Com. v. O'Laughlin

• Decision Date: 08 July 2005
• Docket Number: No. 04-P-48.,04-P-48.
• Parties: COMMONWEALTH v. Michael M. O'LAUGHLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

830 N.E.2d 222

63 Mass. App. Ct. 805

COMMONWEALTH v. Michael M. O'LAUGHLIN.

No. 04-P-48.

Appeals Court of Massachusetts, Berkshire.

Argued January 12, 2005.

Decided July 8, 2005.

Kenneth I. Seiger for the defendant.

Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

Present: LAURENCE, SMITH, & MILLS, JJ.

MILLS, J.

After a jury trial in the Superior Court the defendant was convicted of (1) burglary and armed assault in a dwelling; (2) armed assault in a dwelling; (3) armed assault with intent to murder; and (4) assault and battery by means of a dangerous weapon. On appeal he argues that (1) the evidence was insufficient to sustain the convictions and that the judge therefore erred in denying his motion for a required finding of not guilty; (2) the evidence that he withdrew his consent to allow the police to collect a sample of a small stain found on a closet door violated his right against self-incrimination; (3) prior bad act evidence concerning his drug use was improperly admitted; (4) his request for a hearing to challenge the reliability of deoxyribonucleic acid (DNA) evidence was improperly denied; (5) the judge's instruction on armed assault with intent to murder failed to inform the jury that the specific intent to kill was an element of the offense that must be proven; (6) the judge improperly excluded a note that was probative of a third party's intent to murder; (7) the judge improperly denied the defendant's motion to dismiss the indictments on grounds that the grand jury proceedings were flawed; and (8) the prosecutor misstated the evidence in his closing argument.

1. Facts.¹ Shortly after 6:00 A.M. on November 17, 2000, the victim was discovered in her apartment, numbered 15, and located on Ecstatic Way, a street in the Fox Hollow condominium complex in Lee. She had been severely beaten and was covered in blood, but was still alive.

Shortly before 2:00 A.M. that morning, the victim's neighbor, George Whittemore, had been awakened by banging and screaming sounds coming from the apartment directly below his, where the victim was the sole occupant, having recently separated from her husband of twenty-six years, David Kotowski. Whittemore testified that the banging sounded like "wood hitting wood," the screaming was that of a woman, and the sounds lasted for about thirty seconds. Although Whittemore was unsure whether "it was serious or not," the sounds were troubling enough that he called 911.²

Police officers Tierney and Skowron were dispatched to Fox Hollow shortly before 2:00 A.M. They arrived about six or seven minutes later, parked and exited the police cruiser and began to look for apartment number 202, the number reported in the dispatch.³ As they searched, they saw the defendant walking toward them on the sidewalk near unit 19 where he lived.⁴ He was dressed only in boxer shorts, but appeared to be impervious to the thirty or thirty-five degree air temperature. Officer Skowron and the defendant recognized one another. The defendant asked what had happened, and Officer Skowron told him that they were responding to a report of a woman screaming. When asked if he had heard any screaming, the defendant said that he had been awakened by screaming, and explained that he thought it was an animal in the dumpster because "they'd been having problems with raccoons getting stuck in the dumpster" and that he had put a stick in there in an effort to prevent animals from getting trapped.⁵ The police described the defendant as appearing uneasy or distant, and testified that he kept his head down, never looking directly at either officer as he spoke with them. While Skowron and the defendant remained on the sidewalk, talking, Tierney walked over to the dumpster and looked inside, seeing a stick, but no animals. The defendant returned to the building and the police continued to check the area. After circling the complex and detecting no sound or other indications of a problem, the officers left.

Whittemore had difficulty sleeping soundly that night. He was awakened several times by the sound of a woman moaning and crying directly below him. In the morning, he heard what sounded like glass breaking, and a man yelling "Oh, my God." The voice was that of James Finn, a man with whom the victim had become increasingly friendly over the past few months, and who had a routine each weekday morning of stopping at the victim's apartment between 5:30 A.M. and 6:30 A.M., so that the two could have coffee together before work. On November 17, 2000, Finn became concerned when the victim did not answer the door after he knocked repeatedly at about 5:45 A.M. Finn could only hear her saying in a very odd or unusual voice, "Who is that?" After unsuccessfully trying to telephone her from Lee, where he located the nearest pay phone, Finn decided to return and break into the apartment. He was able to force open the locked sliding glass door at the rear of the apartment and enter the dining and living area. Nothing seemed amiss, so he continued down the hallway to the victim's bedroom. There he found her lying curled up on the floor, covered with blood. Blood was "everywhere" in the bedroom. He called 911.⁶

