Commonwealth v. Mccowen

• Decision Date: 10 December 2010
• Docket Number: SJC–10654.
• Citation: 458 Mass. 461,939 N.E.2d 735
• Parties: COMMONWEALTHv.Christopher M. McCOWEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 461

939 N.E.2d 735

COMMONWEALTH

v.Christopher M. McCOWEN.

SJC–10654.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued May 7, 2010.Decided Dec. 10, 2010.

Robert A. George (Gary G. Pelletier with him) for the defendant.Julia K. Holler, Assistant District Attorney, for the Commonwealth.Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.¹GANTS, J.

A jury convicted the defendant of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, of aggravated rape, and of aggravated burglary. The defendant appeals from his convictions and from the trial judge's denial of his motions for a new trial. On appeal, the defendant argues that (1) the judge erred in ruling that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights after his arrest, and that his postarrest statements to the police were made voluntarily; (2) the indictments should have been dismissed because a grand juror knew the victim, and because the Commonwealth concealed exculpatory information from the grand jury; (3) the judge erred in denying the defendant's pretrial motions seeking a change in venue or, in the alternative, sequestration of the jurors for the entire trial; (4) the judge made various evidentiary rulings at trial that constituted reversible error; (5) the judge erred in discharging a deliberating juror without good cause; (6) the judge erred in denying the defendant's motion for a new trial because the prosecutor failed to disclose exculpatory information to the defendant; and (7) the judge erred in denying another motion for a new trial because the defendant was denied his right to an impartial jury by the racial bias of certain jurors. The defendant also asks us to exercise our power under G.L. c. 278, § 33E, to reverse the convictions.

We affirm the convictions and the judge's denial of the motions for a new trial. After a complete review of the record, we find no basis on which to reduce the degree of guilt or order a new trial under G.L. c. 278, § 33E. 1. Evidence at trial. We summarize the facts the jury could have found from the evidence at trial, reserving certain details for our analysis of the issues raised on appeal.

In the late afternoon of Sunday, January 6, 2002, Christa Worthington (victim) was found dead in her home in Truro by Tim Arnold, a former boy friend, who had stopped by the victim's home to return a flashlight. The victim was naked from the waist down, and her legs were spread apart. Her face was badly bruised, and her torso was splattered with blood. A vaginal swab indicated the presence of semen. The victim's two year old daughter was alive beside her, but she was unable to tell police investigators anything about her mother's death. The exterior door leading from the driveway into the kitchen area and passageway where the victim was found was ajar, and damage to the door and deadbolt indicated that it had been forced open.

The Commonwealth's medical examiner testified that the cause of death was a stab wound to the victim's chest; the knife had entered the front of the victim's chest and penetrated her left lung, and the tip of the blade had exited through her back. The victim had also suffered contusions to her nose and chest, abrasions on her face, hands, arms, and legs, and internal hemorrhaging in her skull. The medical examiner testified that these injuries were consistent with blunt impact.

Evidence presented at trial suggested that a struggle had occurred outside the house. Trace amounts of dried blood were found under the fingernails of the victim's left and right hands. Small pieces of grass or other vegetative material were found entwined in the victim's hair, both on her head and in her pubic area. Outside on the ground between the house and the victim's automobile, crime scene investigators found a pair of woman's eyeglasses and barrette, a pair of socks, and the victim's keys. Near where the keys were discovered, just beside the victim's automobile, the dirt driveway had been disturbed. Two long, irregularly parallel, furrow-like tracks led from the back of the automobile toward the entrance to the house. Police investigators were able to recreate similar markings by dragging a person across the driveway.

Apart from the medical examiner's testimony as to time of death, which we will address later, the evidence would have allowed the jury reasonably to infer that the victim was killed after 8 p.m. on Friday, January 4, when she telephoned a babysitter, and before noon on Saturday, January 5, when she missed a hairdressing appointment. Both the Saturday and Sunday newspapers were sitting uncollected at the bottom of her driveway when her body was discovered on Sunday afternoon.

