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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. Voisine, 414
Supreme Judicial Court of Massachusetts,
Argued
Decided
John B. Glynn,
Frank M. Gaziano, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and
GREANEY, JJ.
NOLAN, Justice.
A jury found the defendant guilty of murder in the first
degree, burglary, larceny in a building, larceny of a motor vehicle, and
burning of a motor vehicle. On appeal,
the defendant advances four arguments claiming error. We reject the defendant's arguments and
affirm the convictions. We also conclude
that there is no basis to exercise our power under G.L. c. 278, § 33E (1990
ed.), to direct the entry of a verdict of a lesser degree of guilt, or to order
a new trial in connection with the murder conviction.
On
The next day, a Whitman police officer called the
victim's mother. The officer asked her
where he could reach her son. When asked
why he was inquiring, the officer told her that a burned automobile registered
to her son had been found.
In response, she left her office and went to her son's
condominium which was located nearby.
(FN1) When she arrived she
noticed her son's automobile was not parked in its usual spot. She approached the front door of the
condominium unit and found that it was unlocked. She entered the living room and found it in
disarray. The condition of the
condominium surprised her because she knew the victim to be meticulous. The victim's mother ascended the stairs to
the second floor. She observed a hammer
in the bathroom sink, she then went into the rear bedroom where she saw her son
lying on his right [414
The victim's mother telephoned the Whitman fire
department. The first fire fighter on
the scene confirmed that the victim was dead.
He later testified that the wall behind the victim's bed was splattered
with blood. Thereafter, Whitman police
arrived. The investigating officers
suspected that the hammer, which the victim's mother had observed in the
bathroom sink, was the murder weapon.
Laboratory analysis later revealed that the hammer had human blood and
hair on its maul face. The hair matched
that of the victim.
Dr. John C. DuVale performed an autopsy on
Jay Godleski, a senior chemist with the Department of
Public Safety, investigated the
scene. Godleski, who testified as an
expert in the field of blood stain analysis, observed more than 600
"directional spatters" in the victim's bedroom. The blood stains were shaped like teardrops
with the point of the drop indicating the path of travel. The stains were found on the walls, bedroom
furniture, and the headboard of the bed indicating that the victim had been
struck while in bed. Several stains were
found four to five feet from the body.
Investigating officers also found a bag, wrappings, and
packaging of food from a Burger King restaurant in the living room. A sales receipt in the bag indicated that the
food was purchased on
[414
Shortly after
Studinski reported that she had been living with the
defendant until either March 7 or March 8.
She also told police that the defendant was dating Rachel Barkley, and
suggested that they might find him at Barkley's residence in
Shortly after Paula Studinski gave police her statement,
police interviewed Corey Bunch. Bunch
was a roommate of Paula Studinski, but was not at home on the night of
At approximately
The police found the defendant on the floor hiding under
a comforter. He was wearing a high
school class ring and a watch later identified as belonging to the victim. The defendant was arrested for the victim's
murder.
At trial, Paula Studinski testified under a grant of
immunity. She testified that she had met
the defendant in February, 1986, and started dating him in April of that
year. Studinski testified that she moved
into an apartment in Brockton occupied by her father in July, 1987. Lieutenant Studinski testified that he moved
out of the apartment in October, 1987, and that Paula was not seeing the
defendant while Studinski was living with his daughter. Paula testified that her parents did not
approve of her relationship with the defendant.
After her father moved out, Paula Studinski testified
that the defendant and one Divana Smith moved into the apartment. In December, 1987, Corey Bunch moved in. Paula said [414 Mass. 777] that
the defendant moved out of the apartment at her request on March 7 or March
8. Paula next heard from him during the
early morning hours of March 13, 1988.
