COMMONWEALTH VS. CHRISTOPHER M. MCCOWEN
Supreme Judicial Court of Massachusetts, Barnstable
May 7, 2010. - December 10, 2010.
458 Mass. 461 (2010)
Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.
Barnstable. May 7, 2010. - December 10, 2010.
A Superior Court judge, in denying a criminal defendant‘s pretrial motion to suppress postarrest statements he made to police officers, did not err in ruling that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights after his arrest, and that his postarrest statements to the police were made voluntarily. [469-472]
A Superior Court judge hearing a criminal defendant‘s motion to dismiss the indictments against him correctly ruled that one grand juror‘s personal knowledge of those affected by the crime did not require her disqualification or otherwise impair the integrity of the grand jury [472-474]; further, there was no merit to the defendant‘s argument that dismissal was warranted on the ground that the Commonwealth concealed exculpatory information from the grand jury [474-475].
A Superior Court judge, in denying a criminal defendant‘s pretrial motions seeking a change in venue or, in the alternative, sequestration of the jurors for the entire trial, acted reasonably within his discretion in concluding that pretrial publicity did not prevent the selection of a fair and impartial jury, in deciding not to sequester the jury at the commencement of the trial, and in sequestering the jurors during their deliberations due to one juror‘s involvement in an unrelated criminal matter that increased the risk that media coverage would affect the deliberations. [475-477]
At the trial of indictments charging the defendant with, inter alia, murder in the first degree and aggravated rape, the judge did not abuse his discretion in admitting in evidence, subject to firm limiting instructions, testimony by the police officer who was the lead investigator in the case that the defendant had protective orders brought against him by five different women and a number of criminal charges in District Court, where defense counsel, by1
At a murder trial, the erroneous admission in evidence of testimonial hearsay (i.e., opinions and factual findings contained in the reports and notes of the medical examiner who had conducted the autopsy, which were introduced through the testimony of a second medical examiner), to which the defendant did not object, did not result in a substantial likelihood of a miscarriage of justice, where the evidence concerning the physical condition of the victim‘s body at the crime scene added nothing of significance to other, properly admitted evidence; and where the defendant relied on the remaining evidence, dealing with the time of death of the victim, to challenge the prosecution‘s theory on that issue, the reliability of the defendant‘s confession, and ultimately the defendant‘s guilt. [480-482]
At a criminal trial, the erroneous admission of opinion testimony by the Commonwealth‘s expert, which included the results of deoxyribonucleic acid (DNA) testing generated by another analyst, did not result in a substantial likelihood of a miscarriage of justice, where it was permissible for the expert to use another analyst‘s findings in reaching her own opinion, and where those findings had no meaningful probative value without her expert testimony. [482-484]
At a criminal trial, the judge acted within his discretion in excluding from evidence, on redirect examination of a defense expert (a clinical psychologist), statements made by the defendant on a certain topic, where the statements were offered for the truth of the matter asserted, and where the prosecutor had not opened the door to the topic during cross-examination. [484-486]
At a criminal trial, the judge acted within his discretion in concluding that there was compelling reason to discharge a deliberating juror after the jury had reported a deadlock, where a palpable conflict arose from the fact that the father of the deliberating juror‘s child, with whom the juror had a strong ongoing relationship, was awaiting prosecution by the same district attorney‘s office prosecuting the defendant. [486-489]
There was no merit to a criminal defendant‘s arguments, set forth in his motion for a new trial, that the prosecutor failed to disclose exculpatory information to the defense. [489-490]
A Superior Court judge did not err in denying a criminal defendant‘s motion for a new trial, in which the defendant alleged that he was denied his right to an impartial jury by the racial bias of certain jurors, where the judge, after a postverdict evidentiary hearing in open court where he questioned jurors and additional witnesses, correctly applied the law and made detailed findings of fact, which were supported by the record and not clearly erroneous, in concluding that there was no factual basis to support the allegations. [490-498] IRELAND, J., concurring.
INDICTMENTS found and returned in the Superior Court Department on June 14, 2005.
Pretrial motions to suppress evidence were heard by Gary A.
Robert A. George (Gary G. Pelletier with him) for the defendant.
Julia K. Holler, Assistant District Attorney, for the Commonwealth.
GANTS, J. A jury convicted the defendant of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, of aggravated rape, and of aggravated burglary. The defendant appeals from his convictions and from the trial judge‘s denial of his motions for a new trial. On appeal, the defendant argues that (1) the judge erred in ruling that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights after his arrest, and that his postarrest statements to the police were made voluntarily; (2) the indictments should have been dismissed because a grand juror knew the victim, and because the Commonwealth concealed exculpatory information from the grand jury; (3) the judge erred in denying the defendant‘s pretrial motions seeking a change in venue or, in the alternative, sequestration of the jurors for the entire trial; (4) the judge made various evidentiary rulings at trial that constituted reversible error; (5) the judge erred in discharging a deliberating juror without good cause; (6) the judge erred in denying the defendant‘s motion for a new trial because the prosecutor failed to disclose exculpatory information to the defendant; and (7) the judge erred in denying another motion for a new trial because the defendant was denied his right to an impartial jury by the racial bias of certain jurors. The defendant also asks us to exercise our power under
We affirm the convictions and the judge‘s denial of the motions for a new trial. After a complete review of the record, we find no basis on which to reduce the degree of guilt or order a new trial under
1. Evidence at trial. We summarize the facts the jury could have found from the evidence at trial, reserving certain details for our analysis of the issues raised on appeal.
