Com. v. Powell

• Decision Date: 10 December 2007
• Docket Number: SJC-09685.
• Citation: 877 N.E.2d 589,450 Mass. 229
• Parties: COMMONWEALTH v. Craig POWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

877 N.E.2d 589

450 Mass. 229

COMMONWEALTH v. Craig POWELL.

SJC-09685.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 5, 2007.

Decided December 10, 2007.

Chrystal A. Murray for the defendant.

Lynn D. Brennan, Assistant District Attorney, for the Commonwealth.

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

GREANEY, J.

The victim, Gerard Bannon, was bludgeoned to death in his apartment on March 2, 2002. A jury convicted the defendant of Bannon's murder (finding murder in the first degree by reason of extreme atrocity or cruelty).¹ Represented by new counsel on appeal, the defendant argues (1) error in the allowance of the grand jury's petition to take a blood sample from the defendant; (2) that the trial judge² abused her discretion in concluding that the Commonwealth's bloodstain analysis evidence was reliable (and, therefore, admissible) under the standards set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994); and (3) error in the admission at trial of portions of the Commonwealth's expert testimony on the bloodstain evidence. We affirm the order allowing the grand jury's petition to take a blood sample from the defendant, and find no error in the judge's evidentiary rulings. We conclude that the defendant is not entitled to relief under G.L. c. 278, § 33E, and affirm the defendant's judgment of conviction.

Based on the evidence in the Commonwealth's case, the jury could have found the following facts. Sometime in 2000, the defendant began working as a part-time carpenter and painter for Patrick Maguire. The defendant had a few hand tools, but would borrow power tools from Maguire. In the spring of 2001, after the defendant was evicted from his rooming house, Maguire permitted the defendant to stay, on a temporary basis, in the basement of an apartment building that Maguire owned (with another) in the Dorchester section of Boston. There were two separate entrances to the basement, one leading from the first-floor hallway, and one leading from the outside rear of the house.

In August, 2001, the victim, a skilled plasterer and mason, started working for Maguire. A few weeks earlier, the defendant had moved out of the basement to a trailer located in the rear yard of Maguire's property. The trailer did not have a bathroom, so Maguire allowed the defendant to use the first floor bathroom in the apartment building.

That fall, Maguire observed the defendant and the victim working together. The two did not get along when they were drinking.

In November or December, 2001, the victim moved into the basement of Maguire's apartment building. Maguire installed locks on both basement doors.

Only Maguire and the victim had keys to those doors. The victim was "between apartments," and Maguire indicated that his stay in the basement was to be temporary.

In December, 2001, Maguire asked the defendant to move out of the trailer because the defendant had been drinking heavily and bothering tenants in the apartment building. The defendant stopped working for Maguire and entered into a written agreement with him to stay away from the property. The agreement also provided that if the defendant entered a program addressing his issues with alcohol, Maguire would permit him back on his property. Maguire changed some of the locks to the apartment building. Shortly thereafter, the defendant returned, asking Maguire for work. Maguire declined to hire him.

At approximately 11 A.M. on January 30, 2002, the victim telephoned 911 from the apartment building. When responding, Boston police officers first encountered the defendant, who stated that he had been involved in an argument with his roommate about tools. The defendant had a hammer tucked into his belt area that an officer removed. After an officer spoke with the victim, who alleged that the defendant had swung a hammer at him, the defendant was arrested. Both the defendant and the victim appeared to be intoxicated. The defendant was charged with assault by means of a dangerous weapon. Although he no longer lived at the apartment building, the defendant told one of the officers that he resided there.

The defendant remained in custody until March 1, 2002, when he admitted to sufficient facts and received a continuance without a finding on the assault charge. In a meeting with his probation officer, the defendant indicated that he was not happy with the outcome of the case, and talked about getting his tools back from someone.

