Commonwealth v. Mcnulty
| Decision Date | 18 November 2010 |
| Docket Number | SJC-09669. |
| Citation | 937 N.E.2d 16,458 Mass. 305 |
| Parties | COMMONWEALTH v. Jerome McNULTY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sharon Fray-Witzer, Boston, for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
Present: MARSHALL, C.J., COWIN, CORDY, BOTSFORD, & GANTS, JJ.
The defendant, Jerome McNulty, appeals from his conviction of murder in the first degree, G.L. c. 265, § 1, as well as from two convictions of assault and battery by means of a dangerous weapons (a knife), G.L. c. 265, § 15A.1 He also appeals from the denial of his motion for a new trial. We conclude that the defendant's right under art. 12 of the Massachusetts Declaration of Rights to be informed by the police of his attorney's attempts to provide assistance was violated. See Commonwealth v. Mavredakis, 430 Mass. 848, 859-860, 725 N.E.2d 169 (2000) ( Mavredakis ). We further conclude that the error in admitting in evidence the defendant's entire, signed, statement to the police was not harmless beyond a reasonable doubt in relation to the conviction of murder in the first degree. We therefore reverse that conviction and remand that portion of the case for a new trial. We affirm the convictions of assault and battery by means of a dangerous weapon, but remand for sentencing.
1. Procedural background. Before trial, the defendant moved to suppress the statement he made to the police during a custodial interrogation following his arrest, claiming violations of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and art. 12. After an evidentiary hearing, a judge in the Superior Court (motion judge) denied the motion. The defendant was tried before a jury and another Superior Court judge (trial judge) in February, 2004. He filed a timely notice of appeal from his convictions and, while his direct appeal was pending, he filed a motion in this court seeking a new trial. We remanded the motion to the Superior Court for disposition. On December7, 2007, after a nonevidentiary hearing, the trial judge denied the motion; the judge also denied the defendant's motion for discovery of police procedures. The defendant fileda timely notice of appeal from the denial of these posttrial motions, and that appeal has been consolidated with his direct appeal from his convictions.
2. Factual background. a. Death of Linda Correia and injuries to AlexSandra Correia and Heather Colahan. We summarize facts that the jury could have found at trial, leaving recitation of other facts for discussion in connection with the issues raised on appeal. On March 28, 2001, Linda Correia was one of the defendant's girl friends. She lived in a second-floor apartment in Salem with her two children, AlexSandra, aged ten, and Edward, aged eight; her sister, Maureen; Maureen's children, Tatiana, aged six, and Adriana, aged four; and Maureen's friend, Heather Colahan.2 The defendant lived in Lynn with Lisa Bowen, his "baby's mother," but frequently stayed overnight in Linda's bedroom.
On the night of March 28, after Maureen left for her 11 p.m. to 7 a.m. work shift, present in the apartment were Colahan; Colahan's boy friend, Georgie Sanchez; Maureen's boy friend, Gustavo "Black" Reyes; three of the children, AlexSandra, Tatiana, and Adriana (Edward was not present); Linda; and the defendant. The latter two were in Linda's room "bagging" marijuana and cocaine. At 5:30 a.m. the next morning, March 29, Maureen telephoned to wake Sanchez and Reyes, who were starting new jobs with a temporary employment agency, and both men left the apartment at about 5:45 a.m.
Shortly before 7 a.m., Colahan woke to the sound of "banging" coming from Linda's bedroom. When the noise became louder, she banged on Linda's door, and heard Linda faintly scream and cry, Colahan was unable to open the locked door. The noise also woke AlexSandra. She retrieved a butter knife and tried to open the lock with it (something she had previously done), but was unsuccessful. Colahan continued to bang on Linda's bedroom door and screamed,
At that point, the defendant unlocked the door, and came outof the room wearing a blood-soaked shirt and holding a black-handled knife. His face was expressionless. He slashed Colahan in the face and in the area of her back and upper shoulders, slashed AlexSandra in her upper thigh, and then went into the kitchen. Colahan ran from the apartment seeking assistance, and telephoned the police.3
Both before and after the defendant left Linda's room, AlexSandra heard her mother crying and calling for help. Holding her cousin Tatiana (Adriana remained asleep), she looked into the bedroom and saw her mother's foot on the floor. After the defendant left the apartment through the back door, located in the kitchen, AlexSandra shut the back door, inserting knives into it to keep it closed. She then went into her mother's bedroom, finding her lying on her back. There was blood on her body and on the carpet. Linda was conscious, and again asked for help. AlexSandra stayed for a few seconds, thenwent to the kitchen and took the telephone from Tatiana, who had just dialed 911. 4 When emergency personnel arrived, Linda was still conscious.