In the late afternoon of Sunday, January 6, 2002, Christa Worthington (victim) was found dead in her home in Truro by Tim Arnold, a former boy friend, who had stopped by the victim‘s
The Commonwealth‘s medical examiner testified that the cause of death was a stab wound to the victim‘s chest; the knife had entered the front of the victim‘s chest and penetrated her left lung, and the tip of the blade had exited through her back. The victim had also suffered contusions to her nose and chest, abrasions on her face, hands, arms, and legs, and internal hemorrhaging in her skull. The medical examiner testified that these injuries were consistent with blunt impact.
Evidence presented at trial suggested that a struggle had occurred outside the house. Trace amounts of dried blood were found under the fingernails of the victim‘s left and right hands. Small pieces of grass or other vegetative material were found entwined in the victim‘s hair, both on her head and in her pubic area. Outside on the ground between the house and the victim‘s automobile, crime scene investigators found a pair of woman‘s eyeglasses and barrette, a pair of socks, and the victim‘s keys. Near where the keys were discovered, just beside the victim‘s automobile, the dirt driveway had been disturbed. Two long, irregularly parallel, furrow-like tracks led from the back of the automobile toward the entrance to the house. Police investigators were able to recreate similar markings by dragging a person across the driveway.
Apart from the medical examiner‘s testimony as to time of death, which we will address later, the evidence would have allowed the jury reasonably to infer that the victim was killed after 8 P.M. on Friday, January 4, when she telephoned a babysitter, and before noon on Saturday, January 5, when she missed a hairdressing appointment. Both the Saturday and Sunday newspapers were sitting uncollected at the bottom of her driveway when her body was discovered on Sunday afternoon.
In the course of their investigation of the murder, police detectives interviewed people who had known the victim or visited her property, including the defendant, who was employed by a private disposal company that removed the trash she left each week outside her residence. On April 3, 2002, the defendant told State Troopers Christopher Mason and William Burke that he did not know the victim, had never spoken with her, and had no contact with her beyond an occasional wave as he picked up the garbage from a wooden bin in the yard. The troopers told the defendant that they had recovered certain items from the crime scene and asked if the defendant would be willing to provide fingerprint or deoxyribonucleic acid (DNA) samples in the future. The defendant told them he would have no problem providing these samples.
On March 18, 2004, after the State police crime laboratory identified a deoxyribonucleic acid (DNA) profile from various swabbings taken from the victim‘s vagina and breasts, Troopers Mason and Burke conducted a second interview with the defendant as part of a larger effort to collect DNA samples from men interviewed during the investigation.2 The defendant repeated his assertions that he did not know the victim, had never spoken to her, and had never been inside her house. He agreed to provide a DNA sample, and police swabbed the inside of his cheek.
The defendant‘s DNA sample was sent to the State police crime laboratory in July, 2004, with a batch of DNA samples from other persons. After receiving a written report on April 13, 2005, that the defendant “matched the major profile” in the DNA mixture taken from the victim‘s right breast and was “included as a potential contributor of the minor profile” in the DNA mixture taken from the sperm in her vagina, the State police obtained warrants for the defendant‘s arrest and the search of his residence.
Police officers arrested the defendant at his home in Hyannis shortly after 7 P.M. on April 14, 2005, and transported him to
When Trooper Mason showed the defendant the DNA report and told him that the crime laboratory had concluded that it was his DNA on the body of the victim, the defendant looked at the report for approximately one minute and said, “It could have been me.” The defendant then told the officers that, on Friday night, January 4, 2002, he was with Jeremy Frazier and had gotten “piss ass drunk” in the parking lot of the Juice Bar, an Orleans club.3 Frazier drove him to Dennis, where the defendant visited with the mother of his baby for about forty to sixty minutes, and then they returned to the Juice Bar. He said he drank to “blackout” that evening, did not recall what he did after returning to the Juice Bar, and did not “remember having sex with this lady.” When Trooper Mason told him that recalling one small event will often trigger a recollection of the surrounding events, the defendant admitted that he had had consensual sex with the victim that night. He added that “[a]nything could have happened. I know I didn‘t kill her.”
The defendant then recalled that Frazier had driven him to the victim‘s home, following the defendant‘s directions, and that Frazier had accompanied him inside the house when they arrived. He said he and the victim had engaged in vaginal sex on the floor in the hallway off the kitchen (where the victim‘s body was found), but then said they may have had sex in an office or the living room. Initially, he said everything was “cool.” He said that, as he and the victim parted, he gave the victim his telephone number, and then left, but he later said that the victim “flipped”
As if in conclusion, the defendant stated, “I had sex with her . . . I beat her ass, but it was [Frazier] that stabbed her.” He told the officers, “I never meant for that lady to get killed. It‘s a nightmare after nightmare. And not a day goes by that I don‘t think about it.” When asked what he would say if the troopers determined that Frazier was somewhere else that evening, the defendant responded, “Then it‘s all on me. . . .”
