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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. Snell, 428
Supreme Judicial Court of Massachusetts,
Argued
Decided
n J. Barter,
Julia K. Holler, Assistant District Attorney,
for the Commonwealth.
Present:
WILKINS, C.J., LYNCH, GREANEY, &
GREANEY, J.
The
defendant was convicted of murder in the first degree (by reason of deliberate
premeditation) of his wife. Represented
by new counsel on appeal, he raises twelve arguments in seeking relief from the
conviction and from the denial of his motion for postconviction relief under
[428
Early
on the morning of March 17, the defendant's truck was seen parked in front of
the marital home by a neighbor who was walking his dog. The neighbor then heard the truck start up
and saw the defendant driving it. The
neighbor had never seen the defendant leave his house so early in the morning,
and the neighbor noticed that the defendant drove away on a route which the
neighbor had not seen him use before.
The neighbor fixed the time of the defendant's departure at slightly
before
Around
The
victim's daughter last spoke with her mother on March 15. Between March 16 and March 18, the victim's
daughter [428 Mass. 769] to contact her mother on the
telephone several times. The telephone
at the victim's home would ring, but the answering machine did not engage. After speaking with family members on March
18, the victim's daughter telephoned the police expressing concerns about her
mother's well‑being.
The
victim's son also had tried to telephone his mother repeatedly and became
concerned when she did not answer his calls or telephone him. He took note of her failure to respond to
messages, inviting her to his home to celebrate his wife's birthday, and of her
failure to call to wish his wife a happy birthday. The victim's son went to his mother's home
twice on March 17, and received no response to his attempts to enter. He saw the victim's car in the driveway. On March 18, the victim's son drove past his
mother's home and saw her car parked where it had been located the previous
day.
As a
result of telephone calls by the victim's family, a Barnstable police officer
went to the home to check on the well being and safety of the victim. The officer obtained no response when he
knocked, and he saw that all the windows and doors of the house were
locked. The officer entered the home by
pushing aside a frame covering the entrance to the cellar; he looked for the victim, and shortly after
his entry, the officer found her dead in one of the upstairs bedrooms. During a later search of the perimeter of the
home, the officer noticed that the wires in the telephone junction box had been
pulled away from their terminals. This
condition of the wires would cause persons calling the victim to hear a ringing
at their end of the line, but the call would not ring through, and anyone
picking up the telephone inside the house would not get a dial tone.
The
medical examiner determined that the victim had died as a result of asphyxia
due to smothering. The examiner observed
seventeen injuries on the victim's body which were inflicted contemporaneously
or within minutes of the time of her death.
The examiner placed the probable time of death between the hours of 11
P.M. on March 16, and 6:30 A.M. on
March 17.
The
jury could also have found that a hostile relationship existed between the
defendant and the victim. In September,
1993, they had argued violently and the victim sought help from a neighbor
after the defendant attempted to choke her and smother her. In 1994, the defendant and the victim had
argued
[428 Mass. 770] The victim expressed anger toward the
defendant, and he told her, "If I can't have you, nobody will." (FN1)
The
defendant maintained that the police had not properly investigated the case and
neglected to gather evidence that might have exculpated him. He attacked the credibility of the
Commonwealth's witness who placed him at the marital home early on the morning
of March 17. He suggested that the
victim may have died from natural causes.
The defendant also claimed that he did not go near the marital home
after he had been arrested, and that his presence elsewhere could be accounted
for during all critical times.
[1]
1. The defendant filed a pretrial motion to dismiss the indictment, asserting
that "the Commonwealth, at every stage, failed to follow reasonable
procedures in conducting the investigation in this case, and failed to conduct
appropriate tests, and as a result, destroyed any opportunity for the discovery
of exculpatory evidence." He
points to instances during the investigation, that, he says, indicate that the
Commonwealth's investigators contaminated the crime scene. As a result, he claims it was made difficult,
or impossible, to recover fingerprints or to obtain other materials (such as
fibers or hairs) that, after testing, might have excluded him as a
suspect. He maintains that the police
deviated from guidelines and failed to preserve material evidence when they
destroyed their handwritten notes. He
asserts also that the medical examiner failed to conduct tests on an inhalator
found by the victim's bedside or to investigate matters that may have shed
light on whether the victim died from a natural cause, namely cardiac
arrhythmia.
