Commonwealth v. Walker, No. 00-P-101 (Mass. App. 1/5/2004), 00-P-101.

• Court: Appeals Court of Massachusetts
• Citation: 60 Mass. App. Ct. 255
• Docket Number: No. 00-P-101.,00-P-101.
• Parties: COMMONWEALTH vs . ROLAND WALKER.
• Decision Date: 05 January 2004

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COMMONWEALTH vs. ROLAND WALKER.

No. 00-P-101.

Appeals Court of Massachusetts.

October 11, 2002.

January 5, 2004.

Present: Perretta, Beck, & Rapoza, JJ.

Homicide. Wanton or Reckless Conduct. Evidence, Reputation, Pattern of conduct, Relevancy and materiality. Practice, Criminal, Trial of indictments together, Verdict. Words, "Poison."

Indictments found and returned in the Superior Court Department on April 16, 1997; February 25, 1998; and July 25, 1998.

A motion for joinder of indictments was heard by H.J. Smith, Jr., J., and the cases were tried before Julian T. Houston, J.

Charles W. Rankin for the defendant.

Varsha Kukafka, Assistant District Attorney (Jeanmarie Carroll, Assistant District Attorney, with her) for the Commonwealth.

RAPOZA, J.

In November, 1998, after a fourteen-day jury trial in the Superior Court, the defendant was convicted on eleven indictments alleging manslaughter, assault with intent to rape, drugging a person for sexual intercourse, four counts of assault and battery by means of a dangerous weapon, and four counts of mingling poison with food, drink, or medicine. The defendant was acquitted of one count of rape. The indictments concerned three incidents in which the defendant entertained female guests in his home and served them beverages that also contained a sleeping medication. After drinking the concoction each woman lost consciousness and, in one case, died. In another instance the unconscious victim was sexually assaulted.

On appeal the defendant argues that (1) the manslaughter conviction must be reversed because there was insufficient evidence to establish that his conduct posed a high degree of likelihood that substantial harm would result to another person; (2) the convictions for mingling poison with drink must be reversed because there was no proof that the sleeping medication constituted a poison under the statute; (3) he should have been permitted to introduce character evidence through three witnesses; (4) the indictments were improperly joined; (5) the judge erred in admitting evidence of prior bad conduct; and (6) the manslaughter conviction is inconsistent with the conviction for mingling poison with drink.

Background. We summarize the facts the jury could have found. In 1998, at the time of trial, the defendant was a seventy-one year old man who had retired first from the military and then from a position at Polaroid. He lived alone in an apartment in Randolph. While working on the night shift at Polaroid, in about 1988, he had begun to experience difficulty sleeping and was prescribed Restoril to remedy the problem.¹ He continued to be prescribed and to use that medication over the next ten years, until at least the time of the last charged offense.

D.K., who was forty-two years old, and E.R., who was seventy-one years old, were friends and neighbors. On the evening of June 7, 1995, they went to the defendant's apartment to socialize. The defendant made each woman an alcoholic drink, and before either had finished a second drink, they both became tired and groggy. At the defendant's request, D.K. reluctantly tried on a mini dress and showed it to him. When she saw E.R. come out of the bathroom clad in a negligee, D.K. thought something was wrong, but because she was experiencing a sense of paralysis, she felt unable to do anything about her concerns. Shortly thereafter, both women lost consciousness.

E.R. and D.K. next remembered waking up about nine hours later, lying next to each other in the defendant's bed. E.R. did not feel well. D.K. still had on the mini dress, but her underwear was on the floor. The defendant drove the women home. E.R. continued to feel very ill and was eventually taken to Quincy Hospital by ambulance and D.K. accompanied her. A blood screen was done at the hospital and benzodiazepine was discovered in blood samples from both women.² There was no testimony regarding the likely dosages of the drug the women had been administered.

Rape kits were also prepared at the hospital. E.R.'s rape kit yielded nothing of evidentiary significance, while D.K.'s rape kit revealed the presence of seminal fluid and sperm cells on her underpants. DNA testing could not exclude the defendant as a possible contributor to the genetic material found on the underpants, and statistical analysis showed that about twelve percent of African-Americans could have contributed to the stain on the underpants. The defendant is African-American.

