Com. v. Crouse

• Decision Date: 23 October 2006
• Citation: 855 N.E.2d 391,447 Mass. 558
• Parties: COMMONWEALTH v. Thomas CROUSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 391

855 N.E.2d 391

447 Mass. 558

COMMONWEALTH v. Thomas CROUSE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued September 8, 2006.

Decided October 23, 2006.

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James L. Sultan, Boston (Jonathan Harwell with him) for the defendant.

Marguerite T. Grant, Assistant District Attorney (Adrienne C. Lynch, Assistant District Attorney, with her) for the Commonwealth.

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

GREANEY, J.

A jury in the Superior Court convicted the defendant on indictments charging murder in the first degree (based on theories of deliberate premeditation and extreme atrocity or cruelty)¹ and arson of a dwelling. Represented by new counsel on appeal, the defendant claims that a new trial is warranted because of errors in (1) the denial of his motion in limine to preclude the Commonwealth from introducing evidence of his prior convictions to impeach his trial testimony if he chose to testify; (2) five separate evidentiary rulings made during the trial; (3) the judge's refusal to permit defense counsel to cross-examine an important prosecution witness regarding the timing of the disclosure of certain discovery materials; and (4) prosecutorial misconduct in the form of improper remarks made during opening statement and closing argument. We reject these claims. We also conclude that there is no basis to exercise our power pursuant to G.L. c. 278, § 33E, to order a new trial or reduce the defendant's murder conviction to a lesser degree of guilt. Accordingly, we affirm the judgments of conviction.

The Commonwealth's theory at trial was that, on the morning of July 18, 2000, the defendant raped and murdered the victim in the basement function room of the Malden Mills condominium complex (Malden Mills) in Malden, set fire to the room in an attempt to destroy the evidence, and disposed of the victim's body in a wooded area in Hooksett, New Hampshire. The victim was fourteen years of age. She had been in the custody of the Department of Social Services (department), but repeatedly had run away from her department placements and often stayed at the homes of friends, or on the streets, in the months prior to her death. The primary issue at trial was the identity of her killer.

Based on the Commonwealth's evidence, a jury could have found the following facts. At 5:30 A.M. on July 18, 2000, the defendant, who lived in a condominium unit at Malden Mills with his girl friend and two young children, was seen crossing the condominium's parking lot and walking toward a ramp that led into the building, pulling a child's wagon. His vehicle, a Chevrolet Blazer, was parked in a nearby parking space reserved for visitors. Just after 6 A.M. that morning, the defendant went to a Mobil station next to Malden Mills and paid cash for five dollars' worth of gasoline. The station's surveillance videotape shows the defendant approaching the tailgate of his Blazer, lifting the window, and putting the gasoline nozzle into the right rear cargo area of the Blazer. Less than two minutes after he arrived at the Mobil station, the defendant was seen returning to Malden Mills and, about five minutes later, driving out of the parking lot at a high rate of speed.

At 6:19 A.M., the fire alarm at Malden Mills sounded. Fire fighters arrived within minutes and found the condominium's basement function room full of thick, dark smoke. The room's sprinkler system had been activated, but there were no flames. The room was in complete disarray. A glass-topped table and a burned chair were tipped over, coins were scattered on the floor, and bloodstains covered areas of the burned carpet and furniture. Portions of one wall and baseboard showed impact spatter bloodstains and swipe markings consistent with a bloody object moving, or being moved, along the wall toward the door. There was a strong smell of gasoline and burn marks on the carpet, which showed pour patterns of liquid accelerant. There was no dispute at trial that the fire had been set deliberately. One of several expert witnesses for the Commonwealth, State Trooper Paul Horgan, testified that the fire had been set about ten minutes before the alarm sounded.

The defendant, his girl friend, and the children arrived at the home of her parents in Manchester, New Hampshire (usually a one-hour drive from Malden) sometime around 7 A.M. that morning. Soon thereafter, the defendant left the house alone. Cellular telephone records show that he drove around the outskirts of Manchester and made numerous telephone calls between 7:19 A.M. and 8:30 A.M. Between the hours of 8:30 A.M. and 9:27 A.M., he made no telephone calls.

