Com. v. O'Laughlin

Citation843 N.E.2d 617,446 Mass. 188
PartiesCOMMONWEALTH v. Michael M. O'LAUGHLIN.
Decision Date10 March 2006
CourtUnited States State Supreme Judicial Court of Massachusetts

Kenneth I. Seiger for the defendant.

David F. Capeless, District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

A Superior Court jury convicted the defendant of burglary and armed assault in a dwelling, armed assault in a dwelling,1 armed assault with intent to murder, and assault and battery by means of a dangerous weapon. The Appeals Court, concluding that there was insufficient evidence to support the verdicts, reversed the judgments. See Commonwealth v. O'Laughlin, 63 Mass.App.Ct. 805, 824, 830 N.E.2d 222 (2005). We granted the Commonwealth's application for further appellate review. After careful consideration of the transcripts and arguments of the parties, we determine that, although the question is a close one, there was sufficient evidence to support the verdicts, and we affirm the convictions.

Because of its decision on the sufficiency of the evidence, the Appeals Court did not reach the other arguments raised by the defendant. We, however, must do so, and have concluded that the judge did not act improperly in (1) admitting evidence that the defendant withdrew his consent to allow the police to collect a sample of a small stain found on a closet door; (2) admitting prior bad act evidence regarding the defendant's drug use; (3) denying the defendant a hearing to challenge the reliability of deoxyribonucleic acid (DNA) evidence; (4) ruling inadmissible a handwritten note found in the victim's apartment that allegedly demonstrated a third party's intent to murder; (5) failing to inform the jury in his instruction on armed assault with intent to murder that the Commonwealth had to prove the specific intent to kill; and (6) denying the defendant's motion to dismiss the indictments because of claimed flaws in the grand jury proceedings. Finally, we have determined that the prosecutor did not misstate the evidence in his closing argument.

1. Facts. We summarize the evidence in the light most favorable to the Commonwealth, reserving further details for the discussion of specific issues below.2 On the morning of Friday, November 17, 2000, the victim, Annmarie Kotowski, was discovered in her apartment, severely beaten but still alive. Although she survived, she had no memory of the attack or the weeks following it. The background of that attack, as developed by police investigation, is as follows.

The victim and David Kotowski were married for over twenty-five years and lived in Dalton. But, in May, 2000, the victim revealed to her husband that she was involved in a romantic relationship with James Finn of Dalton. The marriage became difficult and, in September, 2000, the victim moved out of the marital home. She moved into the Fox Hollow condominium complex in nearby Lee, apartment no. 15, Ecstatic Way, and lived there alone. Her relationship with Finn continued. She first discussed divorce with her husband approximately one week before the attack. Both the victim and her husband characterized their relationship as friendly but strained. (Other witnesses described the husband's attitude as alternating between loving and angry.)

The defendant, Michael O'Laughlin, also lived in the Fox Hollow condominium complex, in apartment no. 19, two apartments from the victim's. As of November, 2000, the defendant had worked for approximately eighteen months as a member of the condominium complex's maintenance staff. As such, he was one of several Fox Hollow employees with a master key to all of the buildings on the property, including the victim's apartment. He had been inside the victim's apartment in September to perform various tasks and on one occasion had fixed a window.

The defendant took some interest in the victim before the attack. Once, when the victim's sister was visiting, the defendant was outside the victim's apartment and said to the victim, "Wow, have you got any more good looking women in there?" The defendant also mentioned the victim five or six times to acquaintances. He said he thought the victim "had money" because she had beautiful furniture in her apartment, and that she had the thin body type that he found attractive. He told them that he said hello to the victim occasionally, but she ignored him. One acquaintance testified that on November 13, the defendant told her that he "really scared" the victim by asking "about the window in her apartment," though she then realized that he knew about the window because he was the maintenance man, at which point she ignored him and walked away.

On Thursday, November 16 (the day before the victim was found beaten), the defendant cashed a $457.15 pay check and made a $200 child support payment to his former wife. He also expected to sell a trailer to a neighbor for $500, and seemed agitated when the neighbor failed to come up with the money that day. (The neighbor paid the next day.)

