Com. v. Bly

• Decision Date: 07 March 2007
• Citation: 862 N.E.2d 341,448 Mass. 473
• Parties: COMMONWEALTH v. Jeffrey BLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

862 N.E.2d 341

448 Mass. 473

COMMONWEALTH v. Jeffrey BLY.

Supreme Judicial Court of Massachusetts.

Suffolk.

Argued November 10, 2006.

Decided March 7, 2007.

John H. Cunha, Jr. (Charles Allan Hope, Boston, with him) for the defendant.

Pamela L. Hunt, Assistant Attorney General, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, SPINA, SOSMAN, & CORDY, JJ.

SPINA, J.

The defendant, Jeffrey Bly, was convicted of deliberately premeditated murder. On appeal, Bly asserts that (1) the trial judge wrongly admitted certain deoxyribonucleic acid (DNA) test result evidence; (2) DNA evidence collected from a water bottle and cigarette butts used by Bly should have been suppressed; (3) Bly's statement to the police, obtained without Miranda warnings, should have been suppressed; (4) identification testimony by one of the Commonwealth's witnesses should have been suppressed; (5) Bly's expert on identification should have been permitted to testify before the jury; (6) evidence of Bly's refusal to provide a court-ordered hair sample should not have been heard by the jury; (7) the judge wrongly admitted testimony regarding prior bad acts by Bly; and (8) the medical records of one of the Commonwealth's witnesses were not produced to Bly in a timely manner or found to be privileged in a written decision by the judge. Bly also contends that we should exercise our power under G.L. c. 278, § 33E, to reduce the verdict or order a new trial. We affirm.

1. Background. The jury could have found the following. Just before 7 P.M. on September 25, 1995, Assistant Attorney General Paul McLaughlin, who was on special assignment as a prosecutor attached to the Suffolk County district attorney's office, was shot and killed at the Highland Street commuter rail station (Highland station) in the West Roxbury section of Boston while on his way home from work. McLaughlin was scheduled to begin the trial of Bly the following morning on charges of carjacking.¹ The carjacking charges stemmed from an incident that occurred in April, 1994, between Bly and Dana Alston. Despite being the target of significant intimidation, Alston was prepared to testify against Bly. Bly was a member of a group of young men from the Theodore Street area in the Mattapan section of Boston who engaged in drug trafficking during the time period prior to McLaughlin's murder. About one week prior to the scheduled carjacking trial, Bly told Eric Hardy, a member of the Theodore Street group, that he was concerned about the imminent trial, stating, "I got to do something," but that he could not "mess with Dana [Alston]." Bly then exclaimed, "I got it," and took his friend Ricardo Gittens aside for a private conversation.

On September 22, 1995, Bly and Anthony Houston, a younger member of the Theodore Street group who regarded Bly as a father figure, went to the vicinity of Washington and State Streets in Boston. Bly waited with Houston until he saw McLaughlin leaving work, followed him to South Station, then ordered Houston to follow McLaughlin to "find out where he goes, does he meet up with anybody, where he gets off at, anything in that nature." Bly gave Houston money for train fare, as well as a pen and a notebook. Houston boarded the train behind McLaughlin, disembarked at the Highland station, followed McLaughlin to his car, had a brief exchange of words, and wrote down McLaughlin's registration plate number before returning to Bly to share his findings.

On the afternoon of September 25, 1995, Sandra Brown overheard a conversation between Bly and several of his friends. During this conversation, Bly stated that he had to get McLaughlin and that it had to be done that night. Bly was wearing a black hooded sweatshirt, black jeans, and black sneakers that day.

Mario Thompson, one of Bly's friends from the neighborhood, owned a 1982 Buick automobile. On the afternoon of September 25, 1995, Bly asked Thompson to follow him in his car. Thompson followed Bly and Gittens, who was driving a gold Dodge Colt automobile, to the Highland station and parked in a lot across the street. Once parked, Bly left the Colt and got into the Buick for a short conversation. Bly told Thompson that he could leave because he was not needed.

Maureen Woodsum, the only identification witness who did not know Bly, was driving home at around 6 P.M. on the evening of McLaughlin's murder. As she was turning toward her home she saw a man she later identified as Bly standing on a bridge close to the Highland station wearing dark pants and a dark sweatshirt with the hood pulled up over a dark cap. When she turned her car, Woodsum came within about ten feet of the man and saw his face as he started to walk toward her. Woodsum thought that the man looked out of place, but she chose not to make any report of what she saw, even after learning of McLaughlin's murder, because she did not observe him do anything wrong and did not want to be perceived as racist. Woodsum next saw that same man in February, 1998, while watching a television news broadcast, appearing in court next to a man with whom she had gone to high school. Only after Woodsum identified the man on television as the same man from the bridge did she learn that the broadcast concerned the indictment of Bly for McLaughlin's murder.