In the course of their investigation of the murder, police detectives interviewed people who had known the victim or visited her property, including the defendant, who was employed by a private disposal company that removed the trash she left each week outside her residence. On April 3, 2002, the defendant told State Troopers Christopher Mason and William Burke that he did not know the victim, had never spoken with her, and had no contact with her beyond an occasional wave as he picked up the garbage from a wooden bin in the yard. The troopers told the defendant that they had recovered certain items from the crime scene and asked if the defendant would be willing to provide fingerprint or deoxyribonucleic acid (DNA) samples in the future. The defendant told them he would have no problem providing these samples.

On March 18, 2004, after the State police crime laboratory identified a deoxyribonucleic acid (DNA) profile from various swabbings taken from the victim's vagina and breasts, Troopers Mason and Burke conducted a second interview with the defendant as part of a larger effort to collect DNA samples from men interviewed during the investigation.² The defendant repeated his assertions that he did not know the victim, had never spoken to her, and had never been inside her house. He agreed to provide a DNA sample and police swabbed the inside of his cheek.

The defendant's DNA sample was sent to the State police crime laboratory in July, 2004, with a batch of DNA samples from other persons. After receiving a written report on April 13, 2005, that the defendant “matched the major profile” in the DNA mixture taken from the victim's right breast and was “included as a potential contributor of the minor profile” in the DNA mixture taken from the sperm in her vagina, the State police obtained warrants for the defendant's arrest and the search of his residence.

Police officers arrested the defendant at his home in Hyannis shortly after 7 p.m. on April 14, 2005, and transported him to the South Yarmouth State police barracks for questioning and booking. After the defendant waived his Miranda rights, Troopers Mason and Burke conducted a six-hour interview of the defendant, which the defendant declined to allow to be recorded. The defendant again said that he had never been in the victim's home and had never spoken with her. He admitted to having sex with some women on his trash route, but said that the victim had not been one of those women. He said the last time he picked up trash at the victim's home was the Thursday before her body was discovered, and that he had not been there since this last pickup.

When Trooper Mason showed the defendant the DNA report and told him that the crime laboratory had concluded that it was his DNA on the body of the victim, the defendant looked at the report for approximately one minute and said, “It could have been me.” The defendant then told the officers that, on Friday night, January 4, 2002, he was with Jeremy Frazier and had gotten “piss ass drunk” in the parking lot of the Juice Bar, an Orleans club.³ Frazier drove him to Dennis, where the defendant visited with the mother of his baby for about forty to sixty minutes, and then they returned to the Juice Bar. He said he drank to “blackout” that evening, did not recall what he did after returning to the Juice Bar, and did not “remember having sex with this lady.” When Trooper Mason told him that recalling one small event will often trigger a recollection of the surrounding events, the defendant admitted that he had had consensual sex with the victim that night. He added that “[a]nything could have happened. I know I didn't kill her.”

The defendant then recalled that Frazier had driven him to the victim's home, following the defendant's directions, and that Frazier had accompanied him inside the house when they arrived. He said he and the victim had engaged in vaginal sex on the floor in the hallway off the kitchen (where the victim's body was found), but then said they may have had sex in an office or the living room. Initially, he said everything was “cool.” He said that, as he and the victim parted, he gave the victim his telephone number, and then left, but he later said that the victim “flipped” when she saw Frazier going through her belongings and began screaming at them as they were leaving. The defendant gave various versions as to what happened next. He first said that when the victim angrily confronted Frazier, Frazier started punching the victim and followed her as she ran back to her house, while the defendant remained in Frazier's automobile. He then said that he told Frazier that the victim had a telephone to her ear and was contacting the police from the house, ⁴ that Frazier ran to the residence and kicked in the front door while the defendant remained in the automobile, and that Frazier was in the residence for approximately ten minutes before returning to the automobile. ⁵ After Troopers Mason and Burke told him that they felt he still had more to say, the defendant said, “It was a mistake.” He then told the troopers that, after Frazier struck the victim, he (the defendant) “automatically started...