The
judge conducted an evidentiary hearing, and to support his denial of the motion
made findings of fact. There is no need
to detail the judge's findings. They
more than adequately support his conclusion that "there is no basis for
the [defendant's] contention that the Commonwealth intentionally destroyed
evidence ... [and] no evidence of bad faith or negligence by the Commonwealth
in connection with the gathering and preserving of evidence." The judge also appropriately observed [428 Mass. 771] the defendant's criticisms of the police investigation were an
"attempt to turn a simple negative into active wrongdoing," and that
the defendant's contentions lacked factual support in the record. (FN2)
We add three other points:
(a)
The Barnstable police officer, who was dispatched to the marital home,
initially did not follow crime scene guidelines because those guidelines would
not be followed when the police are checking on the well being of a person.
(b)
The medical examiner's opinion as to the cause of death was supported by
independent medical evidence of injuries to the victim, all which excluded any
probability of death by natural causes including cardiac arrhythmia.
(c)
The handwritten notes compiled by the police were destroyed in keeping with
normal procedures after police reports based on the notes were completed.
We
conclude that the defendant did not establish a reasonable likelihood, based on
concrete information rather than speculation, that the investigation could have
produced
evidence favorable to his case. Commonwealth v. Olszewski, 401 Mass. 749,
754, 519 N.E.2d 587 (1988), S. C., 416
Mass. 707, 625 N.E.2d 529 (1993). There
was no error in the denial of the motion to dismiss.
[2]
2. The judge properly denied the defendant's motion, filed about ten days
before the commencement of the trial, to continue the case to permit further DNA
testing on hairs found on the blanket used to cover the victim's body. (Testing had previously determined that some
hairs recovered from the blanket were consistent with the victim's hair, and
that seminal fluid on the blanket probably came from the defendant).
The
judge held a hearing on the motion. The
motion was filed late, and the judge appropriately considered it dilatory. The onus was on the defendant to explain the
delay and to establish a need for further testing. There was no basis provided in the testimony
of the defendant's chemist (or elsewhere in his evidence) to indicate that
further testing of hairs found on the [428
Mass. 772] might furnish exculpatory
evidence. (FN3) The judge properly concluded as follows: "considering that the date set for trial
is [about] one week [away], I find nothing in the materials supplied to me that
would permit a continuance of the trial for the purposes of additional DNA
testing. Not only do the materials fail
to demonstrate that such testing is reasonably likely to furnish evidence of
value to the defendant, but additionally, it is apparent that whatever belief
to that effect existed, that belief was every bit as apparent [at an earlier
date]. If the defendant had desired to
pursue the answer at that time, [the testing] could have been done along with
the other tests that were authorized."
[3]
3. In his opening statement, the prosecutor said the following to the jury
about the defendant:
"And when confronted by the police
and informed by the police of the reason that numerous police were surrounding
him to arrest him, he was told that, you're being arrested for the murder of
your wife. And he said nothing except, I
was in Connecticut. Not a word about his
wife, the person who knew nothing."
The
defendant's trial counsel objected, and the judge (after a bench conference)
let the remarks stand. It is now argued
that the statement impermissibly trenched on the defendant's right to remain
silent after his arrest, an error, the defendant goes on to claim, that was
compounded by the prosecutor's examination of police witnesses about the
defendant's statements and conduct at the time of his arrest.
There
is no merit to the argument. At the time
of his arrest the defendant was given, and understood, his Miranda rights. Thereafter, he engaged in conversation with
the police concerning his whereabouts, the victim, and several other
topics. It is clear (as the judge had
earlier found) that the defendant had understood and had voluntarily waived his
Miranda rights. The [428 Mass. 773] was one
in which the defendant sought to deflect attention from himself, and perhaps
establish an alibi. The defendant's
statements (and failure to inquire about his wife) were appropriate matters for
comment and exploration.
4.
The defendant moved to suppress any evidence obtained by the police after a
warrantless entry into the marital home.
The judge conducted an evidentiary hearing on the motion, made findings
of fact, and concluded that the entry was constitutionally proper under the so‑called
emergency exception to the general rule that a warrant is necessary before
police enter a dwelling without the occupant's consent.
The
judge found that Sergeant John Sweeney of the Barnstable police department
dispatched Officer Robert Cogeschall
on March 18, 1995, to the marital home to check on the victim's well
being. Sergeant Sweeney was aware that
the defendant had been arrested on March 16 for threats against the victim to
commit murder and burn the marital home, and that the defendant has been
released on bail. Sweeney had received
several telephone calls from the victim's son, daughter, and brother expressing
concern about the victim's well being.