On Saturday night, March 12, 1988, Paula Studinski was
home socializing with friends. Paula
testified that the telephone rang at approximately 1 A.M. She testified that it was the
defendant. She asked the defendant where
he was. Paula testified that the defendant
replied, "In Whitman, at this guy's house." Paula testified that the defendant next told
her that "he wanted to kill someone." Paula asked why. She testified that the defendant responded,
"Because I feel like I am being set up." Paula told the defendant that it was not
right. Paula testified that the
defendant concluded the conversation by stating, "I love you, and I'll
call you when its done."
The telephone rang a second time forty-five minutes
later. Paula testified that it was again
the defendant who said, "It's done."
Paula testified that, when she asked, "What," the defendant
repeated, "It's done. I did
it." Paula said the defendant then
asked whether he could visit her. Paula
said no and hung up the telephone. Paula
testified that the defendant telephoned a third time ten minutes after the
second call. The defendant said he had
been drinking and wanted to visit her.
Paula acquiesced and asked him how he was going to get to her
apartment. The defendant responded,
"I'll take the car."
One of Paula's guests corroborated Paula Studinski's
recounting of these events. On direct
examination, the guest testified that she had known the defendant since June,
1986, and that Paula Studinski was her best friend. She also said that she had had a relationship
with the defendant and that they had a child together. Paula testified that the defendant arrived at
her apartment at about 5 A.M. on March 13, 1988. When he arrived Paula said he was carrying a
grocery bag and a portable radio.
Later that day, at around noon, Paula awoke. She testified that the defendant asked her if
she wanted to see what he had brought.
Paula testified that the defendant showed her the contents of the bag
which included a number of compact discs, a wallet holding a driver's license
in the name of the [414 Mass. 778] victim, and an envelope
containing coins. Paula testified that
the defendant told her he had obtained these items from the "house he had
been at the night before."
Paula examined the items and then asked if the defendant
was sure the man was dead. The defendant
responded, "No, I am not sure, but if he wasn't then, he is
now." After some hesitation, the
defendant told Paula that he had used a hammer to kill the victim.
Paula testified that after the defendant placed a
telephone call to Corey Bunch, he said he had to get some things from the
automobile, and she went outside to hold open the door. She observed him taking articles of clothing
out of a new red automobile. (FN2) He carried the clothes into her bedroom.
The items included jackets, sweaters, jeans, and one pair of shoes. The items were identified at trial as
belonging to the victim. After unloading
the car, at approximately 2 P.M., the defendant left to meet Corey Bunch.
Paula testified that the defendant returned later that
afternoon. He was accompanied by Corey
Bunch and one Chris Murray. The three
men planned an evening of dancing and entertainment. The defendant and Bunch dressed in the
victim's clothes. Before he left, the
defendant realized that he had left his hat at the Whitman condominium. Paula testified that the defendant said, "Oh,
shit, I left my hat there." Paula
had given the hat to the defendant as a Christmas present. It was a white baseball cap that bore the
letters "S I K E" on the front of the hat. The three left the apartment at 7:30 P.M.
intending to visit a dance club. They
departed in the victim's automobile. The
defendant drove. On route, the defendant
stopped at the victim's condominium.
Chris Murray, who had known Corey Bunch for more than four years, and
thought himself a good friend, testified that the defendant brought the hat out
of the condominium. After retrieving the
hat, the three proceeded to the dance hall.
[414 Mass. 779] After an hour, the
defendant, Bunch, and Murray left the dance and went to a Burger King
restaurant in Hanover. Chris Murray said
he left the defendant and Bunch after arriving at the restaurant. Murray said he received a ride home from
another person and did not see the defendant and Bunch after they reached the
restaurant.
At approximately 10:30 P.M., the defendant and Corey
Bunch purchased food at Burger King and drove to the victim's condominium. After arriving, the defendant and Bunch ate
their food and moved items from the condominium to the automobile. They left the wrappings and packaging from
their meal in the victim's living room.
Fingerprint analysis later conducted on the refuse revealed two latent
fingerprints. A police analyst
identified one fingerprint as the defendant's and one as that of Corey Bunch.
