Commonwealth v. Brum

• Decision Date: 08 November 2002
• Citation: 777 NE 2d 1238,438 Mass. 103
• Parties: COMMONWEALTH v. DAVID BRUM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

438 Mass. 103

777 NE 2d 1238

COMMONWEALTH v. DAVID BRUM.

Supreme Judicial Court of Massachusetts, Bristol.

March 8, 2002.

November 8, 2002.

Present: MARSHALL, C.J., GREANEY, SOSMAN, & CORDY, JJ.

Terry Scott Nagel for the defendant.

M. Catherine Huddleson, Special Assistant District Attorney, for the Commonwealth.

SOSMAN, J.

The defendant was convicted of murder in the first degree, as both a joint venturer and a principal, on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (with armed robbery as the predicate felony).¹ On appeal, he claims error in (1) the admission of his postarrest statement to the police, (2) the judge's denial of his motion for a mistrial after a prosecution witness testified to a remark the defendant made after he had invoked his right to terminate police questioning, (3) the admission of portions of a statement made by the nontestifying codefendant, (4) improper closing argument by the prosecutor, and (5) the refusal to instruct the jury on felony-murder in the second degree with larceny from the person as the predicate felony. The defendant also asks that we exercise our power under G. L. c. 278, § 33E, to reduce his degree of guilt or grant him a new trial. We affirm the convictions, and decline to exercise our power under G. L. c. 278, § 33E.

1. Facts. The facts viewed in the light most favorable to the Commonwealth are as follows. The seventy-nine year old victim owned a sewing machine repair shop in Fall River. The defendant and his twin brother, John Brum,² lived in their grandmother's house, near the victim's repair shop. From time to time, the victim had employed the two brothers to move heavy machinery and equipment from one place to another, paying them in cash. It was the victim's practice to conduct his transactions on a cash basis, and thus it was well known that he carried significant amounts of cash on his person. He normally kept his money in a clip or wallet in his right front pants pocket. He also kept a "reserve" wallet in his back pocket, but took money from that "reserve" wallet only on extremely rare occasions.

Both the defendant and John³ were heroin addicts. On the morning of June 13, 1997, the defendant called his stepfather and asked him for money, telling him they needed the money for groceries. The stepfather refused to give the defendant and John any money, but instead offered to take them food shopping. At about 12:30 P.M., they returned to the defendant's house with the groceries. While their stepfather conversed with their grandmother, the defendant and John left the house and were seen walking in the direction of the victim's shop.

After they returned home, their stepfather agreed to give them a ride to where another brother, Mark, lived with his girl friend. Mark was both a heroin addict and a heroin dealer. When the defendant and John arrived at Mark's house, Mark's girl friend, Sherry Schlee, was there alone with her children. According to Schlee, the two brothers looked nervous and were pacing, arguing with each other. They asked Schlee for plastic bags. She gave them several bags, and they used those bags to wrap a paper bag they had brought with them. Schlee heard one brother tell the other, "I'm sure that he's dead. He's got to be dead." They then stripped off their outer clothes and footwear and asked Schlee to wash them. The defendant explained that they had run through a "swamp." Before putting the clothes into the washer, Schlee noticed spots of blood on both shirts. She confronted the defendant and John, repeatedly demanding that they tell her what they had done. The defendant eventually told her that they had gone to see their boss to ask him for money, that they had gotten into an argument with him, and that he had grabbed his boss by the neck and caught him in a headlock.⁴ John told Schlee that he had hit the victim over the head with a hammer. The defendant immediately told Schlee that they were "joking." Then, while the defendant and John were not looking, Schlee touched the wrapped paper bag and felt a ball peen hammer inside.

After Schlee retrieved the washed clothes, she saw the defendant and John put the clothes into paper bags. She also saw them put a torn brown wallet and credit cards into another bag. They took the wrapped paper bag containing the hammer, along with the bags containing the clothes, wallet, and cards, and told Schlee that they were going out for a walk. They returned moments later empty-handed.