The victim's car was at the marital home, but she had not responded to
her son's attempt to contact her.
Sweeney sent Officer Cogeschall to the marital home within minutes of
his receipt of this information.
Officer
Cogeschall arrived at the marital home within fifteen minutes of his
dispatch. He was also aware that threats
had been made against the victim, and that she had not been heard from in a
couple of days. When Cogeschall arrived
at the home, he had not made arrangements to be met there by someone with a
key. No one responded to Cogeschall's
knocks on the door. In checking the
house, Cogeschall observed that the doors were locked and all the windows were
secure. Cogeschall obtained permission
from Sergeant Sweeney to enter the home through the cellar by pushing aside a
frame at the bottom of the cellar stairs. Cogeschall went from the basement to the first
floor. He noted that the house was
exceptionally warm, and that the door to the oven was partially open. When he could not find the victim, Cogeschell
went to the second floor where he found her dead in a bedroom.
Cogeschall
attempted to use the telephone in the kitchen to advise Sergeant Sweeney of his
discovery, but found it inoperable. He
then observed that all the burners on the stove were [428 Mass. 774] and
that the temperature of the oven had been set at 350 degrees. Cogeschall finally made contact with Sergeant
Sweeney from a cellular telephone and remained at the home to secure what was
now considered to be a crime scene.
Shortly thereafter, the victim's son arrived at the home. Sergeant Sweeney had sent the son in the
belief that the son had a key to the house.
This information was not known to Cogeschall when he entered the home,
and the son, in fact, did not have a key.
[4][5][6]
The law that the judge found applicable to these facts was summarized by the
Appeals Court in Commonwealth v. Bates,
28 Mass.App.Ct. 217, 219‑220, 548 N.E.2d 889 (1990), as follows:
"Unless this entry fell within 'a
well defined exception' to the warrant requirement of the Fourth Amendment, it
was a search 'conducted outside the judicial process without prior approval by
judge or magistrate' and was 'per se unreasonable.' Thompson v. Louisiana, 469
U.S. 17, 20 [105 S.Ct. 409, 83 L.Ed.2d 246] (1984). The exception relied on by the Commonwealth
is the 'emergency' exception which applies when the purpose of the police entry
is not to gather evidence of criminal activity but rather, because of an
emergency, to respond to an immediate need for assistance for the protection of
life or property. 'The need to protect
or preserve life or avoid serious injury is justification for what would be
otherwise illegal absent an exigency or emergency.' Mincey v. Arizona, 437
U.S. [385,] 392 [98 S.Ct. 2408, 57
L.Ed.2d 290 (1978)], quoting from Wayne
v. United States, 318 F.2d 205, 212 (D.C.Cir.), cert. denied, 375 U.S. 860
[84 S.Ct. 125, 11 L.Ed.2d 86] (1963). Commonwealth v. Kingsbury, 7 Mass.App.Ct.
51, 54 [385 N.E.2d 1020],S. C., 378
Mass. 751 [393 N.E.2d 391] (1979). United States v. Barone, 330 F.2d 543,
545 (2d Cir.), cert. denied, 377 U.S. 1004 [84 S.Ct. 1940, 12 L.Ed.2d 1053]
(1964).
People v. Boyd, 123 Misc.2d 634, 641 [474 N.Y.S.2d 661]
(N.Y.Sup.Ct.1984), aff'd, 127 A.D.2d 1013 [511 N.Y.S.2d 455]
(N.Y.App.Div.1987). Duquette v. Godbout, 471 A.2d 1359, 1362
(R.I.1984). See generally 2 LaFave,
Search and Seizure § 6.6(a) (2d ed. 1987
& Supp.1989); Mascolo, The Emergency
Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22
Buffalo L.Rev. 419, 433‑437 (1973);
Model Code of Pre‑Arraignment Procedure § SS 260.5 (1975). For the exception to apply, the burden of
proof is on the Commonwealth to show that the warrantless entry falls within
the exception and that there were reasonable grounds for the ... police to [428 Mass. 775] (an objective standard) that an emergency existed. Root
v. Gauper, 438 F.2d 361, 364 (8th Cir.1971). People v. Mitchell, 39
N.Y.2d 173, 177 [383 N.Y.S.2d 246, 347 N.E.2d 607], cert. denied, 426 U.S. 953
[96 S.Ct. 3178, 49 L.Ed.2d 1191] (1976).
