Commonwealth v. Perry

• Decision Date: 05 May 2000
• Citation: 432 Mass. 214,733 NE 2d 83
• Parties: COMMONWEALTH v. FREDERICK H. PERRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 214

733 NE 2d 83

COMMONWEALTH v. FREDERICK H. PERRY.

Supreme Judicial Court of Massachusetts, Franklin.

May 5, 2000.

August 2, 2000.

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

James L. Sultan (Catherine J. Hinton with him) for the defendant.

Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth.

ABRAMS, J.

Convicted of kidnapping and of murder in the first degree based on a theory of extreme atrocity or cruelty, Frederick H. Perry appeals. On appeal, the defendant claims that his motion for required findings of not guilty should have been allowed on both indictments. He also alleges error in the (1) admission of his statements to the police, (2) admission of hearsay evidence, (3) exclusion of expert testimony, (4) denial of his right to be present at a "critical stage[] of the proceeding[]," and (5) admission of his statements to the police despite an alleged violation of his right to make a telephone call pursuant to G. L. c. 276, § 33A. We conclude that the defendant's convictions should be affirmed. We have reviewed the record pursuant to G. L. c. 278, § 33E, and conclude that the interests of justice do not require the entry of a verdict of a lesser degree of guilt on the murder conviction or a new trial.

1. Facts. "We summarize the facts as the jury could have found them in the light most favorable to the Commonwealth, reserving certain facts for discussion in conjunction with other issues." Commonwealth v. Federici, 427 Mass. 740, 741 (1998), citing Commonwealth v. Sarourt Nom, 426 Mass. 152, 153 (1997). See Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). Because the defendant argues that his motion for a required finding at the close of the Commonwealth's evidence should have been allowed, we summarize the evidence presented in the Commonwealth's case-in-chief. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). A. The defendant's acts. In the autumn of 1994, the victim and the defendant traveled from Massachusetts to Arizona. The victim had attended special education classes and had participated in the Special Olympics. He was a talented cartoonist and the two men hoped to start a tattooing business. This enterprise never materialized, and, by December, the two returned to Massachusetts looking for a place to live.

The defendant and the victim spent approximately ten days with a friend, Wendy Poirier, and her fiancé, Danny Nauman. At that time, the victim weighed approximately 230 pounds. Although the defendant and the victim were friendly before the trip to Arizona, Poirier said that, by the time they moved in with Poirier, the defendant "had become [verbally] abusive to [the victim], making very rude comments to him [and] calling him names." Poirier observed the defendant punch and push the victim several times. According to Poirier, the victim "cower[ed] in the corner" in response to these beatings. One day, Poirier observed the defendant burn a cigar into the victim's forehead.¹ Poirier then told the defendant and the victim that both of them would have to leave.

The defendant and the victim went to stay at the defendant's mother's two-story family home. Also residing at the home were the defendant's three brothers, Leon, Richard, and Roger Perry. The defendant's mother and brothers were the lessees of the home. The defendant was not a signatory on the lease.

During the second week of December, Frank Parker, who did not know the Perrys, was with friends of the Perry family. The group stopped at the defendant's mother's home. The defendant, the defendant's mother, Richard, and Roger were present. The defendant called the victim, who was on the second floor, to come downstairs. The defendant asked the group whether they wanted to "see something funny." According to Parker, the victim "looked like he had been beaten before." Parker said that the defendant delivered several "[c]losed fisted punch[es] to the [victim's] temple." The victim begged the defendant to stop the beating. After several punches, the defendant told the victim to go upstairs, which the victim did.

Throughout December, 1994, a number of individuals witnessed other incidents at the defendant's mother's house. A friend of the defendant, Michelle King, saw the defendant and Nauman roughhousing with the victim. King said that this behavior escalated until the defendant was "punching at [the victim] and ... shaking him around."

On another occasion in December, 1994, King, Poirier, Nauman, and the defendant were talking. Poirier and Nauman hinted to the defendant that the victim had betrayed some confidence of the defendant. Both the defendant and the victim were wanted by the police on outstanding warrants, and the defendant was concerned that the victim might betray him. The next day, King observed that the victim's "face was bruised" and "swelled out, [and] all sorts of different colors."