An ambulance was dispatched to the apartment at about 6:24 A.M., and within fifteen or twenty minutes, the victim was taken to the Berkshire Medical Center.⁷ Officer Skowron arrived at the scene at about the same time as the ambulance. Apart from the bedroom, he found the apartment neat and intact, but noticed the victim's purse on the living room floor, which contained, among other things, the victim's identification, credit cards, about $28 in cash, and a checkbook.

Officer Tierney arrived about forty-five minutes later, at 7:15 A.M. He and Skowron examined the bedroom, the only place where there was blood. There was a fair amount of blood on the bed, the floors, the walls, and the door jambs to the bathroom and living areas. Blood had pooled in several spots on the floor, and blood on the walls and door jambs was no more than about eighteen inches from the floor. The bedding, which included sheets and a blanket and comforter, were "ruffled up, as if somebody was in it." There was also "quite a bit" of blood that appeared to be splatter on the comforter. There was a pillow in the bedroom that was "heavily saturated with blood in two distinct spots." Police also noticed that the bed rail that was part of the canopy on the victim's bed had a small dent in it and wood splinters were found on the floor directly below the dented portion.

Apart from the ruffled bedding, damaged bed rail, and blood, nothing else appeared to have been touched or displaced in the bedroom. Pictures were properly displayed, letters were stacked, clothing was neatly folded, figurines were upright, fresh roses were arranged in a vase, and the dresser drawers were closed. On the dresser, unsecured, were several pieces of valuable jewelry, including diamonds, pearls, and an expensive watch. There was $522 in cash in one of the dresser drawers.⁸ At about 8:30 A.M., Skowron left to go to the hospital while Tierney remained at the scene primarily to collect evidence.

Constance Cappel, who lived alone in the apartment between the defendant's apartment and the victim's, had been awake for several hours, meditating, when at about 6:45 A.M. her attention was drawn to voices near the entrance to the victim's apartment.⁹ She looked outside and saw policemen and two ambulances. She dressed, went outside, and saw the victim being put into the ambulance. When Cappel got no information from the police, she went to the defendant's apartment and knocked. He, in his boxer shorts, answered the door, looking like he had just awakened. Cappel said, "Michael, I think someone's been murdered or something." The defendant responded, "What do you want me to do about it?"

At about 8:45 A.M., the defendant, dressed for work, came out of his apartment and approached Carroll (his coworker) and Cappel. The defendant asked Carroll what was happening, and after Carroll responded, the defendant explained his earlier encounter with the police. He told Carroll that he had been awakened by police cars and the sound of the radios in those cars. He also said that he had told police that he thought raccoons had been in the dumpster making a "kind of squealing sound."

At about 10:00 A.M. Tierney saw the defendant outside the victim's building and asked him to go to the Lee police station to give a statement. Tierney noticed a "scratch or a dig mark in his left cheek, small cut on his chin and a round, circular bruise just on his neck, just below his left ear," but was unsure of whether the bruises or injuries were fresh. In response to the request for a statement, the defendant became "very defensive and apprehensive," but when Tierney assured him that he would be the one conducting the interview, the defendant agreed to go to the police station.¹⁰ He arrived at about 10:40 A.M., and was told by Chief Glidden to wait for Tierney, who was not yet there. When Tierney arrived twenty minutes later, at about 11:00 A.M., he told the defendant that he would be right with him and went into the chief's office for about five minutes. When Tierney came out of the office, the defendant was not there, but had gone back to Fox Hollow where he saw Carroll and told him the person he was supposed to meet up with was not there. After discussing the situation further, Carroll agreed to go back to the station with the defendant and they arrived about twenty minutes later. This time, Chief Glidden was able to take the defendant's statement¹¹ and they spoke for about ten minutes, during which time the defendant seemed agitated. The defendant said that he had been "drinking before he went to bed and he just didn't think he was awake until he heard the cruisers at approximately two o'clock," but may have heard something before that, but he was not sure. The defendant said he...