Com. v. Hensley

• Decision Date: 15 September 2009
• Docket Number: SJC-09704
• Parties: COMMONWEALTH v. Kevin HENSLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

913 N.E.2d 339

454 Mass. 721

COMMONWEALTH v. Kevin HENSLEY.

SJC-09704

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 6, 2009.

Decided September 15, 2009.

Stewart T. Graham, Jr., for the defendant.

Kathleen Celio, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

On the afternoon of January 31, 2002, Nancy Hensley was found dead in the basement of her home in the East Boston section of Boston. She had been strangled to death with a necktie. Her husband, Kevin Hensley, was indicted for the murder, and, after a five-day jury trial, was found guilty of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel, Hensley filed a motion for a new trial, alleging ineffective assistance of counsel. The motion was denied. The appeal from the denial was consolidated with his direct appeal.

Hensley argues that he was denied the right to a fair and impartial tribunal with respect to his motion to suppress; that it was error to admit in evidence the testimony of a medical examiner who neither performed nor attended the victim's autopsy; and that the evidence at trial was insufficient to support his conviction under the theory of extreme atrocity or cruelty. He also contends that his trial counsel was ineffective in failing to present expert testimony and medical records at the suppression hearing and at trial, and in failing to raise the issue of police deception when Hensley was interrogated shortly after his suicide attempt. Finally, Hensley claims that the denial of full funding for an expert witness to assist in his motion for a new trial was erroneous. We affirm the conviction, affirm the order denying his motion for a new trial, and decline to grant relief under G.L. c. 278, § 33E 1. Trial. The jury could have found the following facts. Kevin and the victim were married in 1979, and had four children. By January, 2002, the Hensleys were experiencing marital problems. They argued about whether the victim was spending enough time at home and whether she was spending too much time at a local gym, possibly in the company of another man. Convinced that the victim was spending time with other men, Hensley on one occasion disguised himself in a fake beard and watched the victim as she was working out at the gym. Hensley saw the victim talking to some other men but did not see any sign of infidelity. Hensley confronted her about the incident.

Thereafter, on January 9, 2002, the victim obtained a temporary abuse prevention order against Hensley and filed a complaint for divorce. The abuse prevention order required Hensley to leave immediately and stay away from the family's home at 198 Byron Street. The order also gave the victim custody of the couple's four children and prohibited Hensley from contacting the children pending a further hearing. The temporary restraining order expired at 4 P.M. on January 16, 2002, and a hearing was set for that date.

On the day of the hearing, Hensley and the victim entered into an agreement that was entered as a temporary order in the divorce proceeding. Hensley agreed that except for visitation exchanges he would remain away from the marital home. Hensley and the victim agreed that she would have the use of the family's 2000 Buick LeSabre automobile until the next court hearing. They also agreed that Hensley could enter the marital home that day, January 16, to retrieve his personal belongings, in the presence of a police officer. Finally, they agreed that their children would remain in the victim's care until the next court hearing, but that Hensley could have reasonable visitation if arranged twenty-four hours in advance.

After Hensley was served with the initial abuse prevention order, he began living at the Winthrop home of his sister. During the weeks that followed, Hensley's family members, friends, and his supervisor at work noticed that he appeared to be depressed and distraught about the breakup of his marriage, especially the loss of custody of his children. He became despondent, and separately confided to two close friends that if he lost custody of his children he would kill the victim and kill himself.

On January 22, 2002, the victim filed a complaint for contempt in the Probate and Family Court alleging that Hensley was not upholding their January 16 agreement.¹ Four days later, at approximately 9:30 P.M., one of Hensley's neighbors saw Hensley jumping over a fence that surrounded an empty lot opposite 198 Byron Street. Hensley walked by the neighbor, said, "Hi," put his head down, and continued walking down the street. The neighbor contacted the victim and informed her about it. On the night before the victim's death, Hensley told one of his friends that he had been "trying to see his kids," and that "[h]e was over by the house and [the victim] saw him and she was going down to take another restraining order out on him."

