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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Jones, 439
Middlesex.
Present:
A pretrial motion to suppress evidence was heard by
Robert A. Barton, J., and the case was tried before him; a motion for a new
trial was heard by Elizabeth M. Fahey, J.
Nancy A. Dolberg for the defendant.
Marguerite T. Grant, Assistant District Attorney, for the Commonwealth.
A jury convicted the defendant, Paul Jones, of
murder in the first degree by reason of deliberate premeditation. The defendant
filed a timely notice of appeal. His motion for a new trial, filed in this
court and remanded to the Superior Court, was denied. His appeal from that
ruling has been consolidated with his direct appeal. The defendant challenges
the denial of his motion to suppress his statements to the police; the
admission of certain hearsay statements[1]; the failure to instruct the
jury on joint venture; the cumulative effect of the alleged errors; and the
denial of his motion for a new trial. The defendant also requests that the
court use its extraordinary power under G. L. c. 278, § 33E, to
reduce the verdict. After considering these arguments and reviewing the entire
record pursuant to § 33E, we find no reason to grant a new trial or to
reduce the degree of guilt. Accordingly, we affirm the conviction and denial of
a motion for new trial.
I. Facts.
We recite the facts in the light most favorable to the Commonwealth, reserving
certain portions for discussion in connection with the issues raised. In order
adequately to summarize the Commonwealth's evidence of premeditation, we go
into great detail with respect to certain aspects of the facts. On
The victim's rectum contained sperm cells mixed with her blood, consistent with
the victim's having anal intercourse before her death. The sperm cells were
consistent with the defendant's DNA, but due to the mixture with the blood, the
laboratory was unable to calculate the statistical probability of the DNA
match. The police discovered fourteen fingerprints from the inside layers of
the duct tape, thirteen of which matched the defendant's. The police were
unable to identify the remaining print.
The victim's older sister, Heather Santerre, had been dating the defendant for
about five years. Santerre, who was approximately eighteen years old at the
time of the murder, lived with the defendant (who was approximately nineteen
years old at the time of the murder), his mother, and his three younger
siblings, in the family's three-bedroom home in Groton. Although Santerre and
the victim did not live together for most of their lives, they had maintained a
close relationship. In the summer of 1995, the victim moved into the
defendant's family's home with Santerre. Afterward her relationship with
Santerre deteriorated, and the sisters argued frequently.
In late December, 1995, Greg Michaud also moved into the defendant's family's
house, and shared the defendant's bedroom with the defendant and Santerre.
Michaud's girl friend, Patricia McKinnon, was a long-time friend of Santerre
and frequently spent the night, sleeping in the same bedroom as the defendant,
Santerre, and Michaud.
The Commonwealth's primary witness at trial was McKinnon, who testified to the
following. Santerre and McKinnon believed that the victim was sexually involved
with their respective boy friends. In an effort to substantiate their
suspicions, Santerre and McKinnon looked through the victim's personal
belongings in search of her diary. Santerre read aloud a portion of the diary
that indicated that the victim "was in love with [the defendant], that
they were going to be together and [Santerre] would be out of the way, and
they'd be happy." Santerre read similar sentiments in a letter written by
the victim to the defendant.
On
On the morning of
The defendant told McKinnon that he had killed the victim. He said that he
lured her into his room by saying that "they were going to have sex."
The defendant said that he taped her arms to her legs, blindfolded and gagged
her, and put a bicycle chain around the victim's neck. The defendant said that
he pulled on the chain, and asked if the victim trusted him. The defendant said
that he pulled the chain to get her to stop breathing. Every time that he
loosened the chain the victim would gasp for a breath. The defendant's hands
began to hurt, so he picked up the piece of pipe and used it to pull the chain.
He pulled until she stopped breathing. The defendant and Santerre were going to
carry the victim down to the garage, but the victim "had gotten a
heartbeat back on the way down." The defendant said that he pulled the
chain tightly around the victim's neck, and snapped it. The defendant and
Santerre then put the victim in a garbage bag, and put her body into a garbage
can in the garage. The defendant showed McKinnon red marks on his hand from the
chain. McKinnon returned to the kitchen, and shortly thereafter, Santerre said
that the victim was "finally dead and out of her life,"and she
"started dancing around."
