Com. v. Ridge

Decision Date10 November 2009
Docket NumberSJC-09396.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
916 N.E.2d 348
455 Mass. 307
James P. RIDGE.
Supreme Judicial Court of Massachusetts, Norfolk.
Argued May 8, 2009.
Decided November 10, 2009.

[916 N.E.2d 353]

James W. Rosseel, Worcester, for the defendant.

Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.



455 Mass. 308

After his first trial ended in a mistrial,1 the defendant was convicted of the murders in the first degree of Jay Schlosser and Heather Buchanan, on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder.2 He appealed from his convictions and from the denial of his postconviction motions for a new trial and for postconviction discovery. The defendant argues that the trial judge erred in the

455 Mass. 309

admission and exclusion of certain evidence; the prosecutor erred in failing to disclose material evidence and in exceeding the proper scope of closing argument; and the judge erred in denying the postconviction motions. He also seeks relief pursuant to G.L. c. 278, § 33E. Because we conclude that none of the defendant's claims of error requires reversal of his convictions, and discern no reason to exercise our power under G.L. c. 278, § 33E, we affirm his convictions and the denial of his postconviction motions.

Facts. We recite the essential facts the jury could have found, reserving certain details for our discussion of the issues.

The defendant and two critical witnesses who testified at trial for the Commonwealth, John Sweeney and Kevin Trundley, all sold cocaine and knew each other. In addition, the defendant was familiar with, and had access to, firearms, including guns that had ammunition "clip[s]," and had been seen wearing gloves and using "WD-40," a spray lubricant, to clean a gun and to coat bullets. The defendant believed that by coating bullets with WD-40 no fingerprints would be detected. He carried a gym bag with him that always contained duct tape and the lubricant. The defendant was acquainted with the

916 N.E.2d 354

victims, who were boy friend and girl friend.

Sometime in 1985 or 1986, the defendant gave John Sweeney money to invest in a business, the purpose of which was to search for sunken Spanish "treasure ships" off the coast of the Bahamas. The approximately $25,000 to $35,000 the defendant gave Sweeney came from the defendant, his father, and some of the defendant's friends. The treasure hunting operation turned out to be a scam, and the money was lost.3 Sweeney told the defendant that he would get his money back. As of the time of the murders, Sweeney had not reimbursed the defendant.

The defendant was angry about losing his money and blamed Sweeney. At trial, witnesses testified to several incidents involving the defendant that occurred after the defendant learned about the scam. One witness saw the defendant at Sweeney's mother's house. The defendant was sitting on a couch firing a gun through an open sliding glass door. He was aiming at an insignia on one of Sweeney's shirts that was hanging outside on a clothesline.

455 Mass. 310

The defendant told the witness that he did not want Sweeney "to have a nice shirt to go out in" that night. The gun the defendant was using was a gun "like the cops carry" with a clip on the end, either a Luger or a .22 caliber.

A couple of months before the murders, the defendant told Sweeney that he was upset that Sweeney seemed to have money to go out and stated, "John are you going to pay back my money? If you don't, I am going to kill you. You know what I am capable of." After this conversation, Sweeney began giving the defendant cocaine. Moreover, Sweeney also moved at least twice, and ended up living with Schlosser in Westwood. Buchanan sometimes stayed there with Schlosser. Schlosser also sold drugs and was Sweeney's business partner. Schlosser kept cocaine and money hidden in his bedroom, behind a panel used to access certain plumbing pipes.

At around this time, the defendant also became aware that Sweeney and Schlosser were going to use cash from their cocaine sales to invest in a real estate deal. Schlosser informed the defendant that he had a lot of cash in his house. The defendant was upset and later told Kevin Trundley, "I'm going to get my money." The defendant and Trundley, with whom the defendant was living, attempted, unsuccessfully, to find out where Sweeney lived.

When, at some point, Sweeney left a receipt that contained his Westwood address at Trundley's apartment, Trundley gave it to the defendant. Trundley, the defendant, and their respective girl friends drove to Westwood approximately two weeks before the murders and stopped near Schlosser's house. The defendant stated that the location of the house would make it "an easy hit." He later told Trundley that he and a "guy" and "girl" would commit the robbery sometime between 8 and 11 P.M. on an evening when it was raining, so that anyone in Schlosser's neighborhood would be watching television and have their windows closed. The defendant told Trundley that, if Schlosser's door was locked, the girl would pretend that her vehicle had broken down to gain access to the house.

On the evening of June 25, 1987, which was rainy, the defendant told Trundley that the robbery would happen that night. The defendant told Trundley that he was going to get his money and

455 Mass. 311

some cocaine

916 N.E.2d 355

and that he would give Trundley some of the cocaine. Trundley was afraid that if Sweeney, a former serviceman, was at the house when the robbery occurred, something violent would happen. Therefore, at approximately 7:30 P.M., Trundley telephoned Schlosser's house and asked Schlosser if he could speak to Sweeney. Trundley convinced Sweeney to come to his apartment, where there were three women who had come to Trundley's to buy cocaine, but who stayed to drink and use cocaine. Sweeney arrived, in his vehicle, at approximately 8:30 P.M.

At approximately 11 P.M., Sweeney and one of the women left Trundley's for Schlosser's, so that they could obtain more cocaine. When they arrived, Sweeney left the woman in his vehicle and went into Schlosser's house. He entered through an open sliding glass door that led into the kitchen. He saw an antique gun that belonged to Schlosser (and usually kept in a closet) on the kitchen table. After calling out to Schlosser, Sweeney entered the living room and saw the victims' bodies on the couch, bound in duct tape.

The woman Sweeney was with did not hear any noise while he was in the house. Sweeney came out of the house quickly, seemingly upset, but he did not inform the woman what he had found. Instead, on the drive back to Trundley's, Sweeney stopped so that the woman could use a restroom, and while alone, he telephoned Trundley and told him that the three women would have to leave as soon as Sweeney arrived. After the women left, Sweeney told Trundley that the victims were dead. He and Trundley left, in Sweeney's vehicle, and headed toward Cape Cod. On the drive they discussed what they should do. Sweeney's concern was that police would think he had killed the victims or that his drug dealing would be discovered.

Later that night, Sweeney called an agent from the Federal Bureau of Investigation (FBI) with whom he was familiar because of the investigation into the treasure hunting scam. Ultimately, Sweeney, Trundley, and the FBI agent went to the Westwood police department to tell them about the murders. Police tested Sweeney's hands for blood, finding none.4

When Westwood police arrived at Schlosser's house, they

455 Mass. 312

noticed the gun on the kitchen table and the two victims dead on the couch. Each was bound with duct tape about the ankles, knees, eyes, and hands. Although Buchanan's mouth had duct tape over it, Schlosser's mouth did not. However, a piece of duct tape was found in an ashtray on the coffee table next to the couch. The wall panel where Schlosser had hidden his money and cocaine was open (and empty) and an open dresser drawer in the bedroom contained a large bag of cocaine.

A day or so after the murders, Trundley's girl friend drove the defendant to where Sweeney and Trundley were staying in Bourne. On the way, the pair stopped, and the defendant went behind a bathhouse holding a crumpled paper bag. He returned to the car without it. Moreover, while the pair were conversing, the defendant told her that something had gone wrong and that he had to talk to Trundley. When he was alone with the defendant, Trundley asked him why he had killed the victims. The defendant stated that the

916 N.E.2d 356

victims recognized him.5 He then told Trundley to be "cool" and keep his "mouth shut."

Also within days after the murders, an angry defendant showed up at the house of one of Sweeney's friends looking for Sweeney. The defendant stated that he had lost money and that he would get his money back "one way or the other."

Sometime in the fall of 1987, Trundley again spoke to the defendant about the murders. The defendant related that he and two accomplices, see note 2, supra, had entered Schlosser's house through a sliding glass door and that Schlosser had retrieved his gun from a hallway closet. The defendant wrestled it out of Schlosser's hands, and "they" beat Schlosser. They bound Schlosser with duct tape. The defendant spoke only to Schlosser and not to Buchanan. Schlosser said that no one needed to get hurt and that he would give the defendant what he wanted. As the trio was about to leave the house, the defendant said, "I got us into this and I'll get us out." The defendant stated, "I'm a gentleman, ladies first," and shot Buchanan twice. He stated that he

455 Mass. 313

then shot Schlosser once.6 The defendant told Trundley that he deliberately left some cocaine behind so it would look like a drug deal and that the police would not care about the death of a drug dealer. The defendant also told...

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