Com. v. Zagranski

• Decision Date: 13 August 1990
• Citation: 408 Mass. 278,558 N.E.2d 933
• Parties: COMMONWEALTH v. Richard M. ZAGRANSKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 933

558 N.E.2d 933

408 Mass. 278

COMMONWEALTH v. Richard M. ZAGRANSKI.

Supreme Judicial Court of Massachusetts Hampshire.

Argued April 3, 1990.

Decided Aug. 13, 1990.

James M. Smith, Springfield, for defendant.

Judd J. Carhart, Dist. Atty. (Ariane D. Vuono, Asst. Dist. Atty., with him) for Com.

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

WILKINS, Justice.

The defendant, appealing from his conviction of the murder in the first degree of Michael Molin, challenges several of the trial judge's rulings on the admission of evidence, and further challenges the judge's jury instruction concerning the absence of certain witnesses. There was no reversible error. The defendant refers to G.L. c. 278, § 33E (1988 ed.), but makes no separate argument under it. We have performed our duty under that statute and have determined that there is no reason to disturb the verdict.

The body of the victim, who died of multiple gunshot wounds, was found in a storage space that the defendant had rented. Personal items of the defendant, including his shotgun, were also found there. The defendant and the victim had had dealings concerning the sale to the defendant of land in Granby that the victim and his wife owned. There was evidence that would have warranted a finding that the defendant had shot the victim, placed his body in the trunk of a rented motor vehicle, and thereafter put the body in the rented storage space. We need not recite the evidence in detail, but shall refer to aspects of it that relate to particular issues argued on appeal.

1. The defendant argues that there was no probable cause to support the issuance of a warrant to search the rented motor vehicle. After the search, a chemist found human blood on the floor and sides of the vehicle's trunk.

The defendant also challenges a subsequent search warrant that authorized the search of the rented storage space. His challenge to the search of the storage space is founded on the theory that the alleged invalidity of the prior search of the motor vehicle tainted the search of the storage area. Because we conclude that the search of the motor vehicle was based on probable cause, we need not consider whether the search of the storage space could be sustained on an independent basis.

Affidavits before the magistrate who authorized the warrant to search the rented motor vehicle stated that a teen-age boy operating an all-terrain vehicle in the woods in Amherst on February 19, 1988, said that he had helped a man with a shotgun load a wounded man into the trunk of an automobile. The man told the boy that he had shot his best friend and needed help to get him into the automobile and to a doctor. The boy identified a picture of the victim as that of the wounded man he had seen in the woods. He also selected a photograph of the defendant from an array as being a photograph of the person who had said that he had shot his friend. We need not recite additional supportive information set out in the thorough affidavits of the experienced State trooper who prepared them.

There was probable cause to believe that the rented vehicle contained evidence that would bear on the victim's death and the defendant's involvement. The probability that blood stains and other physical evidence would be found in the vehicle supported the issuance of the warrant. Commonwealth v. Upton, 394 Mass. 363, 370, 476 N.E.2d 548 (1985). In light of all the other information disclosed to the magistrate, the fact that an affidavit shows that the boy misstated the color of the vehicle does not demonstrate that there was no probable cause to search it.

2. The judge acted within his discretion in admitting, for limited purposes, evidence tending to show that, approximately six weeks before the shooting of the victim, the defendant had told his friend Neal Dodd that he intended to entice an owner of a hotel in Jamaica to come to this country and sell his hotel to the defendant, after which the defendant would kill him. The defendant rightly concedes that the circumstances of the attempted purchase of the victim's land and the victim's subsequent death were substantially similar to the defendant's proposed dealings with the Jamaican hotel owner. ¹ The judge charged the jury that the evidence of the defendant's Jamaican hotel scheme was admitted only to show "such things as knowledge, intent, motive, method, pattern of conduct, and the like." ²

