Commonwealth v. HartCommonwealth v. Hart
LOWY, J. The defendant and his girlfriend entered an elderly couple‘s home through an unlocked door, stabbed and suffocated the two occupants of the house, and stole their
In this appeal, the defendant argues that his convictions should be reversed on three bases: (1) the defendant‘s confession to law enforcement was involuntary and should havе been suppressed; (2) the trial should have been transferred to another venue due to pretrial publicity; and (3) a victim‘s out-of-court statement should have been excluded from evidence because it was inadmissible hearsay and the victim did not testify at trial. The defendant further contends that, considering his age at the time of the crimes, his sentences of life without the possibility of parole constitute cruel or unusual punishment. Lastly, the defendant asks us to exercise our authority under
a. The attack on Thomas Harty and Joanna Fisher. On October 5, 2016, the defendant and his girlfriend, Brittany Smith, decided that they would leave town in light of pending criminal charges and that they would break into a house to steal a car and money to effectuate their escape. At around 7:30 P.M., they chose a specific house in Orange because the garage contained an older car, which they believed would be less likely to have a tracking system. The defendant and Smith knew that there were two individuals inside the house, and they intended to intimidate the occupants of the house into providing money and the keys to the car.
The defendant and Smith both entered the garage of the house through an unlocked door, collected a socket wrench from the garage, and proceeded into the house. As they walked through the kitchen towards the living room, each also picked up a knife from the kitchen counter.
Thomas Harty, the ninety-five year old homeowner, stood up from an armchair in the living room to confront the two intruders. The defendant entered the living room, where he stabbed Harty in the neck and multiple times in the chest. The
Next, the defendant turned to Joanna Fisher, Harty‘s seventy-seven year old wife, who was nonambulatory and a full-time wheelchair user. Smith had already assaulted Fisher, and Fisher was lying on the ground. The defendant stabbed Fisher numerous times, stood on her stomach in an attempt to take the air out of her body, and put a pillow over her face to suffocate her.
The defendant and Smith proceeded to steal credit and debit cards, approximately $200, a cell phone, and a car. They then disabled the house telephones and fled.
b. Fisher‘s statements. At approximately 9:10 A.M. the following day, October 6, 2016, Cindy Sumner-Moryl arrived at the house. Sumner-Moryl was Fisher‘s nurse and had a scheduled appointment to assist Fisher with physical therapy exercises and other personal care needs. She and another care worker found the house in disarray, Harty motionless in the armchair in the living room, and Fisher on the floor in her bedroom. Fisher had a blanket over her legs, she was lying in a pool of blood, and there was blood on the side of her face. Sumner-Moryl testified as follows at trial:
“I heard her moaning, so I went over to her right away. And she said, [‘]Cindy, is that you?[‘] And I said [‘]yes[‘] and she said [‘]invasion, ambulance.[‘] And I
reassured her that we had help coming and that she was safe. . . . I directed [the other cаre worker] to call 911. . . . And I stayed with Ms. Fisher to comfort her. . . . She wanted to know if she had a black eye and I said yes, she did. And she told me that they tried to kill her, that they kept putting a pillow over her face and tried to smother her[;] she said, [‘]But, I‘m tough.[‘] Then she told me that she dragged herself out onto the porch and tried to call for help, but no one heard her.”
Fisher was brought to the hospital for medical attention for stab wounds, loss of blood, rib fractures, and other abrasions and lacerations. Harty was declared deceased; Fisher died weeks later from complications arising from the attack.
c. The police investigation. Shortly after Sumner-Moryl found Fisher, police arrived at Harty and Fisher‘s home. There was evidence of an attack throughout the house. Harty lay lifeless in the armchair in the living room, and there were bloodstains аcross the living room -- on the floor, on multiple pillows, and on the chair in which Harty was found dead -- as well as in the rest of the house. The police found a socket wrench and a disabled cordless telephone on the dining room table, and a disabled cordless telephone in the living room.
Within hours of the attack, the police were notified that someone attempted to use Harty‘s credit card at a store in Worcester. The police then obtained photographs showing the defendant and Smith attempting to use Harty‘s credit card and successfully using Fisher‘s debit card there. A photograph and a video recording also showed the defendant and Smith in the
The police proceeded to speak with witnesses who stated that they saw the defendant and Smith together immediately before the attack. Surveillance footage from a small market further placed the couple together near the victims’ house around the time of the attack, and the local police‘s bloodhound tracked Smith from the market to the victims’ home based on the scent of a shirt Smith had been wearing shortly before the attack.
