41 Mass. App. Ct. 321 | Mass. App. Ct. | 1996
An Essex County grand jury on July 31, 1991, indicted Thomas Maimoni for the murder on July 12, 1991, of Martha Brailsford. A judge, after hearings in July and August, 1992, on October 16, 1992, denied the defendant’s motion to suppress his statements. A number of other motions were heard by the trial judge ahead of trial and denied. Trial began on February 1, 1993, and ended on Februaiy 12 with a verdict of guilty of murder in the second degree; accordingly, the defendant was sentenced to life imprisonment. The appeal of the conviction to our court was stayed by us pending the preparation of certain transcripts. On May 3, 1995, the defendant, with fresh counsel, filed a motion for a new trial supported in part by affidavits. Meanwhile the trial judge had been appointed to the United States District Court, so the motion for new trial was assigned to another judge, who denied it on September 8, 1995, without taking testimony. The defendant’s appeal from the denial of the motion for a new trial was briefed separately from the appeal from the conviction, but the two appeals were consolidated for oral argument. We deal with both appeals in this opinion.
Summary of certain evidence. We intend to give here a brief synopsis of so much of the voluminous evidence as will afford background for the legal questions raised on these appeals. Additional parts of the evidence will be mentioned when the particular questions require such amplification.
Brian Brailsford, captain for a cruise company that ran between Boston and Provincetown, arrived at his house in the Willows, a peninsular section of Salem, after dark, Friday, July 12, 1991. His wife Martha was not there, and the house
Brian introduced himself as Martha’s husband and said Martha was missing. He said he understood the defendant had walked with her the previous morning. The defendant said that was so, but she had parted from him and walked on with friends. Brian asked whether Martha had sailed with him. The defendant said no, he had not sailed at all on Friday, he would not sail alone with Martha but would invite Brian to come along and might bring a girlfriend on his own. He said he would pray for Martha.
Salem Detective Conrad Prosniewski interviewed the defendant later that Saturday morning. The defendant said he had last seen Martha at 7 a.m. Friday, had not sailed with her, and wouldn’t sail alone with her because he was married and it wouldn’t look good.
The police soon established that Martha had boarded Counterpoint around 1 p.m. Friday at Willows pier.
The defendant was away in Rhode Island during the weekend. On Monday, July 15, Prosniewski got in touch with the defendant and that evening the defendant met with that officer and Detective Urbanowicz. They gave him his Miranda warnings. Prosniewski said, if the defendant wanted to say Martha didn’t get on the boat at Willows pier, he could just walk out; if he wanted to tell the truth, he could sit down and tell it. The defendant after a pause said, “She was supposed to bring her husband.” He said Martha was to meet him on the boat at 1 p.m. at Willows pier to talk about her résumé; he brought the boat from Palmers Cove to Willows pier, but it was crowded and he could not tie up; so Martha had just jumped aboard, and he motored the short distance to
The police through the harbormaster attempted to find people who had been at the Winter Island landing at the assumed time, and on Tuesday afternoon, July 16, Prosniewski reached Dr. Ronald Plotka, a dentist, who as it happened had had Martha as a patient over the past ten years. Plotka said he had been at the landing from noon to 2 p.m. and had not seen Martha.
At this stage, the State police were notified for assistance. Prosniewski invited the defendant to come in for another interview, and he arrived at the station accompanied by his father-in-law, Charles Stochl. State Trooper Mark Lynch was also in attendance. The defendant repeated in effect his previous story. With Stochl out of the room, the officers mentioned Dr. Plotka, and told the defendant flatly they didn’t believe the story he was telling them.
Now the defendant offered a third version of the events of Friday. He said he had sailed with Martha as far out as Gloucester. It was approaching sunset. Starting to jibe for the trip back to Salem, he depowered and brought down the mainsail. The headsail became fouled. Martha was trying to help. Then a rogue wave or two struck. Her face hit the mast. She grabbed for the headsail and went overboard.
The police deferred motoring to the designated location.
