Com. v. Scott

• Citation: 564 N.E.2d 370,408 Mass. 811
• Parties: COMMONWEALTH v. Wilbert SCOTT.
• Decision Date: 17 December 1990
• Court: United States State Supreme Judicial Court of Massachusetts

Page 370

564 N.E.2d 370

408 Mass. 811

COMMONWEALTH v. Wilbert SCOTT.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 5, 1990.

Decided Dec. 17, 1990.

Hugh Samson, Boston, for defendant.

Catherine E. Sullivan, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The defendant, Wilbert Scott, was convicted by a jury on October 8, 1987, of murder in the first degree. He appeals from his conviction. He asserts various claims of error, each of which we discuss below. We affirm the conviction. ¹

The evidence before the jury was as follows. The victim, a nineteen year old woman, left her job as a nurse's aide at the Bolton Manor Nursing Home in Marlborough at approximately 9 P.M. on Monday, July 28, 1986. She walked toward her boy friend's apartment, about one and one-third miles away. Four motorists testified that they saw a young woman wearing a white uniform, walking along Bolton and Lincoln Streets in Marlborough. The victim did not arrive at her boy friend's apartment.

Three days later, on the afternoon of Thursday, July 31, 1986, the victim's body was found in a wooded area near the corner of Lincoln and Cashman Streets in Marlborough. She was lying on her back wearing only her white uniform skirt. Her bra was open in the front, exposing her breasts. Her shoes, socks, and underwear were found behind a rock nearby. A T-shirt and an oxford shirt, both of which belonged to the victim, were tied together behind her head and used as a gag to cover her mouth. The victim's face was abraded and bruised. From the injuries, it was determined that she was struck in the face at least three times with an object consistent with being either a closed fist or an open hand. The blows to the face rendered the victim unconscious or semi-conscious. The reduced level of consciousness made it impossible for the victim either to untie the gag or to free her tongue, which was pushed back by the gag. The victim died from a combination of head injuries and asphyxia by the gag. There was no evidence of sperm or seminal fluid; there was no evidence of injury to her genital organs.

The defendant lived in an apartment across the hall from the victim's boy friend. He was arrested on August 4, 1986. After he was arrested, the police searched the defendant's apartment pursuant to a search warrant and seized several items of clothing and bedding belonging to the defendant.

At trial, the Commonwealth introduced the testimony of Special Agent Andrew Gary Podolak of the Federal Bureau of Investigation. Podolak testified that he performed an examination of two Negroid hairs found on the victim's body. One Negroid hair exhibited the same microscopic characteristics as the defendant's hair. This hair was found embedded in the victim's sock. Another Negroid hair, which did not match the hair characteristics of the defendant, was found on the victim's thigh. In addition, six Caucasian hairs, which matched the microscopic characteristics of the victim's hair, were found on clothing seized at the defendant's apartment. One of these hairs was found on the inside of a pair of white shorts owned by the defendant.

A witness testified that she saw the defendant wearing shorts that were a "light color" on the night the victim was killed. The other hairs belonging to the victim were found on the defendant's underpants, socks, and dungarees. ²

After his arrest, and in his testimony at trial, the defendant stated that on July 28 he got home from work at 6 P.M. and went to bed because he was not feeling well. However, John Reilly, who lived a short distance from the empty wooded lot where the victim was found, testified that he saw the defendant walking by his house a few minutes before 9 P.M.

On Tuesday, August 5, 1986, the defendant, while being held in a cell at the Marlborough District Court, spoke with another inmate. The inmate, who was aware that the defendant was arrested for murdering a young woman, told the defendant that he hoped "it was worth it. You ain't going to get nothing for a long time." The defendant responded that "[s]he had firm breasts." The defendant also told the inmate that he had seen the victim in the halls of his apartment building and that she was "very pretty."

A few days after the defendant's arrest, a neighbor entered the defendant's apartment and saw several pornographic magazines on the floor. He noticed that the top magazine had an article about a serial killer, and he proceeded to read it. He testified at trial that the article was about a serial killer who had killed several young women by stuffing pieces of cloth into their mouths, gagging and eventually strangling his victims.