Forensic and physical evidence also tied the defendant and Smith to the crime scene. Rosary beads, matching a description from a rosary worn by the defendant on the night of the attack, were discovered on the living room floor and in the chair in which Harty was found. The defendant‘s fingerprint was found on a window shade bеhind Harty‘s body, and Smith‘s fingerprints were found on various windows around the house. A footwear impression consistent with the heel print of a Nike Air Jordan, the type of sneaker the defendant wore on the night of the attack, was found on the floor of the living room.
Massachusetts law enforcement tracked the defendant and Smith over the following days as the two assailants fled down the east coast. On October 8, 2016, Rockbridge County,
d. The defendant‘s interrogations with law enforcement. Once in custody, the defendant immediately indicated that he wanted to speak with the Virginia officers. The Virginia officers, after consultation with Massachusetts law enforcement officers, agreed to meet with the defendant and brought him from his cell to an interview room. During an approximately one-hour long audio-recorded conversation, the defendant confessed to the attack on Harty and Fisher. The defendant also provided a sketch of the victims’ house and a written confession.
The next day, two Massachusetts State police troopers (Massachusetts officers) met with the defendant in the Rockbridge County, Virginia, sheriff‘s office. This conversation was also audio recorded and lasted approximately two hours and ten minutes. The defendant again made numerous admissions detailing the crimes that he and Smith committed.
The defendant‘s codefendant, Brittany Smith, was subsequently and separately tried for and convicted of two charges of murder in the first degree for killing Harty and Fisher, among other charges. See Commonwealth v. Smith, 492 Mass. 604, 604-605 (2023).
2. Discussion. a. Voluntariness of confession. The defendant argues that his rights under
A statement is presumed voluntary until a defendant produces any evidence showing otherwise.4 Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011). Once a defendant presents such evidence through a motion, affidavit, or proffer, the burden shifts to the Commonwealth to prove beyond a reasonable doubt that the statement was made voluntarily. Id. A voluntary statement is “the product of a ‘rational intellect’ and a ‘free will,’ and not induced by physical or psychоlogical coercion” (citation omitted). Hammond, 477 Mass. at 502. More specifically, “[t]he test for voluntariness . . . is ‘whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act‘” (citation omitted). Id. “Under this ‘totality of the circumstances’ test, we consider all of the relevant circumstances surrounding the interrogation and the individual characteristics and conduct of the defendant”
“promises or other inducements, conduct of the defendant, the defendant‘s age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendаnt or the police), and the details of the interrogation[, including the recitation of Miranda warnings]” (citation omitted).
The totality of the circumstances here demonstrates that the will of the defendant was not overborne when he confessed to the Virginia officers. The interrogation lasted only approximately one hour, and the tone during the entirety of the interview was conversational rather than adversarial: no one raised his or her voice, the Virginia officers never harassed the defendant, and the defendant never appeared agitated or intimidated by the Virginia officers. Additionally, the defendant did not appear particularly vulnerable to coercion. He was an adult with a postsecondary education; he appeared physically healthy аnd mentally coherent; and he had had significant experience with the criminal justice system. The defendant was able to recite the Miranda warnings himself -- saying that “[he knew] them very well” -- prior to the Virginia officers formally providing those warnings and obtaining a voluntary waiver. The defendant initiated the conversation with
The defendant nonetheless contends that his statements were involuntary because the police (i) used a “now or never” interrogation tactic; (ii) used language minimizing the crimes; (iii) appealed to the defendant‘s religious beliefs; and (iv) made a promise tо facilitate leniency for the defendant‘s girlfriend. We disagree.
