Commonwealth v. Toolan

• Citation: 460 Mass. 452,951 N.E.2d 903
• Decision Date: 23 August 2011
• Docket Number: SJC–10227.
• Parties: COMMONWEALTHv.Thomas E. TOOLAN, Third.
• Court: United States State Supreme Judicial Court of Massachusetts

460 Mass. 452

951 N.E.2d 903

COMMONWEALTH

v.Thomas E. TOOLAN, Third.

SJC–10227.

Supreme Judicial Court of Massachusetts, Nantucket.

Argued March 11, 2011.Decided Aug. 23, 2011.

James L. Sultan, Boston, for the defendant.Thomas G. Shack, III, Assistant District Attorney (Joseph P. Kennedy, III, Assistant District Attorney, with him) for the Commonwealth.Present: SPINA, CORDY, BOTSFORD, & DUFFLY, JJ.BOTSFORD, J.

A jury in the Superior Court found the defendant, Thomas E. Toolan, III, guilty of murder in the first degree of Elizabeth Lochtefeld. ¹ THE MURDER CONVICTion was based on theories of deliberate premeditation and extreme atrocity or cruelty. Before us is the defendant's appeal from his convictions and the denial of his amended motion for a new trial. The defendant claims a number of separate errors related to the selection of the trial jury, the conduct of the trial, and the subsequent denial of his motion. We conclude that flaws in the jury selection process require the reversal of his convictions. We also consider briefly one other claim raised by the defendant that may arise at retrial.

1. Background. The jury could have found the following facts. In the fall of 2004, the victim, aged forty-four years, was living on Nantucket, as were her parents and brother. The defendant lived in New York City. The victim and defendant were introduced by a mutual friend on Nantucket on September 4, 2004. They became romantically involved, but in late October, during a visit to New York City, the victim ended the relationship because of the defendant's heavy drinking. Leaving the defendant behind in New York, the victim returned to Nantucket on Saturday, October 23, 2004.

The next day, a security officer at LaGuardia International Airport stopped the defendant from carrying a knife through passenger screening on his way to catch a flight to Nantucket. The knife was seized and the defendant was given a criminal summons for carrying a knife over four inches long. The officer suspected that the defendant had “had a few drinks” and noticed that he smelled of alcohol. The defendant missed the flight and spent the night in the airport.

The following morning, Monday, October 25, the defendant flew to Nantucket. He arrived in Nantucket around 10:45 a.m., rented a car, and bought two knives. He drove to Hawthorne Lane, where the victim rented a cottage, and asked the victim's neighbor and landlady, who lived next to the cottage, if anyone was at home there. Some time after noon, the neighbor grew concerned when she noticed that one window shade had been lowered and the victim had not yet left the house for a 1 p.m. appointment. The neighbor telephoned the victim's brother, who in turn contacted the police. Meanwhile, the defendant took a 1 p.m. flight to Hyannis, where, at 1:21 p.m., he rented a second car.

In response to a 1:15 p.m. dispatch, police officers arrived at the cottage to conduct a well-being check and found the victim lying motionless on the living room floor. Shortly thereafter, a medical examiner arrived and pronounced the victim dead. The cause of death was multiple stab wounds to the victim's chest and back.

Police quickly followed up on leads, including descriptions from neighbors of a rental car parked near the victim's cottage, and of a young man in a fedora style hat. At the Nantucket airport at 3 p.m., police discovered a rental car matching the neighbors' description. At 3:50 p.m., a Rhode Island State trooper on routine patrol on Route 95 received a broadcast to be on the lookout for a man in a floppy hat in a Chevrolet Impala automobile with a particular registration number. The trooper observed the car and the defendant in it. The trooper contacted other troopers and followed the defendant until the defendant was stopped at a roadblock set up for the purpose by police officers in Hopkinton, Rhode Island. The police stopped the defendant because he was a suspect in a homicide, but did not inform him at the time of the motor vehicle stop of the reason. The defendant was arrested, and an officer observed that he was somewhat lethargic, was unable to respond to simple commands, and smelled of alcohol.

The police transported the defendant to the Hope Valley barracks in Richmond, Rhode Island, and informed him he was suspected of driving a vehicle while under the influence of intoxicating liquor or drugs. Shortly before 7 p.m., after a breathalyzer test showed his blood alcohol level was over the legal limit for driving in Rhode Island, the defendant with charged with driving while under the influence of alcohol. That evening, members of the Massachusetts State police interviewed the defendant at the Rhode Island police barracks. He repeatedly asked the officers, “What's this about?” and claimed not to have seen the victim since Friday.