2 LaFave, Search and Seizure § 6.6(a), at 698." (Footnote omitted.)
[7] We agree with the judge that the
situation facing the police justified entry into the house. There existed objectively reasonable grounds
to believe that the victim might be injured or dead inside. The defendant had made a direct threat to
murder the victim and burn down the house two days earlier, and he was at
large. The victim had failed to respond
to numerous attempts to reach her. The
findings necessarily must be evaluated in the context of domestic violence
which often calls for rapid police response designed to prevent further injury
to a victim, to see whether a threat against a victim has been carried out, or
to ascertain whether some other grave misfortune has befallen a victim. (FN4)
It is clear as well that the police believed that the victim was in the
home, and that Cogeschall's entry was not primarily motivated by an intent to
search the home or to seize evidence.
In attacking the judge's decision, the
defendant refers to findings which are not supported by the evidence presented
at the hearing on the motion to suppress.
(FN5) We have not considered
these findings in reaching our conclusion that the facts summarized above,
which are supported by the evidence, justify the application of the emergency
exception to the warrant rule.
[8] The defendant also refers to evidence
at the trial that the police were aware of family concerns about the victim on
March 17, the day before Officer Cogeschall was sent to the marital [428
Mass. 776] He suggests that the evidence was improperly
withheld at the hearing on the motion to suppress, and that it establishes that
an emergency did not exist because the police had already known for over twenty‑four
hours that the victim's family was concerned about her.
There is nothing to show that the
Commonwealth acted improperly at the hearing on the motion to suppress. The defendant's trial counsel did not move
during the trial to have the judge reconsider his ruling on the motion to
suppress in light of the evidence that is now argued to us. We do not place the same emphasis on the
evidence that the defendant does. We
think that, if anything, the evidence supports the existence of an emergency on
March 18, when Officer Cogeschall was sent to the marital home. The police could have reasonably thought that
the victim might respond to attempts to reach her, so that action on their part
on March 17 would be premature. One day
later, however, repeated attempts to reach the victim had been unsuccessful,
and the need for immediate action in view of the defendant's threats was much
more acute. (FN6) The motion to suppress was properly denied. (FN7)
5. The defendant argues that the judge
should have suppressed evidence obtained pursuant to search warrants. His argument rests on the premise that the
warrantless entry into the marital home discussed above was unlawful, and, as a
consequence, the affidavits supporting the search warrant are deficient under
the fruit of the poisonous tree doctrine expressed in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9
L.Ed.2d 441 (1963). The argument fails
in [428 Mass. 777] of our conclusion that the entry by
Officer Cogeschall was proper.
[9] 6.
(a) The defendant's trial counsel objected to testimony by a neighbor of
the victim that, in September, 1993, the victim had gone to the neighbor's
house for help after the defendant had tried to kill her by choking her and
smothering her with a pillow.
We agree with the judge's ruling that the
testimony was admissible under the spontaneous utterance exception to the
hearsay rule. The evidence heard by the
judge at the voir dire warranted conclusions that the victim sought the
neighbor's assistance between 10 P.M.
and 10:30 P.M., on September 5, 1993,
immediately after the incident occurred and while highly distraught, suffering
from visible injuries, and under the influence of the exciting event. See
Commonwealth v. Whelton, 428 Mass. 24, 26, 696 N.E.2d 540 (1998), and cases
cited.
[10] We reject the defendant's arguments
that the evidence constituted impermissible "bad act" evidence. The judge carefully considered the arguments
made by the defendant's trial counsel to exclude the evidence, and the judge
had discretion in weighing its probative value against its prejudicial
effect. The evidence was admissible to
show the defendant's motive and intent and to depict the existence of a hostile
relationship between the defendant and the victim. We explained the general principles in this
area in Commonwealth v. Cormier, 427
Mass. 446, 450, 693 N.E.2d 1015 (1998), as follows:
" 'It is well settled that the
prosecution may not introduce evidence that a defendant has previously
misbehaved, indictably or not, for the purposes of showing his bad character or
propensity to commit the crime charged, but such evidence may be admissible if
relevant for some other purpose.' Commonwealth v. Helfant, 398 Mass. 214,
224 [496 N.E.2d 433] (1986). 'Evidence
of a hostile relationship between a defendant and his spouse may [however] be
admitted as relevant to the defendant's motive to the kill the victim spouse.'
