Commonwealth v. Jewett, SJC-08235 (MA 8/12/2004)

Decision Date12 August 2004
Docket NumberSJC-08235
Citation442 Mass. 356
PartiesCOMMONWEALTH vs. WILLIAM C. JEWETT, JR.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Practice, Criminal, Conduct of prosecutor, Assistance of counsel, New trial, Capital case, Instructions to jury. Evidence, Hearsay, Sexual conduct, Expert opinion, Prior misconduct, Subsequent misconduct. Constitutional Law, Assistance of counsel. Grand Jury. Rape. Homicide.

Indictments found and returned in the Superior Court Department on October 6, 1997.

The cases were tried before Suzanne DelVecchio, J., and a motion for a new trial, filed on May 23, 2003, was heard by Linda E. Giles, J.

Myles D. Jacobson for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Present: Marshall, C.J., Greaney, Cowin, Sosman, & Cordy, JJ.

MARSHALL, C.J.

On January 30, 1993, the body of a seventeen year old woman was discovered in a wooded area in Rockland. A Superior Court jury convicted the defendant, William C. Jewett, Jr., the last known person to have seen the victim alive, of her rape and murder in the first degree by deliberate premeditation. On appeal, the defendant claims that the prosecutor acted improperly by not disclosing material evidence to the jury, that his trial counsel rendered ineffective assistance, and that the prosecutor offered false and deceptive evidence to the grand jury. The defendant also argues that the motion judge (who was not the trial judge) abused her discretion by denying his motion for a new trial without holding an evidentiary hearing. Finally, the defendant asserts that three errors — improper expert opinion on sexual assault, lack of an accident instruction, and admission of prejudicial bad acts evidence — none of which was objected to at trial or raised in the motion for a new trial, created a substantial likelihood of a miscarriage of justice mandating exercise of our authority under G. L. c. 278, § 33E, to order a new trial. We affirm the convictions of murder in the first degree and rape, and decline to exercise our power under G. L. c. 278, § 33E.

1. Facts. We summarize the facts in their light most favorable to the Commonwealth, reserving certain details for discussion in connection with the issues raised. The defendant and the victim had known each other socially for a number of years, but had never been romantically involved. On the evening of January 29, 1993, they both attended a party at a mutual friend's apartment in Weymouth. Sometime before 1 A.M. on January 30, 1993, as the last guests were leaving the party, the defendant said he would drive the victim home. The defendant's automobile, which was seventeen years old and unregistered, would not start, so a friend in a truck used jumper cables to start it. The automobile was running very noisily and backfiring, so the friend followed it for a short distance in his truck. The two vehicles parted ways in a parking lot after the defendant said the automobile was fine.

The victim had a 12:30 A.M. curfew. When she failed to arrive home by 1 A.M., her mother telephoned the apartment where the party had been held. By morning, both of the victim's parents and some of her friends began looking for her in the neighborhood. After learning that the victim had left the party with the defendant, the victim's father telephoned him. The defendant told him that he had dropped the victim off at the end of her street at about 12:30 A.M., because she wanted to finish her beer before going home.

Later that afternoon, while investigating what looked like a blue rag on his property, a resident of Turner Road in Rockland discovered the victim's body lying partially covered by pine needles, twigs, and leaves in a wooded area. He telephoned the police. Dr. James Weiner, a State medical examiner, declared the victim dead at the scene and conducted a preliminary examination of the body. His examination revealed that the victim's lipstick was not smeared, but her blouse was pulled off her left shoulder, and two buttons in the middle of the blouse had been torn off. Her pants were buttoned, but the zipper was open and broken. One leg of her pantyhose had been torn completely off, and one of her boots was missing. Her underwear and pantyhose were rolled up, and she appeared to have been redressed.

The victim's body was transported to the medical examiner's office for further investigation and autopsy. Dr. Weiner determined that the victim had died around 1:30 A.M., and had probably been moved to the Turner Road location after her death. He prepared a rape kit, collecting semen from the victim's underwear and vagina, and sent the kit to the State laboratory for analysis. The following morning, Dr. William Zane, another State medical examiner, performed an autopsy. He observed scrapes, abrasions, and bruising to the victim's face and neck, as well as hemorrhages on the surface of her face and around her heart and upper airway. From this evidence he determined that the victim had died as a result of asphyxia from strangulation, caused by either a soft ligature, fingers, or a forearm.

