Com. v. Cunneen

• Decision Date: 16 May 1983
• Docket Number: No. M-2963,M-2963
• Citation: 389 Mass. 216,449 N.E.2d 658
• Parties: COMMONWEALTH v. Arthur J. CUNNEEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 658

449 N.E.2d 658

389 Mass. 216

COMMONWEALTH v. Arthur J. CUNNEEN.

No. M-2963.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Jan. 4, 1983.

Decided May 16, 1983.

John F. Palmer, Boston, for defendant.

Susan C. Mormino, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The defendant, Arthur J. Cunneen, appeals from his conviction of murder in the first degree. ¹ He raises three objections to the conduct of his trial. He says that it was error for the judge to deny the defendant's motion for a mistrial when evidence was received which implied that the defendant had been involved in other crimes; that certain testimony as to chemical detergents was improperly admitted in evidence; and, finally, that the judge's instructions to the jury did not adequately permit the jury's consideration of the defendant's mental retardation. We conclude that the defendant's claims lack merit, and that the verdict is otherwise consonant with justice; accordingly, we affirm the judgment of conviction.

The facts are summarized as follows. The Commonwealth alleged that sometime between 9 P.M. and 10 P.M. on May 2, 1979, the defendant murdered David M. Cecere, a thirteen year old boy. The murder allegedly occurred on or near a railroad loading platform behind an A & P warehouse in Somerville, where the victim's body was discovered with multiple stab wounds, cuts and bruises, and his throat slit, on the morning of May 3, 1979. The doctor who performed the autopsy on the victim testified at trial that the victim's throat injuries resulted from multiple blows of marked force inflicted by a strong cutting instrument, and that these injuries caused the victim's death. He also testified that in his opinion the victim was lying on his back on the platform when the fatal blows were administered, but that the victim sustained other wounds while he was on the roof of the warehouse or on the way down to the platform.

Lieutenant John J. McCune, Jr., a Somerville police detective, testified at length at trial. He stated that he observed the victim's body on the platform on the morning of May 3, 1979. Several other police officers were present at the scene, including Lieutenant Thomas Castles and Trooper Roderick Hendrigan of the State police. A ring with two keys was removed from the victim's clothing. Later that morning, McCune and Castles read a missing persons report filed that morning by the victim's mother, Mrs. Rose Cecere. The police went to the Cecere home, at 32 Newtown Court Housing Project, Cambridge. Hendrigan opened the outside door and the door to the Cecere apartment with the keys taken from the victim's body. Mrs. Cecere identified the keys as belonging to her son, David.

As the police officers left 32 Newtown Court, they saw the defendant approaching in the company of several other police officers. The defendant lived with his mother in an apartment at 63 Washington Elms Housing Project, which is adjacent to 32 Newtown Court, and he was acquainted with the victim. McCune told the defendant that they were trying to locate David Cecere, and had information that the defendant might have been the last one seen with him. The defendant agreed to accompany the police to the Somerville police station, arriving there about 12:30 P.M.

At the police station, McCune and Hendrigan led the defendant to a private office and read him his Miranda rights. The defendant said he understood them and, when asked if he wanted to read the card himself, expressed a desire to do so. McCune asked the defendant if he could read; the defendant stated that he could, and had trouble only with the word "Miranda." After that was explained to him, the defendant signed the card. The parties stipulated at trial that the defendant had an I.Q. of eighty, which is considered borderline retardation.

McCune then asked the defendant how he received scratches on his forehead and fingers. The defendant said he scratched his hands washing dishes at work, and cut his forehead cleaning an oven at work. The defendant said he received one cut, which was covered with a bandaid, when his cat scratched him the previous night.

The defendant then described his activities on May 2, 1979. He worked during the day at Soupcon Restaurant, Boston, arrived home at 5:30 P.M., had coffee with his mother, and watched television. At 6 P.M., he received a telephone call from a friend, Thomas Coyne. They agreed to meet later at Boylston and Arlington streets, Boston. Coyne called again about 8 P.M., and asked the defendant to bring along Coyne's white scarf.

