Commonwealth v. Garabedian

Decision Date25 February 1987
PartiesCOMMONWEALTH vs. DAVID GARABEDIAN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

COPYRIGHT MATERIAL OMITTED

Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH, & O'CONNOR, JJ.

Robert M. Mardirosian (JoAnne Meyers with him) for the defendant.

Pamela L. Hunt, Assistant District Attorney, for the Commonwealth.

HENNESSEY, C.J.

The defendant was found guilty by a Superior Court jury of murder in the first degree on the basis of deliberately premeditated malice aforethought and extreme atrocity or cruelty. He asserts error in the denial of his motions for a required finding of not guilty at the close of the Commonwealth's case and at the close of all the evidence because the Commonwealth failed to prove that the victim was Eileen F. Muldoon, as charged in the indictment; in the prosecution's improper use of peremptory challenges during the empanelling of the jury; in the admission in evidence of certain color photographs of the victim's body and the crime scene; in the admission of certain testimony of two doctors; in the judge's denial of motions for required finding as to so much of the indictment as charged murder in the first degree; in certain statements by the prosecutor made during closing argument; and in the judge's failure to instruct the jury on voluntary and involuntary manslaughter. The defendant also urges that this court should grant him relief pursuant to our discretionary power under G.L.c. 278, § 33E (1984 ed.). We conclude that there was no error, and further conclude that the defendant is not entitled to relief under G.L.c. 278, § 33E. We affirm.

On March 29, 1983, the date of the murder, the defendant was employed by the Old Fox Lawn Care Company of Chelmsford, which provided lawn care services to customers. The defendant's duties included "surveying" the lawns of prospective customers as well as applying liquid chemical treatments to customers' lawns. The defendant had worked for the company for about one month prior to the murder. During this period he was frequently exposed to lawn-care chemicals. He breathed in the chemical vapors, and at times the chemicals touched his skin. He had various symptoms of poor health which the jury could have found were caused by the chemicals. There was expert testimony that chemical intoxication was the cause of the defendant's violent conduct.

The facts are established in part from the defendant's testimony. On March 29, 1983, the defendant left Old Fox to perform his first lawn survey at approximately 7:30 A.M. He then had various appointments throughout the day in several cities and towns, including Lincoln, Millis, and Shrewsbury. He testified that he had not eaten or urinated all day. At 4:30 P.M., the defendant performed a lawn survey at the home of Margaret Brassard in Townsend. Her only comments regarding the defendant's physical condition were that she found him to be very polite and a very clean-cut gentleman. He left the Brassard home at approximately 4:55 P.M.

The defendant then traveled to the Muldoon home on Fletcher Street in Dunstable. Upon arriving, he rang the doorbell and knocked on the door several times, but no one answered. He then proceeded to measure the yard and fill out his survey sheets. Because he believed no one was home, he walked to the left rear of the house and, facing the house, began to urinate on the grass. When he had almost finished, he noticed a woman standing toward his right on top of a hill looking down at him. She came upon him and castigated him for urinating. As soon as the defendant saw her he closed his zipper and apologized to her. He walked around a wall and up the hill to attempt to talk the woman out of her anger. She stated, "Well, I think I should call your boss." He continued to apologize and "tapped her on the arm" saying, "I'm really sorry you feel this way." The woman screamed and scratched the defendant on the face, drawing blood and leaving a cut. The defendant then grabbed the woman around the neck, strangling her manually. They were on top of a ledge and both fell to the ground. The woman was not moving. A tie string which the defendant had taken from his jacket earlier in the day was lying next to him, which he then used to strangle the woman again. He then picked up three large rocks, weighing forty-eight, forty-four, and twenty-two pounds, which he threw at the victim, hitting her face and head.

