was criminally responsible.

The judge instructed the jurors on every possible verdict available on the evidence. The jurors were told they could return a verdict of murder in the first degree on the ground of deliberately premeditated malice aforethought; murder in the second degree; manslaughter; not guilty by reason of insanity; or not guilty.

Opinion

On appeal, Schnopps does not now quarrel with that range of possible verdicts nor with the instruction which the trial court gave to the jury. Nor does Schnopps now dispute that there may be some view of some of the evidence which might support the verdict returned in this matter.

Rather, Schnopps claims that his case is "not of the nature that judges and juries, in weighing evidence, ordinarily equate with murder in the first degree." Schnopps therefore concludes that this is an appropriate case in which to exercise our power under G.L. c. 278, 33E. We do not agree.

Pursuant to G.L. c. 278, 33E, we consider whether the verdict of murder in the first degree was against the weight of the evidence, considered in a large or nontechnical sense. Our power under 33E is to be used with restraint.

Moreover, "We do not sit as a second jury to pass anew on the question of Schnopps's guilt." Schnopps argues that the evidence as a whole demonstrates that his wife was the emotional aggressor, and that her conduct shattered him and destroyed him as a husband and a father. Schnopps points to the fact that he was not a hoodlum or gangster, that he had no prior criminal record, and that he had a "good relationship" with his wife prior to the last six months of their marriage. Schnopps concludes these factors should be sufficient to entitle him to a new trial or the entry of a verdict of a lesser degree of guilt.

The Commonwealth argues that the evidence is more than ample to sustain the verdict. The Commonwealth points out that at the time of the killing there was not a good relationship between the parties; that Schnopps had threatened to harm his wife physically on several occasions; and that he had threatened to kill his wife. Schnopps obtained a gun and ammunition the day before the killing.

Schnopps arranged to have his younger child cared for by a neighbor when his wife came to see him. The jury could have found that Schnopps lured his wife to the apartment by suggesting that he might leave and let her live in it with the children. The evidence permits a finding that the killing occurred within a few minutes of the victim's arrival at Schnopps's apartment and before she had time to take off her jacket.

From the facts, the jury could infer that Schnopps had planned to kill his wife on October 13, and that the killing was not the spontaneous result of the quarrel but was the result of a deliberately premeditated plan to murder his wife almost as soon as she arrived.

Ballistic evidence indicated that as the victim was lying on the floor, a third bullet was fired into her. From the number of wounds, the type of weapon used, as well as the effort made to procure the weapon, the jurors could find that Schnopps had "a conscious and fixed purpose to kill continuing for a length of time."

If conflicting inferences are possible, "it is for the jury to determine where the truth lies." There was ample evidence which suggested the jurors' conclusion that Schnopps acted with deliberately premeditated malice aforethought.

On appeal, Schnopps complains that the prosecutor's summation, which stressed that premeditated murder requires "a thought and an act," could have confused the jurors by suggesting that if "at any time earlier Schnopps merely thought about killing that person," that was sufficient to constitute deliberately "premeditated malice aforethought."

We do not read the prosecutor's argument as suggesting that conclusion. The prosecutor focused on the Commonwealth's evidence of deliberately premeditated malice aforethought throughout his argument. There was no error.

In any event, the argument, read as a whole, does not a "substantial likelihood of a miscarriage of justice." Schnopps's domestic difficulties were fully explored before the jury. The jurors rejected Schnopps's claim that his domestic difficulties were an adequate ground to return a verdict of a lesser degree of guilt. The degree of guilt, of course, is a jury determination. The evidence supports a conclusion that Schnopps, angered by his wife's conduct, shot her with deliberately premeditated malice aforethought.

The jurors were in the best position to determine whether the domestic difficulties were so egregious as to require a verdict of a lesser degree of guilt. We conclude, on review of the record as a whole, that there is no reason for us to order a new trial or direct the entry of a lesser verdict.

Judgment affirmed. do the case brief