i. ”Now or never.” A “now or never” interrogation tactic is one that “lead[s] a defendant to believe that the conversation with police will be his or her sole opportunity to tell his or her story.” Commonwealth v. Miller, 486 Mass. 78, 92 (2020). The “now or never” tactic “casts substantial doubt on the voluntariness of a subsequent confession and on the integrity of the interrogation process leading up to it,” and “[t]his doubt would be extremely difficult for the Commonwealth to overcome in any case.” Id. at 93, quoting Commonwealth v. Novo, 442 Mass. 262, 269 (2004). This tactic was not used here, however. The Virginia officers encouraged the defendant to “take advantage of this opportunity to talk with [them],” but at no time insinuated that this was the defendant‘s “sole opportunity” to tell his story. Further, our prior cases have
ii. Minimization. We have explained that “the standard interrogation tactic of minimization is problematic” because describing a crime repeatedly “as understandable, justifiable, and not particularly serious” could imply a promise of leniency (citation omitted). Commonwealth v. Harris, 468 Mass. 429, 436 (2014). “Use of the tactic by itself, however, does not compel[] the conclusion that a confession is involuntary” (quotation and citation omitted). Id. See Hammond, 477 Mass. at 503-504 (“Minimization, combined with other factors, may render a confession involuntary . . .“). When analyzing the
Here, the defendant‘s statements demonstrate that he was not misled into somehow believing the situation was not serious. The Virginia officers interrogating the defendant twice used minimizing language, categorizing the defendant‘s crimes as “a mistake” and “a lapse in judgment.” But the defendant immediately disagreed with the Virginia officers: when one Virginia officer characterized the crimes as “a mistake,” the defendant replied, “Well this is bigger than a little mistake.” The Virginia officers also later stated to the defendant that “this is a pretty severe, heinous incident,” to which the defendant agreed. Any minimization tactic employed here did not coerce the defendant to confess because “the defendant‘s actions reveal that he was able to decide what to tell the officers and could further identify the officers’ tactics for what they were.” Commonwealth v. Durand, 457 Mass. 574, 596-598 (2010), S.C., 475 Mass. 657 (2016), cert. denied, 583 U.S. 896 (2017). Indeed, even had the defendant been misled, the Virginia officers’ use of minimization, without more, would not affect the outcome of our analysis here in the face of significant аnd
iii. Appeal to religion. In Cartright, we adopted the approach of some jurisdictions that “condemn ‘the tactic of exploiting a suspect‘s [specific] religious anxieties,’ but [do] not order suppression where the commentary on religion is limited and not ‘calculated to exploit a particular psychological vulnerability of the defendant.‘” Cartright, 478 Mass. at 289-291, quoting People v. Kelly, 51 Cal. 3d 931, 953 (1990), cert. denied, 502 U.S. 842 (1991). Here, the reference to religion was extremely limited, if present at all. The Virginia officers referenced Smith‘s “soul” only once.5
iv. Promise of leniency. The defendant‘s remaining contention is that the Virginia officers promised leniency for his girlfriend in exchange for his confession. Officers may not make a threat concerning a person‘s loved one, such as threatening arrest and charging a loved one without any basis to do so or “expressly bargain[ing] with the defendant over the release of other individuals.” Commonwealth v. Raymond, 424 Mass. 382, 396 (1997), S.C., 450 Mass. 729 (2008). See Commonwealth v. Colon, 483 Mass. 378, 389 (2019). However, this is not a case where the Virginia officers threatened the defendant as to his relationship with a loved one, contrast
Instead, the Virginia officers simply provided a truthful response to the defendant‘s inquiry. Both the defendant and Smith were taken into custody by the Virginia officers under warrants based on probable cause. The defendant then requested to speak with the Virginia officers and, with urgency, raised the issue of his girlfriend‘s innocence and stated multiple times at the beginning of the interrogation that Smith was not responsible for what had occurred. Only after raising the issue of his girlfriend‘s lack of responsibility did the defendant, in reference to his girlfriend‘s then-alleged innocence, ask, “[D]o you think after we talk there‘s a way we could try to contact the police department down there and arrange something?” The
In this context, the Virginia officer‘s response was a truthful explanation of what he believed would be the benefit of the defendant‘s confession: if the defendant was being honest when he stated that Smith was not involved in the killings, then leniency for Smith would likely result. Explaining the truthful, natural result of a suspect‘s statement is permissible. See Commonwealth v. Berg, 37 Mass. App. Ct. 200, 205-206 (1994); United States v. Hufstetler, 782 F.3d 19, 24 (1st Cir.), cert. denied, 577 U.S. 884 (2015) (“Without more, an officer‘s truthful description of the family member‘s predicament is permissible since it merely constitutes an attempt to both accurately depict the situation to the suspect and to elicit more information about the family member‘s culpability“); United States v. McWhorter, 515 Fed. Appx. 511, 518 (6th Cir.), cert. denied, 570 U.S. 912 (2013) (confession was voluntary where officer stated to suspect “that if he was responsible for all the criminal activity, the state would not be interested in prosecuting his wife“); United States v. Jones, 32 F.3d 1512, 1517 (11th Cir. 1994) (where agents truthfully told defendant that “unless [he] explained the participation of his girlfriend, she would continue to be considered a suspect,” confession was found to be voluntary); Bruno v. State, 574 So. 2d 76, 79-80 (Fla.), cert. denied, 502 U.S. 834 (1991) (“Even taking into account that [the detective] later testified at the trial that he had told [the defendant] that if he gave a sworn statement exculpating his son, his son would not be charged, the record supports the conclusion that the confession was freely and voluntarily made[;] [t]he police legitimately believed that [the defendant‘s] son was involved but recognized that if [the defendant] gave a sworn statement exculpating his son there would be no basis upon which his son could be charged“); Bailey v. State, 473 N.E.2d 609, 610 (Ind. 1985) (confession was voluntary where defendant “was merely advised that [friend‘s release] would not be forthcoming without some basis for believing that, although the two were caught in the car with the goods, the friend had no knowledge of the burglary“).
Indeed, the defendant‘s motivation for speaking with law enforcement, at its core, can be reduced to one driving force: his desire to protect his girlfriend. This desire, absent any illegitimate police tactics, does not render a confession involuntary. See Commonwealth v. Scott, 430 Mass. 351, 355 (1999) (“The defendant‘s concern for his sister is not enough to tip the balance where all other factors indicate that the defendant made his statement voluntarily“); Raymond, 424 Mass. at 396 (“a motive to protect his mother is not sufficient to find [the defendant‘s] confession involuntary” [citation
Under the totality of the circumstances, the defendant‘s statements to the Virginia officers were made freely and voluntarily.6
b. Fair and impartial jury. The defendant argues that his right to a fair and impartial jury as violated when the trial judge declined to change the venue of the trial despite local pretrial publicity of the crimes. A trial judge “should exercise [the] power to change the venue of a trial with great caution” and only after the defendant has met his or her burden “to establish the ‘solid foundation of fact’ necessary to support a grant of the motion” (citation omitted). Commonwealth v. Bateman, 492 Mass. 404, 430 (2023). “The mere existence of pretrial publicity, even if it is extensive, does not constitute a foundation of fact sufficient to require a change in venue” (citation omitted). Id. Rather, the defendant must еstablish that the pretrial publicity created presumptive prejudice or
Presumptive prejudice “exists only in truly extraordinary circumstances” and where the trial atmosphere had becоme “‘utterly corrupted’ by media coverage.” Bateman, 492 Mass. at 431, quoting Commonwealth v. Toolan, 460 Mass. 452, 463 (2011), S.C., 490 Mass. 698 (2022), and Commonwealth v. Entwistle, 463 Mass. 205, 221 (2012), cert. denied, 568 U.S. 1129 (2013). There are two factors that are central to this analysis: (1) whether the nature of the pretrial publicity was “both extensive and sensational;” and (2) “whether the judge was in fact able to empanel jurors who appear impartial” (citation omitted). Bateman, supra. First, the defendant referenced only eleven news reports in his motion to change venue, almost all of which were in the immediate aftermath of the crimes themselves
Second, less than twenty percent of potential jurors were excused during voir dire due to pretrial publicity exposure. We have required a “high percentage of the venire” to be prejudiced as a result of pretrial publicity to show that the judge could not have empanelled an impartial jury. Hoose, 467 Mass. at 407-408. Twenty percent of the venire does not meet this requirement for presumptive prejudice. See Commonwealth v. Morales, 440 Mass. 536, 541-542 (2003) (claim оf presumptive prejudice rejected where approximately twenty-five percent of venire was disqualified for exposure to media coverage); Commonwealth v. Angiulo, 415 Mass. 502, 515 (1993) (claim of
“To demonstrate actual prejudice, a defendant must show that, in the totality of the circumstances, pretrial publicity deprived . . . him of his right to a fair and impartial jury.” Hoose, 467 Mass. at 408. “[T]he voir dire procedures utilized by the judge are particularly important” in this analysis. Id. Here, the trial judge was cognizant of the issue and took careful, deliberate, and extensive steps to protect the defendant‘s right to a fair and impartial jury. The judge conducted a thorough and individual voir dire of each potential juror, аllowed both counsel and the prosecutor to ask questions during the individual voir dire, on a daily basis reminded seated jurors not to discuss the case with anyone and not to come into contact with any media accounts of the case, inquired when the jurors returned to the court whether anyone had come into contact with any information related to the case, and noted on each trial day their lack of affirmative responses for the record. These guardrails were sufficient. See Hoose, supra at 409. See also Smith, 492 Mass. at 610-611 (no actual prejudice from pretrial publicity in codefendant‘s trial). We therefore find no actual prejudice.