On Thursday evening, the defendant and a friend, Mark Puleri, went to Pittsfield to purchase "crack" cocaine. They smoked the cocaine at Puleri's house. The defendant was "[n]ervous, jittery, [and] paranoid," typical behavior when he smoked crack cocaine. Puleri then drove the defendant back to Pittsfield to buy more cocaine, which they smoked at the defendant's apartment at Fox Hollow. Now, depleted of drugs and most of his cash, the defendant asked Puleri for money to buy beer. Puleri purchased beer at a local store and left the defendant at his apartment with most of the beer.

Around 9 or 9:30 P.M., the defendant telephoned a friend, Grover Finkle, who was at Richard O'Leary's house, to ask for a ride to Pittsfield to buy drugs. Finkle had previously smoked crack cocaine with the defendant and knew at least one drug dealer. O'Leary and Finkle arrived at the defendant's apartment about one hour after he telephoned. O'Leary, who drove a taxicab, refused to drive to Pittsfield unless he was paid in advance, which the defendant was unable to do. The defendant made some telephone calls in an effort to get cab fare, but Finkle and O'Leary eventually left without giving him a ride.

Between 12:10 and 1:43 A.M. on what was now the early morning of November 17, telephone records show fourteen calls to or from the defendant's apartment. Three calls were made to Finkle's telephone number. Most of the calls, particularly the later ones, were to pagers owned by drug dealers. The last telephone call was made at 1:43 A.M.

Shortly before 2 A.M. on the same morning, George Whittemore, whose bedroom was directly above the victim's, was awakened by banging and screaming sounds coming from the apartment directly below. The screaming was that of a woman's voice, the banging sounded like "wood hitting wood," and the sounds lasted for about thirty seconds. Whittemore dialed 911 at 1:55 A.M. (twelve minutes after the defendant's last telephone call).3 Whittemore stayed awake until he saw police cruisers enter the building's parking lot and he flashed his apartment lights to indicate his apartment for the police, but did not go outside to meet the police. Whittemore did not hear any vehicles come to or leave the area from the time he heard the screaming until the time he saw the police arrive.

Officers William Tierney and Phillip Skowron of the Lee police department arrived six or seven minutes after Whittemore's 911 call. They sought apartment no. 202, the number reported in the dispatch, but were unable to find it.4 The police did not hear or see anything amiss, but did see Michael O'Laughlin, the defendant, walking from the building on a walkway leading from apartment no. 19.

Although the defendant was wearing only boxer shorts, he did not appear affected by the thirty-five degree temperature. He asked the officers what had happened, and was told that there had been a report of a woman screaming. The officers asked if he had heard screaming and the defendant said that he had been awakened by screaming, but thought it was an animal because raccoons had been getting stuck in the dumpster, and he had lodged a stick in it to allow animals to climb out.5 Tierney looked inside the nearby dumpster and saw a stick but no animals. During this brief conversation, the defendant appeared "uneasy and distant," kept his head down, and did not look directly at the officers. Although the police continued to search the area, they found nothing suspicious and left.

Whittemore, the neighbor who called 911, heard a woman moaning and crying directly below him several times that night, but he did not contact the police again. Later in the morning, he heard a man outside the victim's apartment calling her name and banging, then eventually the sound of glass breaking, and a man yelling, "Oh, my God." The man was James Finn, the victim's boy friend. Finn usually stopped for coffee before work with the victim at her apartment between 5:30 and 5:45 A.M., on weekday mornings. On November 17, Finn arrived at 5:45 A.M., but the victim did not answer her door when he knocked repeatedly and called out to her. He heard her say, "Who is it?," in an unusual voice. After unsuccessfully trying to reach her from a nearby public telephone, Finn returned and forced open a locked sliding glass rear door. The living area appeared in order, but he found the victim in her bedroom "lying on the floor next to the bed." "[T]here was just blood everywhere." Finn dialed 911 just before 6:30 A.M.6

The victim, who had severe wounds on her head and hands, was taken to Berkshire Medical Center in Pittsfield. Officers who arrived after Finn's 911 call observed blood in the victim's bedroom on the bed, the pillow, the floors, and walls and on door jambs of the bathroom and bedroom. There was also "quite a bit" of blood that...

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