Commonwealth v. Obershaw

• Decision Date: 07 December 2001
• Citation: 762 NE 2d 276,435 Mass. 794
• Parties: COMMONWEALTH v. MARK W. OBERSHAW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

435 Mass. 794

762 NE 2d 276

COMMONWEALTH v. MARK W. OBERSHAW.

Supreme Judicial Court of Massachusetts, Plymouth.

December 7, 2001.

February 5, 2002.

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

Donald A. Harwood, of New York, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

COWIN, J.

The defendant, Mark W. Obershaw, was convicted of murder in the first degree on a theory of extreme atrocity or cruelty. On appeal, he claims that (1) his motion to suppress his statements to the police should have been allowed because (a) the police did not honor his request for counsel; and (b) the statements were made more than six hours after his arrest, in violation of the "safe harbor" rule, see Commonwealth v. Rosario, 422 Mass. 48, 56 (1996)¹; (2) the trial judge (who was also the motion judge) abused her discretion in admitting nearly ninety photographs of the victim's body; (3) the prosecutor unfairly asked the defendant certain prejudicial questions; (4) the prosecutor's closing argument was improper; (5) the judge's instruction on malice aforethought as it pertains to premeditated murder was erroneous and unconstitutionally shifted the burden of proof to the defendant; (6) the judge erred by refusing to charge that a unanimous verdict is required in regard to the Cunneen factors, see Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), the jury deemed sufficient for a determination of murder by extreme atrocity or cruelty; and (7) we should exercise our extraordinary power to set aside the verdict or reduce it to a lesser degree of guilt. We affirm the conviction and decline to exercise our power under G. L. c. 278, § 33E 1. Facts. We recite in general outline the facts the jury could have found, reserving details for discussion in conjunction with specific issues raised. The defendant, unhappy that his brother, Brian, no longer would permit him to stay at his Rockland condominium unit, killed Brian by hitting him over the head repeatedly with a steel automobile steering wheel locking device known as the Club. The defendant then attempted to cover up his actions by cleaning the blood from Brian's apartment and placing Brian's body and other bloody items in his car trunk. He discarded his clothing and the murder weapon en route to burying Brian's body in a landfill in Bedford. The defendant was discovered by the police several hours later sleeping in his car behind the Nahant police station. The defendant spoke with the police numerous times, eventually confessing to the gruesome crime and leading the police to the site where he had buried his brother's body.

2. Motion to suppress. The defendant maintains that the judge erred in denying his motion to suppress his statements to the police because the evidence at the suppression hearing did not support the finding that his statements were made after a knowing and voluntary waiver of the Miranda warnings, see Miranda v. Arizona, 384 U.S. 436 (1966), given that (a) he had invoked his right to an attorney, see Edwards v. Arizona, 451 U.S. 477, 484 (1981), and Commonwealth v. Brant, 380 Mass. 876, 882, cert. denied, 449 U.S. 1004 (1980); and (b) the incriminating statements were elicited by the police more than six hours after his arrest in violation of the "safe harbor" rule of Commonwealth v. Rosario, supra at 57-58.

We summarize the relevant facts as found by the motion judge, supplemented by uncontested testimony from the motion hearing. On Friday, July 25, 1997, at 8:45 P.M., the State police were called to a two-story townhouse in Rockland, owned by the victim. The defendant had lived in the townhouse until his gambling problem caused friction between the two brothers. The victim had packed the defendant's belongings in advance of asking the defendant, who had recently been traveling, to move out.

On inspecting the scene, Trooper Joseph Mason found blood splatterings leading to the second floor. There was a large amount of blood in the bathroom, although someone had attempted to clean the area. A portion of the carpet on the stairs was torn away; the bathroom smelled of disinfectant; and a shower curtain, window shade, and curtain were missing.

A neighbor told the trooper that, at about 6 A.M. that morning, he had noticed a tan-colored Nissan automobile with Florida registration plates pull into the driveway. When it was determined that the defendant drove such an automobile, the police issued a broadcast describing the vehicle.

