Com. v. Nesbitt

• Decision Date: 18 August 2008
• Docket Number: SJC-09824
• Parties: COMMONWEALTH v. Ralph NESBITT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

892 N.E.2d 299

452 Mass. 236

COMMONWEALTH v. Ralph NESBITT.

SJC-09824

Supreme Judicial Court of Massachusetts, Bristol.

Argued April 10, 2008.

Decided August 18, 2008.

Stewart T. Graham, Jr., for the defendant.

Craig A. Souza, Assistant District Attorney, for the Commonwealth.

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

CORDY, J.

At 11:58 P.M. on October 1, 2003, Dawne Brault dialed 911 from her home in Attleboro, exclaiming "Oh, God. Hurry up and help me." When the police dispatcher asked Brault what the problem was, she responded: "(Inaudible) just came into my house and tried to kill me." When asked to repeat who had come into her home, Brault stated, "Ralph Nesbitt." In response to further questions, she told the operator that Nesbitt was gone and pleaded for help to "hurry up. I don't want to die." Paramedics responded to the scene and transported Brault to Sturdy Memorial Hospital where she died ten minutes later of multiple stab wounds to her arms and torso.

On January 22, 2004, a Bristol County grand jury returned indictments against Nesbitt in connection with Brault's murder. Following a five-day trial, a jury found Nesbitt guilty of murder in the first degree on theories of premeditation and extreme atrocity or cruelty. Nesbitt was also found guilty of armed burglary, in violation of G.L. c. 266, § 14.¹

On appeal, Nesbitt claims that the admission of Brault's out-of-court statements to the 911 operator and to a neighbor who found her lying on the floor of her front hallway, covered in blood, violated his right of confrontation, as protected by the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. He also contends that the Commonwealth's introduction of inconclusive deoxyribonucleic acid (DNA) evidence taken from a bicycle near the scene of the murder created a substantial likelihood of a miscarriage of justice. We affirm the convictions and decline to grant relief pursuant to G.L. c. 278, § 33E.

1. Background. We summarize the facts the jury could have found, reserving other facts for discussion in conjunction with specific issues raised. Brault and Nancy Robinson were coworkers and friends. They confided in each other as they weathered turmoil in their personal lives. In the autumn of 2003, Brault was in the process of separating from her husband, Michael Brault (Michael). Robinson recently had broken off a seventeen-year relationship with Nesbitt, who was the father of Robinson's five children. In connection with their breakup, Robinson had obtained a protective order against Nesbitt.

Nesbitt blamed Brault for "ruining [his] relationship" with Robinson, and told Robinson that "one day [Brault will] get hers." Approximately four months before the murder, Nesbitt and a friend, William Ambers, visited Brault's home. Ambers drove Nesbitt to the home and parked in the driveway, while Nesbitt went around the house, peeking into its windows. Brault's husband came to the door, and they engaged in a brief conversation regarding the whereabouts of Brault and Robinson. As Ambers drove away, Nesbitt stated his intention to "do something to fix that girl," referring to Brault.

In September, 2003, Nesbitt was living in Brockton, but on the evening of October 1, he traveled to Attleboro. At approximately 8 P.M. that evening, he was dropped off at 15 Mechanic Street, the location of Robinson's apartment, to visit his children.² Robinson left the apartment when Nesbitt arrived, and set out in her automobile to visit Brault.

On her way, Robinson stopped at a coffee shop a short distance from 15 Mechanic Street to visit David Jorgensen, who worked as a baker there. Jorgensen was dating Brault at the time and was a friend of Robinson. As Robinson was speaking with Jorgensen, Nesbitt walked past the shop with one of their children. Nesbitt waited for Robinson to leave the shop and then confronted her, asking, "What are you doing with that guy?" Robinson informed Nesbitt that Jorgensen was just "a friend." She then left for Brault's home but told Nesbitt that she was going to pick up her mother from a bingo game.