The defendant left his apartment at 8:10 P.M., and exchanged greetings with the victim, who was playing ball with other boys in the courtyard. He walked to Boston, and met his friends, Coyne, Dale Morgan, and "Angel" about 9:45 P.M. He left about 11 P.M., and returned home at 11:30 P.M. When he arrived home, his mother told him that Mrs. Cecere had visited their apartment to ask about her son, David. The defendant went to the Cecere home, and told Mrs. Cecere that he had seen her son earlier playing ball, but did not know where he was. The defendant returned home, watched television, and went to bed.

The next day, the defendant did some errands for his mother in Central Square, Cambridge. He saw Mrs. Cecere coming out of the Cambridge police station. She told him she had reported her son missing, and the defendant said, "[I]t's a cause to worry, because of all the girls that they're finding in ash barrels in Boston, dead." At trial, Mrs. Cecere confirmed the substance of this conversation.

McCune then asked the defendant if he had ever owned a knife and the defendant responded that he had not carried a knife since Halloween. McCune also asked the defendant if he would take a benzidine test, explaining that the test would indicate whether there had been blood on his skin. The defendant agreed, and asked if he could speak with Donald Allard, who was later summoned to the station. The defendant then left the station to obtain cigarettes and coffee. When he returned, he was interrogated by Castles and Detective William McKenzie of the Somerville police department, and repeated essentially the same story he had told McCune.

At approximately 3:30 P.M., the defendant spoke privately to Donald Allard, chief probation officer of the Middlesex County Superior Court. Allard testified at trial that he had known the defendant "pretty well" for about two and one-half years, that he had conversed with him seventy-five to 100 times, and that their relationship was "cordial." Allard knew that there had been a homicide. The defendant told Allard that the police were questioning him about a missing boy and that he wanted Allard to help him convince the police that he had had nothing to do with it. The defendant repeated his account of his activities the day before, and stated that he had cut his forehead at work.

Paul Conley, a State police chemist, then administered a benzidine test and detected blood on the defendant's forearms, upper arms, and on the rings on his hands. After the benzidine test, Castles told the defendant that David Cecere had been murdered. Allard was present. He testified that the defendant "show[ed] some emotion" and said he now knew why he was being questioned about the scratches, the bloodstains, and the knife. Allard asked the defendant if the police had mentioned how the victim was murdered and the defendant replied, "[H]e had his throat cut." At trial, the Commonwealth attempted to show that the police had not told the defendant in what manner the victim was killed. McCune testified that the defendant was not a suspect in the murder until 4:30 P.M. or 4:45 P.M. on May 3, 1979, when Mrs. Cecere identified the body of her son.

At trial, the Commonwealth disputed the defendant's account of his activities on May 2, 1979. Angela Perigo, who was fourteen at the time of the murder, lived in the same housing complex as the defendant. She testified that on the evening of May 2, 1979, she observed the victim playing ball in the courtyard with some other children. He remained in the courtyard after the others left. She then saw the defendant standing in his doorway, saw the victim go over to the defendant, and saw the two leave the courtyard together. She fixed the time at about 9:15 P.M. because she had just watched the first few minutes of the television program, "Charlie's Angels," which came on at 9 P.M. According to a WCVB-TV employee, the program log indicated that "Charlie's Angels" was broadcast from 9 P.M. to 10 P.M., on May 2, 1979.

Thomas Coyne testified that he telephoned the defendant at his home at 5:30 P.M., and again at 7:30 P.M., on May 2, 1979. At 10:45 P.M., he observed the defendant emerge from the Arlington Street subway station. He noticed scratches on the defendant's forehead, which the defendant said had happened at work. They spoke for about one-half hour, and made plans to meet the next day. Coyne also testified that he had seen the defendant with a buck-knife several days before the murder, outside a bar. At that time, the defendant gave the knife to Coyne, who kept it. When the police later asked to see the knife, Coyne said it was missing.

The defendant's mother, Julia Cunneen, testified that on May 2, 1979, the defendant spoke to Coyne at 7:45 P.M., and then got dressed and went out. He returned at about 10 P.M., went back out, and came home again at 11:30 P.M McCune testified that he had walked from Washington Elms to a place near where the victim was found. The distance was eight-tenths of a mile and took about twenty minutes to walk. He also testified that the courtyard at Washington Elms was "very brightly lit."

Conley described the benzidine test in some detail at trial. By one method, two chemical solutions are applied sequentially to the surface to be tested; using...