Com. v. Yesilciman

• Citation: 406 Mass. 736,550 N.E.2d 378
• Parties: COMMONWEALTH v. Kenan YESILCIMAN.
• Decision Date: 22 February 1990
• Court: United States State Supreme Judicial Court of Massachusetts

Page 378

550 N.E.2d 378

406 Mass. 736

COMMONWEALTH v. Kenan YESILCIMAN.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Dec. 4, 1989.

Decided Feb. 22, 1990.

Stephen Hrones, Boston, for defendant.

James F. Lang, Asst. Dist. Atty., for the Com.

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

ABRAMS, Justice.

Convicted of murder in the first degree, the defendant, Kenan Yesilciman, appeals. He alleges error in (1) the denial of his motion to suppress evidence seized from his home and garage; (2) the denial of his motion to strike the testimony of one of the Commonwealth's chemists; and (3) the closing argument of the prosecutor. He also asks that we exercise our power under G.L. c. 278, § 33E, to order a new trial or enter a verdict of a lesser degree of guilt. We affirm the defendant's conviction. We conclude that there is no reason to exercise our power under § 33E.

We summarize the facts the jurors could have found in the light most favorable to the Commonwealth. See Commonwealth v. Amado, 387 Mass. 179, 186, 439 N.E.2d 257 (1982). ¹ On Sunday morning, September 27, 1987, the body of a sixteen year old woman, the defendant's former girl friend, was discovered in Pagent Park in Quincy. The victim's face was bruised, battered, abraded, and covered with blood. A tire iron was found nearby.

The victim and the defendant had been dating for over one year when the victim broke off the relationship over the Labor Day weekend in September, 1987. Shortly thereafter, the victim began dating John Bono, a friend of the defendant. On the evening of Friday, September 25, the defendant had a gathering at his house, where he lived with his parents. There, he first heard about the victim's new relationship and he became very angry. He said that he wanted to find John Bono and beat him up. He expressed rage at the victim.

The defendant did not hesitate to act on his anger over the victim's new relationship. When the party broke up, the defendant went to John Bono's house and waited outside in an effort to observe Bono with the victim. After seeing the two together, the defendant followed Bono, engaged him in an argument, and beat him up, breaking Bono's jaw. The following morning, the defendant accused a friend of the victim, Kim Kenney, of concealing the relationship between Bono and the victim. He then threatened her with an armed crossbow.

Saturday afternoon at approximately 1:30 or 2 P.M., the victim left her house to run an errand. When the victim had not returned by Saturday evening, the victim's mother telephoned several of the victim's friends in an effort to find her and then reported her daughter missing. After the body was discovered on Sunday, the news spread through the neighborhood. Around noon, Kim Kenney called the defendant to inform him that his former girl friend's body had been discovered in Pagent Park. She told him that someone had hit the victim in the back of the head. After the telephone call, the defendant was upset and told two friends who were at his house that someone "had beat his baby's face in." No information had yet been released by the police concerning the nature of the victim's injuries or the cause of her death.

The defendant and several of his friends gathered to discuss the victim's death. They agreed to go together to the police station and offer their help. At the police station, the defendant made statements to various police officers over the course of several hours. He admitted to the police his relationship with the victim, including his anger at her for dating Bono, and he gave accounts of his activities and whereabouts over the weekend. He told the police that the victim should suffer for what she had done to him.

The police searched the defendant's house and automobile pursuant to a warrant and obtained some incriminating evidence. See section 1, infra. Serological tests were performed on all the items removed, including some articles of the defendant's clothing, and on the defendant's automobile. Tests also were performed on the tire iron found near the body. The tests revealed blood on the defendant's dungaree jacket and in his automobile, although it could not be determined whether the blood was human or animal in origin. Human blood and two of the victim's hairs were found on the tire iron. There were no fingerprints on the tire iron.

On October 2, the defendant was arrested pursuant to a warrant. As he was being taken to the police station, the defendant stated to one of the detectives, "Have you guys been able to figure out the last time I drove my car?" ² He also stated that he knew that the police would be coming for him.

