Commonwealth v. Whitaker
| Decision Date | 19 August 2011 |
| Docket Number | SJC–10228. |
| Citation | 951 N.E.2d 873,460 Mass. 409 |
| Parties | COMMONWEALTHv.Joshua WHITAKER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Leslie W. O'Brien, Boston, for the defendant.Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, & DUFFLY, JJ.GANTS, J.
On the evening of August 15, 2006, the victim, Kelsea Owens, was found brutally beaten to death in the yard behind the defendant's house. A jury in the Superior Court convicted the defendant of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. The defendant filed a motion to reduce the verdict to murder in the second degree under Mass. R.Crim. P. 25(b)(2), 378 Mass. 896 (1979), which was denied by the judge. On appeal, the defendant contends that the judge erred in denying the defendant's motion for a required finding of not guilty as to murder in the first degree because the evidence was insufficient as a matter of law to sustain a finding of deliberate premeditation and extreme atrocity or cruelty beyond a reasonable doubt. He also urges this court to exercise its authority under G.L. c. 278, § 33E, to reduce the verdict to murder in the second degree. We conclude that the evidence was sufficient as a matter of law to support the defendant's conviction of murder in the first degree. After a complete review of the record, we conclude that there is no basis to exercise our authority under G.L. c. 278, § 33E, to reduce his murder conviction to a lesser degree of guilt or to order a new trial.
Background. Because the defendant challenges the sufficiency of the evidence as to murder in the first degree, we summarize the evidence in detail, viewed in the light most favorable to the prosecution.
At approximately 6:45 p.m. on August 15, 2006, the victim telephoned her friend, Amanda Gagne, and made plans to go with her to the defendant's home to “hang out,” smoke marijuana, and “have fun.” 1 The victim, who was sixteen years of age, was a friend of the defendant, who was twenty years of age at the time of the victim's death.2 Gagne picked the victim up in her automobile at 7:18 p.m.3 The victim was dressed in a skirt and a “shimmery” blouse and carried a gold-colored bag. They arrived at the defendant's home approximately fifteen minutes later, parking near the pool in back of the house, where the defendant was waiting for them.
The defendant told them that his mother was home but was going out to get him medication. He said he needed to wait until his mother left because he wanted to sneak into his mother's room to get some money so they could go out. 4 After sitting by the pool for a while, Gagne and the victim returned to Gagne's vehicle and smoked a cigarette while the defendant went inside his house to learn when his mother was leaving. He returned to Gagne's vehicle and suggested that, if they all left, “maybe my mom would leave.” He entered the car and said he wanted to show them some “party spots” in the back of his yard. At the defendant's direction, Gagne drove the car down the road, onto a narrow dirt path, through a grass field, and back to the defendant's house. The defendant then said, “Well, maybe if you guys leave, my mom would leave because she gets sketched out when cars are there.” Gagne and the victim then drove around in the “phone reception area”; the defendant said he would contact them.
At approximately 8:25 p.m., the defendant telephoned Gagne and told her that the victim needed to come back and be a “lookout.” They returned to the defendant's house at approximately 8:30 p.m., where the defendant was sitting on his mother's car waiting for them. The defendant told Gagne she needed to leave, explaining again that his mother “gets sketched out” when cars are parked at the house. Gagne agreed, but the victim, in the defendant's presence, told her to return in forty-five minutes, if not sooner. They told Gagne they would telephone her. At approximately 8:35 p.m., Gagne drove to a location approximately five minutes away from the defendant's home and parked. At 9:05 p.m., she telephoned the defendant's home. His mother answered and Gagne asked for the defendant. The defendant's mother said that the defendant was outside swimming. Gagne decided she had waited long enough, and returned to the defendant's house between 9:10 and 9:15 p.m. 5 She parked between the house and the pool, facing the barn, and observed that the yard was “all dark.” The defendant's mother came out, and Gagne said she was there to pick up the victim. His mother told her that the victim “was here a little while ago but she's not anymore,” and the defendant “was upstairs sleeping—going to bed.”