Paula testified that Bunch and the defendant returned to
her apartment at 11:30 P.M. They
carried the items they had removed from the victim's condominium into the
apartment. The items included two
television sets, a clock radio, an antique clock, a telephone, and a bag of
clothing. Paula testified that she had
discussed the automobile with the defendant.
Paula said that he indicated that he needed "to get rid of
it." On
Paula testified to the events of Wednesday, March 16,
1988. When she came home from work the
defendant and [414
The Commonwealth introduced testimony concerning Corey
Bunch's whereabouts on the evening of March 12-13. David Baker testified that he picked up Bunch
at his girl friend's apartment around 7:30 P.M. on March 12, and went to a
"dance club," the Car Palace, with him. Baker testified that he dropped Bunch off at
his girl friend's house at 1:45 on the morning of March 13. During cross-examination Baker testified that
his dislike for the defendant was well known.
(FN4)
Jeanette Maitland, Corey Bunch's girl friend, testified
and corroborated David Baker's story as it pertained to Corey Bunch's
whereabouts on the evening of March 12 and the early morning hours of March 13,
1988. She also testified that the
defendant called Bunch at her apartment around noon on March 13 and picked up
Bunch later that afternoon in front of her apartment.
Rachel Barkley testified that she met the defendant in
May, 1987. She said that they had a
brief relationship, which resumed in March, 1988. Barkley testified that the defendant
"moved in" with her on March 4, 1988.
On March 12, 1988, the defendant left her apartment at 9 P.M. after an
argument. Barkley testified that he
visited during the week of March 13, 1988, and returned on the evening of March
20, [414 Mass. 781] 1988.
Barkley testified that she noticed that the defendant was wearing a new
ring when he returned.
In his defense, the defendant tried to implicate Corey
Bunch. The defendant called one Kenneth
Baily, who testified that he had attended the Car Palace on the evening of
March 12, 1988, the same club Corey Bunch allegedly attended. Baily testified that there were approximately
150 patrons in the club that night.
Baily testified he had known Bunch for about one year but did not see
him at the Car Palace that night. On
direct-examination, Baily testified that he had been the defendant's
"roommate" while incarcerated in a house of correction.
We now examine the issues raised on appeal by the
defendant.
[1] 1. The hat.
After jury empanelment, the defendant filed a motion in limine seeking
to prevent the Commonwealth's expert from testifying that the reddish-brown
stains found on the defendant's hat were human blood. The defendant objected because the
Commonwealth failed to conduct blood-grouping analysis to prove that the blood
on the hat was that of the victim and not that of the defendant. The judge denied the motion, and the
defendant appeals. The defendant argues
that the testimony was irrelevant and unduly prejudicial. We disagree.
"In order to be considered admissible, evidence
'need not establish directly the proposition sought; it must only provide a link in the chain of
proof.' " Commonwealth v.
Yesilciman, 406
The Commonwealth's expert testified that the trauma the
perpetrator inflicted on the victim caused severe bleeding and blood
splattering. Investigators found more
than 600 directional blood splatters on the walls and furniture in the victim's
bedroom, some more than four feet from the victim's body. The defendant, according to two witnesses,
said that he [414 Mass. 782] left his hat in the victim's
condominium on March 12, 1988, the last day the victim was seen alive. Further, the Commonwealth's expert testified
that twenty-five reddish-brown stains were found on the hat, many of which were
located on the underside of the hat's brim.
The defendant argues, nonetheless, that admission of the
testimony without proof that the
blood was that of the victim was overly prejudicial. We disagree.
"Evidence is not rendered prejudicial merely because it is
inconclusive. It is axiomatic that it is
for the jury to determine the probative value to be accorded relevant
evidence."
