Com. v. Shea

• Decision Date: 01 March 1988
• Citation: 519 N.E.2d 1283,401 Mass. 731
• Parties: COMMONWEALTH v. Michael J. SHEA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1283

519 N.E.2d 1283

401 Mass. 731

COMMONWEALTH v. Michael J. SHEA.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Nov. 5, 1987.

Decided March 1, 1988.

Eric Brandt, Committee for Public Counsel Services, Boston, for defendant.

Judith A. Cowin, Asst. Dist. Atty., for Com.

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

NOLAN, Justice.

In August, 1984, the defendant was convicted of murder in the first degree and armed burglary. In this appeal, the defendant alleges that (1) the indictments must be dismissed because the integrity of the grand jury was impaired by the poor quality of the evidence presented for its consideration; (2) numerous improper comments made by the prosecutor in closing argument mandate reversal of the judgments; (3) the prosecutor was erroneously allowed to introduce evidence demonstrating the defendant's consciousness of guilt; (4) the use of the defendant's prior convictions at trial was error; (5) the prosecutor's use of the defendant's application for employment was error, and (6) portions of the jury instructions were erroneous. Finally, the defendant argues that a new trial should be granted or the verdict of murder in the first degree be reduced to murder in the second degree under G.L. c. 278, § 33E (1986 ed.), because the judge's use of "finding language" on the issue of intoxication improperly shifted the burden of proof to the defendant. We affirm.

On June 27, 1983, the body of the victim, Sheryl L. McDonald, was discovered in her Weymouth apartment lying across the middle of her bed parallel to the headboard. Her nightgown was heavily stained with blood, as were the pillows and the sheets on the bed. She suffered a number of wounds made by a sharp instrument, including two stab wounds in the chest, two slash wounds in the neck, and a fourteen-inch wound up the middle of her body. Several areas on the pillows and sheets bore marks which appeared to have been made by bloody hands. Upon closer inspection, these marks revealed discernible fingerprints. After experts matched ten points of identification, a left thumb print was identified as that of the defendant, a man whom the victim had dated. On the kitchen table was a purse tilted on its side. The purse was empty.

Witnesses who were with the defendant earlier on the night of the murder testified that he was wearing white trousers. The defendant, however, claimed that he was wearing jeans. A search of the defendant's apartment pursuant to a warrant yielded white trousers stained with blood. The blood was examined by the chemist and it matched the blood type of the victim.

1. The integrity of the grand jury proceedings. The defendant filed a motion to dismiss the indictments on the ground that the prosecutor introduced unfairly prejudicial evidence which impaired the integrity of the grand jury. The defendant argued that the grand jury was misled by the introduction of the following evidence: (1) the defendant's possession of a woman's bracelet; (2) the presence of blood in his car; (3) his alleged involvement with drugs; (4) his poor work performance; (5) his possession of other jewelry, as well as credit cards in names other than his own; and (6) his request for counsel. An evidentiary hearing was held on the defendant's motion. After examining the grand jury minutes, the motion judge was unconvinced that false or misleading evidence had been introduced and he denied the defendant's motion.

We conclude that there was no error in the judge's determination. The judge was justified in ruling that the evidence was neither materially misleading nor unfairly prejudicial to the defendant. In order to sustain his claim of impairment of the integrity of the grand jury proceedings, the defendant bears a heavy burden. Under Commonwealth v. Mayfield, 398 Mass. 615, 621, 500 N.E.2d 774 (1986), the defendant must show that the prosecutor knowingly introduced false or deceptive evidence. In addition, the defendant must demonstrate that the evidence probably influenced the grand jury to return an indictment. Id. Here, the defendant is unable to satisfy even the first element. There is no indication that the testimony was false or deceptive. Moreover, after reviewing the record, we are convinced that the balance of the evidence presented to the grand jury was sufficient to justify the indictments against the defendant. We conclude that the integrity of the grand jury was not impaired.

