Commonwealth v. Duguay

• Decision Date: 07 December 1999
• Parties: COMMONWEALTH v. TIMOTHY DUGUAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 397

720 NE 2d 458

COMMONWEALTH v. TIMOTHY DUGUAY.

Supreme Judicial Court of Massachusetts, Plymouth.

October 6, 1999.

December 7, 1999.

Present: MARSHALL, C.J., ABRAMS, LYNCH. GREANEY, & IRELAND, JJ.

Donald A. Harwood for the defendant.

Mary E. Mullaney, Assistant District Attorney, for the Commonwealth.

ABRAMS, J.

The defendant, Timothy Duguay, appeals from his conviction of murder in the first degree on the theory of extreme atrocity or cruelty. The defendant challenges (1) the denial of his motion to suppress a statement he made to a police officer in a police cruiser while en route to the police station; (2) the admission in evidence of ortho-tolidine test results; (3) the exclusion of polygraphic evidence; (4) the denial of his motion for a required finding of not guilty; and (5) the propriety of the prosecutor's closing argument. He also requests relief pursuant to G. L. c. 278, § 33E. We conclude that the conviction should be affirmed, and that there is no reason to grant the defendant a new trial or enter a verdict of a lesser degree of guilt pursuant to G. L. c. 278, § 33E.

We recite the evidence in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). The victim was killed shortly before 8 P.M. at his home. He was stabbed twenty-one times in his neck, face, and chest. At the time of the murder, the victim was seventeen years old and the defendant was twenty-three years old.

The defendant and the victim were neighbors and lived just a few houses away from each other. When the defendant was seventeen years old and the victim was twelve years old, they became involved in a homosexual relationship. Their relationship continued over the next five years, until the victim's death. The victim alternated between maintaining intimacy with the defendant and distancing himself from the defendant.

Throughout this period, the defendant and the victim had several disagreements. Four days before the victim's death, the defendant received a judgment against the victim. That judgment required the victim to pay back money that he had borrowed from the defendant. The defendant had previously told a friend that he would rather the victim spend the night with him (the defendant) than pay back the money. That evening, according to the defendant, a Thursday, the defendant and the victim spent the night together and were intimate.

After that evening, the defendant and the victim planned to spend the following Sunday night together, one night before the victim's murder. The defendant and the victim did not spend Sunday night together; instead, the victim went out with a girl friend and then spent the night at his own house.¹ The following morning, the defendant called the victim and demanded to know where the victim had been the night before. The defendant also drove to the victim's house twice that day. Each time, the victim refused to talk to the defendant and told him to leave.

The defendant had a telephone conversation approximately one to two hours before the victim was killed during which he told a friend that he was tired of being "hurt" by the victim. He also said he was going to kill the victim. Approximately twenty minutes before the victim's death, the defendant telephoned the victim's home and left a recorded voice message for the victim's mother. In this message, the defendant told the victim's mother of his homosexual relationship with the victim. He also said that the victim was "going to answer for the head games he's played with me," and that the victim was "not going to threaten me ... because I'm just going to turn myself in and I've already started that." He also instructed the victim's mother to "get ready for a fun ride at the courthouse."

Shortly before eight, the victim stumbled out of his house. A relative of the victim, who lived in a neighboring house, saw the victim and telephoned emergency services. As the first emergency vehicle pulled onto the victim's street, the driver noticed a person in dark clothing walking away from the victim's house. This person displayed no apparent physical response to a loud scream coming from the direction of the victim's house. Emergency medical personnel were not able to resuscitate the victim. He died on the way to a hospital from blood loss caused by multiple stab wounds to his neck, face, and chest.

