Com. v. Lawrence
| Citation | 536 N.E.2d 571,404 Mass. 378 |
| Parties | COMMONWEALTH v. Frank LAWRENCE. |
| Decision Date | 20 March 1989 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Kevin J. Reddington, Brockton, for defendant.
Stephanie Martin Glennon, Asst. Dist. Atty., for the Com.
Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.
On December 16, 1986, a jury convicted the defendant, Frank Lawrence, of murder in the first degree of a sixteen-year old girl (victim). The defendant was also convicted of the involuntary manslaughter of the twenty-seven week old male fetus that the victim was carrying. He was sentenced to the mandatory life sentence on the murder conviction and to a term of from eight to ten years on the involuntary manslaughter conviction to be served from and after the life sentence.
In challenging his convictions, 1 the defendant contends that there was error in the denial of his motion to dismiss the indictment charging murder of the fetus and in the ruling that a viable fetus was a human being for purposes of common law homicide; there was error in the denial of his motion to dismiss the indictments because the evidence submitted to the grand jury was insufficient as a matter of law; it was error to deny his motion to suppress statements he made during the execution of a search warrant at his apartment; it was error to exclude proffered "third-party culprit" evidence; he was denied a fair trial due to the trial judge's failure to conduct a voir dire of each prospective juror; it was an abuse of discretion for the trial judge to refuse to accept an Alford 2 plea to a reduced charge; that certain photographs were improperly allowed in evidence; his motion for required findings of not guilty should have been allowed; parts of the prosecutor's closing argument were improper; the judge erred in refusing to permit the defendant to reopen his case after closing argument; and several aspects of the judge's jury charge were in error. Finally in regard to the conviction of murder in the first degree, the defendant claims that the combined effect of the alleged errors warrants either reversal, a new trial, or a reduction in the degree of guilt pursuant to our review power under G.L. c. 278, § 33E (1986 ed.). It is apparent from this recitation that the defendant's claims of error are numerous. His brief offers little support for this comprehensive attack on the proceedings below. The brief misconstrues the evidence, ignores or misapplies recent precedent of this court, and makes generalized claims of error where specific claims are required. In short, it would appear that the brief is a "cut and paste" creation constructed primarily from materials prepared for proceedings below. It does not meet the standards of this court. We nevertheless examine each of the defendant's claims. We reject each of the defendant's arguments and affirm the convictions.
We state as much of the evidence as is necessary to understand the defendant's principal claims. On September 25, 1985, a worker on the roof of a single-story commercial building in an industrial park in Stoughton noticed the victim's body on the ground ten feet from the building. The worker telephoned the Stoughton police, who responded. The police observed a badly decomposed body, face down, with the victim's wrists bound together beneath the body and with the buttocks bruised in what appeared to be geometric patterns.
Items found at the scene included the following: a pocketbook; a pink sweater; a jacket; a white cord; a pierced earring; a leather belt with geometric patterns; a brown knife case or sheath; a blue and red cloth wallet; and a ballpoint pen. Two unused condom packages and one empty condom package were found in the jacket pockets. The wallet contained a driver's license and other identification belonging to the defendant.
Doctor Donald Suarez, an associate medical examiner, performed the autopsies. He testified that he identified the sixteen year old victim through dental records. He was of the opinion that the belt found at the scene caused the bruising on the victim's buttocks. He testified that a full body x-ray revealed no metal or other foreign material inside the victim's body. Examination of other organs showed no evidence of injury or disease. He also testified that the victim was pregnant, and her abdomen was "quite distended" consistent with a gestation period of between twenty-seven and thirty weeks.