Frazier testified that he was with the defendant at the Juice Bar that night and drove him to Dennis to visit the mother of his baby, but said that he later returned to the Juice Bar and went to a house party in Eastham in a vehicle driven by a friend, Shawn Mulvey. According to Frazier, the defendant followed them to the party in a separate vehicle that he drove. Frazier
The Commonwealth‘s DNA analyst, Christine Lemire, testified that the DNA profile obtained from the swabbing of the victim‘s right breast was a mixture of DNA from more than one source, with the defendant‘s DNA matching “the major profile” and the victim “included as a potential contributor of the minor profile in this mixture.” Lemire testified that the statistical probability of such a match occurring in the major profile was one in 5.2 trillion among the Caucasian population, one in 99.8 billion among the African-American population, and one in fifteen trillion among the Hispanic population. The DNA profile obtained from the swabbing of the victim‘s vaginal cavity was also a mixture of DNA from more than one source, with the victim‘s DNA matching “the major profile” and the defendant “included as a potential contributor” of the minor profile. Lemire testified that the statistical probability of such a match occurring in the minor profile was one in 7.2 billion among the Caucasian population, one in 1.1 billion among the African-American population, and one in 10.2 billion among the Hispanic population. The DNA profile obtained from a swabbing of the victim‘s left breast was also a mixture of DNA from more than one source, with the victim‘s daughter‘s DNA matching “the major profile”7 and the victim and defendant included as potential contributors of the minor profile. The probability of a randomly selected unrelated individual having contributed DNA to this mixture was approximately one in sixty-two among the Caucasian population, one in 769 among the African-American population, and one in 124 among the Hispanic population.8 The testing done on the male DNA detected in the fingernail clippings
2. Motion to suppress the defendant‘s postarrest statements. Before trial, the defendant moved to suppress his postarrest statements to Troopers Mason and Burke. The judge denied the motion following an evidentiary hearing. On appeal, the defendant renews his argument that he did not knowingly, intelligently, and voluntarily waive his Miranda rights, and that his statements were not made voluntarily. Although the voluntariness of the defendant‘s statements was decided by the jury under the humane practice rule, see Commonwealth v. Cryer, 426 Mass. 562, 571 (1998), the defendant directs his challenge on appeal primarily to the judge‘s pretrial ruling. Therefore, in considering the defendant‘s present challenge, we rely on the findings of fact made by the judge following the suppression hearing, recognizing that the testimony presented at trial concerning the voluntariness of the defendant‘s statements was in all significant respects identical to that presented at the motion hearing. We accept as true the subsidiary findings of fact made by the judge in the absence of clear error and give deference to his credibility findings, because he had the opportunity to observe and evaluate the witnesses as they testified. See Commonwealth v. Peters, 453 Mass. 818, 822-823 (2009). We do, however, “make our own independent determination on the correctness of the judge‘s application of constitutional principles to the facts as found.” Commonwealth v. Tavares, 385 Mass. 140, 145, cert. denied, 457 U.S. 1137 (1982), quoting Brewer v. Williams, 430 U.S. 387, 403 (1977).
The judge found that around 7 P.M. on April 14, 2005, the defendant was arrested, handcuffed, and led from his home to a police cruiser. There, Trooper Mason advised the defendant that he was under arrest for the murder of the victim and read him his Miranda rights from a standard waiver of rights form. The defendant said that he understood his rights and wanted to discuss the case, but Trooper Mason told him to wait until their arrival at the State police barracks where recording equipment would be available.
At the State police barracks, the defendant was taken to a conference room, where he sat with Troopers Mason and Burke, and his handcuffs were removed. At 7:32 P.M., he was again read his Miranda rights from a waiver of rights form, which the defendant signed first to acknowledge receipt of his rights and then to waive them. Trooper Mason asked the defendant if he would consent to having the interview recorded, and the defendant said he did not want to be recorded unless his refusal would “make me look like an asshole.” Trooper Mason informed him that courts preferred that interviews be recorded but that the decision belonged to the defendant. The defendant declined to be recorded and signed a standard form declaring his unwillingness to consent to a recording. Trooper Mason also advised the defendant of his right to make a telephone call and told the defendant that a telephone was available whenever he wanted to use it. The defendant said that he wanted to talk with the officers first “to straighten everything out” and that later he would telephone his girl friend. Trooper Mason offered the defendant medical attention, but the defendant did not ask to see a doctor or appear to be in physical or mental distress.
Troopers Mason and Burke conducted the interview in “a loose format,” without raising their voices, and the defendant was talkative. As described earlier, the defendant initially restated his denial of any involvement with the victim and then, after being confronted with the DNA report, gave multiple versions of the events of the night of Friday, January 4, 2002. At 11:20 P.M., pizza and soda were brought to the interview room; the defendant accepted a soda but declined the food. After the defendant gave his final version of events, in which he admitted that he had joined Frazier in hitting and kicking the victim, and that Frazier had stabbed her in the chest, Trooper Burke stepped out of the interview room and the interview stopped. During the break, the defendant said that he knew he could have a lawyer but wanted to cooperate instead. He said he wanted to contact his attorney to arrange for the attorney to meet him at court in the morning, and he placed a telephone call to his attorney at 12:09 A.M., leaving a voice mail message. Trooper Mason told the defendant that they would proceed with booking, but the defendant said that he was not finished discussing the case. Trooper Mason twice expressed
During the interview, the defendant was sober and not under the influence of marijuana, Percocet, or alcohol. Nor did he suffer “from any defect of intellect or mental disorder.” He was responsive to the questions and gave “rational, cogent answers,” at times “in a narrative form.” His signatures on the various rights forms were “firm, clear and consistent,” and his diagrams of the crime scene were “accurate.” The troopers’ interrogation was “not heavy-handed but more in the nature of guiding a cooperative, albeit cagey, witness.”