After learning from a neighbor that the defendant's vehicle was seen leaving the front of the victim's house "earlier in the evening, before this happened," the police went to the defendant's house. When the police arrived, the defendant told them that he knew they were coming. The police then recited Miranda warnings.² The defendant got his jacket and then rode in a cruiser to the police station. On the way to the police station, the defendant asked an officer what the police wanted to know. The officer told the defendant "[j]ust tell them what happened." The defendant then said, "If I tell you what happened, you'll put me in jail for the rest of my life." The police again advised the defendant of the Miranda warnings. The police then began an interview at the police station. The defendant initially denied having a sexual relationship with the victim. After the police told him that they knew about the message he had left for the victim's mother, he admitted to his homosexual relationship with the victim. He discussed his recent communications with the victim. He told the police that he had been wearing the same clothing since the middle of the day. The defendant's clothes were dark.

The defendant consented to testing for the presence of blood on his person and on his clothing. A police chemist performed an ortho-tolidine test. This test is for screening only because it yields a positive result for substances as diverse as vegetation, food items, and detergents, as well as for human blood. The defendant tested positive on his hands, the soles of his feet, and the soles of his sneakers. The back of his left hand and his socks did not test positive.

Subsequently, the police obtained a search warrant and performed the same testing on the defendant's house, car, and clothing. No blood was visible to the eye, but the results were positive in the defendant's bathtub, car, on a light switch, and clothing. The police did not find the defendant's fingerprints at the victim's house. Furthermore, hairs found at the victim's house were inconsistent with the victim's and the defendant's hair.

1. Denial of the defendant's motion to suppress. The defendant contends that the statement he made to the police on the way to the police station should be suppressed. The defendant correctly states that the Miranda warnings given before he entered the police cruiser were deficient. He also correctly notes that statements made by a defendant in police custody in response to interrogation must be suppressed when the Miranda warnings are deficient. The defendant also, however, makes three assertions that are not correct. He asserts that he was in custody when he made the statement; that the officer's comment³ was "tantamount to questioning"; and that his statement was not voluntary.

As the motion judge found, the defendant is incorrect with respect to all three of these assertions. First, the defendant was not in custody at the time he made the statement. He was not forced to go to the police station; rather, he agreed to accompany the police officers there. See Commonwealth v. Eagles, 419 Mass. 825, 832-833 (1995); Commonwealth v. Phinney, 416 Mass. 364, 370 (1993). "[T]here is no arrest unless a reasonable person on the scene would perceive that the defendant[] [was] being forcibly detained." Commonwealth v. Parker, 402 Mass. 333, 339 (1988),S.C., 412 Mass. 353 (1992), and 420 Mass. 242 (1995).

Second, the officer's comment did not amount to questioning. The officer did not initiate the conversation. The defendant did. The officer merely answered the defendant's question. See Commonwealth v. Cote, 386 Mass. 354, 360 (1982). Contrast Brewer v. Williams, 430 U.S. 387, 400 (1977).

Finally, the defendant's contention that the statement was not voluntary has no merit. The defendant, without prompting, blurted out a statement. Because voluntary statements made by a defendant without any police coercion are admissible in evidence, Commonwealth v. Diaz, 422 Mass. 269, 271 (1996), the motion to suppress was correctly denied.

2. Admission of expert testimony concerning the results of the ortho-tolidine test. The defendant argues that the judge erred when he allowed expert testimony concerning the results of the ortho-tolidine test, a test that screens for the presence of blood. The defendant concedes that under Commonwealth v. Gordon, 422 Mass. 816 (1996), expert testimony as to the results of ortho-tolidine testing is admissible in Massachusetts. However, the defendant attempts to distinguish Gordon by arguing that there was additional blood evidence establishing the defendants' guilt in the Gordon case. The defendant notes that some other States have found error where the results of presumptive tests were admitted without additional confirmatory evidence. The defendant also contends that the ortho-tolidine test results should be excluded because the danger of prejudice is greater than the probative value of the test results.

In Commonwealth v. Gordon, supra at 842, we held that results of ortho-tolidine tests are admissible in evidence. We did not qualify the admission of the results on the availability of additional confirmatory evidence. We decline to do so now. "`The defendant's argument goes only to the weight of the evidence, not to its admissibility, and it is for the jury to determine — after listening to cross-examination and the closing arguments of counsel — what significance, if any, they will attach to the discovery' of blood on the defendant's possessions [and person]." Commonwealth v. Yesilciman, 406...