Com. v. McDermott

• Decision Date: 13 April 2007
• Docket Number: No. SJC-09130.,SJC-09130.
• Citation: 864 N.E.2d 471,448 Mass. 750
• Parties: COMMONWEALTH v. Michael McDERMOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

864 N.E.2d 471

448 Mass. 750

COMMONWEALTH v. Michael McDERMOTT.

No. SJC-09130.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued December 7, 2006.

Decided April 13, 2007.

Donald A. Harwood for the defendant.

Loretta M. Lillios, Assistant District Attorney (Thomas F. O'Reilly, Assistant District Attorney, with her) for the Commonwealth.

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

GREANEY, J.

Based on a shooting rampage that occurred in the late morning of December 26, 2000, at a Wakefield company, Edgewater Technology, Inc. (Edgewater), a jury found the defendant guilty on seven indictments charging murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty.¹ Represented by new counsel on appeal, the defendant argues error in (1) the denial of his motion to suppress evidence seized from his apartment; (2) the denial of his motion for a mistrial; and (3) the instructions to the jury. The defendant also requests that, pursuant to our power under G.L. c. 278, § 33E, we vacate the murder convictions and grant him a new trial. We affirm all of the convictions, and discern no basis to grant relief under G.L. c. 278, § 33E.

1. Facts. Based on the Commonwealth's evidence, the jury could have found the following facts. The defendant began working at Edgewater in February, 2000. On December 14, 2000, he had a conversation with Cheryl Troy, who was in charge of the human resources department of Edgewater, and Patricia Bohrer, the company's chief financial officer, concerning an Internal Revenue Service (IRS) tax lien of approximately $5,500 that required Edgewater to garnish a large portion of the defendant's paycheck until the lien was fully paid.² The defendant claimed that he did not owe the IRS any money. He was upset and angry, and indicated that he did not understand why Edgewater had to comply with the garnishment. Later that afternoon, Marc Damboorajian, the program manager in charge of the application support team that included the defendant spoke with the defendant in an effort to help resolve the tax lien. On December 18, Damboorajian assisted the defendant in a telephone conference with the IRS that terminated when Damboorajian realized that nothing was going to be resolved. The defendant was not willing to establish a payment plan, and insisted that he was not going to make any payments to the IRS.

The defendant had other financial trouble. He was behind on his automobile payments, and on December 21, the defendant received a telephone call informing him that his automobile would be repossessed if he did not make his payments. The defendant began to park on the street, approximately five minutes away from Edgewater, instead of in the parking garage across the street from Edgewater where employees received parking privileges (Edgewater garage).

On Friday, December 22, the defendant asked three of his coworkers to come to his cubicle to witness the signing of his will. He "walked [them] through" the instructions, and they witnessed his signature to the document and then signed it themselves. On Sunday, December 24, the defendant test-fired a shotgun off the side of Crystal Street in a secluded area of Haverhill, which was about a five-minute drive from the defendant's residence. On Monday, December 25, the defendant entered Edgewater at 6:57 P.M., and left about eighteen minutes later.

On Tuesday, December 26, the defendant entered Edgewater at 10:29 A.M., carrying a large, black duffel bag. He had parked his automobile in the Edgewater garage. Shortly after 10:30 A.M., the defendant went to the kitchen and had a brief and friendly conversation with a senior consultant at Edgewater. The defendant also engaged in conversation with another coworker about living in Haverhill. The defendant was jovial and cordial, but abruptly ended the conversation when the coworker spotted the large, black duffel bag on the defendant's desk. At approximately 11:07 A.M., the defendant received a telephone call about his automobile. He stated that he no longer needed the automobile and it could be picked up at the Edgewater garage.

After completing the telephone call, the defendant entered the reception area, carrying the duffel bag. Janice Hagerty, a travel coordinator of Edgewater who was with Troy in the reception area, asked the defendant where he was going, and he responded, "Actually, I need to see someone in human resources." The defendant aimed his assault rifle and fired twice, and then ten more times in rapid succession, killing both Hagerty and Troy. The defendant stated softly, "Ah, it's okay."

