Commw. v. McIntyre, 123199

• Decision Date: 31 December 1999
• Docket Number: No. SJC-07509,SJC-07509
• Parties: (Mass. 1999) COMMONWEALTH v. JOHN McINTYRE
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

721 N.E.2d 911 (Mass. 1999)

COMMONWEALTH v. JOHN McINTYRE.

No. SJC-07509

SUPREME COURT OF THE STATE OF MASSACHUSETTS

Argued October 6, 1999.

December 31, 1999

Essex County

Practice, Criminal, Preservation of evidence, Argument by prosecutor, Instructions to jury, Reasonable doubt, Presumptions and burden of proof. Evidence, Relevancy and materiality, State of mind, Hearsay. Words, "Moral certainty."

Indictment found and returned in the Superior Court Department on February 8, 1995.

A motion to dismiss was heard by Robert A. Barton, J., and the case was tried before him.

Robert L. Sheketoff for the defendant.

Gregory I. Massing, Assistant District Attorney (Fred B. McAlary, Jr., Assistant District

Attorney, with him) for the Commonwealth.

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

IRELAND, J.

John McIntyre was found guilty of murder in the first degree by reason of deliberate premeditation. Represented by new counsel, he appeals from his conviction, arguing that (1) his motion to dismiss the indictment based on the destruction of evidence should have been granted; (2) evidence was improperly admitted at his trial; (3) the prosecutor made improper remarks during closing argument; and (4) the jury charge on circumstantial evidence improperly included the phrase "moral certainty." The defendant also seeks relief pursuant to G. L. c. 278, § 33E. We find no basis to grant a new trial, nor any reason to grant relief under § 33E, and we affirm the conviction.

We summarize the evidence in the light most favorable to the Commonwealth. See, e.g., Commonwealth v. Gilbert, 423 Mass. 863, 864 (1996).

Because the facts are complicated, we recite them in some detail. The defendant and the victim had an on-and-off stormy relationship that lasted for approximately three years, but by the fall or winter of 1994, they had stopped seeing each other.

Early in the evening of January 10, 1995, Brian Perry went to visit his friend, Sean McCarthy, at his apartment on Phillips Street in Lawrence. McCarthy was not home at that time, but one of his roommates, Dan Enaire, was home. Chad Enaire, Dan's brother, arrived with the defendant at the same time Perry was arriving, and the three walked up the stairs together. The defendant told them about a dream he said he had had the night before. The defendant said he had dreamed that the victim was "bitching" and he killed her by punching her down some stairs, and that Chad and Dan were with him in the dream. Perry then left. As he did so, the defendant said to him that he had tried to find Perry's apartment earlier, and that "they were going to come by because there were people there that they wanted to shut up." Perry then went home to his apartment on Auburn Street in Methuen. The defendant and the Enaire brothers arrived shortly afterward. Prior to that occasion, the defendant had never been to that apartment. Perry sat down in the kitchen with the three and began to play cards, drink beer, and smoke marijuana.

At approximately the same time, the victim and her friend, Michael Moison, drove over to Brendan Beveridge's house. Beveridge had known the victim for about six years, and in the months preceding her death, the two of them, along with Moison, had spent time together nearly every day, either at Beveridge's house or at the apartment of another friend, Wes Gilbert. Gilbert was a roommate of Perry. At approximately 8:30 P.M., Laurie Tudisco arrived at Beveridge's house and she, the victim, Moison, and Beveridge drove to Gilbert's apartment. They entered the second-floor apartment through the front door and sat down in the living room with Gilbert. At this time, the defendant, Chad Enaire, Dan Enaire, and Perry were still in the kitchen drinking beer and playing cards.

Shortly after the victim and her friends arrived, the defendant came into the living room, stood directly in front of where the victim was seated on a couch, and began yelling at her. The defendant called the victim names and accused her of having sex with other men. The victim in turn called the defendant names and told him to leave. The defendant spit in the victim's hair. The defendant then left the living room, but as he was leaving he said to her, "No one's going to help you here . . . ." After this encounter, the victim was upset. Beveridge asked Tudisco for a ride home, and she, with the victim and Gilbert, gave him a ride home. After dropping Beveridge at his house, the victim, Tudisco, and Gilbert stopped at a liquor store before returning to the Auburn Street apartment. The three arrived back at approximately 9:30 P.M., sat down in the living room, and were rejoined by Moison. Shortly after the victim started to mix herself a drink, the defendant entered the living room a second time. The defendant and the victim again exchanged shouted insults. The defendant grabbed the bottle of rum with which the victim had been making her drink and he poured much of the contents over her. Gilbert attempted to intervene at this point. The defendant looked menacingly at Gilbert while making a fist, and then walked out of the living room. As he was leaving the room, the defendant turned around and said to the victim, "You're dead. And your family, too." At this point, the victim was scared and crying.

