Com. v. Sawyer

• Citation: 452 N.E.2d 1094,389 Mass. 686
• Parties: COMMONWEALTH v. Robert Earl SAWYER.
• Decision Date: 14 July 1983
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1094

452 N.E.2d 1094

389 Mass. 686

COMMONWEALTH v. Robert Earl SAWYER.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 8, 1982.

Decided July 14, 1983.

Philip X. Murray, Boston, for defendant.

Paul W. Shaw, Sp. Asst. Atty. Gen., for the Commonwealth.

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

LYNCH, Justice.

The defendant Robert Earl Sawyer appeals from a conviction of murder in the first degree, claiming as error the trial judge's failure to suppress certain evidence, the admission of evidence of the defendant's past misconduct, and the admission of evidence of his attempted escape from custody. The defendant also assigns as error the judge's failure to instruct the jury on the voluntariness of statements the defendant made to a police officer, or in the alternative that we review such failure pursuant to G.L. c. 278, § 33E. Lastly, the defendant argues that based upon the weight of the evidence he should be granted a new trial or other relief pursuant to G.L. c. 278, § 33E. Finding no error warranting reversal, nor any circumstances warranting an exercise of our powers under G.L. c. 278, § 33E, we affirm the judgment.

On the afternoon of June 21, 1977, the police department of Portland, Maine, received a telephone call from the office of the sheriff of Chautauqua County, New York, advising that arrest warrants for murder and armed robbery had been issued against the defendant in connection with the robbery of a store in western New York State, during which a nineteen year old clerk was killed. The sheriff believed the defendant to be in the Portland area, driving a 1977 green van with New York license plates. At approximately 6:30 P.M., the Portland police received the following teletype message from the Chautauqua County authorities: "Request your department attempt to locate a Robert Earl Sawyer, white male, date of birth 11/9/46, address unknown, your city. Subject is wanted for murder this department. Subject is, height six feet, weight 184, eyes brown, hair brown, dark complexion, medium build, heavy moustache. Operating a '77 Ford van, color green, New York registration 261 ZHD, damage to right front. Warrants issued. One count murder, second; one count armed robbery. Indictment No. 77-120. Will extradite. Should be considered armed and dangerous. This message confidential."

A number of Portland police officers were assigned to assist in locating the defendant. That afternoon the van was spotted at a local automobile repair shop. The proprietor produced a repair order bearing the defendant's name. Through their investigation, the police discovered that the defendant had registered for the night of June 20 at a large motel complex in the city. At approximately 8 P.M., police arrived at the motel and telephoned the defendant's room. The telephone went unanswered. The officers entered the empty room with a passkey supplied by a member of the management staff. Two officers remained in the room and several others were stationed in various parts of the motel. When the defendant opened the door of the room at approximately 12:20 A.M. the officers inside immediately arrested him. The police inspected a bag the defendant had been carrying and found a loaded Browning nine millimeter automatic pistol. All the defendant's possessions in the room, including several identification cards, bearing the names Kenneth Faucheux and Arthur J. Rossi, found under a mattress, were taken to the police station. Police also impounded the van, which contained nautical items, and impounded as well a rented automobile which the defendant had been driving in Maine. Later that morning the defendant was arraigned in the District Court for Cumberland County in Maine. He was held for rendition until extradited to New York, where he was convicted of murder and sentenced to a term of from twenty-five years to life imprisonment. ¹

Two years later, on August 11, 1979, one Thomas Ewing told a Portland police officer that a body was buried in a heavily wooded area of Naples, Maine. The following day, Maine State police officers located the partially decomposed body, later identified as Kenneth W. Faucheux of Bayonne, New Jersey. Dr. Henry F. Ryan, chief medical examiner for the State of Maine, concluded that the death was a homicide and that Faucheux had died as a result of multiple fractures of the skull, consistent with repeated blows to the head with a blunt instrument. Ewing testified that he told the police that he had helped the defendant drag the body to the burial site, and that the defendant told him that he had killed Faucheux in Boston.