When interviewed by police regarding the evening's events, the defendant denied putting drugs of any kind into the drinks he had made for D.K. and E.R. Moreover, he denied having sexual relations with either woman. In all other material respects, he confirmed the accounts of the evening given by D.K. and E.R. The defendant told the police that he took Restoril and gave them two prescription bottles containing the medication. One label on the bottle read, "May cause drowsiness. Alcohol may intensify this effect. Use care when operating a car or dangerous machinery." The other label read, "Caution: Federal law prohibits the transfer of this drug to any person other than the patient for whom it was prescribed."

The second incident occurred on June 14, 1996. On that date, M.N., who was then thirty years old, visited the defendant at his apartment. Over the course of the preceding few weeks, he had been trying to help her find a car to purchase. During the visit, the defendant gave her a drink and she lost consciousness.³ She woke up the next morning without her bra and wearing a different dress. Her rectal area was painful and dirty. After completing her work shift she went to Carney Hospital.

The hospital screening test for benzodiazepines conducted on M.N.'s blood was negative. Later testing conducted at the State police crime laboratory by chemist Albert Elian detected 4.4 micrograms per deciliter of temazepam in M.N.'s blood, an amount that was too small to be perceived by the screening test done at the hospital. As with E.R. and D.K., there was no testimony as to the dose of temazepam that would have produced the laboratory finding. During the examination that was conducted as the rape kit was prepared, a tear was noted on M.N.'s external genitalia.

The final incident occurred on December 27, 1996. M.P., then fifty-eight years old, had been introduced to the defendant by a mutual friend, and on the night in question, the defendant picked M.P. up at her home. According to M.P.'s daughter, M.P. had had some alcohol to drink before the defendant arrived and when she left with him, she had an overnight bag. The defendant testified that they went to his apartment, they had consensual intercourse, he mixed a couple of alcoholic drinks for her, and she fell asleep on his couch. When he found M.P. unresponsive in the morning he called an ambulance. Emergency personnel arrived and M.P. was pronounced dead at the scene.

The police searched the defendant's apartment the same day and retrieved a bottle of prescription medication. The capsules in the bottle were tested and found to contain temazepam. In addition, the label on the bottle read: "Do not drink alcoholic beverages when taking this medication."

Deoxyribonucleic acid (DNA) analysis of the rectal swab taken from M.P.'s body disclosed genetic material that was consistent with a mixture from M.P. and the defendant. The medical examiner stated that M.P. died from the combined effects of alcohol and temazepam, and that neither the level of alcohol nor the level of temazepam, alone, would have caused the victim's death. M.P.'s blood alcohol content was .22 and her level of temazepam was 98 micrograms per deciliter.

Dr. David Gastfriend, a psychiatrist and chief of addictive services at the Massachusetts General Hospital, testified that 30 milligrams comprises a "full adult dose" of temazepam, but that, starting at age fifty, a therapeutic dose for treating insomnia would be half that dose, or 15 milligrams. He opined that, based on the level of temazepam in M.P.'s blood, she likely had taken 60 to 90 milligrams of the drug the night before. He also testified that, in persons aged fifty or older, temazepam "can tranquilize the brain's sensor for smothering . . . depress the brain's drive to continue breathing," and thus, in such older persons, "there is a risk of essentially stopping breathing . . . with excessive dose." Gastfriend also testified that alcohol taken in conjunction with temazepam does not simply add to the effect of the drug, but multiplies its impact. As a result, patients who are prescribed temazepam are given strong warnings not to take it with alcohol.

Dr. Alan David Woolf of the Children's Hospital Medical Center, the Massachusetts poison control system, and the Harvard Medical School also testified. He said that the poison control system defines poison or poisoning as "an exposure to a drug or a chemical or a biological compound that injures a human." Woolf explained that, while benzodiazepines are among the regulated drugs that are "fairly safe," they are nevertheless categorized as a "Class 4" substance, which means the drug, or its compounds, can only be dispensed with a prescription from a properly licensed physician. Dr. Woolf said that benzodiazepines generate the third highest number of calls to the poison control center for poisoning by pharmaceuticals. He described their side effects as including drowsiness and impaired consciousness. He, too, stated that there is a synergistic effect when alcohol and temazepam are mixed together.

The defendant testified and denied any sexual contact with D.K., M.N., or E.R. The defendant agreed that he had prepared drinks for D.K., E.R., M.N., and M.P., but denied that he had added any drug to what he served them.⁴

The defendant's DNA expert concluded that the defendant should have been excluded as a source of the genetic material found in D.K.'s underwear and as a source of the sperm fraction...