On Thursday about noon, the defendant and his wife, who had flown in from her Kansas visit, were in Beverly with friends, the McCarthys. The four heard the news report that
Early that Thursday morning William Hooper Goodwin began bringing up his lobster traps near the southeast end of Children’s Island. As the last trap in one line of traps came to the surface, Goodwin saw an anchor tangled into the trap. Trailing from the anchor was a twelve-foot rope tied by knots to the ankle of a body, naked, so scavenged as to amount almost to a skeleton. A buckled diver’s weight belt was around the figure between the pelvic bones and the rib cage. The remains were identified as Martha’s.
Martha had had excellent (“perfect”) teeth as of Plotka’s examination three months before the death. Postmortem examination showed a chip on the inside surface of a lower left molar, an injury that the person would feel immediately; also a loosened lower left front tooth. There was professional testimony that the fracture of the molar was caused by a force from below the jaw and the loosening of the front tooth by a direct force or a force from below the chin. The head, top and front, had suffered three impacts, the most serious, on the top of the forehead (with bleeding under the scalp), was probably inflicted shortly before death. The two other injuries involved little force. None of the three could have caused death, but each would be felt and could have dazed the person. There was expert testimony that Martha had died of drowning (see note 13, infra).
The defendant testified at trial to a fourth story. They had sailed well out. There was no sexual involvement or quarrel or altercation. Around sunset, as they were making to come home, rogue waves (perhaps the wake of trawlers in the distance) struck the boat. Martha, coming from the foredeck to the cockpit, struck her face on the mast. Another wave struck, and she was cast overboard. He saw her in the water swimming toward the boat. He could not make eye contact with her and so did not throw a floatation device. Instead, he tried to maneuver the boat with its swim ladder toward her. She did not seize it. Quickly, he donned the top part of his
APPEAL FROM JUDGMENT
Bad acts. The Commonwealth gave notice before trial that it intended to offer testimony about three episodes in which the defendant made sexual advances to women in the week of Martha’s death. The defendant moved in limine to exclude the testimony as impermissible evidence of bad acts. The trial judge conducted a pretrial evidentiary hearing. She concluded that the two episodes preceding the death should be admitted, but the third, which occurred thereafter, should be excluded. And the trial followed suit. The two women testified.
Roxcy Platte, July 8. When Platte first met the defendant, he told her his wife had died of cancer.
Rosemary Farmer, July 9 or 10. The defendant invited Farmer aboard the boat on the pretext of his being interested in buying her house. After palaver at the dock, he asked if she would like to go for a sail. As they motored out, he said
Evidence of a person’s particular “bad acts” may not be offered to prove his bad character or propensity to commit crimes, but it may be introduced “for other relevant purposes.” Commonwealth v. Fordham, 417 Mass. 10, 22 (1994). The evidence of the episodes just summarized was (in part at least) admissible on the Commonwealth’s behalf for the elementary purpose of countering the defendant’s protestations following Martha’s disappearance that he would not sail accompanied only by a woman not his wife. Further, the evidence could support an inference of a plan or pattern of conduct to bring women aboard for sexual adventure, see Commonwealth v. Gallison, 383 Mass. 659, 672-673 (1981); Commonwealth v. King, 387 Mass. 464, 469-473 (1982); Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994), and here the house-buying pretext or enticement in Farmer’s case could find a counterpart in the defendant’s own testimony that the (ostensible) purpose of the agreed meeting with Martha on the boat at Willows pier was to discuss Martha’s re-sumé. Still further and most important, the episodes could be taken as illustrative of the defendant’s mental state at the time, see Commonwealth v. Scott, 408 Mass. 811, 819-820 (1990)
Evidence of a defendant’s bad acts, which is otherwise admissible, should be excluded when its value for relevant probative purposes is substantially outweighed by the unreasoned prejudice it would engender in the triers. See Commonwealth v. Chalifoux, 362 Mass. 811, 816 (1973); Commonwealth v. Robertson, 408 Mass. 747, 750 (1990). It is for the trial judge to make the measure, and the judge’s decision will be respected unless palpably wrong. See Robertson, supra at 750. Here the trial judge in fact excluded a third episode: June Chappell," picked up by the defendant on July 14, with Martha two days gone.