The judge‘s findings of fact are fully supported by the evidence in the motion hearing record and are not clearly erroneous. We conclude, as did the motion judge, that the defendant was twice advised of his Miranda rights and twice waived them, first in the police cruiser and later at the commencement of the interview in the conference room. We also conclude that the defendant‘s waivers were knowingly, intelligently, and voluntarily made. The defendant wished to speak to the troopers in an attempt, in his words, “to straighten everything out” following his arrest for the victim‘s murder. His refusal to be recorded, which immediately followed his second waiver of his Miranda rights, demonstrated that he could say “no” to the police when he wished.
The test for voluntariness of a defendant‘s statement 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.” Commonwealth v. Selby, 420 Mass. 656, 663 (1995). In addressing the voluntariness of the defendant‘s statement, the judge carefully weighed the evidence before
3. Motions to dismiss the indictments. Both before and during trial the defendant moved to dismiss the indictments based on
The defendant contends first that the indictments should have been dismissed when it became apparent, days after the indictments issued, that one of the grand jurors knew the victim, the victim‘s child, and the child‘s father. The defendant argues that this grand juror could not have been impartial, and that her presence compromised the integrity of the grand jury.
Before the motion was filed, the grand juror was questioned by a judge (who was not the motion judge10) without the presence of counsel, and a transcript was made of the interview. The grand juror acknowledged that she knew the victim, the victim‘s child, and the child‘s father, and stated that she had been “totally destroyed” by what she saw and learned while on the grand jury.11 She also said that, when the grand jury were selected, she felt it was “okay for me to sit” as a grand juror because, when asked if she could put her feelings aside, she felt that she could and believed she had done so.
“It is clear that a grand jury must act in a manner consistent with their oath,” which includes the obligation to indict no one “based on ‘hatred or malice.’ ” Commonwealth v. McLeod, 394 Mass. 727, 733-734, cert. denied sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985), quoting
The defendant also argues that the prosecution knowingly presented false evidence to the grand jury that “so seriously tainted the presentation to that body that the indictment should not have been allowed to stand.” Id. at 447. Frazier testified before the grand jury that, after a fight broke up the house party that followed the event at the Juice Bar on the night of January 4, 2002, Shawn Mulvey drove him to Mulvey‘s house, where he spent the night. The defendant contends that Frazier‘s account was false and that the prosecutor presented Frazier‘s testimony to the grand jury knowing it to be false. The defendant also contends that the prosecutor concealed exculpatory evidence by failing to reveal to the grand jury that Mulvey (who did not testify before the grand jury) initially had denied to police that Frazier slept at his house that night.
To justify dismissal of an indictment, a defendant must show not only that false or deceptive evidence was given to the grand jury knowingly and for the purpose of obtaining an indictment, but also that on the entire grand jury record, the false or deceptive evidence was material to the question of probable cause and probably made a difference in the grand jury‘s decision. Commonwealth v. Mayfield, 398 Mass. 615, 621-622 (1986). The defendant has failed to show that Frazier‘s grand jury testimony was false, much less that the prosecutor knew that it was false.
After the indictments were returned, Shawn Mulvey admitted to police that he drove Frazier home with him after the house
4. Motion for change of venue or juror sequestration. In light of extensive media coverage of the murder, the three-year police investigation, and the pretrial proceedings, the defendant sought a change of venue pursuant to
A judge has substantial discretion in deciding whether to grant a motion for a change of venue or whether to sequester jurors. See Commonwealth v. Clark, 432 Mass. 1, 10 (2000); Commonwealth v. James, 424 Mass. 770, 775 (1997), and cases cited. The judge did not abuse that discretion here.
Here, the defendant has shown nothing more than the existence of substantial pretrial publicity surrounding the murder of the victim and the arrest of the defendant. In selecting the jury, the judge conducted an individual voir dire where he asked each prospective juror whether he or she had read, seen, or heard anything about the case from any source and, if so, whether this information would affect the prospective juror‘s ability to render a fair and impartial verdict. The judge, after appropriate inquiry, properly excused the one prospective juror who indicated that he could not be fair and impartial as a result of the media coverage. We have carefully examined the transcript of the jury selection and conclude, as did the judge, that the pretrial publicity did not prevent the selection of a fair and impartial jury.
The record reflects that the judge also properly exercised his discretion in initially refusing to sequester the jury, and in taking appropriate steps to ensure that the jury were shielded from media reporting of the trial. Before empanelment of the jury, the judge issued orders protecting the jury from being photographed by the media and prohibiting reporters from contacting
5. Evidentiary rulings at trial. The defendant claims the judge erred by admitting in evidence certain inculpatory information and excluding certain exculpatory information. He argues that these errors entitle him to a new trial. We consider each of these claims in turn.
a. Prior bad acts evidence. Over the defendant‘s objection, the judge allowed Trooper Mason to testify during redirect examination that, apart from the contradiction between the laboratory report indicating that the defendant‘s DNA had been found on the victim‘s body and the defendant‘s denials that he had had any contact with the victim beyond picking up her garbage, two factors that weighed in his decision to seek an arrest warrant against the defendant were that the defendant had five protective orders brought against him by five different women and a number of criminal charges in the Barnstable Division of the District Court Department. The defendant argues that admission of this latter evidence unfairly invited the jury to convict him because of his bad character or his propensity to abuse women.
