Com. v. Hunter

• Decision Date: 20 February 1998
• Citation: 690 N.E.2d 815,426 Mass. 715
• Parties: COMMONWEALTH v. Michael K. HUNTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 815

690 N.E.2d 815

426 Mass. 715

COMMONWEALTH v. Michael K. HUNTER.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 1, 1997.

Decided Feb. 20, 1998.

Elliot M. Weinstein, Boston, for defendant.

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

Before WILKINS, C.J., and LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

LYNCH, Justice.

A jury convicted the defendant of murder in the first degree by reason of deliberate premeditation and of unarmed robbery of a person sixty-five years or older. On appeal, the defendant claims that (1) the trial judge erred in excluding evidence that another person had been accused of committing a similar crime; (2) the Commonwealth lost and destroyed potentially exculpatory evidence; and (3) the judge erred in not suppressing the defendant's statements to police. The defendant also requests that we exercise our power under G.L. c. 278, § 33E, to order a new trial. For the reasons set forth below, we affirm the convictions and decline to exercise our power under G.L. c. 278, § 33E.

Facts. We set forth the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with certain issues raised. See Commonwealth v. Nichypor, 419 Mass. 209 210, 643 N.E.2d 452 (1994); Commonwealth v. Burnett, 417 Mass. 740, 741, 632 N.E.2d 1206 (1994). The victim, who was an eighty-seven year old woman, lived alone in an apartment in Malden. Among her friends and visitors was her neighbor, Walter Johnson, and Andrea Long. On Wednesday, May 19, 1993, Long and the defendant, her boy friend of one month, visited the victim at her home and cooked her dinner. On the evening of Saturday, May 22, the victim's grandnephew visited her. He left her at approximately 9:30 P.M. Meanwhile, the defendant and Long spent the same day drinking. At 1 P.M. on Sunday, May 23, Johnson found the victim in her apartment, strangled to death. Evidence at trial indicated that the murderer had staged the crime scene to look like a break-in and sexual assault, but neither had actually occurred.

1. Similar acts of another person. Prior to trial, the Commonwealth moved to exclude evidence that Johnson had previously been accused of placing his hands around Long's neck. The judge allowed the motion, stating that "there was not sufficient similarity between the alleged assault on Ms. Long and the facts of this case to permit the use of that evidence." The defendant claims the judge's ruling was erroneous. We disagree.

A defendant may "introduce evidence that another person recently committed a similar crime by similar methods, since such evidence tends to show that someone other than the accused committed the particular crime." Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155 (1984). A defendant may do so, however, only where "the acts of the other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of [the] defendant as the person who committed the crime." Commonwealth v. Keizer, 377 Mass. 264, 267, 385 N.E.2d 1001 (1979), quoting State v. Bock, 229 Minn. 449, 458, 39 N.W.2d 887 (1949). In addition, the shared act must be "particularly distinguishing," rather than commonplace or ordinary. Commonwealth v. Harris, 395 Mass. 296, 301, 479 N.E.2d 690 (1985). On appeal, we will not disturb the judge's decision to admit or to reject such evidence "unless justice requires a different result." Commonwealth v. Scott, 408 Mass. 811, 816, 564 N.E.2d 370 (1990), and cases cited.

Justice does not require that we disturb the judge's ruling regarding this evidence. This is primarily because Johnson's act was not sufficiently similar to the act that killed the victim. In the present case the victim was killed by strangulation, which, by its very nature, involves completely cutting off a victim's oxygen supply, and stopping only after the victim has expired. In contrast, the incident sought to be introduced involved Johnson merely placing his hands around Long's neck during an argument. Johnson's act did not cut off Long's oxygen supply, as evidenced by her ability to ask that he remove his hands. Moreover, Johnson immediately removed his hands after Long began to resist. See Commonwealth v. Mayfield, 398 Mass. 615, 628, 500 N.E.2d 774 (1986) (in trial for murder of child, incident in which another person "grabbed [a neighborhood girl's] arm forcefully, screamed at her, punched the doorbell of her house, and ran away" was not sufficiently similar).