Mark arrived, bringing a bundle of heroin. Schlee attempted to speak to Mark privately, but the defendant and John told her to "shut up" and "mind [her] own business." Mark became angry, saying he "hope[d] [they] didn't do nothing stupid." The defendant replied, "[A]re you happy now that you gotta know we robbed someone?" Later on, the defendant gave Schlee a one hundred dollar bill, and asked her to buy a case of beer.⁵ That night, the defendant, John, and Mark watched television, drank beer, and used drugs. At one point, Schlee overheard the defendant and John commenting that they would stay for the night because the police would be "swarming" or "surrounding" their house "when they find out what happened because they had nothing on their hands to cover up anything left behind."

The victim was found the following morning, lying in a fetal position on the floor of his repair shop, surrounded by a pool of blood. His car keys and smashed eyeglasses were on the floor next to him. A wallet containing $600 was still in the victim's back pocket. According to the medical examiner, the victim's skull had been fractured and his head and face were covered with bruises, cuts, and lacerations as a result of sixteen to twenty blows delivered with a blunt object and a sharp object.⁶ The victim also had suffered defensive injuries to his left hand and wrist. During the autopsy, the medical examiner found a fractured vertebra in the victim's neck and hemorrhages of the linings of the airways. The victim's lungs were hyperventilated. These injuries indicated that the victim had been forcefully choked or strangled, which could have been, by itself, the cause of death.

The defendant gave a statement to the police later that evening, after agreeing to come to the station.⁷ The defendant told the police that he and John had gone out food shopping with their stepfather on the morning in question, and then proceeded to Mark's house where they spent the rest of the day. On being asked when he had last seen the victim, the defendant became upset and indicated that he did not want to answer any more questions.⁸ At that point, the interview ended, and the police gave the defendant and John a ride back to Mark's house.⁹ Meanwhile, in a separate interview, Schlee informed the police of the statements and actions of the defendant and John at her home the preceding day. This information provided probable cause to arrest the defendant and John, and they were arrested within minutes after the police had left them near Mark's house.

Back at the police station, the defendant gave another statement, this time admitting that he and John had gone to the victim's shop. The victim, having recognized them both, allowed them in. The defendant then asked the victim for money, but the victim refused. An argument ensued, during which the defendant grabbed the victim in a headlock, choked him, and threw him to the floor. The defendant claimed that the victim struck his head on a machine as he fell, and believed that the victim was already dead when he hit the floor. (In a separate statement, John admitted striking the victim's head with a hammer.) The defendant also claimed that the victim's wallet "had come loose from his pocket and presented itself on the floor."¹⁰ The defendant picked up the victim's wallet, and he and John ran from the shop. They removed two one hundred dollar bills from the wallet, tore up the wallet and its contents, and threw them away as they ran home. Their stepfather drove them to Mark's house, where they used the money to buy heroin. The defendant explained that Schlee washed their clothing and that they disposed of the clothing in a house where their brother Joseph was doing construction work.

In a sewer near Mark's house, the police found a ball peen hammer and cutting blade that came from the victim's shop. They were wrapped in blood-stained paper towels inside plastic bags that matched those found in Schlee's kitchen. Along with these objects, the police found a crushed beer can containing the remnants of the victim's torn wallet and credit cards. Bags containing the clothing worn by the defendant and John were found in a house under construction located across the street from Mark's house.

2. Motion to suppress. Prior to trial, the defendant moved to suppress his postarrest statement to the police. The facts surrounding the arrest and subsequent interrogation of the defendant, as found by the judge, are as follows. After the discovery of the victim's body on June 14, 1997, the police focused their investigation on three persons: the defendant, his brother John, and another employee of the victim. On the same day, Detective Thomas Chace, who was well known to the Brum family, went to the defendant's grandmother's house to look for the defendant and John. Another brother, Joseph, told Chace that his twin brothers were not home, but that he would arrange a meeting. At about 8:40 P.M., Chace spoke with Joseph, who told him that the defendant and John had agreed to meet him at Kennedy Park in Fall River. Chace arrived at the park with four other officers shortly before 9 P.M. Chace told the defendant and John that he wished to talk with them about the victim. The defendant and John agreed to go to the police station for questioning, but requested that they ride together in the same car. They rode together as requested. They were not placed under arrest, and they were not

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