Commonwealth v. Sullivan

• Decision Date: 15 August 2014
• Docket Number: SJC–11504.
• Parties: COMMONWEALTH v. Michael J. SULLIVAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 340

14 N.E.3d 205

COMMONWEALTH

v.Michael J. SULLIVAN.

SJC–11504.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 10, 2014.

Decided Aug. 15, 2014.

Robert J. Bender, Assistant District Attorney (Steven C. Hoctor, Assistant District Attorney, with him) for the Commonwealth.

Dana Alan Curhan, Boston, for the defendant.

Present: IRELAND, C.J., SPINA, CORDY, GANTS, & DUFFLY, JJ.¹

Opinion

SPINA, J.

The defendant, Michael J. Sullivan, was convicted by a jury in Superior Court of murder in the first degree and armed robbery arising out of the brutal stomping death of Wilfred McGrath. We affirmed the defendant's convictions on direct appeal. Commonwealth v. Sullivan, 410 Mass. 521, 533, 574 N.E.2d 966 (1991). Since then, the defendant has sought postconviction relief both in State and Federal courts.² At issue in this case is the defendant's most recent motion for a new trial. As a result of the reexamination

by a private forensic laboratory of certain physical evidence from the defendant's trial, which revealed that the victim's blood was not present on a jacket purportedly worn by the defendant during the killing, the defendant filed a motion for a new trial based on newly available evidence. The motion judge³ granted the defendant's motion, and the Commonwealth sought leave to appeal from a single justice of this court. The Commonwealth's application was granted, and the Commonwealth argues on appeal that the motion judge erred in concluding that the jacket was a key piece of corroborative evidence in the case against the defendant and that the newly available evidence arising from the retesting of the jacket casts real doubt on the justice of the defendant's conviction. We agree with the motion judge, and we affirm the order granting the defendant's motion for a new trial.

1. Facts. The facts surrounding the killing of the victim are set forth in detail in Sullivan, 410 Mass. at 522–523, 574 N.E.2d 966. We summarize those facts here and supplement them with other relevant facts from the trial record and the facts found by the motion judge to be significant with respect to the defendant's motion for a new trial, all of which are supported by the record.

In the early morning hours of March 7, 1986, the victim, Wilfred McGrath, was murdered by kicking and stomping in the apartment of an individual named Gary Grace. Id. The victim's body was looted for drugs, money, and jewelry, including a watch and gold chains. Id. at 523, 574 N.E.2d 966. The victim's body was then transported in the trunk of the defendant's car and left in an alley

behind an abandoned grocery store, where it was discovered close to eighteen hours later, after midnight on March 8. At trial, none of these facts was disputed. The defendant granted in his closing argument that the key issue in dispute was whether the defendant was present and participated in the beating and robbery of the victim.

At trial, the prosecution and the defense each presented the testimony of a witness who admitted to being present during the killing. However, the witnesses' respective accounts of the killing “diverged sharply.” Id. at 522–523, 574 N.E.2d 966. One witness testified that the defendant kicked and stomped the victim to death. Id. The other testified that the defendant was not even present at the scene. Id. at 523, 574 N.E.2d 966.

Grace served as the key prosecution witness. See id. at 522, 574 N.E.2d 966. The jury heard evidence that Grace had entered into a plea agreement with the Commonwealth which provided that in exchange for truthful testimony at the defendant's trial, the Commonwealth would withdraw the indictments charging murder and armed robbery then pending against Grace for his involvement in the killing of McGrath and instead seek an indictment charging accessory after the fact, to which Grace would plead guilty and for which the Commonwealth would recommend a sentence of from six to seven years. Id. at 523–524, 574 N.E.2d 966.

Over four days of testimony, including almost two days of cross-examination, Grace testified in detail to the circumstances of McGrath's death. He testified that on the evening of March 6, 1986, he slept alone in his apartment and was awakened by a knock at his door at approximately 7 or 8 A.M. The defendant, along with Emil Petrla and Steven Angier, all people Grace knew, had arrived at Grace's apartment. Accompanying them was the victim, whom Grace testified he had not met before. Grace testified that the defendant was wearing sneakers, jeans, and a purple jacket. Petrla was wearing dress shoes, dress pants, a white sweater, and a black jacket. Angier was wearing sneakers, sweat pants, and a sweat shirt. Grace was initially wearing only his underclothes when he answered the door but subsequently put on pants, a shirt, and a pair of sneakers.

