Commonwealth v. Stote

• Decision Date: 03 October 2000
• Citation: 739 N.E.2d 261,433 Mass. 19
• Parties: (Mass. 2000) COMMONWEALTH vs. JOHN STOTE. 07719
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

739 N.E.2d 261 (Mass. 2000)

COMMONWEALTH vs. JOHN STOTE.

07719

October 3, 2000

December 8, 2000

Practice, Criminal, New trial, Argument by prosecutor, Failure to object, Disclosure of evidence, Capital case. Evidence, Scientific test, Consciousness of guilt, Relevancy and materiality, Hearsay.

Indictment found and returned in the Superior Court Department on November 22, 1995.

The case was tried before Daniel A. Ford, J., and a motion for a new trial, filed on March 5, 1999, was heard by him.

William T. Walsh, Jr., for the defendant.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Marshall, C.J., Ireland, Spina, Cowin, & Sosman, JJ.

IRELAND, J.

The defendant, John Stote, was convicted of murder in the first degree. He appealed from the conviction to this court. During the pendency of this appeal, the defendant was granted leave by a single justice to file a motion for a new trial, which the defendant did, alleging the existence of newly discovered evidence sufficient to warrant a new trial. The trial judge denied this motion, and the defendant appealed. Both appeals are consolidated before this court. The defendant claims the trial judge erred in (1) denying a motion for a new trial where the Commonwealth failed timely to disclose arguably exculpatory evidence; and (2) limiting evidence of the victim's alleged membership in organized crime, proffered by the defendant to explain actions characterized by the prosecutor as "consciousness of guilt." Finally, the defendant requests that we exercise our plenary power under G. L. c. 278, § 33E, to reduce the degree of guilt. For the reasons set forth below, we affirm the conviction and decline to exercise our power under G. L. c. 278, § 33E.

1. Statement of Facts.

The jury were warranted in finding the following facts. In July, 1994, the defendant purchased a bar in Springfield from the victim, John Regan and his brother, James. The defendant made a down payment of $80,000 and agreed to make monthly payments of approximately $2,500. The defendant soon fell behind in his payments, prompting the victim and James to initiate foreclosure proceedings. The resulting auction took place on September 27, 1995, where the victim and James repurchased the bar. After this repurchase, the victim and the defendant negotiated terms under which the defendant might reacquire the bar. The victim's wife testified that the victim and the defendant planned to meet at the bar on October 12, 1995, so that the defendant could repay what he owed the victim in arrears. On that day, the defendant dropped off his girl friend, Denise Arlen, to run errands, and then proceeded to the meeting. The defendant testified that at the meeting, after he informed the victim that he did not have the money to pay the victim, they engaged in an argument that escalated into violence. It ultimately resulted in the defendant stabbing the victim to death in the office of the bar. The defendant testified that he did so in self-defense, after the victim became belligerent and irate about the money, told the defendant, "I am going to teach you the last lesson of your life," and struck him on the shoulder with a baseball bat.

After the killing, the defendant grabbed the murder weapon and fled the scene to pick up Arlen. He confessed to her that he had killed the victim in self-defense. Arlen testified that the defendant looked "shaken up" and "scared." The defendant and Arlen opted not to go to the police because the defendant feared the victim's alleged associations with organized crime, and they felt that no one would believe them. Instead, the defendant disposed of the murder weapon and both the defendant and Arlen parked the victim's car in a Hartford, Connecticut, garage. The defendant then borrowed a station wagon from his sister's friend and used it to dispose of the victim's body in the Connecticut River. Meanwhile, Arlen returned to the bar and began to clean the blood from the incident. On his return, the defendant joined Arlen, and together they cleaned the entire bar, including the office, using bleach and other chemicals. The following morning, they returned to the bar to finish cleaning. While they were cleaning, the victim's son came to the bar and knocked on the windows of the bar. The son testified that when he asked the defendant if the defendant had seen the victim, the defendant replied that he had not seen the victim since the previous afternoon.

After Arlen and the defendant finished cleaning, they left for a wedding in Cape Cod. En route, they dumped the bloody towels, which they had used to clean the bar, at a fast food restaurant near Route 495. On October 14, 1995, the defendant called the victim's home. He spoke with both the victim's wife and daughter, and told them that he had heard the victim was missing, but did not know where the victim was. He also told them that he had paid the victim $20,000. Within an hour, he called for a second time and stated that he had paid the $20,000 in cash.

