Com. v. Cordle

• Citation: 587 N.E.2d 1372,412 Mass. 172
• Parties: COMMONWEALTH v. Melissa Jo CORDLE.
• Decision Date: 11 March 1992
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1372

587 N.E.2d 1372

412 Mass. 172

COMMONWEALTH v. Melissa Jo CORDLE.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Nov. 5, 1991.

Decided March 11, 1992.

Bruce Ferg, Brockton, for defendant.

Julia K. Vermynck, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Chief Justice.

Having been found guilty by a jury in the Superior Court for Barnstable County, the defendant, Melissa Jo Cordle, appeals from her convictions for murder in the first degree of Ralph D. Anderson and Frances H. Schiappa, and for burglary. The defendant's original convictions were set aside by this court, and the case was remanded for retrial because of an error in the trial judge's charge to the jury. Commonwealth v. Cordle, 404 Mass. 733, 742-743, 537 N.E.2d 130 (1989) (Cordle I ). The defendant now claims that the judge ¹ at retrial erred by (1) denying her motions for required findings of not guilty, (2) refusing to instruct the jury that they could draw inferences favorable to the defendant based on the failure of the police to conduct certain forensic tests, and (3) refusing to sequester the jury at the outset of the trial. The defendant also requests that this court exercise its power under G.L. c. 278, § 33E (1990 ed.), and grant her a new trial or reduce the verdicts to murder in the second degree. We conclude that there was no error. We also conclude that this case does not present circumstances appropriate for the exercise of our extraordinary power under § 33E. Thus, we affirm the convictions.

The evidence presented at the second trial was essentially the same as that which was admitted at the first trial. This evidence, together with the appropriate inferences which a jury could draw from it, was stated in great detail in Cordle I, supra at 734-738, 537 N.E.2d 130, and we need not repeat those details here. Instead, we shall state only the differences in the evidence between the first and second trials to the extent those differences relate to the defendant's claims of error.

1. The defendant's motions for required findings of not guilty. The defendant filed two separate motions for required findings of not guilty on the charges against her: one at the close of the Commonwealth's case-in-chief, another at the close of all the evidence. We assess the sufficiency of the Commonwealth's evidence at the time of each motion. See Commonwealth v. Walker, 401 Mass. 338, 343, 516 N.E.2d 1143 (1987); Commonwealth v. Basch, 386 Mass. 620, 622 & n. 2, 437 N.E.2d 200 (1982). In each instance, we consider all the evidence, viewing it in the light most favorable to the Commonwealth. Commonwealth v. Walker, supra. Commonwealth v. Basch, supra at 622, 437 N.E.2d 200. See Cordle I, supra at 734, 537 N.E.2d 130.

As we have noted, the evidence presented by the Commonwealth in its case-in-chief was essentially the same evidence that this court held sufficient to withstand a motion for a required finding of not guilty in the first trial. The Commonwealth presented the same evidence of the defendant's interest in, and harassment of, Ralph Anderson; the same evidence of the defendant's presence in Sandwich in the early morning of June 15, 1985; the same evidence of the similarity between the mode by which Anderson's cottage was entered on the morning of the murders and the mode by which the defendant broke into the cottage on May 28, 1985; and the same evidence that the defendant displayed consciousness of guilt by denying that she had been in Sandwich on the morning of the murders. In addition, the Commonwealth introduced new evidence that, following the May 28 incident, the defendant threatened to kill "Ralph and his whores." The judge properly concluded that the evidence on the record before him was sufficient to send the indictments to the jury. ²

The defendant presented additional evidence that was not introduced at the first trial. This additional evidence included uncontroverted testimony that Anderson visited the defendant's house on several occasions in March and April, 1985, and that during this period he sometimes sat outside the defendant's house for hours waiting in his automobile for the defendant to come home. In addition, the defendant also presented evidence that on May 4, 1985, the defendant spent the evening dining and dancing with Anderson and another couple and that this group then went to Anderson's cottage in Sandwich where they socialized while Anderson and the defendant played the organ. Finally, there was also evidence that on March 4, 1985, Anderson sent the defendant a postcard from Florida which he signed with an "X" and an "O." The defendant contends that this additional evidence undercut the prosecution's evidence that the defendant had harassed Anderson in the months preceding his murder and that consequently she was entitled to directed verdicts in her favor. We disagree.

