Commonwealth v. Healy

• Decision Date: 13 February 2003
• Parties: COMMONWEALTH v. WAYNE BLYTH HEALY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

438 Mass. 672

783 NE 2d 428

COMMONWEALTH v. WAYNE BLYTH HEALY.

Supreme Judicial Court of Massachusetts, Suffolk.

November 5, 2002.

February 13, 2003.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Judy Zeprun Kalman, Special Assistant District Attorney, for the Commonwealth.

Geoffrey C. Packard, Committee for Public Counsel Services (M. Page Kelley, Committee for Public Counsel Services, with him) for the defendant.

SOSMAN, J.

In 1981, the defendant was convicted of murder in the first degree. We affirmed the conviction and the denial of the defendant's first motion for a new trial, and we denied his second motion for a new trial. Commonwealth v. Healy, 393 Mass. 367 (1984). The defendant has since filed a third motion for a new trial, based in part on the allegation that the prosecution withheld exculpatory and material evidence in violation of his Federal and State constitutional rights.¹ See Commonwealth v. Gallarelli, 399 Mass. 17, 19 (1987), and cases cited. After an evidentiary hearing, the motion judge² denied the motion for a new trial. A single justice of this court allowed the defendant's petition for leave to appeal. G. L. c. 278, § 33E. We now affirm the denial of the defendant's motion for a new trial.

1. Background. a. Facts presented at trial. The facts of this case are set out in full in Commonwealth v. Healy, supra at 369-372. As background to the present appeal, we set forth those facts pertinent to the claimed failure to disclose exculpatory evidence. The twenty-nine year old victim lived with his girl friend in an apartment in Holyoke. Police were summoned to the apartment on a report of hearing the victim screaming for help at approximately 1 or 1:30 A.M. on August 8, 1980. The police found the victim's body on his bed. He had been stabbed fourteen times in the chest, twice in the neck, and once on his right thigh. The pathologist who conducted the autopsy opined, based on the location and angle of the wounds, that the perpetrator had been kneeling on the bed to the right of the victim at the time the wounds were inflicted. The victim's body was naked, except for a towel wrapped around his neck and a pair of jeans pulled halfway down his legs. There was no underwear on the body. The victim's hands were bound with socks tied together, and a gag of socks was tied around his mouth. On the floor at the foot of the bed, police found a pair of boots, also tied together with socks. On top of a dresser in the bedroom, approximately four to five feet from the body, police found a pair of undershorts. Testing of the shorts revealed the presence of semen consistent with the victim's blood group.

There was some evidence concerning recent changes in the victim's behavior that, although only general in nature, "tended to show that in the week before his death the victim had formed a sexual relationship with someone other than his girl friend." Commonwealth v. Healy, supra at 378. Then, on the night of the murder, the victim's girl friend had telephoned the apartment and spoken to the victim. In the background, she heard a "very soft" male voice. When the girl friend asked who was there, the victim was evasive, and ultimately told her that it was his downstairs neighbor. The neighbor testified that he had not been there,³ from which the jury could infer that the victim had lied about the identity of the man who was in his apartment. At the scene, the police found no sign of forced entry into the apartment. The front and back doors were locked, and the victim's dog, a Doberman pinscher, was locked in another room.

Evidence that the defendant committed the crime was entirely circumstantial. After initially telling the police that he had not seen the victim for some months, the defendant acknowledged that he had purchased rum, soda, and ice and taken them to the victim's apartment on the night of the murder. The cash register receipt for those items was found, stained with blood, on the third-floor landing of the front stairs. A knife on the dresser in the bedroom had a mixture of blood, consistent with a mixture of the defendant's blood type and that of the victim. A search of the defendant's apartment uncovered a shirt with a bloodstain, also consistent with a mixture of the victim's and the defendant's blood. The defendant had a cut on his hand, which he claimed had occurred at his home the morning after the murder. However, the physician who treated that cut opined that it had been inflicted some hours earlier than the defendant claimed. Finally, the Commonwealth presented consciousness of guilt evidence, consisting of the defendant's conflicting versions as to when he had last seen the victim, the nature and extent of his encounter with the victim on the night of the murder, his whereabouts later that night, and the time that he had returned home. In particular, the Commonwealth stressed the fact that the defendant had asked his partner to lie to the police concerning the time the defendant had returned home. The defendant claimed that his reluctance to tell the police where he had been on the night of the murder was due to the fact that he had gone to two "gay" bars after leaving the victim's apartment and did not want to disclose to the police that he was homosexual. The Commonwealth countered that explanation with evidence that the defendant had led an openly "gay" lifestyle.