The defendant and Santerre concocted a story to explain the victim's
disappearance. They said that the victim argued with them and ran out of the
house. On several occasions the defendant and Santerre went "to look
for" the victim. The defendant told McKinnon not to say anything to
anybody, and that if she did, the defendant would "get [her], too."
During the rest of the week McKinnon talked to the defendant a few times, and
he reminded her not to say anything.
On
The Commonwealth also introduced evidence that Gerald Intonti was an inmate at
the
At trial, the defense did not argue that the defendant did not kill the victim.
Rather, defense counsel argued that the killing was not premeditated, and that
the defendant acted in the heat of passion, under sudden provocation, and
therefore was guilty of something less than murder in the first degree. The
defendant's theory was that Santerre and McKinnon were the ones who plotted to
kill the victim,[3] and that the defendant did not want to carry out
their plan. The defense strategy was to discredit McKinnon and Intonti's
credibility and to show that Santerre was dominant in her relationship with the
defendant.
II. Discussion.
A. Motion to suppress statements to police. The defendant claims that the judge
erred in refusing to suppress statements that he made to the police because
his waiver of the Miranda warnings was invalid; the confession was not voluntary;
and the police continued to interrogate the defendant after he invoked his
right to counsel. The motion judge, who was also the trial judge, held an
evidentiary hearing on the defendant's motion to suppress. In reviewing the
denial of a motion to suppress, "we 'grant substantial deference to the
judge's ultimate conclusions,'" Commonwealth v. Rodriguez, 425
We summarize the judge's findings of fact. After McKinnon went to the police on
February 5, 1996, the police questioned the defendant about the victim's
disappearance. The police gave the defendant the Miranda warnings, and the
defendant agreed to speak with them. The defendant told the police that he had
an argument with the victim, and that she left his house. On February 7, 1996,
at approximately 11:30 A.M., the defendant agreed to go to the police station
again to talk with the police.
Sergeant James Connolly of the State police advised the defendant of his
Miranda rights by reading a form used by the Groton police. The defendant said
that he understood his rights, and that he had been read his rights two days earlier
by Inspector Irvin Pierce. The police told the defendant that Santerre and
McKinnon gave statements implicating the defendant in the victim's death, but
the defendant continued to deny any involvement. Sometime between
Approximately twenty minutes later, Inspector Knowlton asked the defendant to
review the events of
1. "The Commonwealth bears the burden of proving the validity of a Miranda
waiver beyond a reasonable doubt. Commonwealth v. Day, 387
The defendant argues that given the totality of the circumstances, he did not
voluntarily, knowingly, and intelligently waive his right to remain silent and
his right to counsel. In particular, he points to the facts that he dropped out
of school in the ninth grade, had a history of attention deficit disorder with
hyperactivity, reported receiving mental health treatment, tested in the
borderline to low-average range for intelligence, had impaired to well
below-average academic skills, and had no prior experience with the criminal
justice system. The defendant also claims that he was questioned at the police
station for over five hours, with up to five police officers at a time.
The judge found that the defendant voluntarily accompanied officers to the
police station, was given food, drink, and cigarette breaks outside the police
station, and was not continuously questioned.[5] Sergeant Connolly read
the defendant his rights, and the defendant was also given an opportunity to
read his rights. The defendant spoke coherently and appropriately with the
officers. The defendant was sober, coherent, and responsive during his
interactions with the police. The police officers did not attempt to intimidate
or deceive the defendant. The defendant did not request a pause in
interrogation and did not exercise his right to remain silent or to have an
attorney. The defendant was interviewed approximately two months later
by Dr. Paul Nestor, then the forensic mental health supervisor at Bridgewater
State Hospital, to determine the defendant's competency to stand trial. During
Dr. Nestor's interview, the defendant was attentive, alert, and oriented. The
defendant was also able to communicate without difficulty in recalling or
retrieving information, and was able to understand the charge against him and
its consequences.
Based on these findings, the judge concluded that the defendant voluntarily
waived his Miranda rights, and in a separate analysis, concluded that the
defendant's statements were voluntary. We agree.
2. The defendant argues that even if his waiver of rights was valid, he invoked
his right to an attorney before his confession. Once the defendant invokes his
right to an attorney, the police must stop questioning until an attorney is
present. Commonwealth v. Judge, 420 Mass. 433, 448 (1995), citing Miranda v.