While the prosecution “may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit
Whether evidence of prior bad acts is relevant, and whether the probative value of such evidence is outweighed by its potential for unfair prejudice, are determinations committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent “palpable error.” Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). Commonwealth v. Robertson, 408 Mass. 747, 750 (1990). To evaluate whether the judge abused his discretion in allowing this testimony, we examine his decision in the context of the trial. During the direct examination of Trooper Mason, the judge sustained the defendant‘s objection to the admission of evidence regarding the prior protective orders issued against the defendant and his denial that he had an anger management problem. The judge asked defense counsel whether he intended to bring up these issues on cross-examination, and defense counsel assured him he would not. On cross-examination, however, defense counsel repeatedly questioned Trooper Mason concerning the adequacy of the evidence supporting the defendant‘s arrest. The inference the defense attorney sought the jury to draw from this line of questioning was that Trooper Mason had decided to arrest the defendant based solely on the DNA report and the defendant‘s prior denials of any personal contact with the victim, and that
The judge did not abuse his discretion in admitting the evidence subject to his firm limiting instructions. By challenging the good faith of the lead investigator in the case, defense counsel invited a fuller explanation of the investigator‘s reasons for applying for an arrest warrant against the defendant.15 We also note that the evidence admitted regarding these prior bad acts was limited. The prosecutor did not elicit any testimony about the conduct that resulted in the protective orders or when they had issued. Nor did the prosecutor elicit any description of the District Court charges against the defendant or of their disposition. No
b. Medical examiner testimony. The autopsy of the victim was conducted by Dr. James Weiner, but Dr. Weiner was unavailable to testify at trial due to illness; in his place, the prosecution called Dr. Henry Nields, whose knowledge of the case derived solely from his review of the reports, notes, and charts prepared by Dr. Weiner. The defendant argues that his right to confrontation, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, was violated by the admission of testimonial hearsay — the opinions and factual findings in Dr. Weiner‘s reports and notes — through the testimony of Dr. Nields.
In his direct examination, Dr. Nields testified in detail from Dr. Weiner‘s notes and reports as to Dr. Weiner‘s observations of the victim‘s body and his findings as to the nature of her wounds when he arrived at the scene of the crime at 7:55 P.M. on January 6, 2002, and when he conducted the autopsy on January 7. Three charts prepared by Dr. Weiner documenting the location and nature of the wounds on the victim‘s body were admitted in evidence. Dr. Nields also testified to Dr. Weiner‘s opinion as to the time of death of the victim, which was “an estimated postmortem time of twenty-four to thirty-six hours.”16
The observations, findings, and opinions of Dr. Weiner reflected in his notes and reports were testimonial hearsay, because a reasonable person in his position would anticipate that they would be used against the accused in investigating and prosecuting a crime, and they were offered for the truth of the matters asserted. See Commonwealth v. Nardi, 452 Mass. 379, 392-394 (2008). As the Commonwealth concedes, it was error for the judge to permit Dr. Nields to testify to what Dr. Weiner saw, found, and opined. See Commonwealth v. Durand, 457 Mass. 574 (2010).
The facts that Dr. Nields recited from Dr. Weiner‘s notes and report concerning the physical condition of the victim‘s body at the crime scene had already been admitted in evidence through the testimony of multiple other witnesses who had observed the crime scene and gave nearly identical firsthand descriptions of the victim‘s body after she was found. The facts concerning the location and nature of the victim‘s injuries that Dr. Nields recited from Dr. Weiner‘s notes and reports had been previously admitted in evidence through the testimony of State Trooper Carol Harding, who attended the autopsy, testified to each injury Dr. Weiner examined during the autopsy, and authenticated ten photographs from the autopsy that documented the victim‘s injuries and that were admitted in evidence.17 As to these facts, the testimonial hearsay erroneously admitted in evidence added nothing of significance to the evidence properly admitted.
Dr. Weiner‘s opinion as to the estimated time of death of the victim, however, was not in evidence except through the erroneously admitted testimonial hearsay. See Commonwealth v. Nardi, supra at 394. Although Dr. Nields properly could have testified to his own opinion as to time of death, based on his forensic expertise as a medical examiner and his review of Dr. Weiner‘s notes and reports, see Commonwealth v. Avila, 454 Mass. 744, 761-762 (2009), he did not do so. The erroneously admitted evidence of Dr. Weiner‘s estimate of the victim‘s time of death, however, favored the defendant, because it suggested that the victim most likely had been killed between 8 A.M. and 8 P.M. on
After the prosecution rested, the defendant called Gerard Smith, a neighbor of the victim, who testified that at approximately 1 P.M. on January 5, he saw a dark “work type van” depart the driveway of the victim‘s house “at a very fast speed” driven by a dark-skinned Caucasian man.19 In his closing argument, defense counsel argued that the victim died on Saturday, and suggested that the person in the van seen by Smith, and not the defendant, had killed her. He reminded the jury that the Commonwealth‘s “own medical examiner puts the time of death on Saturday.” There can be no substantial likelihood of a miscarriage of justice where the defendant fails to object to the admission of testimonial hearsay and then relies on that erroneously admitted hearsay to challenge the prosecution‘s theory of the case as to the time of death, the reliability of the defendant‘s confession, and ultimately the defendant‘s guilt. See Commonwealth v. Nardi, supra at 395-396 (no substantial likelihood of miscarriage of justice where defense strategy relied on factual findings erroneously admitted in testimony of substitute medical examiner).