On that same day, after the defendant returned to Springfield, a police officer questioned him about the victim's whereabouts. The defendant gave the police a statement indicating that he had met with the victim on October 12, 1995, paid his debt of $20,000 in exchange for the liquor license and keys to the bar, and parted with the victim on good terms. While giving this statement, he wore a tank top that exposed large portions of his upper torso. The officer who took his statement did not notice any signs of bruising or other injuries to the defendant's torso.

On May 26, 1996, nearly seven months after the victim had last been seen, his body was discovered in the Connecticut River. The forensic pathologist testified that the victim had sustained ten stab wounds, had two defense wounds on his hand and elbow, and that the cause of death was multiple stab wounds.

Further facts will be presented with respect to each issue.

2. Delayed Disclosure of the Chemical Report.

The defendant argues that he was prejudiced by the prosecution's delayed pretrial disclosure of potentially exculpatory evidence. Prior to trial, the Commonwealth was ordered to disclose and identify forensic evidence and to make available all scientific reports. However, the Commonwealth failed to disclose a report generated by a State police chemist, Gwen Pino, in a timely fashion. Defense counsel did not receive that report, dated July 10, 1996, until June 11, 1997, nearly one year after it was generated and five days before trial. The defendant claims that the delayed disclosure deprived him of the opportunity to present testimony from an expert, Norman Reeves. The defendant insists that Reeves would have corroborated the defendant's self-defense claim by testifying that the quantity and state of the blood stains described in the chemical report were not inconsistent with the victim swinging a bat at the defendant.¹ He asserts that this error warrants a new trial.

In reviewing the denial of the defendant's motion for a new trial, we "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

It is undisputed that, pursuant to the trial court's order, the prosecution was obligated to disclose all scientific test results, including the chemical report. Commonwealth v. Martin, 427 Mass. 816, 823 (1998). The Commonwealth offers no credible explanation for its failure to do so. Where the Commonwealth has delayed in disclosing evidence prior to trial, our principal concern is whether the defendant has been prejudiced by the delay. Commonwealth v. Hardy, 431 Mass. 387, 392 (2000). Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997). When the ground for a motion for a new trial "involves late disclosure by the prosecution, without any showing of bad faith on its part . . . a defendant is required to show material prejudice from the [delay in] disclosure before a new trial can be considered." Commonwealth v. Hamilton, supra at 70. See Commonwealth v. Hardy, supra at 392.

The defendant has not made a showing of bad faith on the part of the prosecution. See Commonwealth v. Hamilton, supra at 71. The defendant does not rebut the Commonwealth's claim that the late disclosure was inadvertent. Absent a showing of bad faith, we consider the primary issue of prejudice. In measuring prejudice, "it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence, and we ask whether the prosecution's disclosure was sufficiently timely to allow the defendant 'to make effective use of the evidence in preparing and presenting his case.'" Commonwealth v. Wilson, 381 Mass. 90, 114 (1980), quoting Commonwealth v. Adrey, 376 Mass. 747, 755 (1978). See Commonwealth v. Hardy, supra at 392; Commonwealth v. Vinnie, 428 Mass. 161, 175, cert. denied, 525 U.S. 1007 (1998).

We agree that the delay in this case of almost one year was unfortunate, particularly because, from the outset, the defendant expressed concerns about that very possibility.² Nonetheless, this alone does not constitute prejudice. The defendant has not shown how his trial tactics would have or should have changed, had he been aware of the chemical report earlier. Commonwealth v. Hardy, supra at 392. Commonwealth v. Cundriff, 382 Mass. 137, 151 (1980), cert. denied, 451 U.S. 937 (1981). This fact is particularly emphasized by the defendant's failure to utilize the chemical report after receiving it five days prior to the commencement of trial. Although the defendant argues that he would have hired Reeves to corroborate the defendant's self-defense claim, he took no steps to do so in those five days, although he did seek a continuance.³

In addition, notwithstanding the alleged value of the chemical report to corroborate the defendant's theory of self-defense, the record reveals that, in March, 1996,...