2. The prosecutor's closing argument. The defendant argues for the first time on appeal that the prosecutor made improper comments during her closing argument. Accordingly, we limit our review to a determination whether the comments, if improper posed a substantial likelihood of a miscarriage of justice under G.L. c. 278, § 33E. Commonwealth v. Haas, 398 Mass. 806, 812, 501 N.E.2d 1154 (1986). Our examination of the remarks leads us to conclude that they did not create such a likelihood of injustice.

a. The bracelet. The defendant objects to the prosecutor's suggestion during closing argument that the defendant's pawning of a woman's gold bracelet in California could be explained by his criminal propensity. ¹ He asserts that the prosecutor's remarks implied that the defendant had stolen the bracelet. ² The defendant insists that this was pure speculation without any basis in fact and, as such, the comments were unfair and constituted reversible error. Without approving of the prosecutor's closing argument, we conclude that it was not reversible error.

In his reply brief, the defendant directs our attention to this court's recent decision in Commonwealth v. Shipps, 399 Mass. 820, 507 N.E.2d 671 (1987). He maintains that it is supportive of his claim that the comments were improper. In Commonwealth v. Shipps, supra at 838, 507 N.E.2d 671, evidence that the police found a bag containing jewelry in the defendant's bedroom was introduced at his trial on two indictments charging murder in the first degree. While the judge reprimanded the prosecutor for introducing evidence suggestive of other crimes, he denied the defendant's motion for mistrial. On appeal, we agreed that the reference to unrelated crimes was improper but upheld the judge's denial of the motion because we found "[t]he suggestion of other crimes was so vague and the evidence inculpating the defendant so strong ... that this did not taint the defendant's trial." Id. We find our language and reasoning in Commonwealth v. Shipps, supra, to be particularly appropriate and dispositive of the issue in the instant case. The indefinite suggestion that the bracelet could be explained by the defendant's commission of another crime did not constitute reversible error, particularly when viewed in conjunction with the overwhelming evidence of the defendant's guilt.

b. Arguments depending on facts not in evidence. The defendant contends that the prosecutor exceeded the proper scope of closing argument. The defendant insists that on two occasions, one involving representations of current law and the other dealing with a courtroom demonstration, the prosecutor improperly relied on facts not in evidence. The defendant's contentions are without merit.

The first incident involved the prosecutor's summary of a witness's testimony. The prosecutor argued as follows: "Then the question of the benzidine test on the defendant's hand[s].... You also heard Trooper Murphy testify that the cases have forbidden the police to perform benzidine test[s] on the hands of defendants who are arrested. The police hands are tied. They can't do something like that, according to his knowledge of the law." (Emphasis added.) Following the judge's charge, the defendant objected to these and other remarks by the prosecutor and moved for a mistrial. The judge denied the motion after indicating his belief that the prosecutor was restating the witness's testimony rather than personally commenting upon the case law governing benzidine testing.

The defendant should have objected at the close of the prosecutor's argument. Commonwealth v. Johnson, 374 Mass. 453, 457-458, 373 N.E.2d 1121 (1978), and cases cited. Since the defendant's objection was not timely, he is not entitled to review as of right. However, we will review the defendant's contentions pursuant to our responsibilities under G.L. c. 278, § 33E.

We note that it was defense counsel who originally elicited the commentary regarding benzidine testing from Trooper Murphy during cross-examination. Curiously, defense counsel did not move to strike Murphy's testimony at that time. It is clear that the prosecutor was recounting portions of the witness's testimony and not independently expounding on the prevailing law during her closing argument. Though we do not approve of the accuracy of the witness's opinions of the law, there was no reversible error.

The defendant also argues that the prosecutor improperly demonstrated the sound that the defendant's shoes made by tapping them against a rail in the courtroom during final argument. The defendant once again failed to object during the closing. Accordingly, we will review only to determine whether the demonstration, if error, created a substantial likelihood of injustice. G.L. c. 278, § 33E. A witness had previously testified that, on the night in question, she saw a person get into an automobile outside the victim's residence and heard a "clicking sound" as the person walked, as though there were "taps on [the] heels" of the person's shoes. Furthermore, the defendant's shoes had been admitted in evidence. We have allowed courtroom demonstrations by prosecutors when they are reasonably grounded in the evidence. Commonwealth v. Johnson, supra at 458-459, 373 N.E.2d 1121. Here, we conclude that the comments and the illustrative tapping of the shoes were appropriately part of the closing argument because they were fairly based on reasonable inferences from the evidence. Commonwealth v....