On January 31, Hensley reported to work with the Boston transportation department's "tow and hold" unit at 6:30 A.M. At approximately 8 A.M., after having towed one vehicle, Hensley told his supervisor that he was not "feeling right" and asked if he could use some vacation time and go home. Hensley drove to his sister's home, where he stayed for a brief period of time, and then continued on to 198 Byron Street.

When he arrived at Byron Street, Hensley parked his automobile around the corner, out of view from the house. Hensley was next seen leaving the house at about 11:45 A.M. He left in the family's Buick LeSabre automobile.

Later that afternoon, Hensley's eldest daughter arrived home from school. As she entered the kitchen, she noticed that a blanket that was kept in front of the back door to keep the draft out had been moved away. Everything that had been in front of that door was moved away "like someone had used it." The dead bolt, which was usually locked, was unlocked. She also noticed that the comforter was not on the bed in her mother's room. After doing some homework, she went to the basement to get something to drink. Noticing the door to the bathroom in the basement was closed, she opened the door and discovered her mother lying on the floor under the comforter from the bedroom. She telephoned 911.

Sergeant Detective Daniel J. Coleman² of the Boston police department's homicide unit supervised the investigation of the victim's death. Much of the evidence from that investigation was presented at trial. When the victim's body was found, her head was covered by a white sweatshirt and a pink garment, and there appeared to be blood on her hands. A blue necktie was tied tightly around her neck. She had blood on her face and her left eye was swollen. She was wearing one sock, and a matching sock was found on the kitchen floor with what appeared to be a bloodstain. There was no sign of forced entry into the home.

As the investigation into the death was proceeding, Hensley drove the Buick LeSabre automobile to New Hampshire, parked in a lot at the Waterville Valley ski area, and tried to asphyxiate himself by running a dryer vent hose into the vehicle from the exhaust pipe. His attempt proved unsuccessful, however, when at approximately 9 P.M., New Hampshire police officers and emergency personnel pulled him out of the vehicle and brought him to Speare Memorial Hospital (hospital) in Plymouth, New Hampshire.

At approximately 11:30 P.M., Sergeant Bret J. Beausoleil of the New Hampshire State police was informed that Hensley was the subject of an attempted suicide and a suspect in a homicide in Boston, and that the authorities in Massachusetts wanted the New Hampshire State police to interview Hensley if possible. Sergeant Beausoleil drove to the hospital, where he met with New Hampshire State Trooper Scot Bryan, Grafton County Attorney Kenneth Anderson, and emergency room physician Dr. John Eppolito. A decision was made to hold Hensley on an "involuntary emergency hospitalization" (IEH) due to his suicide attempt.

At 1:11 A.M. on February 1, 2002, after a telephone conversation with Sergeant Detective Coleman, Sergeant Beausoleil and Trooper Bryan met with Hensley in a hospital waiting room. Sergeant Beausoleil read Hensley the Miranda warnings while he followed along on a printed waiver form. Hensley initialed and signed the waiver form, indicating that he understood his rights and was willing to answer questions. When asked whether he was under the influence of alcohol, illegal drugs, or medication, Hensley said that he had been on Klonopin and Celexa for the previous couple of months, but he had stopped taking those medications about one month earlier. Hensley also explained that he had been seeing a doctor in East Boston for depression. Hensley explained that he had not used any alcohol or illegal drugs, but that he had taken a bottle of sleeping pills.

Sergeant Beausoleil then questioned Hensley about his activities on January 31, 2002, up to the point at which he was found at Waterville Valley. Hensley explained that he went to work around 6:30 A.M. and left around 8:30 A.M. After leaving work he drove to his sister's house in Winthrop and then continued on to 198 Byron Street. Hensley explained that he went there to get the Buick LeSabre automobile and kill himself. When asked whether he went into the house, Hensley first answered, "I think I did." Later in the interview, Hensley's answer changed to "I don't remember, it's all a blur, I just want to die." When asked if he remembered seeing the victim that day, Hensley replied, "I can't remember, it's all a blur." Hensley acknowledged having keys to both the house and the automobile. At one point during the interview, Hensley lay down on the couch in the waiting room and said that he felt dizzy and tired.

At 2:09 A.M., Sergeant Beausoleil stopped the interview and contacted Sergeant Detective Coleman....