Com. v. Nardi
| Decision Date | 25 September 2008 |
| Docket Number | No. SJC-09963.,SJC-09963. |
| Citation | 452 Mass. 379,893 N.E.2d 1221 |
| Parties | COMMONWEALTH v. George J. NARDI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.
In the days preceding and following Christmas, 2002, Dianne Barchard failed to show up for work or maintain contact with her friends. After a missing person report was filed, her body was found in an advanced stage of decomposition on the floor of her bedroom in an apartment she shared with her son George Nardi. Nardi was subsequently indicted for her murder and, after a six-day trial, was found guilty of murder in the first degree on the theory of deliberate premeditation.
On appeal, Nardi contends that his right, pursuant to the Sixth Amendment to the United States Constitution, to confront the witnesses against him was violated when a pathologist, called by the Commonwealth, was permitted to testify to the autopsy findings of another pathologist who performed the autopsy but was unavailable to testify at the time of trial, and to his own opinion regarding the cause of Barchard's death based on those findings. Nardi also claims that the admission in evidence of an unauthenticated, allegedly forged check was prejudicial error, and that the trial judge failed to explain and distinguish the concepts of deliberation and premeditation in her instructions to the jury. We affirm the conviction and decline to grant relief under G.L. c. 278, § 33E.
1. Trial. In support of its claim that Nardi intentionally killed his mother sometime prior to Christmas, 2002, the Commonwealth presented the following evidence, which the jury could have concluded was credible. In the fall of 2002, thirty-seven year old George Nardi lived in a small, second-floor apartment with his fifty-nine year old mother, Dianne Barchard. While Barchard worked full time at a local Dunkin' Donuts, Nardi worked intermittently installing carpets, or at other odd jobs. He spent his time and what little money he had at the Bridgewater Citizen Club drinking and playing Yahtzee.
The mother and son had a stormy relationship. Aggravated by her constant nagging him to pay bills, Nardi called her vulgar names both to her face and in conversation with his friends. In October, 2002, Nardi was charged with driving while under the influence after an accident in which he damaged his motor vehicle beyond repair. Without transportation, Nardi was unable to work and began drinking more heavily. Tired of supporting him, Barchard pressured Nardi to find a job. During this time, arguments between Nardi and Barchard over money escalated.
By December, 2002, Barchard had told a number of her friends and neighbors that she planned to move into elderly housing when she became eligible in January, 2003; that Nardi would be ineligible to move with her; and that she intended to ask Nardi to move out of the apartment after the holidays. In response to inquiries of what she would do if he refused, Barchard said she would get a protective order. Nardi was aware of his mother's plan to move and expressed anger about it to his friends.
On December 14, 2002, Barchard took the train to Boston with Grace Levesque, her downstairs neighbor, landlady, and friend, to see a performance of the Nutcracker. At the theater, when Barchard reached the top of the stairs she expressed some leg pain and shortness of breath; Levesque jokingly commented that Barchard looked "like a heart attack ready to happen." The following afternoon, Levesque saw Barchard alive for the last time, taking her dog for a walk. Having not seen or heard from Barchard, a concerned Levesque telephoned her apartment several times over the course of the next two weeks. Each time, Nardi answered and gave a different reason why Barchard was unable to speak with her. Stephen Souza, Barchard's other son (Nardi's stepbrother), who regularly telephoned his mother several times a week, received similar excuses from Nardi during this same period when he telephoned to speak to his mother.
Thomas Keaney, Barchard's neighbor and her manager at Dunkin' Donuts, also telephoned Barchard's apartment after she failed to show up for work on December 16. Nardi answered the telephone and told Keaney that Barchard was sick and unable to come to work. When Keaney encountered Nardi on Christmas Day, Nardi told him that his mother had gone "down the Cape" (to Souza's house in Bourne) to recuperate. On December 27, Keaney spoke with Levesque about Barchard; both had noticed that her bedroom window was wide open in the middle of the winter, which was unusual because "she hated to be cold."