At approximately 3 A.M., a Nahant police officer noticed the defendant as he attempted to sleep by the side of the road in his parked automobile with his two dogs. The officer informed the defendant that he could not sleep on the street, but suggested a nearby parking lot behind several municipal buildings, including the police station. The defendant moved his vehicle to the suggested location. When a check of the defendant's registration plate revealed that the defendant was wanted for questioning in connection with a homicide, the State police were contacted. The State police ordered the vehicle secured until their arrival, whereupon cruisers cordoned off the exits from the parking lot. However, there is no evidence that the defendant was aware of this police action.

Trooper Mason arrived at the parking lot and found the defendant asleep in his automobile. The defendant was asked to get out of the car, was advised of his Miranda rights, and was informed that the police were searching for his brother. The defendant asked what was wrong and said he did not know where his brother was. He stated many times that he loved his brother, agreed to accompany the police to the station, and offered to "voluntarily stay and cooperate" in the search.

The police informed the defendant several times that he was free to leave. They permitted him to spend a significant amount of time alone with his dogs. The defendant continued to volunteer to stay to help the investigation, and consented orally and in writing to a search of his vehicle, his trunk, and a suitcase inside the car. He also agreed to submit to a swabbing of his hands for blood and fingerprints. During this time, he appeared sober and coherent, and he seemed to understand what was said to him. After the defendant signed a written waiver of his Miranda rights, Trooper Mason and a detective engaged him in a conversation about his whereabouts on the previous day. The defendant informed the police that he had arrived at his brother's house from Atlantic City at about 6 A.M., and that he entered the house with his own key and did not speak to or see his brother while he was at the townhouse. He volunteered to submit to a polygraph test and cooperate fully. After this conversation, the defendant remained at the police station while the police inspected his car, although he was informed once more that he was free to leave. He spent the next few hours behind the station playing with his dogs. He was sometimes as far as several hundred feet from the station and was not accompanied by a police escort or restrained in any way.

Based on the defendant's consent, the police proceeded to search his vehicle. Stains found in the trunk tested positive for traces of blood. The police then sought a search warrant for the automobile. At this point, the defendant indicated that he wanted to talk. He began to cry and stated, "I love my brother. It was my fault. I'm sorry. I hit him." After making this statement, the defendant was no longer free to go, and the police for the first time considered him to be in custody, although he was not handcuffed. He requested ten or fifteen minutes, which he was allowed. The police then inquired whether he would lead them to the body, but the defendant asked if he could talk to a lawyer first. The police told the defendant that he could use the telephone to call a lawyer, but the defendant declined, and asked instead to go "outside to [his] dogs." The defendant was permitted time with his dogs, although now he was under guard. A short time later, the defendant refused a second offer by the police to use the telephone. He stated to one of the officers watching him, "You know this wasn't premeditated. I didn't plan it," and expressed his appreciation for the "good and fair" way that the police had treated him.

When asked where the body was located, the defendant said that he would lead the police to a compost company in Bedford, where he had disposed of the body. At this point, the defendant admitted that he gained access to the townhouse using a copy of the key he had made a few weeks earlier without his brother's permission, and that his brother had become upset that the defendant was in his home and began pushing the defendant out of the house. His brother "took a swing" at him and hit him in the head. In response, the defendant picked up the Club and hit his brother with it. The defendant chased his brother up the stairs and continued to hit him with the Club.

The police took the defendant to the Bedford landfill, where he directed the officers to the body. The defendant was advised of his Miranda rights a third time. On the way back to the station, the defendant revealed that he had disposed of the Club by throwing it along Route 93, and that he had disposed of other incriminating items in a dumpster behind Chelmsford High School. He also provided more details about the previous day's incident, stating that his brother's strike to his head had hurt him emotionally but not physically, and that, after beating his brother, he left the house but returned to clean it and dispose of the body.

The defendant claims that his constitutional rights were violated because the police did not honor his request for counsel, but continued to question him after such request. He further maintains that his incriminating statements to the police should be suppressed because they were made more than six hours "after his...