The defendant, while mistakenly complaining of the admission of the bad acts testimony, does not complain of the judge’s instructions (given when the evidence was introduced and again in her final instructions) about the limited use the jury might make of that testimony as admitted.
Photographs. In response to the defendant’s motion in limine to bar all photographs of Martha’s remains, the judge excluded
“[I]f . . . photographs possess evidential value on a material matter, they’re not rendered inadmissible solely because they are gruesome or may have an inflammatory effect on the jury.” Commonwealth v. Berry, 420 Mass. 95, 108 (1995). The judge sought to minimize prejudice by asking during jury selection whether the individuals could view unpleasant pictures and remain impartial, by making cautionary statements when photographs were admitted, and by excluding and redacting as noted. “The admissibility of photographic evidence is left to the discretion of the trial judge, and we will overturn the judge’s decision only where a defendant is able to bear the heavy burden of demonstrating an abuse , of that discretion.” Ibid. The burden has not been carried here.
Loss of potential evidence. Through July 15, the defendant remained in control of Counterpoint. On July 16, as requested by the police, he signed a consent form, and the next day the police moved the boat from the Yacht Club to the Hawthorne Cove Marina. The defendant was then joint owner of the boat with his wife, Patricia. A team of four, including a police chemist, made a search; they found and seized a mainsail with blood stains,
The defense moved to dismiss, complaining that the Commonwealth had failed to provide security tapes or other protection while the boat was at Hawthorne Cove, and had improvidently returned the boat to Patricia. Where the Commonwealth is thus accused of losing or mishandling evidence, “[w]hile the defendant need not prove that the evidence would have been exculpatory, he must establish ‘a “reasonable possibility, based on concrete evidence rather than fertile imagination,” that access to the [material] would have produced evidence favorable to his cause.’ ” Commonwealth v. Willie, 400 Mass. 427, 433 (1987). The defense makes no progress under Willie because it is unable to point to specific material with exculpatory potential that may have been lost or destroyed by the presumed neglect of the police (who, incidentally, are not accused of bad faith). Contrast Commonwealth v. Sasville, 35 Mass. App. Ct. 15 (1993) (a rape case in which the victim had an abortion and the Commonwealth negligently authorized destruction of the fetus [depriving the defendant of the opportunity to establish nonpaternity through blood testing]).
Failure to instruct sua sponte on involuntary manslaughter. From the police interview of July 16, when he admitted that Martha had sailed with him, through his testimony at trial, the defendant was asserting that his relation with Martha was platonic, that he did not strike her, and that she fell overboard accidentally when the boat was staggered by waves (the story being elaborated at trial to account for the anchor and diver’s belt). On appeal from the conviction, however, the defendant contends that the judge created a substantial risk of a miscarriage of justice, see Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967), when she omitted to charge (although not requested to charge) that the jury might find the
Other contentions. Starting with the disappearance and the finding of the body and continuing through the trial some nineteen months later, newspaper and television coverage of the case was copious and little or none of it was friendly to the defendant. The trial judge was well aware of this: at the hearing on January 25, 1993, she said, “I don’t need to be really persuaded [of the coverage] because I have personally seen the coverage and I know of the media interest.” Nevertheless she denied the motion for change of venue from Essex
The judge also stayed within her proper bounds, see Commonwealth v. Blanchette, 409 Mass. 99, 108 (1991), when she denied the defense motion to “bifurcate” the trial by trying first “the merits of the acts alleged” (as the defense put it) and then, if necessary, “the issue of criminal responsibility”
APPEAL FROM DENIAL OF MOTION FOR NEW TRIAL
Conflict of interest. The defendant was arraigned on August 2, 1991. On August 9, Mr. Jeffrey A. Denner filed notice of appearance as defendant’s attorney. On August 22, at a time when, according to Mr. Denner, it was already apparent that the defendant was without resources or expectations to help in his defense, the attorney and the client entered into a lengthy agreement for legal representation in which the attorney’s fee was fixed at $200,000, with a provision by which the attorney could receive payment from the exploitation after trial of movie and like opportunities.