Due to the advanced decomposition, Dr. Suarez was unable to determine the exact cause of death. However, he opined that the death was a homicide, since there was no evidence that the death was suicide, accidental, or from natural causes. Although some traces of cocaine were found in the body, it was his opinion that neither the victim nor the fetus died as a result of a drug overdose. Dr. Suarez also testified that the high degree of decomposition in the victim's throat area could have been caused by the throat's having been cut. As to the fetus, he testified that the normally configured male weighed approximately two and one-half pounds and was of approximately twenty-seven weeks' gestation. He concluded that the fetus was alive at the time of the victim's death, was viable, and died from a lack of oxygen as a result of the victim's death. 3
The defendant's roommate testified that, when the defendant went out on September 20, he was wearing a knife in a sheath on his belt; that when he returned home at approximately 1:30 A.M. he appeared upset and said he had been robbed. At that time he had his knife but not his sheath. She also testified that the sheath found at the scene was similar to the one owned by the defendant.
The defendant called the local police department to report the robbery at about 3 A.M. The defendant told the responding police officer that his wallet and knife had been stolen. He related a rather improbable version of a robbery without mentioning the loss of his belt, pen, or sheath. The police officer told the defendant that he did not believe the story and to telephone later when he got his story straight. 4
On September 27, 1985, police executed a search warrant at the defendant's apartment, where they seized a Klein brand knife in a black sheath from between the mattress and the box spring on the defendant's bed. 5 They also seized another knife from his bureau, and a pair of blood-stained corduroy pants.
A State forensic chemist testified that the stains inside the defendant's automobile and on the corduroy pants tested positive for type O human blood. The victim had type O blood. The defendant has type A blood.
During the course of the search of his apartment, the defendant told the police that he had been at the Forest Spa in Brockton between 9 P.M. and 11 P.M. on Friday, September 20, and he related a somewhat different version of the robbery from that which he had previously given.
The defendant testified in his own behalf. He said that he visited two drinking establishments on September 20 and that sometime after midnight he was robbed. He testified that he was not in the area where the victim's body had been discovered and that he had not harmed the victim.
The defendant subpoenaed an individual whose telephone number was found on a slip of paper in a pocketbook found near the body. After closing arguments, the defendant moved to reopen his case, as the individual had responded to the subpoena. The defendant asserted that the testimony would be relevant because his investigation revealed that the witness worked in the same industrial park where the body had been found. The judge denied the defendant's motion to reopen.
PRETRIAL MOTIONS.
The defendant filed pretrial motions to dismiss the indictments, to suppress statements made to the police, and to determine the admissibility of third-party evidence. These motions were heard by different judges in the Superior Court.
1. Motions to Dismiss the Indictments.
a. Homicide of a viable fetus. The defendant filed a motion to dismiss the indictment charging him with the murder of the fetus, arguing that: (1) Massachusetts should not recognize a viable fetus as a human being for the purpose of the common law crime of murder, and (2) if the court rules that a viable fetus is considered a human being for purposes of common law murder, the ruling should not be applied retroactively. The defendant does not dispute that the fetus was viable. 6
In Commonwealth v. Cass, 392 Mass. 799, 807, 467 N.E.2d 1324 (1984), we held that the "infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide." Although the precise issue in Cass was whether a viable fetus came within the meaning of the term "person" as it was used in the motor vehicle homicide statute, G.L. c. 90, § 24G (b ), as appearing in St.1982, c. 376, § 2, see id. at 800, 467 N.E.2d 1324, our reasoning in Cass rejected the ancient common law rule that a person must be "born alive" in order to be protected by the criminal law, and thus is equally applicable to the common law crime of murder. There we recognized that the "dominant rationale" for the ancient rule was the impossibility of ascertaining whether "the fetus was alive when the accused committed his act," id. at 806 & n. 5, 467 N.E.2d 1324, and rejected the rule because "[m]edical science now may provide competent proof as to whether the fetus was alive at the time of a defendant's conduct and whether his conduct was the cause of death." Id. at 806, 467 N.E.2d 1324.
Given our decision in Cass, the defendant cannot claim that he did not have warning that such conduct was prohibited. 7 The defendant was put on notice "that our criminal law should extend its protection to viable fetuses." Id. at 807, 467 N.E.2d 1324.
b. Insufficiency of the evidence presented to the grand jury. 8 The defendant claims that his motion to dismiss the indictments was...
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