Shortly thereafter, the defendant reentered the living room a third time. He grabbed the victim's glass and poured the contents over her while he and the victim exchanged shouted insults. As the defendant began to hit the victim on her head, the victim curled into a ball on the couch. The defendant then threw the victim over the arm of the couch, hitting her head on the front door. The defendant stood over the victim, pulled her up, and spit in her face. At this point, the victim asked Tudisco for a ride home. The defendant looked at Tudisco and said, "Who the fuck is going to try to take her home." Tudisco was scared and crying at this point, and she left the living room and went into one of the bedrooms. The defendant left the living room and when he entered the kitchen, he stated, "I just killed her. She just fucked up. I dreamed about it last night." At this point, which was close to 10 P.M., the victim grabbed her purse and went out the front door of the apartment. A few seconds later the defendant followed. A neighbor, Rosalie Hagopian, who lived in the house next door to Perry and Gilbert's apartment, testified that at almost precisely 10 P.M., she heard a noise outside, and when she looked out her window, she saw a girl running down the street and a boy chasing her. The boy caught up to the girl after they had run the length of two houses, grabbed her shoulder, and swung her around. He then put both hands on her shoulders and put his face right up to hers. The neighbor could not see whether the boy was kissing the girl or saying something to her. The boy then took the girl's hand and the two walked back down the street and got into a parked car. The two remained there a few seconds and then drove off.

At approximately 10:10 P.M., the defendant carried the victim into the emergency room at Holy Family Hospital in Methuen. The victim, who had been stabbed under her collarbone on the left side of her body, was bleeding heavily, was semiconscious, and was unresponsive to questions concerning her name or other information. A triage nurse, Susan Sadowski, learned the victim's name from the defendant, and when she asked the defendant what had happened to the victim, he responded to the effect that there had been a drug deal in Lawrence that "went bad," and the victim had been stabbed. Sadowski wheeled the victim to an examination room, where other medical personnel began attending to her, and returned to ask the defendant further questions about the victim's family and medical information. She also requested the emergency room secretary to notify the Lawrence police about the stabbing.

Officer William Beck, a uniformed patrolman for the city of Lawrence, arrived at the hospital around 10:15 P.M. and met the defendant in an area near the emergency room. Officer Beck observed that the defendant had blood on his hands and clothing and that he appeared nervous. When questioned by Officer Beck as to what had happened, the defendant replied that he had gone to Lawrence to buy some marijuana, gotten out of his car and approached some "Spanish people" who were standing in a vacant lot across the street, argued with them about price, and then ran back to his car with the people following him. When he got into his car, he reached over to his girl friend, felt "a wetness," and when he looked at his hand, his hand was red. When questioned by Officer Beck as to where in Lawrence this had occurred, the defendant could identify the area only as a side street off Broadway near "Al Martin's," a local retailer. Officer Beck then requested that members of the detective squad come to the hospital. Detective Sergeant Alfred Petralia and Detective Brian Burokas arrived at the hospital at approximately 10:30 P.M. and noted that the defendant had blood on his hands and clothing and that he appeared very nervous. The defendant was read the Miranda warnings and then questioned by the detectives. The defendant stated that he had been looking to buy some marijuana, had taken a right off Broadway near "Al Martin's," parked his car on a side street, and left the victim in the passenger seat while he approached two Hispanic males. The defendant further stated that the two males grabbed his money, chased him back to his car, and when he got in the car, he noticed that the victim had been stabbed. On further questioning by the detectives, the defendant was not able to give a description of any landmarks or buildings, nor was he able to describe the Hispanic males' height, weight, facial hair, or any other features.

The detectives then attempted to speak with the victim. Detective Burokas was given permission by the...