Commonwealth v. Witkowski

• Decision Date: 18 June 2021
• Docket Number: SJC-12717
• Parties: COMMONWEALTH v. James WITKOWSKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

487 Mass. 675

169 N.E.3d 496

COMMONWEALTH

v.James WITKOWSKI.

SJC-12717

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 8, 2021.

Decided June 18, 2021.

Theodore F. Riordan, Quincy, for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Wendlandt, & Georges, JJ.

GAZIANO, J.

In 2017, the defendant was convicted of murder in the first degree, on a theory of felony-murder, with aggravated rape as the predicate felony. The victim, Lena Bruce, was found dead in her Boston apartment in 1992; the case went unsolved until the defendant became a suspect in 2015 on the basis of deoxyribonucleic acid (DNA) evidence. In his direct appeal, the defendant raises issues concerning the sufficiency of the evidence to support a conviction of felony-murder; the propriety of certain statements in the prosecutor's closing argument; the wording of a Tuey- Rodriquez charge;¹ and the judge's answer to a jury question. We affirm the conviction and discern no reason to exercise our authority under G. L. c. 278, § 33E, to reduce the verdict or to order a new trial.

1. Background. We recite the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Copeland, 481 Mass. 255, 256, 114 N.E.3d 569 (2019), and reserving some details for later discussion of specific issues.

a. Circumstances of the victim's death. At the beginning of June 1992, the victim, who had just graduated from college, moved into a new apartment in Boston with her friend Barbra Eden. Eden left the city for a weekend trip on the evening of Friday, July 10, 1992, returning on Sunday, July 12, 1992, at around 8 P.M. When Eden entered the apartment on her return, she found that it had been ransacked. Soda cans, a beer bottle, empty glasses, and half-eaten fruit had been left lying around. A television set and an answering machine were missing, and an intercom that allowed communication with someone at the front door had been ripped from the wall. Although the door to the apartment was locked, a window leading onto a fire escape overlooking a back alleyway was open. The victim was lying face down on her bed, dead. She was naked below the waist, and her hands were tied behind her back with a telephone cord. The cause of death later was determined to be suffocation.

Of the witnesses who testified at trial, Eden was the last to have seen the victim alive, on Friday evening before Eden's departure from Boston. Joe Sullivan, a friend of the victim, testified that he had spoken with her by telephone on Friday evening and on Saturday at around 1:30 P.M. The victim agreed to call him back that evening but did not. Laurence Grant, the man whom the victim was dating at the time of her death, testified that he had called the victim's apartment several times on Sunday, beginning in the morning, and got no answer; he noted that it was unusual that the answering machine had not "picked up" if no one was home.

b. Investigation. Decomposition of the victim's body suggested that at least one day had elapsed between the time of her death and the autopsy, which was conducted in the early morning hours of Monday, July 13, 1992. A high number of intact sperm cells were detected on a vaginal swab taken at that time; semen was not detected on oral or anal swabs. The director of the Boston police crime laboratory, who had worked at the laboratory for some three decades and had been assigned to the original case, testified that the sperm on the vaginal swab likely had been deposited within twenty-four hours of when the autopsy was conducted, sometime in the early morning hours of Sunday, July 12, 1992, or thereafter.² Blood group typing

was performed on the vaginal swab in 1992, but no further testing to identify the source of the sperm was possible at the time.

The case went unsolved for over twenty years. In 1998, the Boston police crime laboratory began using an early form of DNA testing that examined seven locations on the chromosome in a sample tested. This type of DNA testing was performed on the vaginal swab and on samples of skin found under the victim's fingernails.³ The DNA extracted from the vaginal swab produced a mixed profile composed of a male sperm fraction and a female epithelial fraction, the latter identified as being from the victim. The same mixed profile was found on one of the fingernail samples. Given the limitations of the technology, however, no suspect could be identified.