The evidence of a common scheme or pattern of conduct was sufficiently related to the circumstances of the victim's death, in time and otherwise, to be admissible, in the judge's discretion, not to prove that the defendant was a bad person, but to prove that the defendant acted pursuant to a scheme or pattern of conduct he had recently proposed and had pursued in part. See Commonwealth v. King, 387 Mass. 464, 469, 441 N.E.2d 248 (1982); id. at 477, 441 N.E.2d 248 (O'Connor, J., dissenting). That proposed pattern of conduct was admissible because it tended to identify the defendant as the person who killed the victim. Commonwealth v. Brusgulis, 406 Mass. 501, 505-506, 548 N.E.2d 1234 (1990). If there was evidence sufficient to establish the defendant's identity, the defendant's earlier scheme would also be relevant on the issue of the defendant's malice. Id. at 504 n. 4, 548 N.E.2d 1234. Commonwealth v. Helfant, 398 Mass. 214, 227, 496 N.E.2d 433 (1986). This evidence was particularly relevant on the issue of malice because there was testimony that the defendant had told the boy in the Amherst woods that he had shot the victim by accident. There was other testimony that the defendant had told another friend that he had shot the victim in self-defense.

3. Over objection, the judge permitted certain witnesses to testify concerning statements the victim had made to them. On February 19, 1988, the day of his death, the victim told a creditor that he would pay his debt later that day or on the next day. A friend of the victim testified about conversations with the victim prior to February 19, concerning the sale of the victim's land. The victim told his friend of the interest of a particular company in putting a building on the land and the defendant's statement to the victim that the man who was mayor of Holyoke at the time of the trial was a backer of the project.

The attorney who acted for the victim in connection with the proposed sale of the victim's land to the defendant testified concerning conversations he had had with the victim not in the presence of the defendant. The victim told his attorney that the defendant wanted to pay him in cash and that one of the backers of the project did not want the attorney involved in the transaction. Two days later, and four days before his death, the victim told the attorney that he had learned that one of the investors was a prominent local businessman, and that the victim was probably going to make the sale. He asked his attorney to prepare a deed, leaving blank the grantees' names and the amount of the consideration. The attorney also testified that the victim told him two days before his death that the defendant had requested that the mortgage be paid off before the sale of the land. On February 19, the victim told the attorney that there were no problems and agreed that he would only close the transaction at a bank.

All this testimony concerning what the victim had said to various witnesses, not in the defendant's presence, was hearsay. The Commonwealth seeks to justify its admission under the state-of-mind exception to the hearsay rule. This exception admits relevant evidence of the victim's state of mind of which the defendant was aware. See Commonwealth v. Lowe, 391 Mass. 97, 105, 461 N.E.2d 192 (1984); Commonwealth v. Borodine, 371 Mass. 1, 8-9, 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977). Such a statement is not admissible in evidence unless the trier of fact is warranted in finding that the defendant had been aware of the victim's state of mind. Commonwealth v. Olszewski, 401 Mass. 749, 759, 519 N.E.2d 587 (1988). Commonwealth v. Borodine, supra. Such a statement is not admissible to prove the facts stated, but only the declarant's state of mind. See Commonwealth v. Van Liew, 14 Mass.App.Ct. 662, 667, 441 N.E.2d 796 (1982). In certain instances, a voir dire hearing concerning the admissibility of the proffered state-of-mind evidence would aid the judge. Preferably, the judge should tell the jury of the limited purpose for which such evidence is admitted, at the time it is admitted.

None of the victim's statements was admissible under the state-of-mind exception. Only a few of the victim's statements concerned his state of mind, such as his intentions as to future conduct. All the remaining statements, which concerned past events, were, therefore, inadmissible under the state-of-mind exception. See Commonwealth v. Lowe, 391 Mass. 97, 461 N.E.2d 192 (1984). Although the Commonwealth argues that the jury could infer that the victim's state of mind was communicated to the defendant, it fails to indicate what evidence would support such an inference. Moreover, even if the defendant had known of the victim's state of mind, as reflected in the testimony we have summarized, it would have had no relevant bearing on the defendant's motive.

The question thus becomes whether there must be a retrial because, in a case having overwhelming evidence of the defendant's guilt, the prosecution unnecessarily overreached and the judge did not prevent the error. The defendant does not argue to us that he was prejudiced by the admission of this evidence. ³ An argument that the defendant was prejudiced by the error could, however, be developed. This alleged "state of mind" evidence, with other evidence (such as the mayor of Holyoke's testimony that he did not know the defendant), tended to show that the defendant misrepresented certain facts to the...