c. DNA expert testimony. The defendant raises a similar confrontation clause challenge to the admission of testimony by the Commonwealth‘s DNA analyst, Christine Lemire, regarding the results of DNA testing generated by another analyst. Lemire testified that the analysis employed by her laboratory assigned numbers to specific locations, or allele sites, on DNA extracted from the known sample provided by the defendant and from the unknown samples drawn from swabbings and fingernail scrapings recovered from the victim‘s body. Lemire herself developed
Lemire‘s testimony regarding the DNA testing she performed on the unknown samples was not hearsay. Nor was her opinion testimony because, as an expert, she was entitled in reaching an opinion to rely on her own personal knowledge as well as facts or data that are themselves hearsay, provided this information is of a type reasonably relied on by experts to form opinions in the relevant field. See Commonwealth v. Barbosa, 457 Mass. 773, 783-784 (2010); Commonwealth v. Nardi, 452 Mass. 379, 390 (2008). Therefore, Lemire‘s opinions whether the defendant was a potential contributor of the DNA profile in each unknown sample and the statistical likelihood that an individual in various population groups could have been a contributor of that DNA profile were not hearsay. See Commonwealth v. Barbosa, supra. But the allele numbers derived from the testing of the known samples by another analyst that were included in Lemire‘s chart were testimonial hearsay, because these were factual findings made by a nontestifying witness for the purpose of investigating the murder. See Commonwealth v. Barbosa, supra at 784; Commonwealth v. Banville, 457 Mass. 530, 540-541 (2010). The allele numbers produced by the nontestifying analysts were therefore admitted in error.
Because the defendant did not object at trial to the admission of the other analyst‘s factual findings or to the chart that included these findings, we consider whether the admission of this evidence resulted in a substantial likelihood of a miscarriage of justice. See Commonwealth v. Nardi, supra at 394. We conclude that it did not.
d. Exclusion of defendant‘s statements made to defense expert psychologist. At trial, the defense called Dr. Eric Brown, a clinical psychologist, who offered his expert opinion that, because of the defendant‘s low level of intelligence and limited cognitive abilities, the defendant lacked the “cognitive functioning” necessary to participate intelligently in the interview that resulted in his postarrest inculpatory statements to Troopers Mason and Burke. On cross-examination, the prosecutor asked if, in making his evaluation, Dr. Brown had reviewed the diagrams that the defendant sketched for the troopers of the interior and exterior
The trial judge is afforded substantial discretion in deciding whether, and for what purposes, evidence is relevant, see Anthony‘s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991), and a trial judge‘s rulings on these questions are reversible only for an abuse of discretion. See Cottam v. CVS Pharmacy, 436 Mass. 316, 327 (2002). If offered to prove that the defendant had a “sexual encounter” with the victim that Thursday afternoon, the defendant‘s statement to Dr. Brown was inadmissible hearsay, because the defendant made the statement outside the court room, the defendant was not subject to cross-examination regarding the statement, the statement was intended to prove the truth of the matter asserted, and the defendant, not an adverse party, was offering the statement in evidence. See generally
6. Removal of deliberating juror.
The defendant argues that he is entitled to a new trial because the judge improperly removed a deliberating juror after the jury had informed the judge that they were deadlocked on each of the charges. We set forth the undisputed facts concerning this issue. The jury commenced deliberations on Tuesday, November 7, 2006, and continued through Friday, November 10. During the weekend recess, one of the jurors became involved in a highly publicized police investigation unrelated to the defendant‘s case when the father of her child was arrested at her home in connection with a shooting in Falmouth.22 The juror was not implicated in the shooting. Several of the jurors learned of the juror‘s connection to the arrest from news reports over the weekend, and more learned of it through discussions in the jury room on the following Monday.
In accordance with the practice approved in Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978), the judge conducted an individual voir dire of each juror (including two alternate
Before jury deliberations commenced the following day, the Commonwealth moved to dismiss the juror on the basis of two telephone conversations between the juror and the jailed father of her child that had been recorded by the Barnstable house of correction the previous afternoon following the judge‘s issuance of the sequestration order. In a hearing attended by the defendant, defense counsel, and the prosecutor, the judge found on the basis of the recordings that she maintained a “strong ongoing relationship” with the father of her child. The judge further found that the recordings showed that the juror was disregarding his repeated orders to the jury not to communicate with others about the case and to avoid media reports concerning it. Finally, he found that the juror‘s representation that she remained fair and impartial “to be less than reliable” because “she clearly sides with [the father of her child]” and “expresses concern” about the conduct and integrity of the police involved in the shooting investigation. The judge concluded “that the palpable conflict is not only one that can be inferred; it‘s one that can be established
Once a jury commence deliberations, a juror may be discharged if “unable to perform [her] duty” because of illness or “any other good cause shown to the court,”
There is no evidence that the judge sought to affect the jury‘s verdict by his discharge of the juror. As the judge found, there
The judge here acted within his discretion in concluding that there was compelling reason to discharge the deliberating juror. See, e.g., Commonwealth v. Garrey, supra at 430-431 & n.5; Commonwealth v. Olavarria, supra at 620-622.24 There was no error.