Shortly after August 9, 1991, Joan Pinkham of “Fly By Night Productions” had communicated with the attorney about media treatment of the case, but there was no movement on this through the period of trial. In March, 1993 (after verdict on February 12, 1993), Pinkham resumed communication with the attorney and the attorney or his office was in the process of drafting a contract to be entered into with the defendant dealing with media rights. But shortly the effort was abandoned, and the attorney’s representation of the defendant in the criminal case came to an end with the allowance on June 8, 1993, of his motion to withdraw.
The matter of a possible conflict of interest was presented in the form of affidavits to the judge deciding the motion for a new trial. No material issue arose, for, with the agreement undone and the attorney working pro bono, any conflict ended, cf. Commonwealth v. Michel, 381 Mass. 447, 454 (1980), and the posttrial happenings were inconsequential. Thus the judge could well have declined to hold an eviden-tiary hearing, see Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995), and his negative finding on the merits was supported. In light of the finding, it may be superfluous to say there is no suggestion the attorney’s loyalty to his client’s interests was in fact impaired by the events described. Cf. Commonwealth v. Fogarty, 419 Mass. 456, 459 (1995).
Malice. The defendant did not raise at trial (or on the appeal from the judgment) the specific question of the sufficiency of the evidence on the issue of malice aforethought, an ingredient of murder. However, he attempted to argue the point on his motion for a new trial contending, in effect, that the motion judge should reduce the conviction to manslaugh
The defendant dwells particularly on the testimony of Dr. Harold J. Bursztajn, a forensic psychiatrist, called by the defense. The witness said the defendant suffered from “schizotypal personality disorder,” a mental condition that made him respond to conflict by a process of make-believe: thus in a crisis he might believe that Brian Brailsford was on the way somehow to rescue the situation. In the witness’s view, the defendant was incapable of violence, so Martha must have come to her death by accident; but if the defendant was an actor in the death, he could not have been acting with malice.
A theory of self-delusion could not overcome some harsh facts. Basing themselves on the evidence, the jury could see the situation in quite another way. They could disbelieve the defendant’s story at trial of Martha’s falling into the sea by accident and his attempting to rescue her. To begin, a slip and fall overboard was improbable for one with Martha’s large
Assistance of counsel. The defense did not argue or request instructions at trial about the defendant’s strict criminal responsibility — whether, as a result of mental disease or defect, the defendant lacked the ability to appreciate the wrongfulness of his actions or to conform his conduct to the requirements of the law. See Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967). There is argument on this account that defense counsel provided substandard lawyerly assistance to his client, which calls for a new trial in which the defen
The omission to press an “insanity defense” was part of a planned strategy. At first, counsel considered following that route, but after review of the evidence available and consultation with experts, he took the decision to present the contention — short of a defense of insanity — that, even if the defendant caused the death, his personality structure prevented him from premeditating the crime or acting with malice aforethought. The defendant was aware of and approved the plan: he was insistent on claiming that he was “not guilty,” and was against using an insanity defense. We agree with the motion judge that ineffectiveness of counsel is not shown under the regime of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Counsel could well have concluded that even if the evidence provided some basis for an instruction on insanity — which may be seriously doubted — there was very little chance that the jury could be convinced; more plausible was the easier line that was taken; yet it failed.
Counsel was also charged with ineffectiveness for failing to seek instructions on involuntary manslaughter and to take timely steps to preserve and inspect the sailboat. These claims repeated in different form claims made on appeal from the conviction and are sufficiently dealt with above. See also note 11, supra.
Judgment affirmed.
Order denying motion for new trial affirmed.