Around 2000, more advanced DNA testing was performed on the vaginal swab and the fingernail cuttings, and the resulting male DNA profile was submitted to a national database. In 2015, the database produced a match identifying the defendant, who had not previously been connected to the crime, as a possible suspect. In June of 2015, Boston police interviewed the defendant and obtained a DNA sample from him by buccal swab. Subsequent testing, then using fourteen or sixteen chromosome locations, confirmed the defendant as the source of the sperm DNA, with a frequency calculation suggesting that one in twenty-nine quadrillion Caucasians, one in 4.8 quadrillion African-Americans, or one in sixty-two quadrillion Southeastern Hispanics would share the same profile. The male DNA found under the victim's fingernail also matched the defendant's, albeit with a somewhat higher possibility of a random match due to the mixed DNA profiles in the sample.⁴

In 1992, the defendant had frequented the victim's neighborhood. He slept at a homeless shelter and spent his days panhandling and drinking, including on the steps of the victim's apartment building. When he was interviewed by police in 2015, the defendant denied having known the victim by name or by sight, but said that he had been drinking heavily at that point in his life and could not remember all of the many women with whom he had had casual sex. He said that if he had known the victim, "it was probably through sex and that was it," and later added, "if I had sex with her it was consensual." After initially denying that he had ever tied up women before having sex with them, the defendant subsequently said that he had bound and gagged "plenty of girls" as part of his sexual activities, including some whom he would leave tied up at the end of the encounter. He also told police that he would do so in the company of his friends "all the time." At trial, the Commonwealth argued that the defendant's varying replies during the interview indicated consciousness of guilt.

The theory of the defense was that a consensual sexual encounter could have taken place between the defendant and the victim, but that the police investigation had been inadequate to rule out other possible killers. The defendant stressed that police had not collected DNA or fingerprint evidence from a variety of objects inside the victim's apartment, and he pointed out that there was no direct evidence that the defendant ever had been inside the apartment.⁵ c. Trial proceedings. The jury were instructed on all three theories of murder in the first degree, as well as on involuntary manslaughter. After deliberating for two days, the jury sent the judge a note stating, "Currently the jury is split between [six] ‘guilty’ and [six] ‘non-guilty.’ We are undecided." The judge consulted with counsel and decided that the jury were deadlocked; he then gave them a Tuey- Rodriquez charge. Slightly more than one hour later, the jury sent another note asking, "Can we make inferences based o[n] the LACK of evidence?" The judge again conferred with counsel, and then sent the jury a written response, "Yes, provided that any inferences you draw are reasonable. Please remember that you cannot guess or speculate, and you may draw no inference from the fact that [the defendant] did not testify."

The jury deliberated for more than two additional hours that day and more than four hours on the next day that the court was in session. They then returned a verdict of guilty of murder in the first degree, on the theory of felony-murder only.

2. Discussion. The defendant challenges the sufficiency of the evidence to support the conviction of felony-murder; the propriety of certain statements in the prosecutor's closing argument; the wording of the Tuey- Rodrique z charge; and the judge's response to a jury question. We address each issue in turn.

a. Sufficiency of the evidence of felony-murder. The defendant argues that the evidence was insufficient to prove that the homicide and the aggravated rape were parts of one continuous event. He also argues that the evidence was insufficient to support a conviction of aggravated rape because there was insufficient evidence of a kidnapping, distinct from the rape itself, that could have served as the aggravating factor.

Challenges to the sufficiency of the evidence are evaluated under the Latimore standard, that is, whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). "[T]he inferences a jury may draw from the relevant evidence need only be reasonable and possible, not necessary or inescapable" (quotation omitted). Copeland, 481 Mass. at 259–260, 114 N.E.3d 569, quoting Commonwealth v. Martin, 467 Mass. 291, 312, 4 N.E.3d 1236 (2014). In determining whether the evidence was sufficient to have allowed a reasonable jury to find the defendant guilty beyond a reasonable doubt, we "do not weigh supporting evidence against conflicting evidence when considering whether the jury could have found each element of the crime charged." Copeland, supra at 260, 114 N.E.3d 569, quoting Martin, supra.

i. Continuous event. The defendant argues that the homicide and the rape could have occurred at separate points over the roughly thirty hours...