Commonwealth v. Gil, 393 Mass. 204, 215 [471 N.E.2d 30] (1984). A defendant's oral threats and repeated acts
of violence may indicate 'settled ill‑will towards his wife, and
therefore [bear] directly on the question whether there was any motive for him
to commit the crime.' Commonwealth v. Holmes, 157 Mass. 233,
240 [32 N.E. 6] (1892). See Commonwealth v. Rodriguez, 425 Mass.
361, 370‑371 [682 N.E.2d 591] (1997); Commonwealth v. Gil, supra at 215‑216
[471 N.E.2d 30]; Commonwealth v. Fitzgerald, 380 Mass.
840, 850 [406 N.E.2d 389] (1980); Commonwealth v. Bonomi, 335 Mass. 327,
343 [140 N.E.2d 140] (1957)."
[428
Mass. 778] The evidence satisfied
these principles.
The judge also gave the jury a limiting
instruction to reduce the possible prejudicial effect of the evidence. He told the jury that the evidence could not
be used to show that the defendant had a bad character or a propensity to have
committed the murder. He also advised
them that the evidence could not be used to establish the identity of the
killer. The judge indicated that the
evidence could be considered as revealing the nature of the relationship
between the defendant and the victim and to show motive and intent on the
defendant's part. (FN8)
(b) The victim's daughter testified to an
argument she overheard between the defendant and the victim in September,
1994. The argument concerned the
defendant's repeated absences from the home.
The victim indicated that the defendant was being "irrational and
ridiculous, and she was fed up."
The victim described the defendant as "[d]ishonest," a
"[l]iar," "[c]heating," and said that she "had had
enough." The defendant told the
victim that, "If I can't have you, nobody will".
The evidence was admissible to show the
relationship between the defendant and the victim. "A murder victim's attitude of contempt
or hostility toward the defendant, when it is known to the defendant ... might warrant
a fact finder's determination that the defendant responded by killing the
victim." Commonwealth v. Qualls, 425 Mass. 163,
168, 680 N.E.2d 61 (1997). Cf. Commonwealth v. Jenner, 426 Mass. 163,
164‑166, 686 N.E.2d 1313 (1997).
The victim's statement also explained, and put in context, the
defendant's response. Prior to the
testimony, the judge gave a limiting instruction to the jury which clarified
the purpose of the evidence and the restrictions on its consideration.
[11] 7. There is no merit to the
defendant's argument that the prosecutor asked the medical examiner an improper
hypothetical question. The question was
posed on redirect examination to [428
Mass. 779] to matters that had been
raised by the defendant's trial counsel as to the cause of the victim's death. The facts in the question had a basis in the
evidence and did not call on the medical examiner to render an opinion as to
the defendant's possible guilt. The
medical examiner's response was that the victim's injuries were
"consistent with" the facts described by the prosecutor which
included facts pertaining to the defendant's height and weight. See
Commonwealth v. Woods, 419 Mass. 366, 374, 375 n. 13, 645 N.E.2d 1153
(1995);
Commonwealth v. Allen, 395 Mass. 448, 458‑459, 480 N.E.2d 630
(1985).
[12] 8. The decision whether to instruct
the jury about the claimed failure of the police to conduct an adequate
investigation and to conduct forensic tests was within the judge's discretion.
Commonwealth v. Rivera, 424 Mass. 266, 274, 675 N.E.2d 791 (1997),
cert. denied, 525 U.S. 934, 119 S.Ct. 346, 142 L.Ed.2d 285 (1998). The defendant's trial counsel examined the
Commonwealth's witnesses about the quality of the investigation and the
perceived need for testing, and he argued the defendant's position on the alleged
deficiencies to the jury in his closing argument. There was nothing to demonstrate that the
Commonwealth's investigation or failure to test was unreasonable or calculated
to deprive the defendant of potentially exculpatory evidence. Id.
The judge did not err by declining to give the instruction.
[13] 9. The defendant requested that the
jury be instructed only on murder in the first degree, and the Commonwealth
acquiesced in this request. The judge
conducted a colloquy with the defendant.