The mother invited Gagne inside the house and, from the downstairs kitchen, she heard the defendant crying upstairs. When the defendant came downstairs and sat on the living room couch, he wore only a pair of shorts and was upset and crying. When Gagne asked where the victim was, the defendant said he did not know and continued to cry. The defendant then said, “Tom Messier did it.” 6 When Gagne asked what he did, the defendant said that Messier kidnapped and beat the victim. When she asked why, the defendant said that he owed Messier gambling money. The defendant's mother telephoned the police and reported that the victim was missing.7
Gagne asked the defendant why he did not get help, and the defendant said that he was scared that Messier would come after him. During the approximately twenty minutes before the police arrived, the defendant was “incoherent and acting really weird on the couch,” “kind of ... dazed and ... upset and nervous.” Gagne went out to the front and back of the house, and yelled the victim's name, but received no response.
When Sergeant William Joy and Officer Michael Cooney arrived at the defendant's house, the defendant was curled up on a couch, sobbing hysterically. Sergeant Joy asked what was going on, and the defendant repeated over and over that he “was supposed to go into the Army tomorrow; not now, not now.” 8 When asked where the victim was, the defendant said that he did not know. When pressed for more information by the police, the defendant said he was in the pool house with the victim and “some guy” had assaulted him.9 After further questioning, he identified the assailant as Messier. When the defendant's mother told them that the defendant might have taken an entire bottle of prescription pills, the police contacted an ambulance service.10
While waiting for the ambulance, Sergeant Joy and Officer Cooney searched the back yard for the victim. They entered the pool house and found “no sign of a struggle.” Officer Cooney then walked across the street to the Messier residence and spoke with Messier. The officer observed “no indication of any type of disarray.” At about 7 p.m., Messier and his girl friend had been watching a movie, which had ended fifteen or twenty minutes before Officer Cooney arrived.11
After the emergency medical technicians arrived, while Officer Cooney was interviewing Messier, Sergeant Joy told the defendant that they had “found nothing back there,” and continued to question him. The defendant said that Messier had beat him up, said, “Now that I've got you alone, I'm going to kill you,” and kidnapped the victim. The emergency medical technicians left to transport the defendant to a hospital, and Sergeant Joy and Officer Cooney continued to search for the victim. A short time later, they found her body in an overgrown area of the backyard of the defendant's home, near the pool house, next to the remains of an automobile with no windows or engine.
The ambulance carrying the defendant stopped in Springfield before arriving at the hospital, and Springfield police Detective William Kelly and Officer Thomas Michel entered the ambulance. Officer Michel handcuffed the defendant, telling the defendant he was doing so for the safety of the defendant and the officers. The defendant said to Officer Michel, “I'm a murderer.” 12 Detective Kelly then read the defendant the Miranda warnings and the defendant said that he understood his rights and was willing to speak with him. Detective Kelly asked him what happened, and the defendant said that he got into a fight with Messier in a side lot of the defendant's yard, that he pushed the neighbor into a picnic table, and then ran into his house and took some sleeping pills. When asked whether he shot or stabbed anybody, the defendant said he did not like guns. When asked if he had killed his girl friend or sister, he said he did not have a girl friend, and that he did not want to be tied down.13
A paramedic who had just left the defendant's house quickly returned when she learned that a body had been found. The paramedic attempted cardiopulmonary resuscitation for about one minute but there were no signs of life. The victim was lying on her back in the brush, her face bloodied, her breasts exposed. The “shimmery” blouse she had been wearing was now around her wrists, her bra was above her breasts, some “jean material” from her skirt was above her navel, and she wore no panties.
The subsequent crime scene and forensic investigation revealed a grisly trail of blood, drag marks, and bloody implements. The drag marks began at the back of the barn, where a trash can had been overturned, and ended where the victim's body was found. Near the tree line between the barn and the pool was a depression in the ground about six inches in diameter and two inches deep, suggesting the imprint of a human skull, and in the depression was a pool of blood. Within a few feet of this indentation the police discovered a ball peen hammer to which a twisted clump of hair was stuck in clotted blood. Two ten-pound barbell weights were also discovered near the drag marks, as well as a log and long-handled hedge trimmers, all with blood on them. 14...
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