During the police investigation of this murder, a Maine State trooper interviewed the defendant at the New York State prison in Auburn. The defendant stated that he had first met the victim in 1966 at a New Hampshire correctional facility, that they had met again in Portland, Maine, in June, 1977, and that about June 4 he had driven Faucheux in his van to Bayonne, New Jersey so that Faucheux could visit friends and get some belongings. They had started back to Maine about June 7, and stopped in Boston about 6 P.M. that evening. The defendant dropped Faucheux off at North Station with the agreement that the two would meet there at 9 P.M. Faucheux did not reappear, and after waiting until 2 A.M. the defendant left for Maine alone.

The defendant was indicted by a Suffolk County grand jury on August 7, 1980, for the murder of Kenneth W. Faucheux. The judge denied the defendant's pretrial motions to suppress with the result that the Browning automatic pistol and the items of identification belonging to Faucheux seized in the motel room, photographs of the nautical items found in the van, and evidence that he had rented an automobile while in Maine, were admitted in evidence.

At trial Ewing testified that the defendant had told him that Faucheux "was killed in Boston.... That he hit him in the head with a hammer several times and that he didn't want to die. He died awful hard," so that the defendant "had to pound a screwdriver through his chest." Ewing stated that the defendant had killed his victim "[f]or money," and that the defendant said there had been no place to get rid of the body enroute from Boston to Maine, so he had brought it in his van to Ewing's "camp" (tract with cabin and tents) in Naples in order to bury the victim where no one would find the body. Ewing testified that after he helped the defendant bury Faucheux's body, the defendant cleaned out the rear of his van. He removed a section of blood-soaked carpeting and wrappers from sandwiches the defendant had bought along the way. He put these items in a bag and threw it into the grave. ² Ewing saw nautical items in the van, and the defendant told him they had belonged to "the dead man from New Jersey." The defendant also told Ewing that if Ewing told anyone about the body, he "wouldn't get a chance to leave the state." Ewing also testified that the defendant had little money when he first arrived in Maine, and that he accompanied the defendant while he burglarized a house. But after he returned from New Jersey, the defendant had quite a few $100 bills.

The Commonwealth also offered the testimony of Paul Kunz, a friend of the victim. Kunz had at various times been incarcerated with the defendant, Faucheux, and perhaps with Ewing. Kunz said that Faucheux had derived his income from salvaging nautical items from ships in New Jersey and later selling them. Faucheux frequently came to Maine to visit Kunz. In late May or early June, 1977, Faucheux stayed in Maine with Kunz's brother, Nicholas Sangillo. The defendant moved from Ewing's camp site to stay with Sangillo at about the same time. Kunz saw the defendant and Faucheux depart from New Jersey in the green van. On his return to Maine, the defendant told Kunz he had left Faucheux in Charlestown, Massachusetts, or at North Station, and that Faucheux had not reappeared. Sangillo testified that he saw the defendant in Maine approximately one week later and nearly every day for approximately two weeks thereafter. During this time the defendant had a substantial amount of money and he gave Sangillo $140 or $150 to buy marihuana. The defendant also took Faucheux's Browning automatic pistol from Sangillo's apartment, saying that Faucheux "didn't need it anymore where he was."

The defendant testified that he had left Boston for Portland about May 28, 1977, in order to commit several burglaries with Paul Kunz. He met with Kunz and Faucheux in Maine and they discussed the planned burglaries. He also met Ewing in Portland, gave him a ride to Ewing's camp, and cleaned out his van there, placing the trash bag next to Ewing's cabin. The defendant stated that on the way from New Jersey he stopped in Watertown, Massachusetts. Soon thereafter he observed Faucheux talking to a police officer in Watertown. Suspicious of Faucheux, the defendant alerted Kunz on his arrival in Maine. Kunz later met the defendant and told him the "situation was taken care of." According to the defendant, Faucheux's body was in the back of Kunz's vehicle, and the defendant helped Kunz to place it in the defendant's van. Kunz and the defendant agreed upon the story the defendant later told the Maine State trooper about separating from Faucheux in Boston. ³ While the defendant was burying the body at Ewing's camp, Ewing came upon him.

The defendant also sought to impeach Ewing's testimony by introducing evidence that Ewing was an alcoholic with potential criminal liability, and by pointing out inconsistencies in Ewing's testimony, such as his statement that the defendant told him he pounded a screwdriver through Faucheux's chest. ⁴

1. Admission in evidence of the fruits of the Maine search. The defendant's pretrial motions alleged that the searches of the motel room, the van, and the rented automobile after his 1977 arrest by the Portland, Maine, police were...