Traditionally, Nardi got together with some of his friends on Christmas Eve to exchange small gifts. However, in 2002, Nardi told his friends that he was not going to celebrate the holidays because "everything sucked." Despite his earlier remarks, Nardi appeared at his friends' house on Christmas Eve with a bottle of his favorite drink and proposing a toast. He also brought gifts, including a gold anklet chain, a pair of diamond earrings, and a Nautica wallet, which were much more lavish than anything he had given in the past. At trial, Levesque testified that she was with Barchard when she purchased the gold anklet chain and Nautica wallet as gifts for her daughter-in-law and boss.
Nardi reappeared at his friends' house on December 26 and 29, looking for leftovers and complaining that his mother had not cooked Christmas dinner. He also asked his friend Paula Nee if she could cash a check his mother wrote for him because he did not have a vehicle or a driver's license. Having done this in the past, Nee agreed and cashed the check, signed in Barchard's name and dated December 30, 2002.1
On the same day Nee cashed the check, Levesque telephoned the police to report Barchard as a missing person. While cross-checking the address for Barchard's apartment, the police located a default warrant for Nardi's arrest.2 They proceeded to the apartment and arrested a disheveled looking Nardi on the stairwell. When asked his mother's whereabouts, Nardi told police that Barchard was staying with Souza in Bourne. Nardi then consented to the police request to check the apartment. On entering the apartment, the police observed a locked door off the kitchen area with a flannel shirt tucked like a runner at the threshold. Believing Barchard to be in the locked room, the police forced the door open with a door jamb spreader. Immediately, the smell of decaying flesh wafted from the bedroom. Inside, police found Barchard's decomposing body covered by a blue blanket on the bedroom floor.
Subsequent forensic examination of the apartment revealed human blood stains both visible and latent, in the kitchen, mainly near the washing machine, on a mop head, on Nardi's left foot and in a trail pattern from the kitchen to Barchard's bedroom. Testing revealed that the deoxyribonucleic acid (DNA) profile obtained from the stain on Nardi's foot indicated a mixture of DNA from at least two individuals; Barchard matched the major profile and Nardi was a potential contributor to the minor profile.
Doctor James Weiner from the medical examiner's office conducted an autopsy on Barchard's body on December 31, 2002, and January 1, 2003. By the time the case went to trial, Dr. Weiner had retired to Florida and had a medical condition that prevented him from traveling.3 In his place, the Commonwealth called Dr. Edward McDonough, deputy chief medical examiner for the State of Connecticut, to testify about the results of the autopsy and the cause of death. In preparation for his testimony, Dr. McDonough reviewed crime scene reports, the autopsy report Dr. Weiner had prepared, Dr. Weiner's notes and diagrams, photographs taken at and before the autopsy, microscopic tissue slides, and a toxicology report. He also spoke with Dr. Weiner about the autopsy, but only after looking at the factual material because he wanted to "form [his] own opinion without being subconsciously biased."
Dr. McDonough testified to injuries observed on Barchard's face and neck during the course of the autopsy. He was then asked what conclusions and opinions he drew from those observed injuries, and opined to a reasonable degree of medical certainty that the facial injuries were consistent with a hand being placed over Barchard's mouth and nose and pressure being applied. He also testified that he "agree[d] with Dr. Weiner's assessment" that the cause of death was "consistent with asphyxia by suffocation."4
The crux of Nardi's defense was that Barchard was not murdered, but died of natural causes related to her heart. This defense was outlined in counsel's opening statement (made at the beginning of the trial), in which he emphasized that the medical examiner who performed the autopsy found no "bruises on the neck" (consistent with strangulation), "no garroting marks, no punctures, no blunt objects." He also told the jury that although the medical examiner did find a small cut on Barchard's nose and two bruises near her chin, and, based on these findings, "report[ed][in] his autopsy report [that Barchard's death was] `consistent with asphyxiation by strangulation ...' the medical evidence is she died of a heart attack."5 The defense was furthered through counsel's cross-examination of Dr. McDonough and later counsel's direct examination of an expert pathologist, Dr. Mark Flomenbaum, called as a defense witness. In both of these examinations, defense counsel highlighted findings made by Dr. Weiner in his autopsy report, regarding the enlarged size of Barchard's heart and the hardening, or narrowing, of one of her main arteries.6
Nardi also testified in his own defense. He claimed that he woke up to find his mother dead on the kitchen floor in a pool of blood;...
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