7. Motion for a new trial based on prosecutor‘s alleged failure to disclose exculpatory evidence.
The defendant argues that he is entitled to a new trial because the prosecutor failed to reveal to the defense that Jeremy Frazier had been charged with assault by means of a dangerous weapon in August, 2003; he contends that this information would have implicated Frazier in the stabbing of the victim. Defense counsel, however, had a copy of Frazier‘s board of probation record during his cross-examination of Frazier at trial and questioned him regarding the dismissal of various District Court charges, suggesting in his questioning that the charges had been dismissed in return for Frazier‘s testimony at the defendant‘s trial. Defense counsel, therefore, knew of the charge and of its dismissal at the time of trial. Defense counsel did not attempt at trial to offer the underlying alleged incident - which involved the brandishing of a two-inch pocket knife against British tourists in an argument
The defendant also contends that he is entitled to a new trial because the prosecutor failed to reveal administrative problems in the reporting of DNA test results at the State police crime laboratory that were documented in two official reports. These reports, however, were issued in 2007, after the conclusion of the defendant‘s trial, and there is no evidence that the prosecutor or his investigators were aware at the time of trial of the deficiencies at the laboratory. “It is clear that a ‘prosecutor cannot be said to suppress that which is not in his possession or subject to his control.‘” Commonwealth v. Daye, 411 Mass. 719, 734 (1992), quoting Commonwealth v. Donahue, 396 Mass. 590, 596 (1986). Moreover, the 2007 reports focused on the backlog of unprocessed DNA samples held by the laboratory and administrative inefficiencies in the laboratory‘s handling of information in the DNA database used by law enforcement; they did not reveal any deficiencies in the quality of scientific work conducted at the crime laboratory that would put in question the analyst‘s opinion that the defendant was a contributor of DNA found on the victim‘s body. The judge did not err in denying this frivolous motion for a new trial.
8. Allegations of juror misconduct.
Approximately one month after the conclusion of trial, the defendant moved for a postverdict inquiry of the jurors based on information contained in affidavits from the discharged juror and two other deliberating jurors that the jury‘s deliberations had been infected by racial prejudice. The claims of racial prejudice were based on three separate incidents and alleged (1) that one juror (Juror X) had
The judge conducted a postverdict evidentiary hearing in open court where he questioned ten of the twelve jurors who deliberated to verdict, the discharged juror, and the alternate juror concerning the allegations in the affidavits.29 The judge also permitted the defendant to call and question two additional witnesses: a great-aunt of Juror Z, who testified regarding statements she claimed Juror Z had made expressing animus toward African-Americans, and a social psychologist who offered expert testimony regarding the influence of race on juries.
Following the hearing, the judge made detailed findings of fact in which he concluded that there was “no factual basis” to support the allegation that Juror X had tied her fear of the
After considering whether Juror Y‘s statement reflected “overt prejudice” or “veiled or subconscious bias or stereotyping,” the judge found that it “was descriptive in nature and intent and did
Because “[t]he determination of a juror‘s impartiality ‘is essentially one of credibility, and therefore largely one of demeanor,‘” Commonwealth v. Ferguson, 425 Mass. 349, 352-353 (1997), quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984), we give a trial judge‘s determination of impartiality great deference. See Commonwealth v. Ferguson, supra at 353, and cases cited. We will not disturb a judge‘s findings that a juror is unbiased absent a showing that the judge‘s conclusion was clearly
We recognize the difficulty of the judge‘s task in ascertaining the facts here and the extraordinary care he took in setting forth in detail his findings. Having taken similar care in examining the record, we conclude there was no clear error in his findings of fact. We therefore turn to the question whether the judge erred as a matter of law in denying the defendant a new trial based on the facts that the judge found.
Where a defendant files an affidavit from a juror (or, as here, from more than one juror) alleging that a juror (or more than one juror) made a statement to another juror that reasonably demonstrates racial or ethnic bias, and the credibility of the affidavit is in issue, the trial judge should conduct a hearing to determine the truth or falsity of the affidavit‘s allegations, because “the possibility raised by the affidavit that the defendant did not receive a trial by an impartial jury, which was his fundamental right, cannot be ignored.” Commonwealth v. Laguer, 410 Mass. 89, 97 (1991). See Commonwealth v. Amirault, supra at 625-626 (where defendant after verdict raises “reasonable claim” that juror in child rape case failed during voir dire to reveal that juror had been victim of rape during childhood, defendant entitled to hearing conducted by trial judge to determine whether juror was actually biased).35
In evaluating claims of juror bias, a judge, as the judge did
Where one or more of the challenged statements are shown to have been made, the judge must then determine whether the defendant has proved by a preponderance of the evidence that the juror who made the statements was actually biased because of the race or ethnicity of a defendant, victim, defense attorney, or witness. See United States v. Henley, 238 F.3d 1111, 1121 (9th Cir. 2001). See also Commonwealth v. Tavares, 385 Mass. 140, 156 (1982) (finding that alleged statement suggesting racial prejudice had been made but determining that statement considered in context did not show actual bias). A juror is actually biased where her racial or ethnic prejudice, had it been revealed or detected at voir dire, would have required as a matter of law that the juror be excused from the panel for cause. Cf. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (where civil litigant seeks new trial because of alleged juror bias, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause“); Commonwealth v. Amirault, supra
In some instances, the statement made by the juror may establish so strong an inference of a juror‘s actual bias that proof of the statement alone may suffice. See Commonwealth v. Laguer, 410 Mass. at 94, 98-99 (if alleged statement - “[T]he goddamned spic is guilty just sitting there; look at him. Why bother having the trial” - were made by juror, judge must find actual ethnic bias). See also Commonwealth v. Amirault, supra at 628 & n.5 (“in certain exceptional circumstances implied bias may be applicable“). Generally, though, the judge must determine the precise content and context of the statement to determine whether it reflects the juror‘s actual racial or ethnic bias, or whether it was said in jest or otherwise bore a meaning that would fail to establish racial bias. See Commonwealth v. Tavares, supra at 153 n.21, 154 (jurors referred to witness as “Sapphire,” a reference to shrewish wife on “Amos ‘n Andy Show” on radio and television, but record supported judge‘s findings that “this term had been used in a jocular manner without any racial prejudice“). Because actual juror bias affects the essential fairness of the trial, a defendant who has established a juror‘s actual bias is entitled to a new trial without needing to show that the juror‘s bias affected the jury‘s verdict. See Commonwealth v. Hampton, 457 Mass. 152, 163 (2010); Commonwealth v. Vann Long, 419 Mass. 798, 802-805 (1995). See Commonwealth v. Laguer, supra at 98-99.
Where statements suggesting juror bias are shown to have been made but the defendant has failed to prove that the statements reflect actual bias by the juror who made the statements, the judge still must determine whether the statements so infected the deliberative process with racially or ethnically charged
9. Review under G. L. c. 278, § 33E.
Having reviewed the entire record pursuant to our duty under
Judgments affirmed.
Orders denying motions for a new trial affirmed.
IRELAND, J. (concurring). I concur in affirming the judgments of conviction against the defendant. I write separately to set forth my thoughts on the issue of juror bias raised in this case.
I agree with the judge that Juror Y‘s statement that the victim‘s injuries would result “when a big black man” beat a small woman raised the specter of racism, warranting closer examination. Indeed, Juror Y‘s statement provoked an immediate reaction from the black female juror (Juror A), who accused Juror Y of racism. The confrontation included the two women yelling back and forth and swearing at each other.
In assessing whether the defendant met his burden to prove that Juror Y was actually biased, Smith v. Phillips, 455 U.S. 209, 215 (1982), the judge very conscientiously and sensitively
“Since the 1990‘s, a number of studies have deconstructed the complicated ways in which the human mind maintains and manifests racially biased implicit attitudes and stereotypes. Many of these studies have reached the same conclusion - that implicit biases are real, pervasive, and difficult to change . . . . [Moreover] racial attitudes and stereotypes are both automatic and implicit. That is, that people possess attitudes and stereotypes over which they have little or no ‘conscious, intentional control.’ Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking and Misremembering, 57 Duke L.J. 345, 351-354 (2007) (Levinson). This is because, according to “[r]esearch on stereotype formation and maintenance[,]. . . stereotypes are instilled at an early age and come from cultural and societal beliefs. . . . [P]sychologists have found that stereotypes arise when a person is as young as three years old and are usually learned from parents, peers, and the media. As people grow older, their stereotypes become implicit and remain mostly unchanged even as they develop nonprejudiced explicit views. ‘Stereotypes about ethnic groups appear as a part of the social heritage of society. . . . [And] [n]o person can grow up in a society without having learned the stereotypes assigned to the major ethnic groups.’ Id. at 363, quoting Page, Batson‘s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 203 n.22 (2005). See Symposium Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy), 114 Yale L. J. 1353, 1391 (2005) (individuals restrict their racist speech).
Courts are aware that unconscious racism could affect the
The judge here expressed his understanding of unconscious bias by relying, in part, on the defendant‘s “expert social psychologist on matters of racial bias,” Samuel R. Sommers, and stating that he was assessing Juror Y‘s testimony through the filter of Justice O‘Connor‘s concurring opinion in Smith v. Phillips, supra at 221-222 (O‘Connor, J., concurring), concerning unconscious bias.2
As the judge also recognized, courts use mechanisms that studies suggest can counteract implicit racially based attitudes and stereotypes. Here, during the voir dire, the judge asked each juror about their attitudes about race.3 The empanelled jury
Given the societal norm that one does not overtly express racially biased attitudes, see Sommers, 7 Psychol., Pub. Pol‘y & L., supra at 208, as well as the mechanisms to which the jurors were exposed before their deliberations, Juror Y‘s “big
Because of unconscious racism, it is the subtle clues that help give a judge insight into a juror‘s true feelings. Indeed, the judge here explored in detail such a subtlety: whether Juror Y said “this” big black man rather than “a” or “the” big black man. He found that she was referring directly to the defendant and concluded that she did not harbor prejudice against blacks as a class but was speaking descriptively of the defendant. A similar analysis of the hair and education questions would have added another dimension to the judge‘s analysis. Both questions, but particularly the question about Juror A‘s level of education, implicate racial stereotyping. See Lawrence, supra. I would want to know whether Juror Y asked other jurors about their education or asked just Juror A.
I agree with the court that the judge‘s task here was tremendously difficult, ante at 494, and do not suggest that the judge would have reached a different conclusion concerning whether Juror Y was actually biased. I do think that more inquiry concerning whether any other jurors were asked questions about their level of education and hairstyle would have given context and insight into whether the questions put to Juror A were simply small talk or indicative of implicit bias.