Com. v. Dunn

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before LIACOS; GREANEY
• Citation: 407 Mass. 798,556 N.E.2d 30
• Decision Date: 03 July 1990
• Parties: COMMONWEALTH v. Paul DUNN.

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556 N.E.2d 30 407 Mass. 798 COMMONWEALTH
v.
Paul DUNN. Supreme Judicial Court of Massachusetts,
Middlesex. Argued May 8, 1990.
Decided July 3, 1990.

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John C. McBride, Boston, for defendant.

LaDonna J. Hatton, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

[407 Mass. 799] GREANEY, Justice.

A jury in the Superior Court convicted the defendant of murder in the first degree. The victim was the defendant's wife, Pamela Nigro Dunn. On appeal, the defendant argues error in (1) the denial of his motion to suppress statements made by him after his arrest and evidence seized during a search of his apartment and automobile; (2) the admission of testimony by a pathologist that an eighteen to twenty-two week old fetus was found in the victim's body during the autopsy; and (3) statements made by the prosecutor in closing argument. We reject the defendant's arguments and find no basis for relief pursuant to G.L. c. 278, § 33E (1988 ed.). Consequently, we affirm the conviction.

The jury heard evidence of the following. The victim and the defendant were married in January, 1986. During the spring of 1986, the defendant told Christine Grant, with whom he had had a prior relationship, and Lillian Mason, with whom he was then having a relationship, that his wife was pregnant, and that he thought someone else was the father. From the end of April through August, 1986, the defendant repeatedly told both Grant and Mason that he wanted to kill his wife. In June, he told Grant that he wanted to kill the baby by kicking his wife in the stomach and causing a miscarriage; and he asked Mason to get him a gun. In July, he asked Grant to get him a gun so that he could shoot his wife, and he told Grant that after he killed his wife, he and Grant would go to Canada.

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In July, the defendant drove with Mason to the victim's place of employment, then drove the bus route the victim would take home, and then drove to where the victim was living with her parents. The defendant told Mason that, if he saw his wife or her former boyfriend while they were driving, he would kill them. He said he would grab his wife and put her in the back seat while Mason drove the car, and that he would kill his wife slowly with a knife, then take her body to Charlestown, put it in a green garbage bag, stick it in the trunk, and drop it in a dumpster. The defendant told Mason that after he killed his wife, he and Mason would go to California, then to Florida.

[407 Mass. 800] The defendant bought a .45 caliber "thirty-shot commando" rifle on August 7, 1986.

On August 15, 1986, the victim was working at a Bradlee's department store in Union Square, Somerville. Around 5 P.M., the defendant went to Bradlee's and was seen arguing with the victim. The victim called her mother around that time and sounded very nervous.

The defendant called Mason between 8 P.M. and 8:30 P.M. that evening and told her that he had had a "yelling match" with his wife earlier, and that he was waiting in Union Square for his wife to get out of work. He told Mason that he had a gun and planned to kill his wife that weekend. Mason testified that the defendant's speech sounded fine at that time.

The victim left work with a friend at 9:30 P.M. A witness, standing at a bus stop across from Bradlee's at the time, saw the victim point out a passing car to her friend. That same car drove slowly by the bus stop while the victim was waiting for the bus, causing her to become visibly nervous and upset.

The victim's mother, Carol Nigro, met the victim near the bus stop at the end of the bus route in Arlington at approximately 10 P.M. The victim was still nervous and upset. As they began walking home, Nigro saw the defendant's car parked on the wrong side of the street. As Nigro and the victim passed the defendant's car, he jumped from behind the car and yelled at the victim, "What's this about welfare? We're going to talk and we're going to talk now."

On the morning of August 16, 1986, the victim's body was found lying face down in a puddle in the Lexington town dump. An autopsy conducted later that day revealed the presence of two gunshot wounds (one entry, one exit), three stab wounds, and abrasions of the neck. The cause of death was determined to be a gunshot wound to the back associated with multiple stab wounds, strangulation, and submersion.

The defendant telephoned Lillian Mason one and one-half weeks after the murder and told her that he had shot, stabbed, and strangled his wife, but that he had not drowned [407 Mass. 801] her. He told Mason not to talk to the police. The defendant then telephoned Christine Grant. He told Grant that he had waited for his wife on a corner, and having seen her and her mother, went over to talk to his wife about welfare. The women began fighting with him, and he sprayed the mother with mace and shot his wife with a rifle. He told Grant that he then dragged the victim to the car, stabbed her, and strangled her, but that he did not drown her. He said that he dropped her body at the Lexington dump, and that her face must have landed in a puddle. The defendant told Grant that he had guns and a knife with him, that he had painted his automobile black and changed the registration plate, and that the automobile had blood on the seat. The defendant told Grant that, if she talked to the police he would kill himself, and she would get what she deserved. The defendant also told Grant that he was scared the police would catch him. The defendant was arrested in Florida on a warrant on November 14, 1986.

1. Statements incident to arrest. The defendant argues that the judge erred in admitting in evidence statements made at the time of his arrest because he did not knowingly and voluntarily waive his Miranda rights. Specifically, the defendant argues that, at the time of his arrest, he

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was under the influence of various intoxicants including beer, wine, and marihuana.

During the hearing on the defendant's motion to suppress, evidence was introduced that on November 14, 1986, Trooper Joseph F. Flaherty of the Massachusetts State police and Sergeant James Moran of the Arlington police went to Jacksonville, Florida, to arrest the defendant on an arrest warrant for murder. The officers set up a surveillance of the defendant's apartment at approximately noon on November 15. Sergeant Moran saw the defendant walk into his apartment building at approximately 5 P.M. At approximately 5:20 P.M., the officers saw the defendant leave his apartment carrying two six-packs of empty bottles, and walk up the street toward a 7-Eleven store. The defendant was walking with a normal gait.

[407 Mass. 802] The officers then arrested the defendant. His hands were handcuffed behind his back, and Agent John Farmer of the Florida Department of Law Enforcement (FDLE) said, "You're under arrest." He was then placed in the back seat of an FDLE cruiser. Trooper Flaherty read the defendant his Miranda rights from a printed card. The defendant immediately stated that he understood those rights and would like to speak to the officers. At this time, Trooper Flaherty did not smell any alcoholic beverage on the defendant's breath, and his speech was clear--he did not appear to be under the influence of alcohol.

Trooper Flaherty asked the defendant where the gun was, and he responded that it was in a closet in his apartment and that it was unloaded. The defendant described the gun as a .45 caliber thirty-shot commando rifle. Trooper Flaherty then asked the defendant if there were any other weapons in the apartment, and the defendant responded that there was ammunition, a magazine clip, as well as a machete-type knife, which was in the dresser drawer. Trooper Flaherty asked the defendant if he would consent to a search of his apartment. The defendant stated that he would rather be with the officers if they were going to search his apartment. Trooper Flaherty then got out of the car, and discussed obtaining a search warrant with Agent Farmer. The defendant overheard them and said, "If you're going to get a warrant anyway, then go ahead and search the apartment."

Sergeant Moran got in the back seat of the cruiser with the defendant and introduced himself as a police officer. The defendant said, "I'm glad it's over." The defendant then said that once he started reading the "First Testament," he knew he had to be caught. The defendant stated that he did not know the gun was loaded, and that he had practiced for two or three days with the gun before he shot her. The defendant also told Sergeant Moran that he had had a dream a few weeks before he was arrested and it (the dream arrest) happened just like this, only he was carrying bundles and not bottles in his arms.

[407 Mass. 803] Trooper Flaherty and another FDLE special agent then got into the cruiser...