Were we to conclude that the two acts were sufficiently similar to require admissibility, relief to the defendant would still be unwarranted because the act of strangling is a relatively ordinary form of attack. In Commonwealth v. Harris, supra at 300, 479 N.E.2d 690, we affirmed the exclusion of another person's offense, despite the fact that, in both that offense and the attack with which the defendant was charged, the assailant "approached the victim from behind, threatened to kill her, and stabbed her with a knife when she tried to run." We did so primarily because "the points of similarity [were] not particularly distinguishing" and there was a "lack of uniqueness in the manner of commission of the crimes." Id. at 301, 479 N.E.2d 690. In our view, the act of strangling is sufficiently commonplace in murder and assault cases, such that introducing Johnson's prior act into the defendant's trial would shed little, if any, light on the true identity of the victim's attacker. See Commonwealth v. Keizer, supra at 267, 385 N.E.2d 1001 (exclusion improper where both offenses involved same type of crime, same general location in Boston, same description of assailants, similar method of commission, and "[i]n addition, similar weapons were used ... a square-barrelled pistol and a sawed-off shotgun concealed by a paper bag").

2. The destruction of potentially exculpatory evidence. The defendant next claims that the Commonwealth's loss of one piece of potentially exculpatory evidence and the destruction of another require reversal of his convictions. A fingerprint the police found on duct tape attached to the victim's wheelchair was accidentally destroyed by a fingerprint expert as he attempted to enhance the print. The handwritten notes that Trooper Christopher P. Shields took during his and Sergeant Stephen Ruelle's interview of Walter Johnson were lost. According to the interviewing officers' testimony, Johnson made statements that could be interpreted as incriminating him in the crime.

"When potentially exculpatory evidence is lost or destroyed, the court must 'weigh the culpability of the Commonwealth, the materiality of the evidence, and the potential prejudice to the defendant.' " Commonwealth v. Sarourt Nom, 426 Mass. 152, 159, 686 N.E.2d 1017 (1997), quoting Commonwealth v. Willie, 400 Mass. 427, 432, 510 N.E.2d 258 (1987). The Commonwealth is not required to prove "good faith or earnest efforts to preserve the evidence." Commonwealth v. Willie, supra. The defendant, on the other hand, must establish a " 'reasonable possibility, based on concrete evidence rather than fertile imagination,' that access to the [material] would have produced evidence favorable to his cause." Id. at 433, 510 N.E.2d 258, quoting Commonwealth v. Neal, 392 Mass. 1, 12, 464 N.E.2d 1356 (1984).

Here the destruction of the fingerprint does not warrant reversing the convictions. There is no evidence that the fingerprint expert was at all culpable. Rather, the judge expressly found that he "exercised due care in handling and testing the duct tape" and that he "had no way of knowing" that the test he was performing would destroy the print. See Commonwealth v. Buckley, 410 Mass. 209, 218, 571 N.E.2d 609 (1991) (no new trial required where trooper "inadvertently" destroyed handwriting exemplar while conducting fingerprint tests). ¹ Furthermore, the defendant had been furnished several enlarged photographs of the print by the Commonwealth. Both the defendant's and the Commonwealth's expert witnesses based their testimony on these photographs. It was only when the defendant's expert requested an additional photograph (some thirteen months after receiving the first photographs) that he learned of the destruction of the print. The defendant suffered no prejudice. See id. at 218-219, 571 N.E.2d 609 (destruction of bag containing handwriting exemplar did not prejudice defendant where "[t]he expert testimony at trial was based entirely on the photograph of the bag, an item to which the defendant had access"); Commonwealth v. Phoenix, 409 Mass. 408, 413-414, 567 N.E.2d 193 (1991) (no prejudice where Commonwealth's expert testimony stemmed from photograph of fingerprint before it was washed away; and defendant had access to photograph). Finally, the defendant has made no showing that access to the fingerprint itself might have provided anything more favorable to his cause than the photographs did.

Similarly, the loss of the interview notes does not warrant reversing the convictions. Based on the potentially exculpatory contents of Sgt. Ruelle's notes from the same interview, it appears that a "reasonable possibility" exists that Trooper Shields's notes would have proved favorable to the defendant. Commonwealth v. Neal, supra. However, there was no evidence presented at trial suggesting that the notes were lost in bad faith. See Commonwealth v. Martinez, 420 Mass. 622, 629, 651 N.E.2d 380 (1995) (Commonwealth not culpable and new trial denied, in part, because "[t]here is no showing that the police were more than negligent in losing the wallet"); Commonwealth v. Waters, 420 Mass. 276, 279, 649 N.E.2d 724 (1995). Moreover, the loss of the notes did not likely prejudice the defendant, because Sgt. Ruelle's notes from the very same interview were in evidence, and the defendant cross-examined both officers...