Commonwealth v. Conkey
| Decision Date | 05 November 2004 |
| Citation | 443 Mass. 60,819 NE 2d 176 |
| Parties | COMMONWEALTH v. CRAIG W. CONKEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: Marshall, C.J., Greaney, Spina, Cowin, & Sosman, JJ. Michael R. Schneider (Ryan M. Schiff with him) for the defendant
Esther M. Bixler Piszczek, Special Assistant District Attorney (Michael L. Fabbri, Assistant District Attorney, with her) for the Commonwealth.
We address again the prosecution of Craig W. Conkey for the murder in December, 1994, of a woman in Lexington. In 1996, the defendant was convicted of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder. The jury also found him guilty of armed burglary, armed assault in a dwelling, and armed robbery.1 Because we concluded that the admission in evidence that the defendant did not appear at the police station for fingerprinting violated the defendant's right not to furnish evidence against himself, see art. 12 of the Massachusetts Declaration of Rights, we reversed these convictions in 1999. Commonwealth v. Conkey, 430 Mass. 139, 141-143 (1999) (Conkey I). The defendant was tried again in 2001 and convicted of murder in the first degree by reason of deliberate premeditation and felony-murder. He was also convicted of armed burglary and armed assault in a dwelling, and acquitted of the armed robbery charge. The defendant now appeals from his convictions as well as from the denial of his motion for a new trial. His primary claim is that in the circumstances of this case, he should have been permitted to introduce evidence of a third-party culprit's pattern of sexually aggressive acts against women. We conclude that the exclusion of such evidence violated his right to due process of law, necessitating reversal of these convictions. There must be a new trial.
We set forth the facts surrounding the death of the victim. At some point during the night of December 3-4, 1994, the forty-nine year old victim was killed in her home at 915 Massachusetts Avenue in Lexington. Her nearly naked body was found by the police on her bedroom floor on December 6. She was clothed only in a pajama top, which had been ripped open, exposing her breasts. Two buttons were missing from the pajama top, only one of which was found on the bed.2 The bottoms of the pajamas were on her bed, and a pair of panties on the floor. Three foreign human hairs were discovered on the pajama top. Some animal hairs that could have been dog hairs and some white, fine animal hairs were also found at the scene.3 The cause of death was strangulation by ligature (a nylon stocking), and multiple blunt force trauma to the head. All tests for evidence of sexual assault were negative. Although the victim was a tidy housekeeper, jewelry was found out of place on her bedroom vanity and strewn on the bedroom floor. The two purses she usually used were missing and never located. Occult blood (blood not visible to the eye) was discovered on the four bottom drawers of the victim's dresser, including the drawer where the nylon stockings were kept. There was no evidence as to the source of this blood.
The defendant lived on Massachusetts Avenue, a few doors away, within walking distance. He did not own a car. He was an admitted burglar who "liked" the challenge of breaking into homes when they were occupied. When the police identified his fingerprint and palm print on the victim's bedroom door, their attention focused on him and they reinterviewed him.4 At first, he insisted that he did not know the victim and had never been in her house. After receiving Miranda warnings, and being confronted with the fact that the police had evidence that he had been in the house, the defendant admitted that he was in the home during the night of December 3-4, but that when he came upon the victim she was already dead. He said that he had touched the body at the neck (which, according to him, was bloody) to feel for a pulse and picked up a telephone to contact the police, but changed his mind. He said that he washed the blood off his hands in the victim's bathroom sink. He explained his entrance into the house as follows. He had gone out walking (between 9 P.M. and midnight) and, at one point, paused to smoke a cigarette in a wooded area near the victim's house. When he heard a woman scream, he decided to go into the house. He entered the home by putting his hand inside a broken pane of glass in the rear door and unlocking the door.
