Commw. v. Lodge

• Decision Date: 04 January 2000
• Docket Number: No. SJC-07672,SJC-07672
• Parties: (Mass. 2000) COMMONWEALTH vs. MICHAEL LODGE
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

727 N.E.2d 1194 (Mass. 2000)

COMMONWEALTH vs. MICHAEL LODGE.

SUPREME COURT OF THE STATE OF MASSACHUSETTS

No. SJC-07672

Argued May 12, 2000.

January 4, 2000.

Suffolk County

Practice, Criminal, Required finding, Argument by prosecutor, Assistance of counsel, Capital case. Homicide. Evidence, Opinion, Expert opinion, State of mind. Witness, Expert. Error, Harmless. Search and Seizure, Standing to object.

Indictments found and returned in the Superior Court Department on March 2, 1995.

The cases were tried before Patrick J. King, J.

Robert S. Sinsheimer for the defendant.

Rosemary Daly, Assistant District Attorney, for the Commonwealth.

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

COWIN, J.

A jury convicted the defendant, Michael Lodge, of murder in the first degree on the ground of deliberate premeditation.¹ The defendant claims on appeal that the judge erred in making the following rulings:

(1) denying his motion for a required finding of not guilty because there was insufficient evidence that the defendant was the person who committed the murder, and that even if there were sufficient evidence the evidence of premeditation was insufficient;

(2) admitting in evidence both the personal opinion of the lead investigator that the defendant was guilty and the investigator's opinion regarding "blood splatter" evidence; and

(3) admitting in evidence hearsay statements regarding the victim's state of mind. The defendant also alleges

(4) that improper remarks were made by the prosecutor during closing argument and

(5) that his trial counsel was ineffective. Finally, defendant argues

(6) that his motion to suppress the gun seized from his apartment should have been allowed. We affirm the convictions and decline to exercise our authority under G. L. c. 278, § 33E, to order a new trial or reduce the murder conviction to a lesser degree of guilt.

The jury could have found the following facts. The body of the victim was discovered at approximately 9 P.M. on January 25, 1995, in the apartment she shared with the defendant and his sixteen year old son, Michael, in the Dorchester section of Boston. She suffered a gunshot wound on the left side of her chest. The autopsy revealed that she had died within seconds and that the gun was fired at close range.

The victim and the defendant had lived at the apartment for approximately three years and had been together for thirteen or fourteen years. In the year prior to the murder, the relationship between the victim and the defendant had become troubled. The victim's brother testified that he had observed "discord" in the relationship. Approximately four to six weeks before the murder the victim inquired of Officer Vincent Stevens of the Boston police department, a long-time family friend, regarding the process for obtaining a protective order against the defendant. Approximately two weeks before the murder, the victim telephoned her brother because she was having an argument with the defendant. Her brother came to the apartment and found the victim crying. On January 13, 1995, the defendant asked the victim's brother how to obtain a gun permit and later that day told the victim's brother, "I've been having to watch my back lately." He then motioned toward his side as if to indicate that he had a gun.

On the night of the murder, Renee Covan, a resident of the neighborhood, saw the defendant crouched in a chair on her porch. Despite the fact that it was January, the defendant was wearing a pair of jeans, but no shirt or shoes. He asked Covan to find out where his son was and to telephone his sister. He then asked for a shirt and a pair of sneakers and left her property after receiving them. The defendant and his son knocked on the door of Raymond Pinder's house sometime that evening.² He testified that the defendant was not wearing any shirt or shoes. The defendant told Pinder that he had been robbed and needed to use the telephone. The defendant and his son entered Pinder's house, made a telephone call and, within one-half hour, the defendant's brother-in-law and sister arrived to pick up the defendant and his son.

The defendant told his brother-in-law that earlier in the evening somebody rang his doorbell, he opened the door, "they" entered his apartment, and a struggle ensued. The defendant also said that during the struggle a gun went off and that he ran from the apartment, jumped over a fence, and cut his knee. The defendant's brother-in-law and sister gave him a shirt and brought him to the police station.