1. The defendant contends that the Commonwealth failed to prove that the murder victim was Eileen F. Muldoon, as charged in the indictment. Thus, he maintains that the trial judge erred in denying his motions under Mass. R. Crim. P. 25 (a), 378 Mass. 896 (1979), for a required finding of not guilty. To review this argument we examine the evidence at the close of the Commonwealth's case, when the defendant first filed a motion for a required finding. Commonwealth v. Porter, 384 Mass. 647, 651-652 (1981), and cases cited. The motion was properly denied "if all the circumstances including inferences that are not too remote according to the usual course of events are of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). Commonwealth v. McLeod, 394 Mass. 727, 746, cert. denied sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985). Commonwealth v. Nickerson, 388 Mass. 246, 251-252 (1983). We pass over the question whether, having proved that the defendant killed a person, the Commonwealth must also prove that the victim was the person named in the indictment. We conclude that the Commonwealth presented sufficient evidence that the victim was Eileen F. Muldoon.

The Commonwealth introduced the death certificate of Eileen F. Muldoon, which was admissible under G.L.c. 46, § 19. (1984 ed.). The death certificate, by itself, is "prima facie evidence of the facts recorded." Id. Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 786 (1982). Thus, "in the absence of competing evidence, the jury were permitted, but not required, to find that the presumed fact was true beyond a reasonable doubt." Commonwealth v. Pauley, 368 Mass. 286, 291-292, appeal dismissed, 423 U.S. 887 (1975). Furthermore, the forensic pathologist who examined the victim's body testified, without objection, that the body was that of Eileen F. Muldoon.

The Commonwealth also established that on March 29, 1983, Eileen F. Muldoon lived on Fletcher Street in Dunstable, at the home where the murder took place. A coworker of Eileen Muldoon testified that she left work at approximately 5 P.M. that day in a white automobile; the chief of police investigating the scene of the murder testified that a white automobile was parked in the Muldoon garage when he arrived.1 There was evidence that keys found near the body belonged to Eileen F. Muldoon. Considered together, this evidence is sufficient for a jury to conclude that the victim was Eileen F. Muldoon, as charged in the indictment.

2. The defendant is of Armenian heritage. During the empanelling of the jury, the Commonwealth exercised its first peremptory challenge to exclude a woman, also of Armenian heritage. Upon objection by defense counsel, the judge inquired of the prosecutor his reasons for having exercised the challenge. The prosecutor stated that he had several reasons for having exercised the challenge and that it was not his intention to exclude persons of Armenian heritage from the jury. He stated, and the judge accepted the fact, that he did not even realize that the prospective juror was of Armenian heritage. This episode, standing alone, fails utterly to establish that the prosecution used its peremptory challenges to exclude members of a discrete group solely by reason of affiliation. See Commonwealth v. Soares, 377 Mass. 461, 488, cert. denied, 444 U.S. 881 (1979).

3. The defendant asserts error in the admission in evidence of three photographs, on the ground that the prejudicial nature of the photographs outweighed any probative or evidential value that they contain. Two photographs depict the victim's body. One of these two is a distant scene of the victim's entire body as it was found, while the other is a close-up color photograph of the victim's face. The third photograph depicts a bloodstained hole in the ground resulting from the victim's head being struck by the rocks. The defendant contends that all three photographs had minimal probative value and were highly inflammatory and prejudicial. Because the judge admitted the photographs without inquiry into whether other, less inflammatory, photographs existed, the defendant claims that the judge abused his discretion. The defendant acknowledges that the judge possesses considerable discretion in the admission of photographs, even though gruesome and inflammatory, if they possess evidential value on a material matter. Commonwealth v. Bastarache, 382 Mass. 86, 105-106 (1980). Commonwealth v. Stewart, 375 Mass. 380, 385 (1978). There was no error. The photographs were clearly "relevant to extreme atrocity or premeditation, both of which were in issue." Commonwealth v. Sielicki, 391 Mass. 377, 382 (1984).

4. The defendant argues that the opinion testimony of two expert witnesses on behalf of the Commonwealth, Drs. Martin J. Kelly and Michael S. Annunziata, exceeded the fields of expertise for which they had been qualified. Specifically, the judge found the two witnesses to be experts in the fields of medicine and psychiatry. The Commonwealth offered the testimony of the two witnesses with regard to the issue of mental disease or defect under this court's opinion in Commonwealth v. McHoul, 352 Mass. 544 (1967). Although he acknowledges that the witnesses were competent to testify in the areas for which they were qualified, the defendant contends that they were not qualified to render opinions as to whether ...

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