Police officers investigating the fire in Massachusetts were informed by the defendant's stepfather of the defendant's presence in New Hampshire. Two officers traveled to Manchester that evening to interview the defendant and his girl friend. The defendant told Trooper Edward Forster that he had gone home at 8 P.M. the previous evening and had not left for the rest of the night. Records of telephone calls made from the defendant's cellular telephone reveal, however, that the defendant had made several telephone calls to his home telephone after 8 P.M. Records also reveal that, at approximately 10:09 P.M. that night, the defendant placed a telephone call to Wayne Freeman. Freeman testified at trial that the purpose of that telephone call (and other telephone calls to Freeman placed by the defendant earlier that evening) must have been to arrange for Freeman to purchase cocaine for the defendant.

Records reveal a great number of telephone calls were placed, or received, by the defendant's cellular telephone on July 19, 2000. One call was made to a friend of the defendant, Ronald Whitman, Jr., to whom the defendant stated that he thought he was "in trouble." The defendant appeared at Whitman's home that summer afternoon wearing a long-sleeved shirt and long pants. The defendant seemed nervous and distraught. The defendant explained to Whitman that the police had been to his home and may have observed beer cans, which were there in violation of the terms of his "parole." (The jury also heard evidence that the police had not been to the defendant's home and that drinking beer would not have been a violation of the terms of his probation.) On July 22, Whitman's girlfriend observed deep, red scratch marks on the defendant's neck and chest.

In October, 2000, the police obtained a search warrant for the defendant's Blazer. Small bloodstains were found on the steering wheel, the driver's side door and the carpet on the passenger's side.² A dog trained in accelerant detection (Lucy) alerted to the right rear corner of the vehicle's cargo area, an area where the carpet showed signs of bleach discoloration. Laboratory test results of a carpet swatch cut from that area of the vehicle, however, were negative for the presence of gasoline.

In April, 2001 (about ten months after the fire), skeletal remains were discovered by a jogger in Hooksett, New Hampshire, in a wooded area approximately seven miles from Manchester. The body had been buried, face down, in a shallow grave. The skull and many small bones had been moved by scavenging animals. Where the skull had been was a mass of thick auburn hair held in a ponytail. The skeleton was clothed in cutoff jeans and two shirts. Markings in the dirt surrounding the remains indicate that the grave had been dug with both round ended and square ended shovels. At the bottom of a nearby ravine were two rusty shovels, one round ended and one square ended. On one of the shovels was a fingerprint, which, despite law enforcement efforts, was never identified. The New Hampshire police at that time could not identify the uncovered remains, except that they were of a Caucasian female.

Deoxyribonucleic acid (DNA) testing subsequently confirmed that the remains matched the blood found in the function room at Malden Mills. The medical examiner who performed the autopsy concluded that the cause of death was at least one stab wound to the abdomen. A three-quarter inch slit in the same area on the right side of each of two shirts was consistent with a painful knife wound to the liver. The left abdominal area of both shirts and the cutoff jeans had been eaten away, possibly by animals attracted to blood, so other stab wounds could not be ruled out. Decomposition made recovery of any seminal fluid or sperm that may have been on the clothing next to impossible. Police disseminated a description through the media, and dental records ultimately led to the identification of the fourteen year old victim.

In June, 2001, a grand jury indicted the defendant in connection with the victim's murder and the arson at Malden Mills. While in jail awaiting trial, the defendant admitted to a fellow inmate, Gerald Intonti, that he had raped the victim in the function room at Malden Mills, murdered her, set fire to the room, and buried the victim's body in Hooksett. At trial, Intonti testified at length to multiple details of the case that, the Commonwealth argued to the jury, he would not have known had the defendant not told him.

The defendant did not testify at trial. His theory of defense was that he had nothing to do with the murder and fire. Two defense experts in fire systems and designs opined that the alarm at Malden Mills would have activated within one minute of the fire's being set, and the sprinkler system, in one to three minutes. Two correction officers from the Cambridge jail testified for the defense that they had observed Intonti going "in and out" of the defendant's cell and that, between March 25 and April 16, Intonti's bunk was adjacent to the defendant's bunk, under which he stored a box full of legal papers. One of the officers testified to seeing the defendant and Intonti sitting together at a table with many papers. Defense counsel argued forcefully to the...