Contrary to the defendant's present assertions, we are satisfied that he
(a) was made aware of the differences between murder in the first and second
degrees, (b) knew that a conviction of the latter could lead to eligibility for
parole in fifteen years, although parole would not be guaranteed, (c) had
discussed the matter with his trial counsel, (d) was acting voluntarily, and
(e) was motivated by the desire to have a complete acquittal or nothing,
because, as the defendant put it, "Basically, the way I look at it, the
Commonwealth is trying to charge me for the death of my wife which I didn't do,
Your Honor." This argument now
made by the defendant that the jury should have been instructed on second
degree murder, is foreclosed by our decision in Commonwealth v. Vinnie, 428 Mass. 161, 179‑181, 698 N.E.2d
896, cert. denied, 525 U.S. 1007, 119 S.Ct. 523, 142 L.Ed.2d 434 (1998).
[14] 10.
The defendant's motion for postconviction relief claimed that his trial
counsel had furnished him with ineffective assistance[428 Mass. 780] of counsel in several respects. We have examined his contentions under the
standard that governs ineffective assistance claims in a case where there has
been a
conviction of murder in the
first degree. See Commonwealth v. Parker, 420 Mass. 242, 245‑246, 649 N.E.2d
727 (1995). The judge acted correctly in
rejecting the claims summarily in his memorandum of decision. The defendant was not harmed by his trial
counsel's failure to locate a witness who might verify the time he checked out
of the local hotel. The information was
brought out through other witnesses, and, this witness, if he could be located
at all, would only marginally aid the defense.
The claim that his trial counsel employed an investigator who did not do
a proper job for the defense is pure speculation. For the reasons already discussed, the
defendant's trial counsel did nothing that could have harmed the defendant in
connection with the defendant's informal decision to have the jury instructed
only on murder in the first degree or in connection with the hypothetical
question posed by the prosecutor on redirect examination of the medical
examiner. From all that appears in the
record, the defendant's trial counsel provided him with a thorough and vigorous
defense.
[15] 11.
The defendant argues that the judge should have held an evidentiary
hearing with respect to his allegation in his motion for postconviction relief
that a juror knew him, and failed to disclose that fact to the judge, and that
the juror had had a confrontation with the defendant on a prior occasion
(implying that the juror harbored hostility toward him).
The judge correctly decided, for the
reasons given in his memorandum of decision, that the defendant's claim of
possible juror bias was not supported by the record of empanelment and rested
on speculation. The juror made no
affirmative response to general questions posed to the jury venire and
responded positively and forthrightly to questions posed to him when he was
examined individually by the judge. It
appears that the defendant actively participated with his trial counsel in the
selection of the jury. The defendant may
have wanted the juror to sit because he desired to exclude as many women from
the jury as possible, (FN9) and because the defense may have thought the juror
would favor the defendant's claim of police misconduct in [428 Mass. 781] of the
juror's disclosure that he had a criminal record. The affidavit furnished by the defendant
indicated only that the juror may have known the defendant, and that the
affiant saw the two men speak to each other briefly at a party three years
before the trial, and thought that there had been "a confrontation of some
sort" between the two men. (FN10) The judge aptly observed that "[t]he
simple fact that a juror knew who a defendant was prior to impanelment and had
met the defendant briefly at a party three years before (which he may or may
not have recalled) does not disqualify him or require him to disclose this
fact." The judge went on to state:
"If [the juror] and the defendant
were social acquaintances, and particularly, if there was anything unfriendly
about their social relationship, the defendant would be the first to bring it
forward."
The judge's disposition of the
defendant's contention without an evidentiary hearing is supported by Commonwealth v. Amirault, 399 Mass.
617, 625, 506 N.E.2d 129 (1987); Commonwealth v. Dixon, 395 Mass. 149, 151‑152,
479 N.E.2d 159 (1985); Commonwealth v. Bianco, 388 Mass. 358,
368, 446 N.E.2d 1041,, S. C., 390
Mass. 254, 454 N.E.2d 901 (1983); Commonwealth v. Amazeen, 375 Mass. 73,
83, 375 N.E.2d 693 (1978). (FN11)
There is no reason to excise our
authority under G.L. c. 278, § 33E. The
defendant received a fair trial, and the jury's verdict is consistent with the
evidence that the defendant acted with malice and a conscious and fixed purpose
to kill his wife.
The judgment is affirmed. The order denying the defendant's motion for
postconviction relief is affirmed.
