Com. v. Gallagher

• Decision Date: 08 November 1990
• Citation: 408 Mass. 510,562 N.E.2d 80
• Parties: COMMONWEALTH v. Francis J. GALLAGHER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 80

562 N.E.2d 80

408 Mass. 510

COMMONWEALTH v. Francis J. GALLAGHER.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Sept. 5, 1990.

Decided Nov. 8, 1990.

John H. LaChance (Stephen E. Dawley, Framingham, with him), for defendant.

LaDonna J. Hatton, Asst. Dist. Atty., for the Commonwealth.

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

GREANEY, Justice.

A jury in the Superior Court convicted the defendant of murder in the first degree by reason of extreme atrocity or cruelty. On appeal, the defendant claims error in: (1) the denial of a pretrial voir dire on the voluntariness of statements made by him to three friends and the admission of the statements in evidence; (2) the admission of evidence of his prior convictions; (3) the denial of a mistrial after a witness stated before the jury that the defendant was in jail; (4) the denial of his request to make an unsworn statement to the jury; (5) the admission in evidence of photographs of the victim's body; and (6) the judge's use of a particular illustration during jury instructions to explain circumstantial evidence and inferences. We reject the defendant's claims and affirm the conviction. We also conclude that there is no reason to exercise our power under G.L. c. 278, § 33E (1988 ed.), to direct the entry of a verdict of a lesser degree of guilt or to order a new trial.

Based on the evidence at the trial, the jury could have found the following facts. On the evening and night of November 13, 1987, the defendant (who had scratches and abrasions on his face and neck and was missing an upper front tooth) told friends in three separate conversations that he had been at the victim's apartment that afternoon when three Puerto Rican men, there to complete a cocaine deal, assaulted him and attacked and stabbed the victim. The defendant also stated that he went home after the incident, showered, put his bloodstained clothing into a plastic bag, then discarded the bag in the vicinity of Route 128.

The police discovered this bag. Among other things, the bag contained a bloodstained knife (adhering to which were human hairs matching the victim's hair type), the defendant' blood-stained boots (which matched bloody footprints found at the murder scene), and the defendant's bloodstained jeans, shirt, and socks. A pierced earring and a hair consistent with the victim's was embedded in one of the defendant's socks. Later, on the night of November 13, 1987, police discovered the victim's body in her apartment. She had sustained multiple blunt-force head wounds and multiple stab wounds to the face, neck, and body. ¹ The defendant's fingerprints were found on the scene; and a dental crown matching the gap where the defendant was missing an upper front tooth was next to the victim's body.

This, in essence, was the Commonwealth's case. The jury evidently inferred that the defendant went to the victim's apartment on the afternoon of the thirteenth of November, 1987, that a fight erupted, and that the defendant killed the victim by repeatedly striking her head against a door frame and by stabbing her repeatedly. Additional facts and evidence will appear below in relation to specific claims of error.

1. Denial of pretrial voir dire and admission of incriminating statements by the defendant. Late on the afternoon of the thirteenth, the defendant drove to the workplace of a roommate, Bill Hyslip. Hyslip noticed that the defendant's nose was scraped, that there were scratches on his neck, and that his top front tooth was missing, and asked the defendant what had happened. The defendant told Hyslip that he had been at the victim's apartment awaiting the completion of a cocaine sale between the victim and three Puerto Rican men, that the transaction had turned violent, the victim was stabbed, that he himself had been knocked unconscious, and that the victim was dead. At that time, Hyslip noticed no smell of alcohol on the defendant's breath, no slurred speech, and he considered the defendant coherent.

After this conversation, the defendant drove to a nearby restaurant, where he met another friend, Garry Fisher. According to Fisher, the defendant at this time appeared sober and not under the influence of alcohol or cocaine. The two began drinking together, but not until after the defendant had given Fisher substantially the same account that he had earlier given Hyslip. While at the restaurant, the defendant obtained roughly one half of a gram of cocaine and administered it to himself, intravenously, in the men's room. Shortly thereafter, Fisher found the defendant convulsing on the floor of the men's room with a hypodermic syringe in his arm. Fisher revived him, got him a drink, and arranged a ride home for him. By the time he arrived home, the defendant was calm and walked unaided into the house.