Arizona, supra at 474. However, "if a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable officer in light
of the circumstances would have understood only that the suspect might be
invoking the right to counsel, our precedents do not require the cessation of
questioning." Commonwealth v. Judge, supra at 450, quoting
The defendant posits that his statement that he was "going to need a
lawyer sometime" was an invocation of the right to counsel. He further
claims that the police officer's response to his invocation was very confusing,
and led the defendant to believe that "the prosecutor was going to be brought
down to meet with the defendant, and that the assistant district attorney would
choose a lawyer for him." The defendant asserts that in denying his motion
to suppress, the judge did not consider the defendant's understanding of
Inspector Knowlton's response, given the defendant's low intelligence and
limited education, inexperience with the criminal justice system, the length of
questioning, and the number of police officers who had interrogated him.[6]
The judge concluded that the defendant's statement that he was "going to
need a lawyer sometime," together with his refusal to pursue Inspector
Knowlton's statement that he was entitled to a lawyer, and that the State would
pay for one, did not constitute an affirmative request for an attorney. We agree.
"We have repeatedly held that equivocal statements and musing concerning
the need for an attorney do not constitute . . . an affirmative request"
for an attorney. Commonwealth v. Oversaw, 435
Furthermore, the confession benefited the defendant at trial. The Commonwealth
presented two witnesses (McKinnon and Intonti) who testified that on separate
occasions the defendant admitted that he murdered the victim. Both accounts
supported the Commonwealth's theory that the killing was premeditated, and that
the defendant lured the victim to his room, substantially in accordance with
the plan discussed in the car on
B. Statements at trial. The defendant contends that most of the evidence of
premeditation was introduced by McKinnon or Santerre's mother, and consisted of
statements allegedly made by Santerre, who did not testify at the trial. The
defendant posits that while some of the statements qualified as those of a
coconspirator,[8] others were inadmissible hearsay. In particular, the
defendant argues that the judge erred in allowing references in the
prosecutor's opening statement to hearsay; certain unobjected-to hearsay
statements; and a hearsay statement allowed over the defendant's objection. In
addition, the defendant contends that a portion of McKinnon's testimony, which
the judge allowed under the joint venture exception to the hearsay rule, was
inadmissible because McKinnon did not identify who was speaking. We address the
defendant's allegations in turn.
1. The defendant argues that the prosecutor's opening statement contained
statements allegedly made by Santerre, some of which were later excluded on
direct examination because they were hearsay.[9] Thus he claims that the
statements should not have been referenced in the opening statement. The
defendant did not object to the prosecutor's opening statement.
"A prosecutor in his opening may explain the facts that he expects to
prove during the trial, so long as he has a good faith expectation that he will
be able to do so with relevant and admissible evidence." Commonwealth v.
Thomas, 429
There is no evidence that the prosecutor acted in bad faith, nor does the
defendant make this claim. Additionally, the judge instructed the jury, both
before and after opening statements, that the attorneys' statements were not
evidence. Moreover, the substance of all the statements that the defendant now
objects to was introduced at trial. The statements concerned the defendant's
sexual involvement with the victim, Santerre's knowledge about that
relationship, and Santerre's displeasure that the defendant and victim were
sexually involved. Indeed, rather than harming the defendant, these statements
all support his theory that Santerre and McKinnon developed the plan to murder
the victim, as they demonstrate Santerre's jealousy and anger about the
victim's involvement with the defendant. The statements also buttress the
defendant's contention at trial that he had no motive to murder the victim
because he was sexually involved with her. We find additional basis for our
conclusion in the defense counsel's opening statement, which referred to some
of the same hearsay statements in the prosecutor's opening.
2. Next we address the defendant's contentions that the judge allowed
unobjected-to hearsay, not within any exception, to be admitted at trial.[10]
The defendant contends that none of the statements qualified under the joint
venture exception to the hearsay rule because they were not made during or in
furtherance of a conspiracy. We will assume without deciding that the
statements did not properly fit within any exception to hearsay.
"Hearsay, once admitted, may be weighed with the other evidence, and given
any evidentiary value which it may possess." Commonwealth v. Carmona, 428
The defendant's contention that the admission of these statements was
prejudicial is without merit. The statements, like those contained in the
prosecutor's opening, concerned Santerre's knowledge of the defendant's
relationship with the victim, and Santerre's anger toward the victim. The
defendant used the statements to advance his theory that Santerre and McKinnon
were the people with motive to kill the victim, and were the ones who
"hatched the plot to kill" the victim. Because the statements
furthered the defendant's strategy, "we are substantially confident that,
if the [alleged] error had not been made, the jury verdict would have been the
same." Commonwealth v. Ruddock, 428
3. The defendant also argues that it was error to admit McKinnon's testimony
that Santerre said that the victim was "dead and finally out of her
life." Defense counsel objected to the prosecutor's question at trial.
This statement, like the ones previously discussed, supported the defendant's
theory that Santerre "hatched the plot to kill" the victim. Moreover,
on cross-examination, defense counsel elicited additional details about
Santerre's statements and actions after the victim's death. Even if the judge
erred in allowing the statement over defense counsel's objection, we conclude
that there was no prejudice. "We are convinced 'that the error did not
influence the jury . . . ' and can say 'with fair
assurance that the judgment was not substantially swayed by the [alleged]
error.'" Commonwealth v. Vinnie, 428
4. The defendant posits that McKinnon's testimony regarding a conversation in
the car on the night of
C. Joint venture. The defendant alleges that the judge erred by failing to
instruct that the jury could consider Santerre's alleged statements against the
defendant only if the jury determined from other evidence that a conspiracy or
joint venture existed, and that the defendant was a member of it. The defendant
specifically requested that the judge not give an instruction on joint venture
liability, and never requested an instruction on the joint venture exception to
the hearsay rule.[13] Indeed, the defendant benefited from the judge's
decision because had a joint venture instruction been given, it would have been
difficult for the defendant to separate himself from any "bad light"
cast on Santerre.
D. Cumulative effect of alleged errors. The defendant suggests that he was
prejudiced by the cumulative effect of the above-mentioned errors. He argues
that a "significant amount of highly prejudicial material was admitted at
trial that should have been excluded." This argument is without merit,
especially considering that the defendant benefited from all the alleged
errors. The defendant used his statement to the police to argue that the murder
was not premeditated, but instead happened in the midst of a physical
altercation. Additionally, the defendant utilized the testimony concerning the
victim's sexual relationships, and Santerre's feelings toward her sister, to
support the theory that Santerre and McKinnon had motive to kill the victim,
that they plotted to kill the victim, and that they pressured the defendant to
partake in their plan. Considering all the evidence against the defendant and
the defendant's strategy at trial, we are confident that the jury's verdict
would have been the same absent all the alleged errors.
E. Motion for a new trial. In his motion for a new trial, the defendant claimed
that he was deprived of exculpatory evidence. The alleged exculpatory evidence
was a letter that Michaud claimed his girl friend, McKinnon, wrote to him while
the defendant was on trial. Michaud could not remember what the letter said,
but he recalled that it said "something to the effect of 'I did what I had
to do and that's why we did what we did.'" Based on the context of the
letter, Michaud believed that the letter referred to the victim's death, and
therefore he claimed that he immediately gave the letter to the police. The
Commonwealth submitted five affidavits from employees of the district
attorney's office, State police, and
Based on the affidavits, it was reasonable for the judge to conclude that the
letter did not exist, or that if it did, the alleged statement was so vague and
cryptic that it was not exculpatory.
III. Review under G. L. c. 278, § 33E.
We have reviewed the entire record, the transcripts, and the briefs and see no
reason to reduce the murder conviction or order a new trial.
Judgment affirmed.
Order denying motion for a new trial affirmed.
FOOTNOTES:
[1] The defendant objects to some statements on the
basis that they were hearsay not within any exception. There are other hearsay
statements that were admitted under the joint venture exception that the
defendant claims should have been excluded because it was unclear who made the
statements.
[2] Santerre said that she was going to hit her
sister over the head with a frying pan. The defendant suggested that would not
work, because it would probably just knock her out. The defendant said that he
would strangle the victim with a rope or chain. Santerre said that they would
kill the victim on Monday when the defendant's mother and younger siblings were
out of the house. Santerre also suggested that the defendant lure the victim to
his room by making her think that "they were going to have sex."
[3] There was evidence at trial that McKinnon found
out that the victim was having a sexual relationship with Michaud.