The DNA analysis of the semen recovered from the victim's underwear revealed a high probability that it had come from the defendant. Analysis of the semen recovered from the victim's vagina was inconclusive, but the defendant could not be excluded as the source of the semen. A green thread found in the defendant's automobile matched the victim's blouse. The victim's missing boot was found in the middle of a street in Weymouth, about three-tenths of one mile from the defendant's house.

At trial, three residents of Turner Road, where the victim's body was discovered, testified to seeing an automobile identical to the defendant's, with a single male occupant, traveling very slowly down Turner Road between 2 A.M. and 3 A.M. Two other neighbors heard the sound of an automobile backfiring around the same time. Police later discovered that one of the defendant's close childhood friends lived on Turner Road.

Several of the defendant's friends testified regarding his statements and demeanor on the morning of January 30, 1993. Two friends testified that the defendant told them that the victim's father had telephoned him to say that the victim was missing. The defendant also told one of these friends that he did not want to get into trouble because his automobile was unregistered and uninsured, and told two friends that he hoped nothing had happened because he did not have an alibi. Friends who saw the defendant that day and the following testified that he was "[n]ervous," "pacing," and "agitated." The defendant denied to his friends and the police that he had ever had sexual intercourse with the victim, even after the DNA match was later revealed in the newspapers.

Four years later, after the defendant had been indicted for the victim's rape and murder and incarcerated pending trial, he confessed to another inmate, Mark Obershaw, that he and the victim had kissed in his automobile and were planning to have intercourse, but that she refused at the last minute. He told Obershaw that he had sexual intercourse with her anyway, and that when he finished, the victim started yelling that he had raped her and that she was going to tell her father. The defendant first told Obershaw that he had accidentally strangled the victim, but later told him that he "had to" strangle her so that he would not be charged with rape. He then "got emotional" and put the body in the trunk and drove to a street where "one of his best friends lived" because "[h]e knew a spot where he could put the body." He told Obershaw that he drove slowly down the street because his automobile had a loud muffler, backed up to a spot near the woods, and covered the body with pine needles and brush.

The defendant did not testify at trial. His attorney argued that the victim's death was accidental, caused by "positional asphyxiation"1 during consensual intercourse with the defendant. He also argued that, after the victim died, the defendant tried to dispose of the body in a panic.

2. Prosecutorial misconduct. The bulk of the defendant's appeal centers on testimony regarding the age of the sperm analyzed by the Commonwealth's experts. Contrary to the theory presented by his attorney at trial, the defendant now maintains that he and the victim had had consensual sexual intercourse one or two days prior to her death. He argues, for the first time on appeal, that hearsay statements in a police report and two handwritten police notes prove that the sperm found in the victim's underwear and in her vagina was twenty-four to thirty-six hours old at the time of her death, and that the prosecutor improperly deprived the jury of the "material" evidence of the age of the sperm. We examine this new claim only to determine whether there was a substantial likelihood of a miscarriage of justice at trial. See Commonwealth v. Wallis, 440 Mass. 589, 593 (2003).

We begin by reviewing in some detail the evidence regarding the age of the sperm. As noted above, around 11 P.M. on January 30, 1993, Dr. Weiner recovered semen samples from the victim's underwear and from inside her vagina and sent the samples to the State laboratory for analysis. There they were examined by Mary McGilvrey, a chemist employed by the Commonwealth, who testified that none of the sperm cells in the two samples she examined "had tails." She explained that an intact sperm cell consists of a head, neck, and tail, and that the tails are quite fragile, the first part of the sperm cell to degrade after it is deposited in the vagina. She testified further that the presence of intact tails indicates that the sperm was deposited "more recently as opposed to a longer period of time," but that if no tails are present, she is unable to draw any conclusion about the age of the sperm.2 McGilvrey testified that, in addition to degradation over time, sperm tails can be shed by certain extraction techniques, such...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT