Com. v. Fordham

• Decision Date: 08 February 1994
• Citation: 627 N.E.2d 901,417 Mass. 10
• Parties: COMMONWEALTH v. John R. FORDHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 901

627 N.E.2d 901

417 Mass. 10

COMMONWEALTH v. John R. FORDHAM.

Supreme Judicial Court of Massachusetts Bristol.

Argued Nov. 4, 1993.

Decided Feb. 8, 1994.

Kevin S. Nixon, Boston, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for Com.

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

O'CONNOR, Justice.

The defendant appeals from his conviction of the murder in the first degree of his wife, Lisa Fordham, following a trial by jury. He argues that the trial judge erred by suspending at 3:15 P.M. until the next day the cross-examination of a principal Commonwealth witness, the defendant's son, Robert, just as the witness "began to recant ... the damning testimony that he had given on direct." The defendant also argues that unfounded inflammatory accusations contained in the prosecutor's leading questions on cross-examination of the defendant, and presented again in the prosecutor's closing argument to the jury, were unfairly prejudicial; that the judge's instructions to the jury defining the malice required for murder were incorrect; and that "other bad acts" evidence was improperly admitted. In addition, the defendant requests that we exercise our extraordinary power under G.L. c. 278, § 33E, to reduce the verdict to manslaughter or murder in the second degree. We conclude that there was no reversible error and that justice does not require reduction of the verdict to less than murder in the first degree. We affirm the judgment.

We recite those facts which the evidence would have warranted the jury in finding and are helpful to an understanding of the issues on appeal. The defendant and Lisa married in 1987. By April, 1988, their relationship had begun to deteriorate. After a fight during which the Brockton police were summoned to their home, Lisa moved to an apartment in Taunton. During the next month she obtained a restraining order against the defendant.

In an attempt at reconciliation, the defendant spoke by telephone with Lisa's sister, Valerie Ware, twenty to thirty times between the time he and Lisa separated and the day she was killed. The defendant complained to Ware that Lisa was abusing drugs, and that he suspected she was committing adultery. At one point in May, the defendant told Ware that Lisa had ruined his life and that he hated her. He speculated that, for $10,000, he could arrange "a hit" on Lisa's boss, one of the men with whom he suspected she was having an affair, and he asked Ware to tell Lisa that Ware and her husband were separating and needed help with their daughter so that Lisa would return to the defendant.

On May 27, at approximately 9:15 P.M., a police officer responded to Lisa's apartment complex and found her crying hysterically in the parking lot, bleeding from the nose and mouth. Lisa stated that the defendant had caused her injuries, and she was taken to a hospital where she was treated and released. The officer accompanied Lisa to the hospital and observed additional bruises on her legs and breasts. The defendant acknowledged this attack, testifying that he had struck Lisa "a couple of times because [he] was angry, [and] was in pain" from her kicking him in the groin area, causing him to fall and break his right hand. The next day, in order to avoid having to face criminal charges, the defendant resigned from the company where he and Lisa were employed, and left Massachusetts for Virginia Beach where his children and former wife lived.

While in Virginia Beach, the defendant went with several relatives to purchase an automobile part from Steven Foxwell. Foxwell testified that during this meeting, while the defendant's relatives were outside, the defendant stated that Lisa had left him and asked Foxwell to obtain heroin or liquid acid for him in order to "set her up so he could put her away for a long time." Foxwell further testified that the defendant "said that if he couldn't get the drugs, he was going to kill her."

Robert W. Fordham (Robert), the defendant's son, testified for the Commonwealth. Robert had been in jail awaiting trial as an accessory to Lisa's murder, and he testified that his testimony was being given pursuant to an agreement with the Commonwealth. He stated that his understanding of his agreement with the Commonwealth was that "after [his] truthful testimony, [he would] be recommended to get time served for the amount of time [he had] been in jail." Robert testified that, in early June, 1988, the defendant asked him to accompany him from Virginia Beach to Massachusetts to help him reclaim his Isuzu automobile from Lisa. The defendant told Robert that he planned to try to negotiate a financial settlement with Lisa but, if the negotiations failed, to take the Isuzu. He explained that he needed Robert's help because of his broken hand. While in Virginia, the defendant purchased a .22 caliber pistol and a .30-.30 caliber rifle. Those two weapons ultimately were used to shoot Lisa.

According to Robert's testimony, he and the defendant arrived in Taunton on June 7 and rented a motel room under an assumed name. On either that night or the next, according to Robert's testimony, the defendant punched a hole in the gas tank of an automobile that was parked at the apartment complex where Lisa lived, explaining to Robert that the automobile belonged to one of Lisa's boyfriends. A neighbor, John Forest, who owned the automobile, noticed that it was leaking gasoline, and he moved it across the street to a construction site and attempted to fix the leak. Robert and the defendant followed Forest across the street, and the defendant struck Forest with a baseball bat, knocking him unconscious. Before leaving the site, the defendant set the gasoline on fire. Forest was found lying unconscious near his burning automobile and was hospitalized.

Robert told the jury that, on June 8 and 9, he and the defendant watched and followed Lisa, using a variety of rented vehicles for that purpose. They purchased numerous items connected with their surveillance including binoculars and a camera, and they dyed their hair. The defendant cut the stock and barrel off the rifle he had purchased in Virginia Beach, explaining to Robert that it would be easier to carry. The stock, barrel, a broken hacksaw blade and metal shavings were wrapped in paper, stuffed in a plastic bag, and discarded at a roadside restaurant along with the empty boxes of hair dye. The defendant also called Lisa during those two days. He told Robert that she had refused to agree to a settlement and had told him that she had a gun she would use to kill him if the police did not arrest him.

We continue with a recitation of Robert's testimony. At about 7:30 A.M. on June 10, the day Lisa was killed, the defendant and Robert drove to the parking lot of the GTE plant where Lisa worked and they took the Isuzu. Robert drove the Isuzu to Virginia, arriving at his mother's home in the late afternoon. The Virginia Beach police spoke with him at that time. Robert received a telephone call from the defendant the next morning in which the defendant asked for a ride from the Richmond, Virginia, airport. When Robert drove to Richmond, he found the defendant, who had shaved off his beard, standing on the side of the road. The defendant told Robert that he had just returned a rental automobile after driving "all back roads from Massachusetts." While they were in the Isuzu, Robert told the defendant that the police were looking for him and that they had said that the defendant had killed Lisa. The defendant admitted that he had shot Lisa. He described her wounds and said that he had handed the .22 caliber pistol to her after it had jammed.

Three GTE employees observed the shooting of Lisa and, although unable to identify the assailant, testified at trial about the incident. The jury heard from them that Lisa had been shot to death in the GTE parking lot by a white man, who was approximately five feet, ten inches tall, with dark hair, a mustache and a beard. Lisa and the man had engaged in a prolonged physical struggle during which she was held and struck by the man. She was then shot in the shoulder with a .22 caliber pistol, struck on the head with a sawed-off .30-.30 caliber rifle that the man had taken from his automobile, and shot in the back and head at close range with the rifle. Lisa's body was found with the .22 pistol clenched in her hand.

The defendant testified, acknowledging that he had called and followed Lisa in several successive rental automobiles and that he had dyed his and Robert's hair, but denying that he had shot or witnessed the shooting of Lisa. He testified that, after following Robert to Interstate 95 on June 10, when Robert drove the Isuzu back to Virginia, he visited two of Lisa's drug dealers and rented a third vehicle. As he was returning to the motel, he encountered and recognized a third drug dealer riding a motorcycle, whom he described as five feet, ten inches tall, with dark hair and a moustache. According to the defendant's testimony, the dealer, upon learning from the defendant that Lisa was unlikely to be able to pay a $7,000 drug debt from her marriage settlement, drew a gun, put it to the defendant's head, and took the defendant's keys. The dealer found the defendant's rifle in the trunk, threatened to kill Lisa if she could not pay her debt, and instructed the defendant to ride the dealer's motorcycle to Richmond where they would meet the next day. The defendant testified that he followed these instructions and that, when the dealer appeared at the Richmond airport the following morning to exchange vehicles, the dealer described the killing in details which the defendant later shared with Robert. The dealer then threatened to kill the defendant unless the drug debt was paid in thirty days. The defendant subsequently shaved his beard and called his family for help. He traveled extensively for approximately five months before his arrest, using an...