By Christmas, the victim, who, according to Poirier, had been "a very outgoing person," had become "very quiet and withdrawn." Around Christmas time, Laura White, another acquaintance of the Perry family, noticed that the victim's tongue was burned. The defendant told her that "they held [the victim] down on the kitchen floor and put a butter knife in the flames of the gas fire, and burnt [the victim] with it."

By the end of December, White, who had taken courses with a view toward becoming a licensed practical nurse, noticed that the victim had "several burns on his arms" and that "he had been beaten.... [H]e had a black eye and his face was a little swollen." She treated the victim's burns with salve. The defendant told White that the victim also had a burn on his penis. Poirier, who saw the victim at the end of December, noticed through the victim's shirt that the victim also had a large burn on his shoulder.

During the second week of January, 1995, Frank Parker once again accompanied friends who stopped by the defendant's mother's home. The defendant's brothers, his mother, and his cousin, Clinton Maynard, all were present. Maynard was beating the victim by "slamm[ing]" the victim neck first onto the floor. The defendant joined Maynard and each of them took turns beating the victim. One of the two men held the victim so as to keep his neck exposed, and the other man used his outstretched arm to hit the victim across the neck. The defendant used his arm, which was in a brace, to beat the victim across the neck. The victim begged the two men to stop. According to Parker, the beating continued for "a good half hour to [forty-five] minutes."

Parker also said that, on this occasion, the defendant and Maynard placed keys between their fingers and raked the keys across the victim's head so as "to draw blood and rip his scalp open." In addition, the defendant used a bicycle chain wrapped in tape as "brass knuckles," punching the victim above the left eye and opening a wound approximately one inch around.

That evening, Parker also saw the defendant and Maynard take the victim into the bathroom, where they scrubbed him with household cleaners. The victim was screaming, while the defendant and Maynard laughed. When the victim came out of the bathroom, he had cuts and bruises all over his face. During one of Parker's two visits to the defendant's mother's home, the defendant told Parker that, if Parker went to the police, he (Parker) would "end up floating in the river and nobody would be able to do anything about it."

On February 14, 1995, White, who had treated the victim's burns in December, again visited the defendant's mother's home and asked to see the victim. The defendant went upstairs and returned with the victim. White observed that the victim "had been beaten severely." According to White, "[h]is face was swollen almost to a pumpkin size. It was purple. His ... left eye was almost completely swollen shut.... His jaw looked... [n]ot centered on his face." The victim's arm appeared to be broken because it was "pulled in and kind of twisted down." There was blood coming from the victim's ears, nose, and the side of his mouth. His hands were tied, and he smelled as if he had not showered for some time. White also noted that the victim appeared to have lost a significant amount of weight. White asked the defendant if she could look at the victim's arm. The defendant said, "No."

In February or March of 1995, Melissa Terry, another acquaintance of the Perry family, visited the defendant's mother's home. The victim, who typically was upstairs during Terry's visits, called downstairs, saying that he was naked and had to go to the bathroom. Terry testified that the defendant's mother shouted back, "I'm not in charge of you" and that "Freddy [the defendant] was."² The victim attempted to come down the stairs. The defendant, Roger, and Maynard chased the victim back up the stairs. Terry heard a "bunch of noise" and then heard the victim crying and saying that he was bleeding. This went on for ten to fifteen minutes, during which time Terry heard the men "laughing, like it was real funny to them." That night, the police came to the defendant's mother's home looking for the defendant and the victim. According to Terry, the defendant's mother told the police that the two men were still in Arizona.

White also testified that, on one of her visits to the defendant's mother's household, the victim "was beaten" and his wrists were tied up so as to force him to hold a coffee can in his hands. The defendant used the coffee can as a tobacco spittoon, occasionally missing the can and spitting on the victim. When some amount of liquid had accumulated in the can, the defendant forced the victim to drink it, which caused the victim to vomit. The defendant repeated this process several times while White was present. The victim asked to call his mother, but the defendant told him, "No." On one of her visits to the Perry household, White told the defendant that "if he kept beating [the victim]...