Commonwealth v. Carriere
| Decision Date | 28 October 2014 |
| Docket Number | SJC–11339. |
| Citation | 470 Mass. 1,18 N.E.3d 326 |
| Parties | COMMONWEALTH v. Edmond J. CARRIERE, Jr. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Neil L. Fishman for the defendant.
Julia K. Holler, Assistant District Attorney, for the Commonwealth.
Present: SPINA, CORDY, DUFFLY, & LENK, JJ.
On January 3, 1980, at approximately 8 p.m. , the victim, who was the defendant's wife, was found dead on the bathroom floor in her home in Bourne. She had died “quite some time” earlier of multiple stab wounds. When the victim's body was discovered, the defendant and his fourteen year old daughter, who lived with the victim, were in Florida visiting one of the defendant's older daughters. In June, 2005, Steven Stewart, the man who stabbed the victim, was convicted of murder in the first degree; this court reversed his conviction in 2009 based on errors in the admission of testimony by a key witness. See Commonwealth v. Stewart, 454 Mass. 527, 527–528, 911 N.E.2d 161 (2009). The defendant was indicted in July, 2010, after Stewart entered into a plea agreement under which he pleaded guilty to manslaughter, agreed to testify against the defendant, and was sentenced to time served.
The Commonwealth's theory at trial was that the defendant, who was in the midst of a highly contentious divorce from the victim, had engaged in a murder-for-hire scheme with Stewart and their mutual friend Richard Grebauski.1 Grebauski, the alleged middleman, arranged to hire Stewart for $5,000 after accepting the defendant's offer of $10,000 to kill his wife. The Commonwealth's case relied heavily on evidence introduced through Stewart, who testified both to his own actions and to out-of-court statements by other asserted members of the joint venture, including Grebauski. The remainder of the evidence was based largely on out-of-court statements introduced by witnesses to those statements, such as the defendant's friends and neighbors Russell Breault, Charles Berryman, and David Phinney. A police report and a letter sent to the police, containing additional statements, were introduced in evidence by stipulation. In May, 2012, a Superior Court jury found the defendant guilty of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. See G.L. c. 265, § 1.
On appeal, the defendant challenges the admission of a number of out-of-court statements introduced through Stewart's testimony
under the joint venture exception to the hearsay rule; the defendant contends that the Commonwealth did not prove the existence of a joint venture, and also that some of the statements were made outside the period in which the joint venture allegedly occurred. The defendant maintains further that errors in the admission of impermissible and highly prejudicial propensity evidence, the judge's decision not to allow testimony concerning purportedly exculpatory statements made by Grebauski, and improper remarks in the prosecutor's closing argument require a new trial. The defendant objected to certain of the evidentiary rulings and to some of the prosecutor's remarks at trial; other asserted errors were unpreserved. The defendant also requests that we exercise our authority under G.L. c. 278, § 33E, to grant him a new trial.
We conclude that there was no prejudicial error or substantial likelihood of a miscarriage of justice in any of the challenged evidentiary rulings, or in the prosecutor's closing argument. After careful review of the record pursuant to G.L. c. 278, § 33E, we discern no reason to order a new trial or to reduce the degree of guilt.
Trial evidence. We recite facts the jury could have found, reserving additional detail for later discussion.
In the months prior to the killing, the defendant and his wife were engaged in a hotly contested divorce. The defendant told a number of his friends that his wife intended to take the marital home and “everything else” in the divorce. At one point, he told Grebauski, in Stewart's presence, that he had offered his wife money to “just go away,” but she refused. Approximately two to three months before the victim was killed, the defendant, Breault, and Berryman were at Berryman's house, drinking beer, when the defendant asked if they wanted to “make some money.” When Berryman responded affirmatively, thinking the defendant meant a job installing vinyl siding, the defendant explained that it was not a siding job, but that he would pay $2,000 for killing his wife, because she was going to take everything in the divorce. The defendant also said that, “[i]f [his] wife takes a dime, ... he would pay $1,000 to get it back.” Breault and Berryman thought that the defendant was joking. At some point either during or shortly after this conversation, Phinney arrived.