She arrived at Brault's home at 9 P.M., and remained there until approximately 11 P.M. During that time, Robinson received a telephone call from Nesbitt, who noted that her mother was at home (across the street from 15 Mechanic Street) and asked why Robinson had lied to him. Robinson responded by asking Nesbitt what she was supposed to say, and then refused to tell him "that [she] loved him." At that point in the conversation, Brault laughed audibly.³

Robinson then left Brault's home in her automobile, and headed back toward 15 Mechanic Street. She arrived at her apartment at "ten past, quarter past [eleven P.M.]," and immediately called Brault. They spoke for approximately thirty minutes. Ten or fifteen minutes after that conversation—between 11:50 P.M. and midnight, according to Robinson's testimony— she received a call from Nesbitt. He asked her to come outside and speak with him and Robinson responded, "It's twelve o'clock, and I'm not going outside. It's too dark." According to Robinson's testimony, Nesbitt then stated, "That's okay. You don't want to come outside and talk to me? You'll just never see your friend again."⁴ Meanwhile, across town (at 147 Wilmarth Street), Brault had just dialed 911.

Just before Brault dialed 911, her cousin and neighbor, Dennis Marcure, was standing in his bathroom and heard something unusual coming from the Brault home.⁵ Brault was calling for her son Eric, but she was "crying out" in a way that "sounded strange ... [un]like her normal voice." Marcure immediately "got dressed ... and went out to her house." On his arrival, he noticed that the front screen door was covered in a "massive amount of blood," and he quickly found Brault lying "on the floor just covered in blood," with her feet up against the screen door and her body leaning against the storm door in her front hallway. Marcure asked her what had happened and Brault told him, "Ralph did this to me, and don't let me die."

Marcure located Brault's cellular telephone, which was lying underneath her, and also dialed 911. Approximately one minute later, a fire engine drove down the street. The first responders were two emergency medical technicians with the Attleboro fire department, Steven Cutler and his partner, Frank Aussant. Cutler testified that, as he approached the house, he noticed blood "streaking down the door" and that, on further inspection, he noticed Brault lying against the door, covered in blood. Cutler took her pulse and tried to determine if she was breathing when he rolled her over during this process, he noticed that there were a significant number of cuts to her body, which were too numerous to count. Another emergency medical technician who responded to the scene testified that Brault was breathing what is called "agonal breathing, which is just grasping for air," and "looked like she was close to taking her last breath[ ]."

The medical examiner who performed the autopsy testified that Brault sustained "several different clusters" of stab wounds: four on her left chest, eight on her left shoulder, three on her left breast, and five on her abdomen and the side of her body. She also had one stab wound to her right breast, one on her back, and one on her left arm. Brault suffered twenty-three stab wounds in total, and died as a result.

Subsequent investigation of the crime scene revealed damage to the front doorway consistent with forced entry. The doorjamb was shattered, and part of it was found in the living room, ten to twelve feet away from the front door.⁶

Five hours after the murder, at approximately 5 A.M. on the morning of October 2, 2003, Nesbitt was arrested on Riverbank Road in Attleboro. He was wearing work boots and carrying a hard hat and a hammer. He told the arresting officer that he had been sleeping in the fields by a school, located approximately one and one-half blocks from Robinson's apartment at 15 Mechanic Street, and that he was en route to a construction job.⁷ Nesbitt was wearing a gray sweatshirt, and the officer noticed a "brownish reddish spot on the hood of the sweatshirt." Subsequent DNA testing revealed that the DNA profile of the blood on the sweatshirt matched Brault's DNA profile.⁸

At trial, the defense highlighted two potential weaknesses of the Commonwealth's case. First, Brault's murder occurred only hours after her husband, Michael, finished moving out of their home at approximately 9:30 P.M. In anticipation of this defense, the Commonwealth called Michael as a witness. He testified that he left some time after 9:30 P.M., and headed to his new apartment. When he arrived there, he quickly fixed himself a sandwich, and then went straight to a local bar, arriving at approximately 10:30 P.M. He spent the evening there in the company of an acquaintance. The Commonwealth introduced the testimony of two bar patrons and the bartender who confirmed that Michael was at the bar between 11 P.M. on October 1 and 1:30 A.M. on October 2, placing him there at the time of the murder.

The second weakness was the potentially conflicting evidence of Nesbitt's whereabouts at the time of the murder. Brault's home at 147 Wilmarth Street was several miles from Robinson's apartment at 15 Mechanic Street. The evidence established Nesbitt's presence at Robinson's apartment until at least 9:15 P.M., and that he lacked an automobile. Nesbitt also called Robinson at approximately midnight and asked her to "come outside" to speak with him, suggesting that he may have been at 15 Mechanic Street, miles away from the scene of the murder, only moments before or after it occurred. With respect to the latter issue, the Commonwealth introduced evidence that Robinson had a protective order against Nesbitt, and given their "very violent" relationship, Nesbitt had no reason to expect that Robinson...