Thereafter, the defendant visited Richard Davis, a man for whom he had done work over the years. The defendant told Davis that he had been wrongly arrested after having an argument with a resident at Maguire's apartment building, and that the argument was over the defendant's retrieval of his tools. The defendant told Davis that the resident had lied to police. The defendant indicated that he wanted to remove a lock at Maguire's building so that he could get his tools.

That afternoon, the defendant went to a local tavern. The victim had arrived earlier and was seated at the bar. The defendant told the victim that he wanted his tools back, and the men argued for ten to fifteen minutes, until the bartender asked the defendant to leave. The defendant left without further incident.

The defendant went to the place of employment of one of the tenants of the apartment building. The defendant asked the tenant for help in getting back his job with Maguire. The defendant, who is African-American, stated, "The white guy got my job."

Later that evening, between 8 and 9 P.M., the defendant went to the apartment building and asked a tenant on the second floor to open the basement door for him. The defendant stated that he had to get his tool box, but that the door was locked and the victim was not opening it despite his knocking. The defendant suggested that the tenant tell the victim that her heat was up too high so the victim would open the door, which would allow the defendant entry. The tenant refused to help the defendant.

On March 2, 2002, at approximately 4:30 A.M., the defendant knocked on the door to the first-floor apartment of another tenant and asked to speak with the tenant who did not see the defendant, but recognized his voice. Twenty minutes later, the defendant returned and asked this tenant, through the door, to hold his tools until the next day. The tenant refused. About five minutes later, the defendant came up from the basement on the stairs, knocked on the tenant's door, and stated that the victim was not answering him. The defendant said that the victim was dead and was not opening the door. The tenant thought the defendant was intoxicated and told the defendant that he was going back to bed.

At about 5:30 A.M., the defendant telephoned 911 from the apartment building and reported that "this dude" appeared to be dead, that "he's bashed his head," and that "he's slumped over in the chair." Emergency medical technicians (EMTs), followed by police, responded. The defendant met the EMTs on the front lawn and acknowledged that he had made the 911 telephone call. The defendant told them that he did not know if the victim was still breathing. He led the EMTs and Boston police Officer William G. Johnson, who had arrived, to the basement. The EMTs approached the victim and determined that he had no pulse. The victim was in a recliner, with his head against the arm of the chair. He had brain matter and skull fragments on his shirt. There was a large amount of blood under his head, which had soaked into the arm of the chair and dripped down to the floor beneath. There were spots of blood in a ninety degree arc about the area, and throughout the room.

Officer Johnson asked the defendant what had happened. The defendant stated that at about 5:10 A.M., he had discovered the rear basement door open, went inside, and found the victim on the floor. The defendant stated that he had been working at the property as a carpenter. He pointed to blood on his jacket, which was on a pile of lumber in the basement, and explained that the blood got there when he lifted the victim from the floor to the chair. The defendant was wearing brown work boots and blue jeans, and had a hammer in the front of his belt and a screwdriver in his back pocket. Officer Johnson took the hammer and screwdriver. There was one small spot of blood on the hammer shaft and a brownish-reddish stain on the handle. Officer Johnson smelled alcohol on the defendant.

Police Superintendent Robert Dunford arrived. He noticed a bloodstain on the defendant's boot. The defendant took out a piece of paper from the Dorchester District Court probation department and told Dunford that he previously had been arrested for assaulting the victim. After Dunford assured the defendant that his tools would be secured, the defendant agreed to go to the police station to be interviewed.

At the police station, the defendant made statements to the police. After the police determined that the defendant could speak coherently, could understand the officers, and did not appear to have any problems with balance or his motor skills, he was given Miranda warnings. The defendant told police that he had been locked up for the last month, and had just been released the day before, for assaulting the victim with a hammer. With respect to that assault charge, the defendant denied that any physical harm had occurred. The defendant admitted that on the morning after his release, he went to see the victim to get his tools. The victim refused to let the defendant in. The defendant went across the street to have a drink, went back to the trailer, and then returned to the apartment building and noticed that the basement door was open. He went in to get his saw and noticed the victim lying on the floor. He tried to wake the victim up. The defendant rolled the victim over and picked...