Commonwealth v. Walker, SJC-09223 (MA 7/23/2004), SJC-09223

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation442 Mass. 185
Docket NumberSJC-09223
Decision Date23 July 2004

Page 1

Supreme Court of Massachusetts.
May 3, 2004.
July 23, 2004.

Homicide. Wanton or Reckless Conduct. Evidence, Reputation, Pattern of conduct, Prior misconduct. 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 Herman J. Smith, Jr., J., and the cases were tried before Julian T. Houston, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

Charles W. Rankin for the defendant.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.


A jury in the Superior Court convicted the defendant of involuntary manslaughter, assault with intent to rape, drugging for purposes of sexual intercourse, assault and battery by means of a dangerous weapon (four indictments), and mingling poison with drink with intent to kill or injure (four indictments).1 The indictments were based on three incidents involving four women in which the defendant invited the women to his apartment and served them drinks mixed with his prescription sleeping medication, temazepam. The drinks rendered all four women unconscious. At least one of the women was sexually assaulted while unconscious, and another died as a result of the combination of the drug and alcohol.

On appeal, the defendant claimed 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 of mingling poison with drink must be reversed because there was no proof that the sleeping medication constitutes 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 of mingling poison with drink. The Appeals Court affirmed eight of the convictions and reversed the convictions of three of the four poisoning indictments. See Commonwealth v. Walker, 60 Mass. App. Ct. 255, 270 (2004). We granted the Commonwealth's application for further appellate review. We conclude, contrary to the Appeals Court, that there was sufficient evidence for a rational jury to find the defendant guilty of involuntary manslaughter, and that the definition of "poison" as used in G. L. c. 265, § 28, encompasses temazepam (the active ingredient in the defendant's sleeping medication). Furthermore, the judge properly allowed the Commonwealth's motion for joinder of the indictments and did not err in excluding the proffered testimony of the defendant's good character. Finally, we conclude that the evidence of the defendant's prior bad acts properly was admitted, and the guilty verdicts of poisoning and involuntary manslaughter are not legally inconsistent. For these reasons, we affirm the convictions.


1. The Commonwealth's case. We summarize the facts the jury could have found, reserving certain details for discussion in connection with the specific issues raised. The defendant2 was prescribed Restoril, a sleeping medication containing the drug temazepam.3 The defendant had prescriptions for Restoril filled through 1995 and 1996. He stored thirty milligram capsules of Restoril in his kitchen. The defendant's bottle of Restoril carried labels reading: (1) "May cause drowsiness. Alcohol may intensify this effect. Use care when operating a car or dangerous machinery"; and (2) "Caution: Federal law prohibits the transfer of this drug to any person other than the patient for whom it was prescribed." The defendant knew that mixing Restoril with alcohol intensified the effects of both.

a. Incidents giving rise to charges against the defendant. D.K. and E.R. were friends and neighbors. On the evening of June 7, 1995, they went to the defendant's apartment to socialize. The defendant prepared alcoholic drinks for the women. At the defendant's suggestion, D.K. put on a minidress. E.R. changed into a negligee. Before either woman had finished a second drink, they both became tired and groggy. D.K. was experiencing a sense of paralysis; she "knew [that] something was wrong" but was unable to "do anything about it." Shortly thereafter, both women lost consciousness.

When D.K. and E.R. awoke nine hours later in the defendant's bedroom, D.K. still had on the minidress, but her underpants were on the floor. The women felt sick and had trouble walking. The defendant drove them to D.K.'s apartment. Once home, D.K. telephoned the police and was told to go to a hospital. A blood screen was done at the hospital and tests revealed the presence of benzodiazepine in blood samples from both women.4 A sexual assault (or rape kit) examination of D.K. showed blood and a sperm stain on her underpants.5 Deoxyribonucleic acid (DNA) analysis revealed that approximately twelve per cent of African Americans, including the defendant, could have contributed to the stain.

The second incident occurred on June 14, 1996, when M.N., then thirty years old, visited the defendant at his apartment. During the visit, M.N. consumed clam chowder and what the defendant told her was fruit punch.6,7 M.N. then lost consciousness, but was aware of the sensation of someone touching and pounding at her rectal area.8

She woke up at her home the next morning without her bra and wearing a different dress; her rectal area felt painful and "dirty." M.N. telephoned the defendant and accused him of raping her, to which he responded that he "tried," but did not "discharge" inside her. He told her not to go to a hospital and offered her $100, which she refused. M.N. went to a hospital that evening, where testing of her blood, while initially negative for benzodiazepine, later showed the presence of temazepam.9 A sexual assault examination revealed an abrasion on her external genitalia.

The final incident occurred on December 26, 1996. That evening, M.P., then fifty-eight years old, packed an overnight bag and left with the defendant. According to M.P.'s daughter, M.P. had some alcohol to drink before the defendant arrived. The following morning, in response to the defendant's 911 call, emergency personnel arrived at the defendant's apartment; M.P. was pronounced dead at the scene. The medical examiner testified that M.P. had died from a combination of temazepam and alcohol.10 Results of the DNA analysis on a rectal swab taken from M.P.'s body disclosed the presence of sperm cells and genetic material which was consistent with "the sum of DNA" from M.P. and the defendant.

b. Expert testimony regarding temazepam. Dr. David Robert Gastfriend, a psychiatrist and chief of addictive services at Massachusetts General Hospital, testified that thirty milligrams comprises a "full adult dose" of temazepam, but that, starting at age fifty years, a therapeutic dose for treating insomnia would be one-half that dose, or fifteen milligrams. He explained that, in persons aged fifty years 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."11 Dr. 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. He opined that, based on the level of temazepam in M.P.'s blood (drawn approximately eight hours after she ingested temazepam), she likely had ingested two or more thirty milligram temazepam pills the night before.

Dr. Alan David Woolf of Children's Hospital in Boston, the Massachusetts poison control system, and 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."12 Dr. Woolf explained that, while benzodiazepines are among the regulated drugs that are "fairly safe," they are nevertheless categorized as "Class 4" substances, which means that benzodiazepines, or their 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 loss of memory or impaired memory, impaired motor control, drowsiness, and impaired consciousness. He also stated that there is a "synergistic" effect when alcohol and temazepam are mixed together, meaning that each enhances the other's effects on the body. Moreover, Dr. Woolf opined that benzodiazepines are "never safe" when they are combined with alcohol because they may cause a "respiratory depression" or a "respiratory arrest," by making a person "forget" to breathe.

2. The defendant's case. The defendant testified at trial and denied any sexual contact with D.K., E.R., or M.N. He acknowledged that he made drinks for D.K., E.R., M.N., and M.P., but denied that he added any drug to what he served them. The defendant testified that he and M.P. had consensual intercourse, that he mixed a couple of drinks for her,13 and that she fell asleep on his couch. The next morning, finding M.P. unresponsive, the defendant dialed 911. He denied having anal intercourse with M.P.14 The defendant was convicted of manslaughter of M.P. on the theory of wanton and reckless conduct; assault with intent to rape and...

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