In the accounting area in the south side of the building, Linda Tessier, who worked in the accounts payable department, heard loud noises coming from the north side of the building and called Hagerty in reception. Hagerty did not answer the telephone. Rose Manfredi, a payroll manager who had been processing the payroll that day,³ was standing with Paul Marceau, a project leader, by a file cabinet in the accounting area. Manfredi asked Tessier to shut and lock the door, which Tessier did. Tessier told everyone to get under their desks. Marceau got under a desk in a coworker's cubicle. Tessier hid under her desk, moving her chair with her jacket draped over it into the desk.

Meanwhile, Jonathan Land, the vice president of consulting services, was standing with Louis Javelle, the director of consulting services and the defendant's direct supervisor, in a hallway in the mezzanine area of the south side of the building, facing the reception area. The defendant walked toward them, carrying an assault rifle in one hand and something else in his other hand. When the defendant was approximately fifteen to twenty feet away from Land and Javelle, Javelle said, "Oh shit." Land went back to his office and heard Javelle ask, "Mike, why?," followed by a loud pop. The defendant shot Javelle four times, killing him. Land then heard Craig Wood, a technical recruiter who had been sitting in his cubicle in the mezzanine area, say, "Mike, no." The defendant shot Wood in two series of blasts, killing him. Between the series of blasts, Wood said, "Ow," and then, "Please." The defendant proceeded to kill Jennifer Capobianco, a software programmer who had been seated at her cubicle in the mezzanine area, shooting her four times in the back.

The defendant fired a shot through the lock on the door to the accounting area and entered. From under her desk, Tessier could see a weapon and legs walking by. She peeked out and saw the defendant, who was holding a rifle in his right hand. The defendant stopped between the cubicles that Marceau and Manfredi were under and raised his left arm toward Marceau. Tessier closed her eyes and heard two shots. After a third shot, Manfredi yelled, "Ow." The defendant shot Manfredi multiple times. Manfredi screamed, and the defendant shot her again. Tessier heard gurgling sounds coming from the direction of Manfredi's cubicle. Manfredi died within minutes. The defendant shot Marceau in the head, abdomen, and chest, killing him.

At approximately 11:15 A.M., officers from the Wakefield police department were dispatched to Edgewater in response to several 911 telephone calls about shots being fired. Officers entered the building and found the defendant sitting in a chair in the reception area, erect and motionless, with both arms on the arm rests. The defendant's duffel bag was on a couch, and there was an AK-47 semiautomatic assault rifle on the floor by the defendant's right foot and a twelve-gauge Winchester 1300 pump-action shotgun by his left foot. These weapons were out of ammunition. The officers told the defendant to put his hands up and to get on the ground. The defendant did not respond. An officer directed the defendant to put his hands on his head, and the defendant replied, "I don't speak German." Two officers then pulled the defendant to the ground and handcuffed him. The officers searched the defendant and found a loaded .32 caliber Spanish Retolaza semiautomatic pistol in his front right pocket. The defendant's duffel bag contained several fully loaded magazines, loose ammunition, shotgun shells, and some cartridge boxes.

The defendant followed the officers' instructions to roll over and stand up, to sit back down in the chair and lift up his legs so that his boots could be removed and searched, and to get into a police cruiser in a certain manner to avoid injury due to his large size. The officers transported the defendant to the police station where he was booked.

Seven people were pronounced dead at Edgewater and were identified as Troy, Hagerty, Wood, Capobianco, Javelle, Marceau, and Manfredi. Each person's cause of death, with the exception of Hagerty, was multiple gunshot wounds. Hagerty died almost instantly from a single gunshot wound to her head, but had also been shot in the back. All of the victims had been alive when they were repeatedly shot.

Police recovered numerous discharged cartridge casings, numerous spent projectiles, several discharged twelve gauge shotgun shells, and numerous spent lead and copper projectile fragments from the reception, mezzanine, and accounting areas of Edgewater. In addition to the weapons recovered by the defendant's feet and the one found on his person, police recovered a .460 magnum caliber Weatherby Mark V bolt-action rifle from the defendant's work station. The Commonwealth's expert ballistician explained that testing revealed that numerous spent projectiles recovered from Edgewater had been fired from the defendant's AK-47 assault rifle, and that the discharged shotgun shells recovered from Edgewater and from Crystal Street had been fired from the defendant's twelve-gauge pump-action shotgun.

We now summarize the defense case and the Commonwealth's rebuttal evidence. The defendant presented evidence supporting a defense that he was not criminally responsible under the standards...