c. Fisher‘s statements. The defendant contends that Sumner-Moryl‘s testimony, communicating Fisher‘s statements on the morning after the attack, contained inadmissible hearsay and was violative of his right to confront witnesses against him.
i. Spontaneous utterance.7 The defendant specifically argues that the trial judge erred by allowing Fisher‘s out-of-court statements in evidence as a spontaneous utterance. Where a hearsay issue was properly preserved, as it was here,8 we review the issue for prejudicial error. Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012). An error is not prejudicial if it “did not influence the jury, or had but very slight effect” (citation omitted). Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
Here, we need not decide whether the trial judge erred in admitting Fisher‘s statements because, even assuming error,
ii. Confrontation clause. The defendant also asserts that admitting Fisher‘s statements violated his right to confrontation under the
We have interpreted the confrontation clause to “bar[] the admission of testimonial hearsay by a declarant who does not appear at trial, unless the declarant is unavailable to testify as a matter of law and the defendant had an earlier opportunity to cross-examine him or her.” Commonwealth v. McGann, 484 Mass. 312, 316 (2020). Nontestimonial hearsay, however, does not violate the
“Testimonial statements are those made with the primary purpose of ‘creating an out-of-court substitute for trial testimony‘” (citation omitted). Commonwealth v. Brum, 492 Mass. 581, 596 (2023). “The inquiry is objective, asking not what that particular declarant intended, but rather ‘the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances‘” (citation omitted). Id. Although “[a]n ongoing emergency is not necessary for a statement to be nontestimonial,
Fisher unquestionably had extreme and near-fatal injuries when she made her statements: she was stabbed with multiple knives, suffocated, brutally beaten, and left on the ground to die. After repeatedly crying out for help without any response for over twelve hours, Fisher finally had an opportunity to speak to someone who could assist her. We find that Fisher‘s statements were made in the throes of an ongoing emergency in light of these circumstances.
While the ongoing еmergency here, in and of itself, was enough for Fisher‘s statements to constitute nontestimonial hearsay, we mention two additional factors present here: “(1) the formality [or informality] of the statements, and (2) the nature of ‘the statements and actions of both the declarant and interrogators‘” (citation omitted). Id. at 817. These factors only further support a finding that Fisher‘s statements were nontestimonial. The exchange between Fisher and Sumner-Moryl “was informal and very brief, which was consistent with an interview whose purpose was to respond to an emergency rather than to develop a case for prosecution.” Commonwealth v. Beatrice, 460 Mass. 255, 263 (2011). Indeed, far from being a formal account of what transpired, Fisher‘s statements were
Lastly, that Fisher was speaking with a health care professional rather than law enforcement weighs heavily in favor of her statements being nontestimonial. Although the United States Supreme Court has declined to adopt a categorical rule excluding statements to individuals other than law enforcement from the reach of the confrontation сlause, “such statements are much less likely to be testimonial than statements to law enforcement officers.” Ohio v. Clark, 576 U.S. 237, 246 (2015).
In sum, for twelve hours, Fisher was lying on the ground on the verge of death near her husband, who had been viciously murdered in front of her. She was without any ability to contact the outside world despite crawling outside and attempting to attract help. When she was finally given a chance
d. Sentencing. The defendant contends that his two sentences of life without the possibility of parole are cruel or unusual punishment under
Judgments affirmed.