Once home, the defendant spoke with Hyslip and his other roommate, Cindy Pearson. Although Hyslip "didn't really notice" whether the defendant was intoxicated at the time, the defendant did appear upset and frightened. The defendant repeated essentially the same version of events that he had earlier related to Hyslip and Fisher. During the conversation, the defendant and Hyslip smoked a marihuana cigarette. ²

The defendant moved before trial for a voir dire on the voluntariness of these statements, arguing that they were involuntary because he was under the influence of alcohol and drugs when he made them. ³ See Commonwealth v. Allen, 395 Mass. 448, 456, 480 N.E.2d 630 (1985). Concluding in essence that the defendant had failed to raise an issue of voluntariness, the judge denied the motion without prejudice to the defendant's right to renew it during the trial if the testimony warranted.

During the trial, in the course of the direct examination of Hyslip, and after Hyslip had testified to the defendant's statements made to him at his workplace on the evening of November 13, the judge sua sponte reopened the question of the voluntariness of the defendant's statements, and, after dismissing the jury, held a voir dire. Hyslip, Fisher, and Pearson testified, and defense counsel carefully examined each. At the conclusion of the testimony, the judge stated his findings for the record. The judge's subsidiary findings essentially tracked the facts as stated above. The judge concluded as to all of the defendant's statements that the Commonwealth had shown beyond a reasonable doubt that they were the product of a rational intellect and not made when the defendant was intoxicated or under the influence of drugs. The defendant objected to this ruling, and in this court challenges both the timing of the voir dire and the correctness of the judge's findings. First, the defendant asserts that he was entitled to a pretrial voir dire because he sufficiently raised a question of voluntariness in his motion. Second, the defendant claims that the judge clearly erred in finding that his statements were voluntary. ⁴

a. We agree with the defendant that he made a sufficient showing of involuntariness so as to entitle him to a hearing on the question. Along with his motion, which stated the ground on which it was based, the defendant submitted an affidavit and a memorandum of law. See Mass.R.Crim.P. 13(a)(2), (4), 378 Mass. 871 (1979). In the affidavit, in relevant part, he stated: "At the time the statements were made I was high and intoxicated as the result of the consumption of substantial quantities of cocaine and alcohol ...." Although the affidavit is not a model of comprehensive detail, it focused on the critical fact that, at the time the statements were made, the defendant was impaired by cocaine and alcohol. Compare Commonwealth v. Brady, 380 Mass. 44, 51, 410 N.E.2d 695 (1980). This was enough to serve the purpose of Mass.R.Crim.P. 13 (as to which see Commonwealth v. Santosuosso, 23 Mass.App.Ct. 310, 313, 501 N.E.2d 1186 [1986] ), and to present the question of the voluntariness of the statements. "When the voluntariness of a defendant's statements to private citizens is an issue, the judge should conduct a voir dire to determine the voluntariness of the statements." Commonwealth v. Allen, supra 395 Mass. at 456, 480 N.E.2d 630. Therefore, the defendant was entitled to a voir dire before Hyslip repeated the first of the defendant's statements before the jury.

In the circumstances, however, we reject the defendant's argument that the timing of the voir dire caused him prejudice. First, at the voir dire, defense counsel thoroughly examined the three witnesses, all of whom he had previously interviewed. Second, counsel effectively argued his position on the evidence to the judge, who had considered the memorandum prepared by counsel as well as the probable cause hearing testimony of two of the witnesses. Third, after the voir dire, the judge expressly found all of the statements voluntary. This clearly negated any prejudice to the defendant. Commonwealth v. Paszko, supra 391 Mass. at 173 n. 10, 461 N.E.2d 222. Fourth, the judge in his instructions directed the jury to reconsider the question of the voluntariness of the statements. ⁵

b. The defendant also argues that the judge clearly erred in finding that the disputed statements were voluntary. We will not disturb the judge's subsidiary findings absent clear error, Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990), and we accord substantial deference to the judge's ultimate findings. Commonwealth v. Doucette, 391 Mass. 443, 447, 462 N.E.2d 1084 (1984). The record fully supports the judge's findings, and we see no reason to disturb them. See Commonwealth v. Allen, supra 395 Mass. at 457-458, 480 N.E.2d 630.

2. Admission of evidence of prior convictions. Prior to trial, the defendant filed a motion in limine for an order prohibiting the Commonwealth from using evidence of his prior convictions for impeachment purposes. After a hearing, the judge excluded evidence of five prior...