The defense was that another person, i.e, the victim's landlord, who had access to the victim's home, opportunity, and a motive to harm her, committed the crime.5 We summarize the third-party culprit evidence presented at the second trial. The landlord, who was also the chairman of a local company and a research professor at Boston University, was sixty years old at the time of the murder. He had reddish-orange hair and lived on Massachusetts Avenue, about six houses from the victim.6 He owned the victim's house at 915 Massachusetts Avenue, as well as the house in front of it, at 917 Massachusetts Avenue. The landlord found the victim attractive and had asked her for dates "a couple" of times, but she refused his invitations. On December 6, before the victim's body had been discovered, the tenant at 917 Massachusetts Avenue saw the landlord behind the 917 residence. The tenant went to speak to the landlord about needed repairs and the landlord asked the tenant if he had seen the victim. The tenant said "no," that he thought it "strange that she hadn't gone to work" (her car was still in the driveway) and that "maybe she was sick." The landlord replied, "I think she went to California," and when the tenant said, "[h]er car is there," the landlord stated, "[s]he could have taken a cab into the airport."7
When interviewed by the police on December 6 (after the body had been discovered), the landlord informed them that he had been in the victim's home on November 29 to perform requested repairs. The victim had left him a note on November 28 (which he gave to the police)8 listing the necessary repairs; he attended to them and wrote her a note so informing her.9 He entered the house by using his own keys10 and, in attempting to repair a leak, went in the victim's bedroom, opened the middle drawer of her dresser (her lingerie drawer), and "reached inside" to move the dresser, but ultimately decided against doing so (it was too heavy to move and too likely to scratch the floor). When asked about the contents of the dresser drawer, the landlord asked, "Why, was she strangled with a nylon stocking?"
In response to questions about his actions on the weekend of the murder, the landlord replied that he had a "real problem with dates and times,"11 and said he thought he had been at "917" for roofing work, but eventually said that he had not been at either "915 or 917" on December 3. He also stated that he had not been "near [her] backdoor in a long time" but was concerned that, because of his repair work, his fingerprints "would" be on her closet doorknob and dresser and on the bathroom sink and vanity. As to his activities on the night of the murder, he told the police that he attended an office holiday party at a Braintree hotel with his fiancée on Saturday, December 3, from about 7 to 10 P.M., returned to his Lexington home after the party, watched television, "made love," and went to sleep around midnight. On Sunday, he worked at home and spent some time with his fiancée. The landlord agreed to provide the police with his photograph and fingerprints and did so. None of his fingerprints was found in the home.
Other evidence concerning the landlord was that he told his fiancée that he believed the victim was strangled "with a pair of stockings and probably raped" and that the back door window had been broken to "make it look[] like a break-in." The landlord's fiancée, testifying as a defense witness, recounted that she fell asleep on December 3 at the start of "Saturday Night Live" and did not see the landlord again until about 10 A.M. Sunday morning. She considered herself a "very heavy sleeper," and stated that the landlord was "an insomniac" who "often got up at night" to work or "go out and drive around." During the week following the murder, the landlord told his fiancée that he was "upset" she had told the police about his insomnia and night wanderings because they "made him sound . . . guilty" and he expressed "concern[]" that "his fingerprints had been found in the house and that he had keys to the house." He told another person, a former colleague, that the police had "probably found [his] fingerprints" on the victim's dresser and that, when he was in her room to do the repair work, he had picked up the telephone on the night table and slipped and knocked it over.12
We first discuss the reason for our reversal of the defendant's convictions and then other issues that may be relevant to a retrial. Further details of the evidence are recounted as necessary. 1. Prior sexual acts of the third-party culprit. Although the above evidence concerning the landlord was admitted at trial, the defendant claims that other evidence about him should have been admitted as well. He argues that the judge improperly excluded evidence of several instances of the landlord's sexual aggression toward women (including evidence of a rape allegation against the landlord made seven years before the murder in this case) and evidence that women's lingerie and sexually explicit photographs of former girl friends had been discovered in the landlord's home.13 To help analyze this claim, we set forth the law regarding third-party culprit evidence.
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