[4] The defendant's contention that the judge
improperly paraphrased what Inspector Knowlton said is without merit. During
the motion hearing, Inspector Knowlton testified that he told the defendant,
"There's an assistant district attorney right down the hall. I can go and
get him for you, and he will get you a lawyer." Inspector Knowlton also
testified that the defendant explained that "he didn't have any money for
a lawyer, and I said he didn't need any money. One is provided to him, I
believe I said, under his constitutional rights." On cross-examination,
Inspector Knowlton testified that he told the defendant, "There's a D.A.
right down the hall. We can get you a lawyer if you want one and it will be
provided for you under your constitutional rights."
[5] The record contains adequate support for the
judge's findings that the defendant was not continuously questioned. The record
also shows that at no time was the defendant questioned by five officers at
once.
[6] The first time that the defendant argued that he
was confused by the officer's response was on appeal. He did not pursue this
argument in his memorandum in support of his motion to suppress, at the hearing
for the motion to suppress, or at trial. Nor has the defendant asserted this
directly by way of testimony or an affidavit.
[7] In fact, defense counsel acknowledged at a bench
conference that he wanted the jury to believe the defendant's statement to the
police because if believed, the statement supported a lesser degree of guilt.
[8] The defendant does not appear to argue that the
judge erred by admitting statements that qualified under the joint venture
exception to the hearsay rule. We note that near the beginning of the trial,
the judge admitted statements under the joint venturer exception, but ruled
that he would entertain a motion to strike those statements if the defendant so
moved at a later time. The defendant never moved to strike the statements.
[9] The defendant claims that the following
statements in the prosecutor's opening were improper: in the fall of 1995,
Santerre told friends that she was worried that the victim was falling in love
with the defendant; the victim, Santerre, and their mother argued about the
defendant; Santerre read an entry from the victim's diary and a letter written
by the victim to the defendant both of which indicated that the victim was in
love with the defendant; on January 26, 1996, Santerre told McKinnon that she
knew that the victim was "sleeping with" the defendant, and that
Santerre was going to kill her sister; and after the victim was murdered,
Santerre told McKinnon, "Did you hear? She's gone. I finally can be happy
in my life . . . ?"
[10] The defendant complains that the following
statements were improperly admitted: Santerre read aloud the victim's diary and
a letter written to the defendant from the victim; Santerre and the victim
argued about the defendant, and the defendant would break up the arguments; and
Santerre said that she wanted the victim "out of there."
[11] The defendant's brief also states that it was
improper to admit McKinnon's testimony that Santerre "claim[ed] to be
happy that [the victim] was gone." However, that testimony was elicited on
cross-examination, when defense counsel asked whether "[Santerre] said
that she was glad to see [the victim] out of the way?" McKinnon answered,
"Yes."
[12] We find only three such occasions during direct
examination: (1) in response to the prosecutor's question whether Santerre and
the defendant talked about "a particular location in the house where it
was going to happen," McKinnon testified that "they" talked
about doing it in the defendant's bedroom "[b]ecause that way [the
defendant] could lure [the victim] up there"; however, McKinnon clarified
on cross-examination that Santerre was the person who suggested that the
defendant "lure" the victim to the bedroom; (2) McKinnon testified
that she asked Santerre and the defendant if "they were serious,"
about the plan, and "[t]hey said no, they weren't; that it was
[Santerre's] sister, and they couldn't do
it"; (3) McKinnon
testified that "we drove" to a State park in Townsend, but
"[t]here [were] no good spots." The defendant did not object to any
of these statements at trial.
[13] The judge: "I
really don't think it's necessary to charge on joint venture because the
defendant is being charged in this particular case for his own actions because
it's the Commonwealth's theory that it was by his hand and not the hand of
anyone else that the victim was killed in this particular case. So it's not my
intention to even get into charging on joint venture. What do you say about
that?"
Defense attorney: "I agree completely, Your Honor."
". . .
The prosecutor: "I agree with the Court's analysis of the Commonwealth's
case. However . . . [t]his was two people involved in this, and I've argued
that in my opening and throughout the case. There's evidence of involvement,
there's evidence of statements being made, offered against the defendant during
the course of the conspiracy, the joint venture, that the jurors heard . . .
Santerre making. . . . "
The judge: "Well, I see nothing wrong or inconsistent with your arguing
that there were two people involved in this particular situation . . . .
[Defense attorney], do you want a charge on joint venture or do you want
nothing said about joint venture?"
Defense attorney: "Your Honor, the defendant prefers that nothing be
said about joint venture."