Com. v. Chamberlin

• Decision Date: 24 June 1986
• Citation: 22 Mass.App.Ct. 946,494 N.E.2d 63
• Parties: COMMONWEALTH v. Peter M. CHAMBERLIN.
• Court: Appeals Court of Massachusetts

Page 63

494 N.E.2d 63

22 Mass.App.Ct. 946

COMMONWEALTH v. Peter M. CHAMBERLIN.

Appeals Court of Massachusetts,

Norfolk.

Argued Feb. 19, 1986.

Decided June 24, 1986.

Kevin J. Reddington, Brockton, for defendant.

William D. Delahunt, Dist. Atty., and Stephanie Martin Glennon, Asst. Dist. Atty., for the Com., submitted a brief.

Before ARMSTRONG, PERRETTA and DREBEN, JJ.

RESCRIPT.

On an indictment charging the defendant with the murder in the first degree (G.L. c. 265, § 1) of one Cheryl Goodhue, the jury returned a verdict of guilty on the lesser included offense of manslaughter. The defendant was acquitted on an indictment arising out of the same event and charging him with unlawful possession of a dangerous weapon (G.L. c. 269, § 10[b ] ), nunchuks. ¹ The defendant alleges numerous errors in the proceedings, but we find none and affirm the judgment.

There was evidence to show that on the morning of April 30, 1983, about 7:45, the victim was found face down in the dirt about thirty feet from a well at a water pumping station in Avon. She was naked from the waist down, bloodied and bruised about her hair, face, buttocks, and legs. Her right leg appeared to be broken. She was groaning but unable to respond to questions. The victim died about three hours later as a result of traumatic and hemorrhagic shock from bleeding as a result of multiple fractures and injuries.

At trial, the prosecution and the defense met head on. The Commonwealth's theory of guilt (based upon the defendant's statement to the police, physical evidence, results of tests conducted thereon, and expert testimony) was that the defendant intentionally assaulted and beat the victim and repeatedly drove over her. The defendant's defense of accident was based upon his testimony, which he characterizes as consistent with the scientific and physical evidence throughout the trial. His testimony was to the following effect.

Prior to April 29, 1983, the defendant did not know the victim. He met her at a lounge that night, where they consumed what could be regarded as a large number of alcoholic beverages. When they left the lounge, they drove to the Avon Water Works, left the car, and engaged in sexual relations. The victim then laughingly told the defendant to give her $50 or she would accuse him of rape. Because the two had been joking with each other throughout the evening, the defendant did not take the remark seriously and told the victim to get dressed. He went back to his car and began driving about the area with the high beams of his headlights on, as if "spying" on the victim as she dressed. He was travelling at about forty-five miles an hour when he hit her. She was caught beneath the car, and when the defendant dislodged her, he thought she was dead. He left her there, drove to his residence, washed his car, and took a cold shower to "sober up."

1. There was no error in denying the defendant's motion to dismiss the indictments, which was based upon three grounds. (a) The defendant had no right to a probable cause hearing. See Commonwealth v. Britt, 362 Mass. 325, 330, 285 N.E.2d 780 (1972); Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 473, 488 N.E.2d 780 (1986). The claim that the Commonwealth resorted to subterfuge to obtain a continuance of the scheduled probable cause hearing in order to obtain indictments (cf. Commonwealth v. Raposa, 386 Mass. 666, 669 n. 8, 437 N.E.2d 215 [1982]; Commonwealth v. Hinterleitner, 391 Mass. 679, 680-683, 464 N.E.2d 46 [1984] ) is contradicted by the transcript of the hearing on the Commonwealth's request for a continuance, which was sought because test results had not been received. Even if there could be stipulations to unknown facts and even if defense counsel's willingness to enter into such stipulations could be viewed as undermining the grounds for a continuance (but see Commonwealth v. Bastarache, 382 Mass. 86, 106, 414 N.E.2d 984 [1980] ), we find no mention of any stipulation during the hearing on the request for a continuance. (b) The defendant alleges that in seeking the indictments, the Commonwealth presented "only one critical witness," State police Detective James H. Sharkey, and that Sharkey's testimony was "misleading and, in fact, not true." Sharkey testified that the victim's head wounds were "superficial" and appeared to be caused by a "blunt or round type instrument." When asked about the opinion of the pathologist concerning the wounds to the victim's head, Sharkey answered: "They believe they were consistent with the nunchuks" found in the defendant's car. Reading Sharkey's grand jury testimony in its entirety, we conclude that the grand jury proceedings were free of defect. We also note that at trial, expert witnesses for both the Commonwealth and the defendant testified that the head wounds could have been caused by any number of blunt instruments, including nunchuks. See Commonwealth v. Dilone, 385 Mass. 281, 284, 431 N.E.2d 576 (1982); Commonwealth v. Bongarzone, 390 Mass. 326, 338-339, 455 N.E.2d 1183 (1983). To the extent Sharkey's testimony might be viewed as less than precise, see Commonwealth v. Reddington, 395 Mass. 315, 319-320, 480 N.E.2d 6 (1985). (c) We need not consider whether the Commonwealth failed to preserve physical evidence when it returned the automobile to the true owner, a car rental company. As the defendant wanted to inspect the car for evidence to rebut any claim that the victim's head wounds were caused by nunchuks, and as the defendant was acquitted of the charge of possessing nunchuks, the issue becomes irrelevant. Were it necessary to decide the question, we would find no prosecutorial misconduct for substantially the same reasons as those set out in the memorandum of decision of the judge who denied the motion.

2. As we read the defendant's somewhat diffuse argument concerning the denial of his motion to suppress the statements he gave to Sharkey, his real complaint is with the findings of fact made by the judge who denied the motion. However, our review of the transcript of the hearing on the motion reveals no "clear error." Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980). The findings of fact that: (a) the police located the defendant the afternoon of April 30th where he was working on a roof; (b) the defendant was able to descend a ladder to speak with the police, notwithstanding his claim that he had been drinking; (c) the police advised the defendant of his Miranda rights, and he indicated that he knew and understood those rights; (d) the defendant first gave the police an exculpatory statement; (e) the defendant telephoned and spoke with an attorney who advised him to remain silent; (f) the defendant told the police of the advice he had received, and they then told him to remain silent until he was represented by counsel; (g) the defendant next proceeded to give an inculpatory statement; and (h) when the defendant's attorney and sister arrived at the police station, the defendant acquiesced in the relating of his statement to them by the police; all support the judge's ultimate conclusions that the defendant knowingly and intelligently waived his right to counsel and voluntarily made inculpatory statements. See Commonwealth v. Sires, 370 Mass. 541, 544-545, 350 N.E.2d 460 (1976); Commonwealth v. Watkins, 375 Mass. 472, 483-485, 379 N.E.2d 1040 (1978); Commonwealth v. Richmond, 379 Mass. 557, 560, 399 N.E.2d 1069 (1980)...