Com. v. Snell

• Decision Date: 02 February 1999
• Citation: 705 N.E.2d 236,428 Mass. 766
• Parties: COMMONWEALTH v. Emory G. SNELL, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 236

705 N.E.2d 236

428 Mass. 766

COMMONWEALTH v. Emory G. SNELL, Jr.

Supreme Judicial Court of Massachusetts Barnstable.

Argued Dec. 8, 1998.

Decided Feb. 2, 1999.

J. Barter, Boston, for the defendant.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

Present: WILKINS, C.J., LYNCH, GREANEY, & IRELAND, JJ.

GREANEY, J.

The defendant was convicted of murder in the first degree (by reason of deliberate premeditation) of his wife. Represented by new counsel on appeal, he raises twelve arguments in seeking relief from the conviction and from the denial of his motion for postconviction relief under Mass. R.Crim. P. 30(a) and (b), 378 Mass. 900 (1979). The defendant's principal contentions concern the denial of his motion to dismiss the indictment for the alleged failure of the Commonwealth's investigators to conduct a proper investigation; the denial of his motion to continue the trial so further deoxyribonucleic (DNA) testing could be done; the denial of his motions to suppress which challenged a warrantless entry by the police into the marital home and evidence seized thereafter pursuant to search warrants; the admission of evidence of prior bad conduct and of the victim's state of mind; the judge's instructions to the jury; and alleged bias on the part of one juror. We affirm the defendant's conviction and the order denying his motion for postconviction relief. We discern no reason to exercise our authority under G.L. c. 278, § 33E, either to reduce the verdict or to order other relief.

jury could have found the following facts. The defendant and the victim lived together at their home at 1051 Putnam Avenue Extension, Marstons Mills. In the early evening hours of March 16, 1995, the victim obtained a protective order against the defendant under G.L. c. 209A, and, at the same time, a Barnstable police officer obtained an arrest warrant for him on charges that he threatened to murder the victim and burn down their home. After the G.L. c. 209A order and the arrest warrant were finalized, the police went to the home with the victim and arrested the defendant who, when he was placed under arrest, told the police, "This is fucking bullshit." The defendant also made derogatory remarks about the victim which were false. Later on the night of March 16, the defendant posted bail and checked into a local hotel for a one-night stay. There was no precise record of when the defendant checked out of the hotel.

Early on the morning of March 17, the defendant's truck was seen parked in front of the marital home by a neighbor who was walking his dog. The neighbor then heard the truck start up and saw the defendant driving it. The neighbor had never seen the defendant leave his house so early in the morning, and the neighbor noticed that the defendant drove away on a route which the neighbor had not seen him use before. The neighbor fixed the time of the defendant's departure at slightly before 6:30 A.M.

Around noon on March 17, the defendant spoke with a witness. The defendant seemed very calm. He told the witness that the court system can cause a major problem between husband and wife, that he had put the victim up on a pedestal after marrying her and did not want her working two jobs, that he and the victim were having a conflict which had reached the point that required the defendant to leave their home, and that, after he had left, the victim had called the police. Later on the afternoon of March 17, the defendant went to the clerk's office of the Barnstable District Court seeking to have the G.L. c. 209A order against him removed. The defendant told an assistant clerk that the entry of the order had been a misunderstanding. The defendant's demeanor during the conversation was described as "[d]etermined."

The victim's daughter last spoke with her mother on March 15. Between March 16 and March 18, the victim's daughter to contact her mother on the telephone several times. The telephone at the victim's home would ring, but the answering machine did not engage. After speaking with family members on March 18, the victim's daughter telephoned the police expressing concerns about her mother's well-being.

The victim's son also had tried to telephone his mother repeatedly and became concerned when she did not answer his calls or telephone him. He took note of her failure to respond to messages, inviting her to his home to celebrate his wife's birthday, and of her failure to call to wish his wife a happy birthday. The victim's son went to his mother's home twice on March 17, and received no response to his attempts to enter. He saw the victim's car in the driveway. On March 18, the victim's son drove past his mother's home and saw her car parked where it had been located the previous day.

