Commonwealth v. Greineder

Decision Date04 November 2010
Docket NumberSJC-08866.
Citation458 Mass. 207,936 N.E.2d 372
PartiesCOMMONWEALTH v. Dirk K. GREINEDER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

James L. Sultan, Boston, for the defendant.

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., SPINA, COWIN, BOTSFORD, & GANTS, JJ.

SPINA, J.

The defendant was convicted of the deliberately premeditated murder of his wife. He filed a motion for a new trial. After an evidentiary hearing the motion was denied as was an amended motion for a new trial. The defendant appeals from his conviction and from the denial of his amended motion for a new trial. The appeals have been consolidated in this court.

The defendant argues that (1) he was denied a public trial because a portion of his jury selection proceeding was closed tothe public; (2) his State and Federal constitutional rights to confront and cross-examine witnesses were violated by the admission of deoxyribonucleic acid (DNA) evidence that constituted hearsay; (3) the judge erred by admitting as prior bad acts evidence of the defendant's extramarital sexual activity; (4) the prosecutor cross-examined the defendant in a manner that improperly elicited evidence of prearrest and postarrest silence, and then exploited the matter in his closing argument; (5) he should have been granted a new trial based on recantation by a Commonwealth witness; (6) he should have been granted a new trial based on the jury's exposure to extraneous information during deliberations; (7) counsel was ineffective for failing to challenge unreliable DNA evidence; (8) counsel was ineffective for failing to file a meritorious motion to suppress a receipt for a purchase of nails seized pursuant to a general warrant for a search of the defendant's home; and (9) counsel was ineffective for failing to file a meritorious motion to suppress evidence of details of a towel observed by police during a search of the defendant's car, where police had a warrant to search the defendant's residence but not the car, and the car was not within the curtilage of the residence. The defendant also contends that the cumulative effect of the alleged errors justify the reversal of the conviction. We affirm the convictions and the denial of his amended motion for a new trial, and we decline toexercise our powers under G.L. c. 278, § 33E.

1. Background. We recite facts the jury could have found, and reserve further details for discussion of particular issues.

On the morning of October 31, 1999, the defendant and his wife of thirty-one years parked their van at the entrance to the access road to Morses Pond (pond) in Wellesley, just outside the gate that blocks vehicular access, and walked their German shepherd dog around the park at the pond. William Kear was walking his small dog that morning on the pond access road, a two-lane paved road leading to a parking lot and a beach at the pond, when the defendant crossed in front of him from right to left (east to west). This occurred when Kear was at the first (south) entrance to the parking lot off the pond access road. The defendant was just beyond the second (north) entrance to the parking lot, where the lanes separate to form a circle. The defendant had emerged from the woods on a dirt path, crossed thepond access road just beyond the circle, then continued westerly down an unnamed road and out of sight. The defendant had a backpack, and he was walking rapidly with a dog on a leash. He made no noise.

About forty-five to ninety seconds later Kear entered the circle and the defendant reemerged from the road where Kear had last seen him. The defendant approached Kear and asked if he had a cellular telephone. Kear did not have one. The defendant asked Kear to go and make a telephone call for him. Kear declined, then asked the defendant what happened. He said his wife had been attacked, and pointed up the path beginning where Kear first saw him. The defendant said he had a cellular telephone in his van and he would make the call. On the way to his van the defendant passed Rick Magnan. He yelled to Magnan and asked if he had a cellular telephone. Magnan said he did not. The defendant walked to the start of the access road and telephoned Wellesley police from his van. In the meantime, Kear had walked up the path in the direction the defendant said his wife had been attacked to see if he could be of help.

Officer Paul Fitzpatrick was the first Wellesley police officer to arrive. He opened the gate to the access road and proceeded driving when the defendant, who was walking back toward his wife, yelled to him and said his wife had been attacked. The defendant entered Fitzpatrick's cruiser and directed him to the circle in the road. Fitzpatrick parked his cruiser, then followed the defendant up the dirt path to the area where his wife lay. Paramedics were right behind them. There was a significant area of bloodstain on the path, with a drag mark through the bloodstain. The drag mark led to the victim's body. The victim later was pronounced dead at the scene.

The cause of death was a horizontal stab wound into the left side of the neck. The wound was large, five and one-half inches long and two and one-half inches wide, caused either by two thrusts with a knife, or movement by the victim during a single thrust. Every muscle on the left side of her neck was damaged, as were the jugular veins, causing rapid exsanguination. A second and potentially fatal stab wound was inflicted horizontally into the left side of her chest, penetrating the pulmonary artery and left lung. However, so little blood was found in the left chestcavity that the wound must have been inflicted either after death or around the time the victim's body had ceased to function. Other stab wounds, all nonfatal, included one to the victim's lower left chest, two to the back of her head, and three to her forehead.