Finally, the Commonwealth introduced evidence that three young women were harassed by the defendant a few days before the victim's death. Karen Sullivan testified that on July 23, 1986, the defendant followed her from the store where she worked to her friend's apartment. On July 26, the defendant returned to the apartment house. Fifteen year old Kathy Boivin answered the door. After the defendant asked if she was alone, Boivin closed the door. Later that afternoon, as Boivin returned home, she saw the defendant across the street. He called her "beautiful," asked her to come over, and told her that he would not hurt her. Boivin continued walking.

On the evening of July 26, the defendant went to a bar in Marlborough and played pool with Lisa Sullivan, a pregnant twenty-four year old woman. After the game of pool, the defendant put his hand on Sullivan's wrist and asked her to go home with him. She refused. A few minutes later she left the bar. The defendant followed Sullivan. After Sullivan got into her automobile, the defendant jumped on the hood of her automobile and banged his fists against the windshield. Sullivan drove out of the parking lot, and the defendant fell off the automobile. Sullivan stopped for a red traffic light at a nearby intersection. She observed the defendant running towards her, and she drove away.

1. Possible exculpatory witness. Almost one year before the trial, the Commonwealth informed the defendant that another woman was assaulted on July 28, 1986, between midnight and 1 A.M., on Lincoln Street in Marlborough, a short distance from where the body of the victim in this case was found. The assault was reported to the Marlborough police department by a person other than the victim. The Marlborough police interviewed the woman. She confirmed that she was assaulted by a white male, five feet six inches or five feet seven inches in height, 150-170 pounds, dark hair, in his early thirties. On January 15, 1987, the defendant filed a motion for access to the victim, and, on February 3, 1987, a hearing was held. At the hearing, the prosecutor and the victim's own attorney argued that the potential witness was suffering from severe psychological trauma as the result of the assault and that she did not want to speak to anyone about the incident. ³ On February 11, 1987, the judge denied the defendant's motion. The judge did not give reasons for the denial of the motion.

The defendant argues that he has a right of investigative access to the victim of this other crime under the Fifth and Fourteenth Amendments to the United States Constitution and under art. 12 of the Massachusetts Declaration of Rights. We must determine whether the victim of the second crime had information which was both material and exculpatory.

It is well established that a defendant should be allowed to "introduce evidence that another person recently committed a similar crime by similar methods, since such evidence tends to show that someone other than the accused committed the particular crime." Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155 (1984). We have stated previously that evidence involving crimes of a similar nature by a person other than the defendant must be admitted when "the acts of such other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of [the] defendant as the person who committed the crime." Commonwealth v. Keizer, 377 Mass. 264, 267, 385 N.E.2d 1001 (1979), quoting State v. Bock, 229 Minn. 449, 458, 39 N.W.2d 887 (1949). See Commonwealth v. Murphy, 282 Mass. 593, 185 N.E. 486 (1933). In determining whether to admit evidence of crimes committed by individuals other than the defendant, the usual considerations of relevancy apply. Commonwealth v. Jewett, supra. It is for the trial judge to determine whether to admit or reject evidence of crimes committed by other individuals. Commonwealth v. Lawrence, 404 Mass. 378, 387-388, 536 N.E.2d 571 (1989). Commonwealth v. Harris, 395 Mass. 296, 300, 479 N.E.2d 690 (1985). We will not disturb the trial judge's decision unless justice requires a different result. Commonwealth v. Keizer, supra. Commonwealth v. Murphy, supra, 282 Mass. at 598, 185 N.E. 486.

We are not convinced that justice requires us to disregard the judge's ruling on the materiality of the evidence. It is true that the attacks occurred a short distance from, and within three or four hours of, each other. The defendant, however, did not present any evidence during the motion hearing which established that the method of operation of both crimes was similar. See Commonwealth v. Brown, 27 Mass.App.Ct. 72, 76, 534 N.E.2d 806. (1989) ("[a]part from considerations of proximity in time and location, the instant and the similar crime must share singular features or present striking resemblances of method"). Since we do not know the method of attack used by the second assailant, nor the factual characteristics of the second assault, we cannot say that justice requires us to disregard the judge's ruling that the victim did not have material information.

The defendant could have had access to the alleged exculpatory and material information by asking for a...