In December, 1979, when the defendant was at Grebauski's house, he asked if Grebauski “knew anyone big, big and black that would go in there and do things to his wife that she would
never forget” while the defendant was in Florida with his fourteen year old daughter, Ginger Kirby. Both Stewart and Shannon Glover Grebauski, Grebauski's then girl friend,2 heard the defendant talking about the divorce and his desire that his wife were dead.
At some point thereafter, Grebauski approached Stewart, saying that he “[had] a deal for” Stewart, and that the defendant had offered Grebauski $5,000 to kill the defendant's wife. Stewart initially declined the offer, but, after continued “prodding” by Grebauski, eventually agreed to kill the defendant's wife because he owed Grebauski $500 for purchases of cocaine. Approximately a week before the victim was stabbed, Stewart told his friend Stephen Tracy that “Grebauski had somebody who wanted him to do his old lady.”
Around December 10, 1979, a week before school vacation was to begin, the defendant and his daughter Kirby, who lived with the victim, left to visit the defendant's older daughter, Linda McCraney, who lived in Florida. Kirby stayed with McCraney in McCraney's mobile home,3 and the defendant stayed with his girl friend and her family. During that time, the defendant made a number of derogatory comments about his wife, including telling McCraney several times that her mother “was a whore” who was sleeping with everyone on Cape Cod, and that, “if [she] continued with the divorce she would be sorry for what she had done.” McCraney thought that her father and sister would return to Massachusetts before school resumed on January 3 or 4, 1980, but, on January 3, they had not left and showed no signs of leaving. When McCraney asked the defendant about his plans, the defendant said that “it was none of [her] goddamn business and that he [would] leave whenever he [was] ready to leave.”
On January 3, 1980, the day planned for the killing, Stewart went to Grebauski's house. Grebauski received a telephone call from the defendant in Florida; the defendant said that “it had to be done that night” because Kirby needed to return to school. Grebauski gave Stewart one of two fillet knives that were kept on the kitchen windowsill, and a pair of gloves. Grebauski told Stewart that the victim would be alone in the house, because her
son would be working and her daughter was in Florida. He told Stewart to just walk into the house and stab the victim in the heart.
When Stewart drove to the victim's house for the first time that evening, no one was at home; he went to a nearby grocery store parking lot and returned shortly thereafter to see a vehicle in the driveway. He entered as Grebauski had instructed, and found the victim upstairs in the bathroom. He started to choke the victim, and she slipped and hit her head on the radiator. Stewart then stabbed the victim in the heart and left her on the floor with her head leaning up against the side of the tub. While he was moving the victim's body, he inadvertently cut her arm. He threw the knife and gloves in the Cape Cod canal, then drove to his grandmother's house in Brockton, where he telephoned Grebauski to tell him that “it's done.” Grebauski came to the grandmother's house, and he and Stewart discussed plans for an alibi; Stewart planned to say that he had been with Grebauski in Brockton when the victim was killed. Grebauski said that he could not pay Stewart until the defendant returned from Florida.
That same day, Berryman telephoned the defendant in Florida, looking for Phinney. Berryman and Phinney had been working on a vinyl siding job which was almost completed when Phinney suddenly departed for a week-long vacation in Florida. When the client contacted Berryman, angry that the job was not finished, Berryman attempted to reach Phinney at the defendant's house in Florida. Berryman asked Phinney when he would be returning to Massachusetts to complete the job, and Phinney replied, 4
Edmond Carriere, III, the son of the victim and the defendant,5 contacted McCraney and Kirby in Florida to tell them that their mother had been killed; they flew to Massachusetts, while the defendant drove back. At the victim's funeral service, the defendant did not go inside the church, but remained outside, sitting near
his parked car. Kirby testified that the family did not want the defendant at the funeral because they believed that he had harmed the victim.
At some point shortly after the victim's death, Stewart and Grebauski were playing pool in Grebauski's house when the defendant telephoned to say he was coming over with the money. When the defendant arrived, he said he was pleased that his wife was dead (“the bitch was out of the way”), but was very angry that his son had not been killed and that the body had not been removed from the house so that it would not be discovered. After an angry exchange during which the defendant told Grebauski he would not pay all of the agreed amount, the defendant and Grebauski...
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