Police found blood on the rental car left at the Nantucket airport. They matched blood from paper towels found at the airport and from the defendant's clothing to the victim's deoxyribonucleic acid (DNA). Subsequently, the defendant was charged with murder and assault and battery by means of a dangerous weapon.

The defendant's trial began in the Superior Court for Nantucket County on June 4, 2007. The defense argued that the defendant was not criminally responsible for the victim's murder due to brain damage and mental illness caused by the defendant's addiction to alcohol, exacerbated by alcohol and prescription drugs ingested on the day of the victim's murder. On June 21, 2007, the jury found the defendant guilty of both crimes.

2. Impartial jury. Prior to trial, in September, 2006, the defendant filed a motion for change of venue based on extensive pretrial publicity surrounding his case. He renewed the motion in court on the first day of jury empanelment. At the conclusion of jury empanelment, the judge denied the defendant's motion. On appeal, the defendant argues that the trial judge's refusal to grant a change of venue, to ask required questions of potential jurors, and to excuse unqualified jurors violated his right to a fair trial by an impartial tribunal, warranting a new trial under G.L. c. 278, § 33E. To provide context necessary to assess these arguments, we set out additional facts from the record.

a. Community context and media attention. Nantucket is a small island community: a 2006 town census counted 10,783 residents.² Although the victim had only moved to Nantucket in the spring of 2004, she had spent many summers there since childhood, and several family members resided on the island. Her brother lived on Nantucket with his wife, an artist who showed her work locally, and their young children. Her parents also lived on the island; her father, also an artist, owned a gallery in town. The family was well known in the community.

The victim's murder on October 25, 2004, was the first murder on Nantucket in over twenty years, and it attracted enormous attention. In the days and weeks following the murder, local and national media outlets published numerous articles highlighting the victim and defendant's Nantucket–Manhattan “romance” and their respective personal histories. On November 15, 2004, People Magazine, a publication with a national circulation, ran a cover story called “Looking for Love, Finding Tragedy,” in which a former girl friend described the defendant as “a Jekyll and Hyde.” The article also described how, when the victim tried to end her relationship with the defendant a few days before the murder, he “became violent and kept her from leaving his apartment. She apparently managed to slip out at 4 a.m. the next day, [October] 23, when he was asleep, and fled back to Nantucket.” The alleged false imprisonment, which was never introduced at trial, appeared in one of Nantucket's local newspapers, The Inquirer and Mirror, on November 6, 2004.

In 2006, a “true crime” book on the victim, the defendant, and the murder entitled, “Safe Harbor: A Murder in Nantucket,” was sold in Nantucket bookstores. On the first page of the introduction, the author wrote: “Underneath a self-admitted alcohol problem lurked a lethal hatred of women. For much of his adult life, it seemed, [the defendant] was a homicide waiting to happen.” Within the first twenty pages, the book stated that during their relationship, the defendant reacted angrily to the victim discovering a pistol in one of his drawers and, in a separate incident, put the victim “in a headlock” while drunk. The author also described the alleged incident in which the defendant held the victim captive in his apartment, including details that had not appeared in earlier magazine stories.

In November, 2006, approximately six months before the start of trial, articles published in the Inquirer and Mirror chronicled the filing of and hearing on the defendant's motions to suppress evidence, and recounted in detail the testimony introduced at the hearing. In January, 2007, Nantucket's other local newspaper, The Nantucket Independent, reported the judge had denied all six pretrial suppression motions because he found the defendant's statements to the police while in custody in Rhode Island were voluntary, and the seized evidence either did not belong to the defendant or was lawfully seized. On April 1, 2007, two months before the start of trial, The Cape Cod Times, a regional paper serving the Cape and Islands, published an article entitled, “Toolan Claiming Insanity,” which reported that Toolan would be using an “insanity defense ” (emphasis added), and discussed the low success rate of this “defense.” The article quoted a Falmouth defense attorney, not involved in the defendant's case, who stated: “Toolan appeared lucid enough to get himself to Nantucket to commit the crime.... Nothing I've read about [the defendant] so far makes me think he had a history of mental illness, but who knows? ... He seemed to be highly functioning in society from what I read. But that's not...