After reporting his version of events to the police, the defendant, his sister, brother-in-law, and two police officers returned to the defendant's apartment. When the group arrived at the apartment, the defendant approached the locked outer door with a set of keys, but was unable to open the door using the keys. Ultimately, he kicked in the door. The officers followed the defendant as he went downstairs to his apartment. The defendant entered and went toward the kitchen and then directly to the victim's body which was slumped against a wall and covered with clothing.

Soon after the discovery of the victim, the defendant began having trouble breathing and was taken to a hospital by ambulance. At the hospital, Officer David Perez questioned the defendant. The defendant repeated the same version of events he had told his brother-in-law except that he claimed that he was in bed when four black men came to the door and that the victim answered the door. He also stated that during the flight from the apartment he lost consciousness for a period of time.

Shortly after the recovery of the body, the police searched the apartment pursuant to a search warrant. The furniture in the apartment was not disturbed, and although the apartment was cluttered, there was no sign of a struggle. Among the items recovered from the crime scene by the police were a bullet shell casing, a two-by-four piece of lumber that could have come from a bracket on the inside of the apartment's front door, a broken key found lying on the ground outside the door, wire from the apartment's security alarm, a Samurai sword and sheath, and blood stains from the stairs and the wall and from under the victim's fingernails. The two-by-four piece of lumber was stained with blood type O, the victim's blood type. The other blood stains were identified as human blood but there was not enough for grouping tests.

During the search of the apartment, Detective Paul Barnicle recovered a .38 caliber semiautomatic pistol, which was missing a single bullet, from the kitchen wall space behind the refrigerator. The area was loosely covered with insulation and under the insulation was a circuit breaker box framed into the wall. There was a slight gap between the circuit breaker box and the wall creating a hole. Detective Barnicle peered into the hole and saw a hanger attached to the top of the circuit breaker box door. When he pulled on the hanger the door came up and he saw the gun inside the wall space. The police had to break down the wall to retrieve the gun. A comparison of the bullet recovered from the victim and the gun indicated that the shot that killed the victim was fired from the gun recovered from the apartment.

At 1:10 A.M. on January 27, 1995, after his release from the hospital, the defendant voluntarily provided a formal statement to the Boston police department that was consistent with the statement he provided to Officer Perez at the hospital. In his statement, the defendant added that he had had a good relationship with the victim, that the victim may have known the intruders, and that he recently received a $100,000 settlement from the city of Boston.

1. Motions for a required finding.

The defendant contests the judge's denial of his motions for a required finding of not guilty filed at the close of the Commonwealth's case and again at the close of all the evidence. He claims that there was insufficient evidence to establish that he was the murderer and that the murder was committed with deliberate premeditation. We disagree.

In reviewing a denial of a motion for a required finding, we determine "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" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "'The question of guilt must not be left to conjecture or surmise.' Commonwealth v. Anderson, 396 Mass. 306, 312 (1985). However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. Commonwealth v. Nadworny, 396 Mass. 342, 354 (1985), cert. denied, 477 U.S. 904 (1986), and cases cited. An inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable.' Commonwealth v. Beckett, 373 Mass. 329, 341 (1977)." Commonwealth v. Bush, 427 Mass. 26, 30 (1998). Applying these standards, we conclude that there was sufficient evidence to permit the jury to determine that the defendant was the murderer and that he acted with deliberate premeditation.

The evidence indicated that the relationship between the defendant and the victim had deteriorated and that the defendant had shown interest in, and perhaps had acquired, a gun shortly before the murder. The defendant's version of the events the night of the murder was that he and his girl friend had been attacked in their apartment by armed intruders. Yet, his actions that night were inconsistent with his account. He ran to neighbors' homes, but he did not ask them to telephone the police. By his own admission, the defendant was with the victim at the time she was murdered. When the police returned to the apartment with the defendant, they found the door to the apartment locked; the defendant apparently was aware of the location of the...