b. Third motion for a new trial. In 1994, the defendant filed a motion for the release of certain exhibits for the purpose of conducting DNA testing. The motion was allowed in part, and the items were made available to the defendant's chosen laboratory. A motion for a new trial was filed in 1997, along with a motion for further discovery. In the course of gathering materials to investigate potential grounds for a new trial, defense counsel⁴ became aware of three documents prepared by Dr. H. Paul Wakefield, a pathologist at Holyoke Hospital, who had performed the autopsy of the victim at the direction of the medical examiner. Trial counsel had requested, and by way of a pretrial conference report the Commonwealth was required to provide, exculpatory material, "material and relevant physical evidence and documents," "reports of mental or physical examinations and of scientific tests," and witness statements. New counsel alleged that, while one of Dr. Wakefield's reports had been provided in discovery, the other two reports had not been provided. In 1999, counsel filed an "amended" motion for a new trial to "super[s]ede his original motion in all respects." The amended motion alleged prosecutorial misconduct in failing to provide exculpatory evidence, along with other claimed errors not relevant to the present appeal.⁵ See note 1, supra.

The reports from Dr. Wakefield, which form the basis of the defendant's motion for a new trial, consist of the following. Dr. Wakefield authored a four-page report dictated shortly after the August 8, 1980, autopsy and bearing the heading "Holyoke Hospital Pathology Department Post-Mortem Examination" (postmortem report). In the first paragraph of the postmortem report, Dr. Wakefield indicated that the victim's genitalia were "examined closely" and that "no evidence of marks of recent origin" were identified. The rectum was "similarly viewed revealing no abnormal findings on the external surface." The postmortem report went on to note that "[s]mears [were] made by use of a swab from both the mouth as well as rectum to be examined under the microscope." The next document at issue was a handwritten note (note) of Dr. Wakefield dated August 10, 1980, two days after the autopsy, reflecting the results of the microscopic examination of the oral and rectal smears: "Smears made from mouth and rectum fail to reveal spermatozoa present." The final document was a two-page report dated November 28, 1980, entitled "Autopsy Report," that included a subheading of "Final Diagnosis" (final diagnosis). The final diagnosis included the cause of death and gross anatomical description, but did not make any reference to examination of the victim's rectum and genitalia, the taking of any swabs or smears, or the results of any examination of swabs or smears.

In support of the amended motion for a new trial, an affidavit of trial counsel was submitted alleging that in preparation for trial he had received and reviewed the final diagnosis, but that he had not seen the postmortem report or the note and was not aware of the taking of any swabs. Following an evidentiary hearing on the issue of what items had been provided in discovery, the motion judge found that the hospital had forwarded both the postmortem report and the final diagnosis to the district attorney's office. However, the district attorney's office gave the defendant's trial counsel only the final diagnosis, not the postmortem report.⁶ The judge concluded that this failure on the part of the prosecutor was the product of inadvertence, not wilful misconduct. With respect to the note, the motion judge was unable to determine whether the hospital or Dr. Wakefield had ever turned the note over to the district attorney's office, and hence did not find any form of prosecutorial misconduct with respect to the note. Notwithstanding the prosecutor's failure to provide defense counsel with the postmortem report, the motion judge held that the defendant did not meet his burden of showing that the postmortem report was exculpatory or material. He therefore denied the motion for a new trial.

2. Discussion.

a. Waiver. The Commonwealth argues that the defendant's claim of failure to produce exculpatory evidence should not be reviewed because it was waived. The theory of waiver is premised on the fact that the defendant's previous attorneys could have subpoenaed the hospital's records and discovered the documents in time to use them at trial or as part of either of his prior motions for a new trial. The fact that it would have been...