Commw. v. Hardy, SJC-07038

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation431 Mass. 387,727 N.E.2d 836
Docket NumberNo. SJC-07038,SJC-07038
Decision Date07 January 2000

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727 N.E.2d 836 (Mass. 2000)
No. SJC-07038
Supreme Judicial Court of Massachusetts,Middlesex County
Argued May 9, 2000.
Decided January 7, 2000.

Homicide. Jury and Jurors. Practice, Criminal, Mistrial, Jury and jurors, Disclosure of evidence, Admissions and confessions, Instructions to jury, Argument by prosecutor, Polling of jury, Capital case. Evidence, Admissions and confessions, Common criminal enterprise, Consciousness of guilt.

Indictment found and returned in the Superior Court Department on June 23, 1994.

The case was tried before Elizabeth J. Dolan, J., and a motion for a new trial, filed on July 30, 1997, was heard by her.

Rosemary Curran Scapicchio (Melissa Carter with her) for the defendant.

Eric R. Barber-Mingo, Assistant District Attorney, for the Commonwealth.

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Copyrighted Material Omitted

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Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ.


The defendant was convicted by a jury of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty.1 Represented on appeal by trial counsel, the defendant argues that the following were prejudicial error: (1) the denial of his motion for a mistrial after jurors heard comments from spectators while on a view; (2) the late disclosure of evidence by the prosecution; (3) the admission of the codefendants' confessions after severance; (4) the instruction to the jury on consciousness of guilt and the failure to give a "Bowden instruction" (see Commonwealth v. Bowden, 379 Mass. 472 [1980]); (5) various errors in the prosecutor's closing argument; and (6) the denial of his request to poll the jury individually. We have examined all of the issues raised by the defendant, and have reviewed the entire record under G. L. c. 278, § 33E. We affirm the conviction.

1. The facts. The victim's body was discovered in a park in Medford on April 28, 1994, at about 5:30 A.M. The victim's body had a total of seventy-nine stab wounds to the head, face, neck, chest, arms, legs, and back, as well as a gunshot wound to the face. The medical examiner testified that it was possible the victim had been alive during the infliction of all the injuries.

The Commonwealth's primary witness at trial was Christopher Rogovich, who had been granted immunity by a single justice of this court. See G. L. c. 233, § 20D. Rogovich testified as follows. On the day of the murder, Rogovich, the defendant, Gerald Sullivan, Richard Allison, and the victim, among others, spent the afternoon playing basketball and drinking beer. Sometime during the afternoon, Sullivan and the defendant left to buy some marijuana

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treated with PCP, or "angel dust." Sullivan and the victim smoked some of the drug that afternoon, and again in the evening, while the group was at a friend's house. The effects of the drug were not very strong, and the victim talked about how the drug was "fake," that Sullivan and the defendant had "got beat," and were "chumps" and "idiots." The victim persisted with similar comments throughout the day, and seemed to upset the defendant. While the group was at the friend's house, the defendant left for approximately fifteen minutes, and when he returned he showed Rogovich a gun that he had tucked into his pants.

Rogovich further testified that the group subsequently went to a local bar. After staying about one hour, the defendant said, "Let's get out of here, let's go for a ride." The defendant did not want the victim to go along with them, but the victim caught up to the defendant, Rogovich, Allison, and Sullivan as they got into the defendant's car. The defendant dropped off Rogovich and the victim a short distance from a Dunkin' Donuts and whispered to Rogovich, "Try to lose [the victim]." Eventually, all five returned to the car, but the defendant wanted the victim to go home, and the two argued about it. At one point, the victim got out of the car, calling the defendant and Sullivan "fuckin' punks" as he did so. The defendant yelled back, "Do you want to come . . . ? Get in the fuckin' car." The victim got into the car and the defendant sped off. After driving for a while, the defendant pulled the car over, and the defendant, Sullivan, and Allison got out of the car, walked a few feet away, and spoke together. When they got back into the car, the defendant said, "We got to go meet the dealer." The defendant drove to a nearby park, directed everyone to a certain area, and told them where to stand, saying that the drug dealer "should be coming this way." When Rogovich turned around, Sullivan was pointing a gun at the victim's head. Rogovich heard three clicking noises and then saw the defendant grab the gun. Rogovich had started to move away, and when he turned around to look, he saw the defendant shoot the victim and heard the victim say, "Hardy shot me in the mouth." The defendant replied, "Now you'll shut your fuckin' mouth." When Rogovich turned back again, he saw the defendant, Allison, and Sullivan on top of the victim making stabbing motions, and he heard Sullivan say, "Get his wallet." Rogovich returned to the defendant's car where he was joined shortly by Sullivan, who was carrying a bloody knife. Sullivan told Rogovich to get in the car, drove him to a nearby house, and called for a taxi for him. The next day, the defendant stopped by Rogovich's house and told him, "Don't say nothing, they'll get you ten years down the line for this . . . ."

In addition to Rogovich, the Commonwealth's other chief witness was Steven Murphy. Murphy testified that around 9:30 P.M. on the night of the murder, the defendant and Sullivan came to his house to retrieve a gun, and that the defendant said they needed it because they had been "ripped off" on a drug deal. Around midnight, Allison showed up at Murphy's house, nervous and sweating. Five to ten minutes later, Sullivan and the defendant arrived, and Sullivan, Allison, and Murphy went into a bedroom to talk. Sullivan asked Allison how much money they had gotten, Allison counted some money, gave some to Sullivan, and told him to give one-half to the defendant. Allison and Sullivan left by separate taxis. An hour or so later, Murphy woke the defendant, who had fallen asleep on the living room floor, and asked him what had happened. The defendant said, "We did what we had to do." When Murphy saw the defendant the next day, he told the defendant, "That was a pretty sick thing that you did." The defendant responded, "Did you hear how many times we got him? Eighty times."

The defendant presented a defense of alibi and testified at trial. His account of the day of the murder was, in large part, consistent with Rogovich and Murphy's account,

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except for the following. First, the defendant denied that anybody had thought the angel dust was fake or that the victim had taunted him about that. The defendant testified that Sullivan had said the drug was "weird," but that the drug dealer had subsequently explained the problem and how to remedy it. Second, the defendant denied retrieving a gun. Third, the defendant testified that he and Sullivan alone had left the bar at 11 P.M. and gone to the Dunkin' Donuts, and that they had done so in an attempt to buy more drugs. The defendant testified that from the Dunkin' Donuts, Sullivan had dropped him off at his grandfather's house, that Sullivan had picked him up about forty-five minutes later, and that they had driven to Murphy's house from there. Finally, the defendant denied that Allison was present at Murphy's apartment that night, and he denied making any inculpatory statements to Murphy. The defendant's grandfather corroborated the defendant's alibi.

The Commonwealth introduced evidence contradicting the defendant's account of the evening, including (1) two women, who had spent the day of the murder with the group of men, testified that all five men left the bar at the same time; (2) one of the women testified further that Allison returned to the bar about one hour later, and that she had walked to Murphy's house with him; (3) a third female witness testified that she saw and briefly spoke with the victim at the Dunkin' Donuts at about 11 P.M. on the night of the murder; and (4) two narcotics officers, who were on an unrelated surveillance at the Dunkin' Donuts on the night of the murder, testified that they observed the defendant's car in the parking lot at about 11 P.M., and that they saw two men cross the street and eventually get into the car.

2. Denial of postview motion for a mistrial. At the start of the trial, while the jury were on a view of the park where the victim's body was found, spectators shouted some words at the jury from across a field. The judge immediately instructed the jury to disregard the comments. When they returned to the courthouse, the judge conducted an individual voir dire of all the jurors, during which she asked the jurors what, if anything, they had heard, whether it had had any influence on them, and whether they were able to remain fair and impartial. Of the sixteen jurors, fourteen stated that they had heard either the defendant's name, the word murderer, or the phrase, "Jeffrey Hardy is a murderer." All jurors denied that the incident had affected or influenced them and all affirmed their ability to remain fair and impartial. At the close of the voir dire, the defendant moved for a mistrial. The judge concluded that the jury remained indifferent and denied the motion.

On appeal, the defendant does not argue that the judge failed to follow the proper procedure in determining whether the jurors were improperly influenced by the extraneous matter. See Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978) (when jurors are exposed to potentially prejudicial extraneous material, judge should conduct individual voir dire to determine extent of exposure and effects of exposure on juror's ability to render...

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