2. The defendant's arrest. Police arrested the defendant at Rachel
Barkley's residence on the morning of March 21, 1988. The police learned of the defendant's
whereabouts from two witnesses, Paula Studinski and Corey Bunch. After arresting the defendant, police seized
a ring, a wallet, and a watch from him, all of which belonged to the
victim. Prior to trial, the defendant
moved to suppress all this evidence on the ground that the warrantless arrest
and search were unlawfully conducted.
After an evidentiary hearing, the motion judge denied the motion. We affirm the motion judge's decision.
Of the possible justifications for the warrantless arrest
and seizure, we need consider only one, consent. At the threshold, we note that the defendant
was an overnight guest in Rachel Barkley's apartment, having stayed with her
two or three times between March 1, 1988, and the day of the defendant's
arrest. The defendant did not contribute
to Barkley's rent payment and kept only a few items of clothing at her
apartment. We are faced with a
preliminary question concerning the defendant's standing to challenge the
warrantless entry into Barkley's house.
For the purpose of analysis only, we [414 Mass. 783] shall
assume that the defendant has standing.
See
[2][3][4] We turn now to the merits of the defendant's
challenge. As the motion judge noted in
her memorandum of decision, "Police may not make a warrantless entry into
the home of a third person to arrest a suspect or to search for or seize
evidence, absent exigent circumstances or consent." Commonwealth v. Derosia, 402
[5] At the motion hearing, Barkley testified that she
knew that she did not have to let the police into her apartment, but chose to
do so anyway. The fact that Barkley
communicated her consent by pointing in the direction of the bedroom where the
defendant was hiding, rather than by speaking is of no effect. See generally Commonwealth v. Maloney,
399 Mass. 785, 787, 506 N.E.2d 1147 (1987).
The voluntariness of an individual's consent is a question of fact,
Commonwealth v. Aguiar, 370 Mass. 490, 496, 350 N.E.2d 436 (1976). In the present case, the judge's decision was
without taint of error given the circumstances.
3. Corey Bunch's testimony. The defense sought to implicate Corey Bunch
as the murderer. On the final day of the
trial, the defense sought to call Corey Bunch as a witness. Nine months prior to trial Bunch pleaded
guilty as an accessory after the fact to murder, burglary, larceny in a
building, receiving stolen property, and the burning of a motor vehicle. At a sidebar conference, the prosecutor
anticipated that Bunch would invoke his privilege against self-incrimination
when called to testify. He requested a
voir dire with the witness outside the presence of the jury.
[414 Mass. 784] Bunch was represented by
counsel at the voir dire. When
questioned, Bunch asserted his privilege against self-incrimination. The judge accepted Bunch's assertion of the
privilege but ordered Bunch to answer questions regarding his height, weight,
name, age, and address. Further, the
judge allowed Bunch to stand beside the defendant so that the jury could view
their difference in size--the point being that Bunch was bigger and therefore
more likely to have possessed the required strength to deliver the blows.
[6] On appeal, the defendant argues for the first time
that Bunch waived his privilege against self-incrimination under the Fifth
Amendment to the United States Constitution by pleading guilty to related
crimes. The defendant argues that Bunch
should not have been allowed to invoke his Fifth Amendment right as to his
involvement in the murder and his whereabouts on the evening of March 12-13,
1988. There was no error.
"It has long been the law in Massachusetts that if
an ordinary witness, not a party to a cause, voluntarily testifies to a fact of
an incriminating nature he waives his privilege [against self-incrimination] as
to subsequent questions seeking related facts."
The defendant would have us equate Bunch's guilty pleas
with testimony for the purposes of determining waiver of the privilege. This is a step we are not prepared to take.
The defendant's argument rests on the assumption that
Bunch could not incriminate himself because he had pleaded guilty to the crimes
charged. It cannot be said that the
Bunch's testimony would not "furnish a link in the chain of evidence [414
Mass. 785] needed to prosecute the claimant," on an additional
charge as a principal to murder in the first degree. Commonwealth v. Borans, 388 Mass. 453,
456, 446 N.E.2d 703 (1983), quoting Hoffman v. United States, 341 U.S.