The victim sustained two other nonfatal wounds. One was a laceration on the back of her head that tore the skin and pushed it, consistent with an impact by a metal object with heft, such as a hammer. The other was a contusion on the left side of her face aligned with a fracture at the base of the skull, consistent with an impact by a padded, blunt object, such as a hand, knee, or foot. Neither of these wounds would have rendered her unconscious.

The victim had an abrasion on her lower back, at the base of the spine. The skin in that area displayed a piling up, as if the victim had been dragged by her shoulders. Her shirt had been pulled up and her pants opened, and blood spatter appeared on her abdomen and lower chest.1 She also had blood spatter on her hands, but she had no defensive wounds. Seminal fluid was not detected on any swabs prepared at the autopsy.

(a) The defendant's statements. The defendant made several statements on October 31, 1999, the details of which were not consistent. He told a paramedic at the scene that his wife twisted her back throwing a ball to their dog. She stopped walking and the defendant went ahead to retrieve the dog. After putting the dog in the van he returned and found his wife lying in the path.

Officer Fitzpatrick escorted the defendant away from the scene to the circle in the road while police processed the crime scene. The defendant told Fitzpatrick that he and his wife went for a walk and she tripped on something, injuring her back. She told him to go on without him and she would meet him at the entrance to the parking area. When he and the dog reached the gate to the beach, the dog started "acting funny" and it turned back. The defendant followed, and discovered his wife lying in the path. He checked her and found a weak carotid pulse, so he ran to the van to telephone police. About twenty minutes after talking to Fitzpatrick the defendant asked if his wife was dead. Fitzpatrick said she was. Five minutes later the defendant askedwhether Fitzpatrick was going to arrest him. Fitzpatrick said it was not his decision to make.

Sergeant Peter Nahass of the Wellesley police department went to the circle where the defendant and Officer Fitzpatrick were waiting. He observed a reddish stain on the sleeve of the defendant's windbreaker jacket (jacket), all the way down to the wrist, and also on his running shoes. The defendant's hands were clean. He had two scratches on his neck. Nahass asked him what happened. The defendant said he and his wife were walking their dog when she hurt her back throwing a ball to the dog. He told her to wait there while he went ahead with the dog. He turned back at the gate to the pond, which was locked, and the dog ran ahead. When he caught up to the dog, it was licking his wife's face. She was lying in the path. The defendant, who is a doctor, said he tried to take his wife's pulse at the carotid artery. The dog's leash was secured around his wife's waist. He removed the leash, attached it to the dog, then returned to their van and telephoned police. He gave a similar account to Detective Jill McDermott of the Wellesley police, but added that as he first approached his wife lying in the path he realized something was wrong because her pants were open and she had blood on her neck. She had no pulse; but she was warm, so he tried to rouse her.

At the Wellesley police station the defendant told Detective McDermott he had told her everything and was not hiding anything. He then stated, "You asked me for my clothing, and it suddenly scares me." Ten minutes later the defendant said his wife had given him a back rub the night before and would have his skin under her fingernails.

Trooper Martin Foley of the Massachusetts State police noticed at the scene that the defendant's jacket had reddish-brown stains on the chest area, both upper arms and elbows, and that there was a large stain on the left cuff that ended abruptly about two and one-half inches from the end of the sleeve. He also observed a reddish-brown stain on the defendant's sneakers,...

To continue reading

Request your trial
39 cases
  • Commonwealth v. Grassie
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 6, 2017
    ...46 N.E.3d 551 (2016) (remanding for findings related to defendant's ineffective assistance of counsel claim); Commonwealth v. Greineder, 458 Mass. 207, 219–220, 936 N.E.2d 372 (2010), S.C., 464 Mass. 580, 984 N.E.2d 804 (2013) (discussing result after remanding for factual findings on defen......
  • Commonwealth v. Greineder
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 14, 2013
    ...v. Massachusetts, ––– U.S. ––––, 133 S.Ct. 55, 183 L.Ed.2d 699 (2012), vacated the judgment and remanded Commonwealth v. Greineder, 458 Mass. 207, 936 N.E.2d 372 (2010)( Greineder ), to this court. The remand came with instructions to give the case further consideration in light of the rece......
  • Commonwealth v. Lally
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 3, 2016
    ...to “truthful” were not extraneous because they were cumulative of the one permissible reference. See Commonwealth v. Greineder, 458 Mass. 207, 247–248, 936 N.E.2d 372 (2010), remanded by ––– U.S. ––––, 133 S.Ct. 55, 183 L.Ed.2d 699 (2012), aff'd, 464 Mass. 580, 984 N.E.2d 804 (2013) (inform......
  • Commonwealth v. Rakes, SJC-10046
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 7, 2017
    ...94, 107, 921 N.E.2d 906 (2010). We accept as true the motion judge's findings of fact absent clear error. See Commonwealth v. Greineder, 458 Mass. 207, 225, 936 N.E.2d 372 (2010), vacated on other grounds, 567 U.S. 948, 133 S.Ct. 55, 183 L.Ed.2d 699 (2012), S.C., 464 Mass. 580, 984 N.E.2d 8......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT