Com. v. Olszewski

• Decision Date: 03 March 1988
• Citation: 401 Mass. 749,519 N.E.2d 587
• Parties: COMMONWEALTH v. Anthony OLSZEWSKI, Third.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 587

519 N.E.2d 587

401 Mass. 749

COMMONWEALTH v. Anthony OLSZEWSKI, Third.

Supreme Judicial Court of Massachusetts Hampden.

Argued Sept. 8, 1987.

Decided March 3, 1988.

Terry Scott Nagel and Linda J. Thompson, Springfield, for defendant.

Elizabeth R. Dunphy and Brett J. Vottero, Asst. Dist. Attys., for the com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

The defendant, Anthony Olszewski, appeals from his conviction of murder in the first degree. He argues error in connection with the following claims: (1) denial of his motion for a required finding of not guilty; (2) loss of evidence by the Commonwealth; (3) improper comments by the prosecutor in his closing argument; (4) refusal of the judge to allow the defendant to refresh the recollection of a witness; (5) allowance of opinion testimony from a Commonwealth witness; (6) sundry rulings arising from the defendant's cross-examination of certain witnesses; (7) allowance of evidence of the victim's state of mind; (8) the judge's admonition to defense counsel during his final argument; (9) composition of the jury; and (10) denial of the defendant's motion for new trial. The defendant also seeks relief under G.L. c. 278, § 33E (1986 ed.). We consider only some of these claims of error and conclude that the conviction cannot stand. Consequently, we reverse the conviction and remand this case for a new trial.

The relevant facts, as the jury might have found them, are these. The defendant and the victim, Joanne Welch, had been seeing each other with some regularity for two years. A short time before her death, they broke off their relationship. On January 28, 1982, the victim went to the defendant's home in West Springfield to retrieve some of her belongings. She and the defendant talked for a while, and he placed a box of her belongings in the back of her white Chevette automobile. She left at approximately 6 P.M. The defendant was seen walking away.

The victim had arranged to see a new friend, Steve Capezzone, that night. The victim did not return home that evening. She was last seen at a convenience store at approximately 8 P.M. on January 28. At 4 P.M. on January 29, the victim's body was discovered near a culvert on Shaker Road in Westfield. An autopsy indicated that the causes of death were strangulation, severe trauma, and exposure.

In the afternoon of January 29, before the victim's body was discovered, a West Springfield police officer went to an area of the town known as Great Plains Road ¹ to investigate suspicious objects that had been observed there. The officer discovered patches of red-stained snow in the road, a pair of woman's shoes, and a chrome strip from an automobile. After the victim's body was found, the State police laboratory sent a chemist to the Great Plains Road site to assist in the investigation. Together, the chemist and the police officers located a button, two teeth, a man's belt, two earrings, a clump of hair in a snowbank, and a large bloodstain with hair in the blood. The chemist collected a sample of the red-stained snow by pressing a cotton swab against the stain. The cotton swab was taken to the police laboratory where the entire sample was consumed during the tests to determine whether the red stain was human blood, and for blood grouping. No conclusive blood grouping test could be performed.

The victim's white Chevette automobile was found about midnight on January 29, in the parking lot of a cafe in Westfield near the West Springfield line. The vehicle was taken to the West Springfield police department garage. The vehicle was dusted for fingerprints, tested, and inspected, both inside and underneath, for blood and fibers. The vehicle's contents were inventoried and photographed. A four-by-five-inch piece of floor carpet was removed. Also taken by the investigators from the vehicle were a window crank and a hair found on the surface of a plastic cup lid.

Later, the automobile was released to the victim's family. The release occurred before the police chemist's results were received. The defendant's first attorney agreed to the release of the automobile, at the request of the police department. The victim's family then had the automobile cleaned and repaired.

During their investigation, the police interviewed a number of people, among them three of the defendant's acquaintances, Harold Foley, his son Paul, and Dorian Black. These people told the police they had seen the defendant at a Mobil gas station from 6:45 P.M. until 7:30 P.M. on the night of the murder. The police discarded the notes of their interviews with these three people.

On February 1, 1982, the police interviewed a witness, Philip Strong, who provided a written statement for the police. The statement indicated that Strong and the defendant had been together during the evening of January 28, 1982, and referred to no confessions made by the defendant to Strong. On February 15, 1982, the police brought Strong back to the station, and he made a second statement. This statement provided the only direct evidence of the defendant's guilt. In his second statement, Strong claimed that the defendant had confessed to the murder and had told him the details of the crime.

While Strong was at the police station this second time, he was left alone with the police file containing investigatory materials of the case. Strong opened the file, took out the only copy of his first statement, tore it up, and discarded it in a wastepaper basket. He did not tell the police what he had done, and the police did not retrieve the pieces of the statement.

The trial before a jury began on January 12, 1983. The Commonwealth relied on Philip Strong's second statement as the main basis of its case. Philip Strong testified that the defendant had told him that he (the defendant) and the victim had left his home and had gone to Great Plains Road in West Springfield. According to Strong, the defendant said that he argued with the victim, started to strangle her, and dragged her out of the vehicle. He used a belt to strangle her, taking the belt in his teeth to pull it. The defendant then ran over her with the vehicle, put her back in the automobile, and brought her to Shaker Road in Westfield where he disposed of the body. The defendant drove to the parking lot and left the automobile. He went to a bowling alley, got some change, and crossed the road to use the telephone.

Of the physical evidence that had been gathered by the Commonwealth from the Great Plains Road site, from the victim's body during the autopsy, and from the victim's automobile, the Commonwealth either lost or destroyed the following: (1) the belt; (2) the blood sample taken from the Great Plains Road site; (3) blood samples taken from the parking lot where the victim's vehicle was found; (4) a paint chip taken from the victim's skin; (5) a glass shard taken from the victim's skin; (6) the carpet swatch taken from the victim's vehicle; (7) an automobile window crank handle; and (8) the plastic cup lid section found in the victim's vehicle. Also lost or destroyed were the police interview notes of the three alibi witnesses (the Foleys and Black) and the first written statement of Philip Strong.

At trial, the defendant interposed an alibi defense. The jury returned a verdict of guilty of murder in the first degree on February 12, 1983. We discuss the bases for our reversal and only those issues raised by the defendant that are likely to arise at a new trial.

1. Lost and destroyed evidence. The defendant filed a motion to dismiss the indictment on the ground that the Commonwealth's failure to preserve evidence deprived the defendant of his constitutional right to a fair trial. In the alternative, the defendant moved that all testimony and evidence relating to the lost or destroyed evidence be excluded from trial.

Seven years ago, in Commonwealth v. Redding, 382 Mass. 154, 157, 414 N.E.2d 347 (1980), this court said: "We again stress that the prosecutor should make every effort to disclose to the defendant exculpatory evidence which is available to the prosecution." We emphasized in that case, citing Commonwealth v. St. Germain, 381 Mass. 256, 408 N.E.2d 1358 (1980), that police are part of the prosecution and that the Commonwealth is to be held responsible for nondisclosure by them. Similarly, in Commonwealth v. Lam Hue To, 391 Mass. 301, 311, 461 N.E.2d 776 (1984), we defined prosecutorial misconduct to include not only the lack of disclosure by the prosecutor but also the "inept and 'bungling' performance of the police, which is attributed to the [prosecutor]." See Commonwealth v. Gallarelli, 399 Mass. 17, 20 n. 4, 502 N.E.2d 516 (1987) (prosecutor responsible for police loss of evidence even if he was unaware of it).

We have recognized that the loss of evidence which is material and potentially exculpatory poses special problems for a defendant because he is put in a position where he is unable to establish the exculpatory nature of the lost or destroyed evidence. "Because the [evidence has] been destroyed, it is no longer possible to determine whether the defendant would have obtained any evidence of an exculpatory nature had [it] been made available to him for inspection or examination. To require the defendant at this stage to prove that the [evidence was] in fact exculpatory would, however, convert the disclosure duty established by Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] and its progeny into 'an empty promise, easily circumvented by suppression of evidence by means of destruction rather than mere failure to reveal.' United States v. Bryant, [439 F.2d 642, 648 (D.C.Cir.1971) ]." Commonwealth v. Neal, 392 Mass. 1, 12, 464 N.E.2d 1356 (1984). It is in this context that we stated in Commonwealth v. Charles, 397 Mass. 1, 13-14, 489 N.E.2d 679 (1986), that "[w]e have repeatedly stressed the need for...