As Grace began to wash up in the bathroom of his apartment, the other four men sat in Grace's kitchen, drinking beer and using cocaine as the defendant and the victim discussed a potential arrangement for the sale of drugs. At different points, the defendant and Petrla each informed Grace that they were planning to rob

the victim. Despite Grace's requests that they not do so in his apartment, Petrla wrapped a belt around his hand and struck the victim in the head three times. The victim then either was pulled or fell to the floor. Grace also testified that once the victim was on the floor, Petrla kicked the victim three to four times. The defendant then commenced kicking and stomping the victim's head repeatedly, even after the victim was unconscious, and despite Grace's, and eventually Petrla's, attempts to stop him.

Grace further testified that after the beating, the victim lay unconscious on the floor and appeared dead. There were puddles of blood on the floor, blood on the walls, and blood on the stove. Grace testified that the defendant at one point ripped gold chains off the victim's neck with such force that the victim's body was lifted off the ground. The defendant, Petrla, and Angier also searched the victim's pockets, splitting the cash they found among the three of them. According to Grace's testimony, Petrla also took a gold watch from the victim's body.

Grace then insisted that the men remove the victim's body from his apartment. Grace, Petrla, and Angier wrapped the body in a quilt from Grace's bed along with towels from Grace's bathroom while the defendant went outside to move his car. The three men then helped the defendant empty his trunk, and with the defendant in the driver's seat, Petrla, Angier, and Grace placed the victim's body in the trunk.

According to Grace's testimony, the defendant drove the car with Petrla riding in the passenger seat, Grace behind the defendant, and Angier behind Petrla. The four men drove together first to the area behind the abandoned grocery store where Petrla, Angier, and the defendant removed the body from the trunk, and then they drove to a car wash where the four men attempted to clean the interior and exterior of the car. After leaving the car wash, while still driving, the defendant removed one of his sneakers and threw it out the window. He attempted to throw the other one out, but Petrla stopped him from drawing attention to the car.

The four men then stopped at a liquor store to purchase beer, and then at an apartment to purchase cocaine. At approximately 10:30 A.M., they arrived at the defendant's apartment, which he shared with his sister, Kathy Sullivan. Grace further testified that later that afternoon, he saw the defendant, Petrla, and the defendant's sister, Kathy, go into a bedroom in the apartment. When they emerged fifteen to twenty minutes later, Kathy was crying.

While she was washing dishes over the sink, the defendant told her not to worry and to “stick by your brother no matter what.” Finally, Grace testified that after the killing, he saw Petrla wearing the victim's watch and that Petrla then told him of his plan to sell the watch for cocaine.

Testimonial evidence presented at trial tended to corroborate Grace's version of the events surrounding the victim's death. First, the investigation had established that the night before his death, the victim had been out at a local bar called Mallet where he was with the defendant's sister, Kathy. The victim and Kathy went to some other bars with an acquaintance before being dropped off by a friend of the victim's at Kathy's apartment at approximately 3:30 A.M. on March 7. At 3:30 A. M., Kathy's niece, Kimberly Sullivan, called the apartment and spoke to Kathy. Kimberly then arrived at the apartment sometime between 3:30 and 4 A.M. Kathy, Kimberly, and the victim sat in the living room until the victim departed at approximately 6 A.M.

Although Kimberly did not see the defendant during that time, she saw that the defendant's bedroom door was closed, and she saw Kathy's young son, whom the defendant had been babysitting that evening. Kimberly also testified that she saw the victim leave the apartment at approximately 6 A.M. and that she saw the defendant leave sometime after that. She testified that it was light out when the defendant left, although she was not certain whether the defendant left shortly after the victim or closer to two hours later at 8 A.M. Kimberly further testified that hours later, around 10:30 A.M., the defendant returned to the apartment with Grace, Petrla, and Angier. According to Kimberly's testimony it appeared that the four men arrived together, and they were carrying beer with them. She also testified that Grace and Angier were wearing sneakers on their feet and that Petrla was wearing dress shoes. Unlike Grace, however, Kimberly testified that the defendant was wearing boots while he was in the apartment, although she also testified that the defendant usually wore boots, and she did not have a strong memory of what he had on his feet when she saw him arrive at the apartment.

Evidence regarding the victim's activities leading up to...