The responding police officers found a "flip knife" and two other knives in the bedroom; two knives outside Linda's bedroom; and a knife just outside the apartment, on the threshold of the front door. Other knives also were found on the kitchen floor, or had been used to wedge the kitchen door shut.
After leaving the apartment, the defendant, covered with blood, walked down the street and entered the premises of the temporary employment agency through which Sanchez and Reyes had just begun employment. He told the manager that he had just been mugged, and wanted a taxicab. Instead of sitting down, however, the defendant lay on the floor, below the level of the windows. The manager became suspicious, and told the defendant to wait outside. When he heard sirens, the defendant pulled up his hood and walked away from Linda's apartment. The manager alerted a police officer in a cruiser, and the defendant was apprehended soon thereafter.
Linda was taken to a hospital. She underwent surgery in anattempt to repair the wounds to her neck, but died about ten hours after surgery. She had been stabbed or cut eleven times, including four times on the left side of her neck, and had four defensive "cutting wounds" on her left hand, left arm, and left shoulder. She also had multiple bruises. Ultimately, she died as the result of blood loss from the destruction of blood vessels, in particular the carotid artery, jugular vein, and anterior thyroid artery.
b. The defendant's custodial statement.5 Following the defendant's arrest shortly after 7 a.m., on March 29, he was taken to the Salem police station for booking. All of his clothing was seized during the booking process, and he was given a blanket to wear. The defendant was read his Miranda rights within fifteen minutes of arriving at the station, and again around 9 a.m., when he agreed to speak to Sergeant Dennis Marks of the State police and Detective James Page of the Salem police.
During the interview, Marks wrote down the defendant's words as he spoke. According to the defendant's statement as memorialized by Marks, at about 5:50 a.m. on March 29, the defendant spoke with Sanchez and Reyes in the apartment kitchen, and told them he was going to visit his mother in a hospital. When he returned to Linda's bedroom, he lay down on the bed and the two started talking. Linda seemed to be "aggravated mad," and got progressively louder and angrier. She got up, pulled a black bag or pocketbook from under the bed, and took out a "ball like white package." The defendant thought it was cocaine, but vigorously declined Linda's offer to give him some. Linda snorted the cocaine using a card.
The defendant then left the room, went to the kitchen to get a soda, and returned. When he got back, Linda was "a different person," and apologized to him. Then, as he sat on the end of the bed and began dressing, she started hitting him, "like a clinging hit," and then asked him to holdher. At that point, she reached over his shoulder, and stabbed the night table beside the bed with a knife "like a butterfly with a dragon on it." Shethen started swinging the knife at him. Once, she caught him in the hand and he fell, grabbing a blanket. Linda ended up on top of him, and it seemed to him as though she was trying to stab him. They rolled off the bed onto the floor, the blanket was tangled "everywhere," and Linda screamed when they fell. There was a lot of blood, the defendant was not sure whether it came from him or her, and Linda continued to wrestle with him.
When the defendant got up to leave, Linda had another knife, and she "jump[ed] up" and continued to try to wrestle. He heard Colahan knock on the door, and Linda told Colahan to "get out, run, leave, like I was doing something to Linda." When the defendant opened the door, Colahan had a kitchen knife in her hand, yelling at him to leave. Linda came out of the room swinging a knife, and Colahan was pointing a knife at his chest and face. He "smacked" the knife out of Colahan's hand, then saw AlexSandra and Tatiana in the living room, and told them to dial 911. The defendant walked through the kitchen and left through the back door of the apartment to call for help. He went into the temporary employment agency, and asked them to call an ambulance. Then, he heard sirens and went outside to look for the police.
After a fifteen-minute break in the custodial interview, the defendant further told the police that he had not smoked marijuana the night before, and did not "do" cocaine. He stated he had drunk five or six ounces of rum the previous night, which just made him tired but had no other effect. He...
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