We have stated the standard of review of a denial of a motion for a required finding of not guilty: We consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). The judge properly denied the motions. The additional evidence presented by the defendant, if believed, tended only to show that Anderson had not completely ended his relationship with the defendant. The jury still could have concluded that the defendant was unable to cope with Anderson's relationships with other women and that it was this inability that led her to Anderson's cottage on the morning of June 15. Indeed, the break-in on May 28, which occurred after each of the events relied on by the defendant, confirms that the defendant continued to harass Anderson just two weeks prior to his death. This evidence of the defendant's history of harassing Anderson, combined with the additional evidence of the defendant's presence in Sandwich on the night of the murders, her consciousness of guilt, and the distinctive means by which she entered the cottage, was sufficient to submit to the jury. ³

2. The judge's refusal to instruct the jury on the Commonwealth's failure to conduct certain forensic tests. During the course of trial, defense counsel adduced evidence that the Commonwealth had not tested the defendant's hands for the presence of blood or gunshot residue following her arrest. At the close of the evidence, defense counsel requested a jury instruction to the effect that it was permissible for the jury to infer that, if the tests had been conducted on the defendant's hands, they would have resulted in evidence favorable to the defendant. ⁴ The judge refused to give the requested instruction, allowed the defendant's counsel to argue the point to the jury, and gave a general instruction on inferences as set out in the margin. ⁵ The defendant claims that the judge's refusal to give the requested instruction was error. She contends further that the error was exacerbated by the judge's general instruction regarding inferences, which she claims precluded the jury from drawing the inference she sought. There was no error.

The decision whether to instruct a jury regarding the inferences that may be drawn from the failure of the police to conduct forensic tests lies within the discretion of the trial judge. See Commonwealth v. Brown, 411 Mass. 115, 119, 579 N.E.2d 153 (1991); Commonwealth v. Andrews, 403 Mass. 441, 463, 530 N.E.2d 1222 (1988). The failure of the police to conduct certain tests is a permissible ground on which to build a defense. See Commonwealth v. Benoit, 382 Mass. 210, 221, 415 N.E.2d 818 (1981); Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980). It is true, however, that "[a] judge need not give instructions on every subsidiary fact and possible inference." Commonwealth v. Phong Thu Ly, 19 Mass.App.Ct. 901, 902, 471 N.E.2d 383 (1984). "If there were inferences favorable to the defendant to be drawn based on deficiencies in the police investigation, it was the job of the defense to urge them to the jury." ⁶ Commonwealth v. Porcher, 26 Mass.App.Ct. 517, 520-521, 529 N.E.2d 1348 (1988).

In the present case, the defendant wished the jury to infer that, at the time of her arrest, there were no traces of blood or gunshot residue on the defendant's hands. This was a subsidiary issue at trial, as there was no evidence to suggest that the perpetrator of the crimes necessarily came into contact with the blood of the victims. Moreover, there was no evidence to suggest that the Commonwealth's failure to test the defendant's hands was unreasonable or that it was calculated to deprive the defendant of potentially exculpatory evidence. In light of the fact that the defendant was not arrested until nearly fourteen hours after the murders, and in light of the evidence that the defendant's automobile and some of her clothing had been tested and that the results of these tests were negative, the judge was not required to focus on the absence of a test of the defendant's hands. That the judge chose not to comment specifically on this evidence in his charge to the jury in no manner undermined the defense and was not an abuse of discretion.

To the extent that the defendant argues that the judge's general instruction regarding inferences precluded the jury from drawing the inference urged by counsel, we note first that defense counsel did not object to the judge's instruction at trial. In the absence of a proper objection, our review under § 33E is limited to whether the charge created a substantial likelihood of a miscarriage of justice. Commonwealth v. Anderson, 396 Mass. 306, 313, 486 N.E.2d 19 (1985). In any event, even if the defendant were entitled to full review of her claim, we would not conclude that the judge's instruction precluded the jury from drawing the inference sought by...