Michael Duffy was a commuter who parked about thirty yards behind McLaughlin's car at the Highland station on September 25, 1995. His train arrived at the station at about 6:50 P.M. After he alighted from the train, he saw McLaughlin walking to his car. As Duffy was getting into his car, he heard a brief exchange of words and then two shots. He looked up to see an unidentified figure leaning into the driver's side of McLaughlin's car, and McLaughlin's legs hanging out through the open driver's door. Duffy observed the figure put an object into his waistband and flee into a parking lot toward the train tracks. Duffy described the assailant as a fourteen to sixteen year old black male wearing a black hooded sweatshirt and baggy jeans, but did not specifically identify Bly as the person he saw that night. Two other witnesses in a nearby parking lot saw an unidentifiable person in a black sweatshirt fleeing the scene of the shooting.

On the night of September 25, 1995, Janet Brown was at her daughter Sandra's apartment when she heard Bly state: "I don't have to worry no more, I took care of my problem." Bly elaborated that he hid in the bushes and then came out when he saw McLaughlin, shooting him two or three times. When she asked Bly why he did that, he responded, that he did not want to go back to prison and that "D.A. McLaughlin was going to give him a lot of time because he had been up against him before and . . . lost both cases." Bly further stated, "I know he's going to try to hang me, but I'm not going out like that." Bly later asked her for money so that he could leave town.

Sandra Brown saw Bly during the evening of McLaughlin's murder at Mattie Dailey's apartment.² At one point he was soaking his hands in bleach. She noticed that he was not wearing his black hooded sweatshirt, as he had been earlier that day. She heard Bly say that he had no more worries and that he did not have a prosecutor.

Bly told Eric Hardy the day after the murder that he killed McLaughlin because "he was going to give [Bly] life on a carjacking case" and that Bly "didn't want to get life." Bly recounted the entire crime to Hardy, explaining that he hid in the bushes near McLaughlin's car waiting for him to arrive and that he had shot McLaughlin twice, and then fled to the waiting car of Gittens, losing his sweatshirt and bandana as he ran. Bly later asked Hardy to get rid of Gittens's car, but Hardy was stopped by the police on his way to accomplish that task and the car was impounded. Bly threatened to kill Hardy if he "snitch[ed]."

After recognizing McLaughlin from television news reports about the murder as the man whom Bly asked him to follow, Anthony Houston testified that he "took it kind of hard." He saw Bly the following day and asked him about the murder. Bly told him, "don't worry about it, don't say nothing and if anybody asks, [Bly] never asked [Houston] to do anything like [follow McLaughlin], never said anything about it." About one month after the shooting, Bly asked Houston, "You wouldn't turn me over for [$30,000]? ... You wouldn't try to snitch or anything like that against me?" Houston assured Bly that he would not because he was loyal.

Mario Thompson approached Bly regarding the McLaughlin murder after recognizing televised reports of the murder scene as the area that Bly had led him to that night. Bly told him to tell anyone who asked that they were together that night. When Thompson pressed further, Bly "gave [Thompson] a little dope slap and he just said `do what I tell you.'"

Police searching the area around the Highland station found several articles of clothing. Along the railroad tracks, police officers discovered a black hooded sweatshirt, a left-hand brown glove, and a green bandana. The matching glove and a knit cap were discovered inside the sweatshirt. Investigators also recovered a bullet from the front passenger side floor of McLaughlin's car. Additionally, police responding to the scene discovered an area directly across from McLaughlin's car that was concealed by bushes. Investigation of this area revealed footprints, as well as a milk crate and a cigarette butt. The footprints at the scene could not be matched to any particular brand or manufacturer of footwear.

A rusty gun was found in May, 1998, in a neighborhood near the Highland station. Testing of the gun yielded inconclusive results. A fingerprint found on the gun did not belong either to Bly or any of the other known fingerprint samples in the case.

2. DNA evidence. The Commonwealth sent various items of clothing and blood samples to three separate laboratories for DNA testing. Bly forcefully attacked the findings and...