479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). "[A] witness does not lose his Fifth
Amendment right to refuse to testify concerningother matters or
transactions not included in his conviction" (emphasis in original). Commonwealth v. Borans, supra, 388
4. Cross-examination of Paula Studinski. During cross-examination of Paula Studinski,
defense counsel attempted to show bias by revealing that Paula had claimed the
Fifth Amendment privilege during the grand jury proceedings and had refused to
testify prior to the Commonwealth's grant of immunity. The judge allowed the inquiry but then
instructed the jury: "Now, members
of the jury, I instruct you as a matter of law, the assertion of a
Constitutional right is the prerogative and the right of every citizen. An assertion of such right is not to be held
against the person asserting that right in any respect." The judge continued, "I further advise
you on direct examination the witness was asked and testified about a grant of
immunity [the] prosecution afforded her.
It's ... also the law of the Commonwealth, that as the basis or
predicate for a grant of immunity, a witness is obliged to assert her privilege
against self-incrimination." The
judge did not repeat the instruction to the jury while charging them after
final arguments.
[7][8] It is
axiomatic that a criminal defendant is entitled to cross-examine a witness to
show bias or inducement to testify. See
P.J. Liacos, Massachusetts Evidence 145 (5th ed. 1981). In some cases, circumstances are present that
make a witness's invocation of the privilege and subsequent grant of immunity
ripe for impeachment purposes. In
certain circumstances, invocation of the privilege and a subsequent grant of
immunity or promise of leniency by the government bear directly [414
First, the record reveals that defense counsel repeatedly
attacked Paula Studinski's trustworthiness, reliability, and credibility on
numerous grounds. The defense suggested
that Studinski had motive to fabricate because the defendant was now involved
with another woman. The defense
suggested that Paula's testimony was the product of prompting by her father,
who did not approve of her relationship with the defendant. The defense even hinted at a possible relationship
between Corey Bunch and Studinski giving rise to the inference that her
testimony was the product of a conspiracy.
Second, the evidence concerning Paula's invocation of the
privilege and the Commonwealth's subsequent grant of immunity was clearly
before the jury. During closing argument
the defense counsel reprised the subject at issue: "On April 4th, 1988, she's called before
the grand jury, and all of a sudden Paula takes ... the Fifth Amendment, she
buttoned up because she could still be exposed, and all of a sudden Daddy comes
to her aid, again escorts her into the Supreme Judicial Court in downtown
Boston ... and she gets immunity. Now,
she comes back April 11, 1988. She's not
under duress now; she's gotten immunity,
and immunity basically means if we think you lie you could get hooked for
perjury."
The final fact supporting our conclusion pertains to the
judge's charge to the jury concerning the credibility of witnesses. In his charge to the jury, the judge
said: "Now, among your other
responsibilities is evaluating the credibility of witnesses as you decide
disputed questions. You should give the
testimony of each witness whatever degree of belief [414
5. G.L. c. 278, § 33E. We have reviewed the record and conclude
that the defendant's conviction for murder in the first degree deserves to
stand.
Judgments affirmed.
(FN1.) The victim had a seasonal
job as a golf course manager. As his
seasonal duties had not yet commenced, the mother expected her son to be at
home.
(FN2.) The defendant had not previously owned
an automobile. The victim had recently
purchased a new red Oldsmobile automobile in February, 1988.
(FN3.) At the time of trial, Hodges testified
that he stood charged with the burning of a motor vehicle. Hodges testified that he had agreed to
testify truthfully in return for dismissal of the charge against him.
(FN4.) Baker testified that he was charged
with receiving stolen property--Corey Bunch had given or sold Baker one of the
victim's television sets. Baker testified
that he was convicted and sentenced to one year of probation and a suspended
one-year sentence in return for his testimony.