Her bag somehow fell overboard at the same time. To friends, the Mc-Carthys, the defendant said on Wednesday that he had thrown Martha her bag hoping she would catch it.
1The defendant’s marriage to Patricia was his fourth, although Patricia evidently believed it was his second. None of the wives had died.
The defendant admitted to having repeatedly cooked his record in applying for jobs, falsely claiming educational and other credentials. He had a spotty employment record and in July, 1991, could be called half unemployed.
The Scott case is particularly instructive. A gagged dead woman was discovered in a wooded area with blows to the head and exposed breasts. Evidence that two to five days before the murder the defendant made sexual overtures to three other women, including physical threats toward one, was found admissible in proof of the defendant’s guilt — “relevant to show the defendant’s sexual frustration and thus his plan, motive, and intent to procure a sexual encounter at the time of the murder.” 408 Mass, at 818.
The defendant cites Commonwealth v. Yelle, 19 Mass. App. Ct. 465
In her memorandum discussing certain of her rulings on evidence, the judge suggested that because the episodes showed the defendant finally desisting, they might have helped the defendant avoid a jury finding of premeditated murder.
The defendant and Martha had the same blood type. In his testimony the defendant intimated that the stains could have resulted from cuts on his hands or a nosebleed.
“A verdict of involuntary manslaughter is possible ‘only for causing an unintentional death (1) during the commission of wanton or reckless conduct, as defined in Commonwealth v. Welansky, [316 Mass. 383, 400 (1944)], or (2) during the commission of a battery, under the principles set forth in [Commonwealth v. Sheppard, 404 Mass. 774, 776 (1989)].’ Commonwealth v. Catalina, 407 Mass. 779, 789 (1990). Involuntary manslaughter is a proper result only in quite particular factual scenarios.” Ariel A. v. Commonwealth, 420 Mass. 281, 287 n.7 (1995).
This may have been intended to take in not only a possible “insanity defense” but also any lesser claim of psychological disability.
“In the event that the Defendant should decide after Trial that a movie, book and/or other media opportunities will be pursued, he explicitly will and does authorize the Attorney, Jeffrey A. Denner, to pursue same for his
The defendant was evidently not seeking an evidentiary hearing on the matter.
“Malice aforethought may be shown by proof that the defendant, without justification or excuse, intended to kill the victim or to do the victim grievous bodily harm. See Commonwealth v. Puleio, 394 Mass. 101, 108 (1985). However, proof of such an intent is not required because malice aforethought may be inferred if, in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow the contemplated act. Commonwealth v. Chance, 174 Mass. 245, 252 (1899). See Commonwealth v. Starling, 382 Mass. 423, 428 (1981); Commonwealth v. Swift, 382 Mass. 78, 83 (1980).” Commonwealth v. Grey, 399 Mass. 469, 470 n.l (1987).
Among other claims that defendant’s trial counsel was ineffective (see discussion below), the defendant argues that counsel was inept in questioning Dr. Bursztajn and so blunted the point of his testimony. We think counsel brought out clearly enough the essence of the testimony, such as it was, and the judge in her instructions stated plainly the question for the jury: “Now once again, in thinking about the issue of malice aforethought, you need to consider the defendant’s mental condition .... [Y]ou must consider when deliberating on the question of malice whether because of Mr. Maimoni’s mental condition, the defendant had the capacity to form the specific intent to kill or cause grievous bodily harm” (and so on). The judge spoke to the same effect in reinstructing at the jury’s request.
On direct examination at trial, recounting his fourth scenario, the defendant himself described what he could have expected if he had brought the body to shore: “There is no way to measure the storm that would be directed towards me if I went straight in.” And again, explaining his coverup: “I didn’t want to lose my house and I didn’t want to lose my wife.”
The pathologists on both sides put the cause of death as drowning, but because the body had been submerged for six days, they could not be entirely sure of that conclusion. (In the conditions, a “diatom” test would not have been satisfactory, and was not conducted.)
“[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction ... is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).