Expert evidence indicated that the victim was killed between six and eighteen hours before she was pronounced dead at 10:45 A.M. on Sunday, September 27. A neighbor of the defendant's stated that she saw the victim knocking at the defendant's window at about 4 P.M. on Saturday; two other witnesses testified that at about 4 P.M. on Saturday, they saw the victim walking with a man whom one of them was later able to identify as the defendant from a photographic array. Two students at a local school testified that they were walking through Pagent Park between approximately 3:30 and 4:45 P.M., ³ and saw a man attempting to lift up the motionless body of a woman. One of the students identified the defendant as the man he saw with the woman's body.

Two of the defendant's friends said that they were unable to reach him by telephone on Saturday afternoon. Several times, the defendant's father answered the telephone and said that the defendant was not at home. The defendant went to a party with his friends that night. One of them drove him home at about 10:30 P.M.

Two women testified that they drove up to Pagent Park Saturday night at about 11 P.M. There one of them noticed a dark automobile with certain distinctive features that "look[ed] like" the defendant's automobile. ⁴ They testified that they fled when something was thrown at them from the woods. A young man testified that at about 5 A.M. on Sunday, he drove to Pagent Park with his girl friend. He noticed in the park an unusual automobile. He later identified the defendant's automobile as the one he saw in Pagent Park early that Sunday morning. As he and his girl friend sat in his automobile, he noticed a man wearing a dungaree jacket looking in the window. This witness subsequently picked out the defendant's photograph from an array. He also identified the defendant at trial. At approximately 9 A.M. on Sunday morning, a former schoolmate of the defendant saw the defendant, wearing a dungaree jacket, riding through Pagent Park on a moped.

The forensic pathologist who performed the autopsy found eight distinct wounds on the victim's head and neck, each splitting the skin to the skull. Internal examination revealed a skull fracture and brain contusion and hemorrhaging. The pathologist determined that the cause of death was multiple blunt injuries to the head and neck; he opined that the victim died soon after the injuries.

The defendant offered an alibi defense. His father, his mother, and his two siblings said that he was at home during Saturday afternoon and on Saturday night after he returned from the party at 10:30 P.M. Neighbors stated that they had not heard the sound of the garage door opening or the sound of the defendant's automobile. The defendant himself said he was at home, although his testimony was inconsistent with that of other alibi witnesses concerning some collateral matters.

1. Motion to suppress. In a pretrial motion to suppress, the defendant alleged that the search of his residence and automobile commenced before the issuance of the search warrant. ⁵ He argues that the motion judge erred in denying the motion and that the judge's findings were not supported by the evidence. We disagree.

The judge found that the defendant and three friends went to the police station at about 2 P.M. "to learn what they could about the grisly discovery and to provide what information they could to the police." The four spoke to different officers. Because the defendant "was the ex-boyfriend of [the] victim ... [the officer] thought it prudent to give [the defendant] his Miranda rights before speaking with him." The defendant made some "quasi-incriminating statements, including a bone chilling one concerning the condition of the victim's face." The officers observed grass stains on the knee area of his blue jeans and "what appeared to be blood droplets on his sneakers." He told the officers that he had worn the sneakers and jeans the previous day.

At about 7:45 P.M., some police officers were dispatched to the defendant's home "to secure the premises." The judge found that one officer was invited into the defendant's first-floor apartment and another officer who was acquainted with the second-floor tenant was invited into that apartment. The police officers who testified at the suppression hearing never pinpointed the time at which they began the search, but their testimony permitted the judge to infer that the search was conducted after the warrant was obtained.

It is uncontested that the warrant was issued at approximately 9 P.M. on Sunday, September 27, 1987. The police officers stated that after the warrant was procured, they first seized items of clothing from the defendant. This seizure took place between 9:30 and 10 P.M. Other officers took the warrant and began searching the house. One of the officers said that he read the warrant in the police department's parking lot before leaving to search the defendant's home.

The defendant, whose clothing had been seized at the police station, returned home at 10:30 P.M. He arrived during the search of his basement bedroom. He attempted to prevent the police officers from gathering certain items of his clothing and attempted to impede the search of his automobile. As a result, the automobile was...