So
ordered.
(FN1.) The testimony that could have warranted
these findings was admitted for a limited purpose by the judge after he
conducted voir dire proceedings. We
shall discuss the testimony in more detail later in this opinion when we deal
with the defendant's arguments on why the evidence should have been excluded.
(FN2.) Thus, this case is not like Commonwealth v. Olszewski, 401 Mass.
749, 756, 519 N.E.2d 587 (1988), S.C.,
416 Mass. 707, 625 N.E.2d 529 (1993), where the Commonwealth and its agents
lost or destroyed highly relevant evidence which defeated the defendant's
opportunity effectively to present a defense.
In this case, the Commonwealth did not have possession of, and then lose
or destroy, evidence, and no evidence derived from any preexisting evidence
that had been lost or destroyed was introduced against the defendant at trial.
(FN3.) The defendant's expert removed
approximately 300 hairs from the blanket.
Some were animal hairs and some were human hairs. The expert testified that examination for
trace evidence was important, if there was nothing else. He did not say that failing to look for trace
evidence might show something wrong with the investigation. He indicated that it was the decision of the
investigators based on what they felt was necessary at the time. The expert testified to the presence of five
separate categories of hair found on the blanket, but did not suggest they had
come from different people. It may have
come from only two people. The defendant
lived with the victim in the marital home.
(FN4.) The judge noted the possible relevance
of G.L. c. 209A, § 6, which directs the police to use "all reasonable
means" to protect a victim from further domestic abuse. The defendant points out, quite correctly,
that a statute cannot supersede constitutional safeguards to authorize an
otherwise unlawful entry. Nonetheless,
the element of domestic violence present in the facts here is a consideration
which has to be taken into account in deciding whether the police possessed
facts which warranted a reasonable belief that the marital home should
immediately be checked to determine the well‑being of the victim.
(FN5.) These findings are that the police were
aware of a prior incident of domestic violence between the victim and the
defendant that had occurred in 1993, and of "similar accusations [made by]
the victim against the defendant," and that the police were aware that the
victim's brother had driven by her home when he could not reach her by
telephone.
(FN6.) We reject the defendant's contention
that the situation here is analogous to that confronting the police in Commonwealth v. Bates, 28 Mass.App.Ct.
217, 221, 548 N.E.2d 889 (1990). In Bates, the Appeals Court concluded that
it was inappropriate to invoke the emergency doctrine to justify a warrantless
entry into an apartment where the police had delayed for over three hours after
having received a report of a missing person. Id. at 219, 548 N.E.2d
889. The court intimated that the
result might have been different had the Commonwealth claimed and presented
evidence (as it did here) that a second call to the police, received
contemporaneous with the dispatch, actually precipitated the entry. Id.
at 221‑222 n. 3, 548 N.E.2d 889.
(FN7.) We reach this conclusion under both the
Fourth Amendment to the United States Constitution and art. 14 of the
Declaration of Rights of the Massachusetts Constitution. Because we conclude the emergency exception
was properly invoked, we need not address the Commonwealth's claim that the
search of the defendant's residence was justified under the inevitable
discovery doctrine.
(FN8.) The judge also told the jury that the
evidence might show a "pattern of conduct" on the defendant's
part. This part of the instruction
should have been omitted. We do not
think that it harmed the defendant in view of the predominant correctness of
the instruction.
(FN9.) The defendant brought to the judge's
attention during jury selection that he knew two prospective female
jurors; one was excused for cause and
the other was removed by the defendant's exercise of a peremptory
challenge. The defendant's trial counsel
also indicated, during discussions on replacing an unsworn juror, that the
defense "had been counting literally the sexual make up" of the jury.
(FN10.)
The defendant filed no affidavit of his own to support the motion. In denying the motion, the judge noted the
lack of any "comment" by the defendant "on the subject of [the
juror's] selection, either at the time he was selected or during the trial or
now by affidavit in his [m]otion."
The defendant then filed a motion for reconsideration, including an
affidavit, in which he attempted to explain his failure to challenge the
juror. The judge properly denied the
motion for reconsideration.
(FN11.) We reject the defendant's additional
claim that the judge's interrogation of the jury venire used imprecise
questions that may have confused the jurors.
The questioning was thorough and led to the seating of a jury
satisfactory to the defendant before he had used all of his peremptory
challenges.