As a result of telephone calls by the victim's family, a Barnstable police officer went to the home to check on the well being and safety of the victim. The officer obtained no response when he knocked, and he saw that all the windows and doors of the house were locked. The officer entered the home by pushing aside a frame covering the entrance to the cellar; he looked for the victim, and shortly after his entry, the officer found her dead in one of the upstairs bedrooms. During a later search of the perimeter of the home, the officer noticed that the wires in the telephone junction box had been pulled away from their terminals. This condition of the wires would cause persons calling the victim to hear a ringing at their end of the line, but the call would not ring through, and anyone picking up the telephone inside the house would not get a dial tone.

The medical examiner determined that the victim had died as a result of asphyxia due to smothering. The examiner observed seventeen injuries on the victim's body which were inflicted contemporaneously or within minutes of the time of her death. The examiner placed the probable time of death between the hours of 11 P.M. on March 16, and 6:30 A.M. on March 17.

The jury could also have found that a hostile relationship existed between the defendant and the victim. In September, 1993, they had argued violently and the victim sought help from a neighbor after the defendant attempted to choke her and smother her. In 1994, the defendant and the victim had argued The victim expressed anger toward the defendant, and he told her, "If I can't have you, nobody will." ¹

The defendant maintained that the police had not properly investigated the case and neglected to gather evidence that might have exculpated him. He attacked the credibility of the Commonwealth's witness who placed him at the marital home early on the morning of March 17. He suggested that the victim may have died from natural causes. The defendant also claimed that he did not go near the marital home after he had been arrested, and that his presence elsewhere could be accounted for during all critical times.

1. The defendant filed a pretrial motion to dismiss the indictment, asserting that "the Commonwealth, at every stage, failed to follow reasonable procedures in conducting the investigation in this case, and failed to conduct appropriate tests, and as a result, destroyed any opportunity for the discovery of exculpatory evidence." He points to instances during the investigation, that, he says, indicate that the Commonwealth's investigators contaminated the crime scene. As a result, he claims it was made difficult, or impossible, to recover fingerprints or to obtain other materials (such as fibers or hairs) that, after testing, might have excluded him as a suspect. He maintains that the police deviated from guidelines and failed to preserve material evidence when they destroyed their handwritten notes. He asserts also that the medical examiner failed to conduct tests on an inhalator found by the victim's bedside or to investigate matters that may have shed light on whether the victim died from a natural cause, namely cardiac arrhythmia.

The judge conducted an evidentiary hearing, and to support his denial of the motion made findings of fact. There is no need to detail the judge's findings. They more than adequately support his conclusion that "there is no basis for the [defendant's] contention that the Commonwealth intentionally destroyed evidence ... [and] no evidence of bad faith or negligence by the Commonwealth in connection with the gathering and preserving of evidence." The judge also appropriately observed the defendant's criticisms of the police investigation were an "attempt to turn a simple negative into active wrongdoing," and that the defendant's contentions lacked factual support in the record. ² We add three other points:

(a) The Barnstable police officer, who was dispatched to the marital home, initially did not follow crime scene guidelines because those guidelines would not be followed when the police are checking on the well being of a person.

(b) The medical examiner's opinion as to the cause of death was supported by independent medical evidence of injuries to the victim, all which excluded any probability of death by natural causes including cardiac arrhythmia.

(c) The handwritten notes compiled by the police were destroyed in keeping with normal procedures after police reports based on the notes were completed.

We conclude that the defendant did not establish a reasonable likelihood, based on concrete information rather than speculation, that the investigation could have produced evidence favorable to his case. Commonwealth v. Olszewski, 401 Mass. 749, 754, 519 N.E.2d 587 (1988), S. C., 416 Mass. 707, 625 N.E.2d 529 (1993). There was no error in the denial of the motion to dismiss.

2. The judge properly denied the defendant's motion, filed about ten days before the commencement of the trial, to continue the case to permit further DNA testing on hairs found on the blanket used to cover the victim's body. (Testing had previously determined that some hairs recovered from...