Commonwealth v. Guy

910 N.E.2d 358, 454 Mass. 440, 2009 Mass. LEXIS 423
CourtMassachusetts Supreme Judicial Court
DecidedJuly 31, 2009
StatusPublished
Cited by12 cases

This text of 910 N.E.2d 358 (Commonwealth v. Guy) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Guy, 910 N.E.2d 358, 454 Mass. 440, 2009 Mass. LEXIS 423 (Mass. 2009).

Opinion

Spina, J.

The defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal he asserts that (1) the trial judge erred by admitting evidence that the defendant often discussed and read articles about serial killers, (2) the prosecutor improperly appealed to emotions of the jury in closing argument, (3) the judge erred by allowing an item marked only for identification to be considered by the jury in their deliberations, and (4) the judge erred in denying his motion for a new trial, which alleged deficiencies in the operation of the Massachusetts State police crime laboratory with respect to the processing of deoxyribonucleic acid (DNA) evidence. The appeals from the judgment of conviction and the denial of the motion for a new trial have been consolidated. We affirm the conviction and the order denying the motion for a new trial, and we decline to grant any relief under G. L. c. 278, § 33E.

1. Background. On the morning of December 1, 1998, the victim and her husband of fifty years took their daily walk through Bird Park in Walpole. At one point she was separated briefly from her husband. When she did not return to the parking lot after about ten or fifteen minutes, her husband went to look for her. He found her lying on the ground, dead. Her body was partially clad and bloody. Some clothing had been tom. The cause of death was determined to be multiple stab wounds (thirty-two across much of her body), manual strangulation, and blunt head trauma. Other than the bite marks on her breasts, there was no evidence that she had been sexually assaulted.

Bite marks on the victim’s breasts and the presence of amylase, a component enzyme of saliva, in the right cup of her brassiere suggested the possible presence of DNA from the assailant. Swabbings were taken from her left breast and a cutting was taken from her brassiere. Because it was anticipated that the samples probably contained mixtures of DNA from both the victim and her assailant, and because the DNA unit of the Massachusetts State police crime laboratory only recently had opened and could not provide DNA testing or results on mixtures, the samples were sent to the Maine State police crime laboratory, which was equipped to do the testing.

On December 15, 1998, the Maine laboratory obtained a nine loci major male DNA profile from the mixture on the brassiere [442]*442cutting. However, only profiles with more than ten loci could be uploaded into the Federal Bureau of Investigation’s (FBI’s) combined DNA index system’s (CODIS) national DNA database (NDIS). In May, 2000, the Maine laboratory began using two newly available kits, Profiler Plus and Cofiler. The samples were retested using Profiler Plus only, due to the small size of the samples. This produced a twelve loci major male profile from the sample on the brassiere cutting.

On May 18, 2000, the Maine laboratory uploaded the twelve loci major (unknown) male profile obtained from the brassiere cutting into the CODIS national database (NDIS). On August 15, 2003, it received notice of a “hit” to the defendant’s profile.1 On September 5, 2003, the Maine laboratory obtained a known saliva sample from the defendant from which it obtained a thirteen loci profile. That DNA profile matched the DNA profile obtained from the cutting from the victim’s brassiere. The probability that the DNA profile of an unrelated Caucasian male would match the DNA profile from the brassiere cutting is one in 268 trillion.

In July, 2003, an inmate serving a prison sentence for intimidation of a witness, perjury, and arson wrote to the Norfolk County district attorney indicating that he had information that might be helpful to this investigation. He further indicated that he would like to receive help in getting his sentence reduced. The inmate testified at the trial in this case that in late 2001 or early 2002 he saw a news account of a man who had been mistakenly arrested for the victim’s murder.2 He had a conversation about the matter with the defendant, who told him (before the defendant was charged) that it was “pretty funny” that the wrong man had been [443]*443arrested for the victim’s murder, as the defendant was the one who killed her. The defendant said he had been “trolling” the park for a victim and had an interest in the victim after seeing her on several occasions with her husband. Another woman had been his primary target, but the victim provided him an opportunity when she walked away from her husband. The defendant passed her and she greeted him. He said “hello,” took two steps past her, then doubled back and threw her into a choke hold. He beat, stabbed, and bit her. The defendant said it was a “thrill.”

The defendant grew up in Walpole and was familiar with Bird Park. He had worked delivering pizzas for a pizza parlor in Walpole since 1994, and he also delivered newspapers. Generally quiet, he became talkative with coworkers when the subject of the murder investigation arose.

2. Evidence of defendant’s interest in serial killings. The defendant argues that evidence that he spoke to coworkers about serial killings, and that he often read books3 about murder and serial killings that, he argues (erroneously), were found in a search of his mother’s home (where he lived) in 2003, was irrelevant and unfairly prejudicial. The defendant preserved the issue for appellate review. The decision to admit such evidence is within the sound discretion of the judge. See Commonwealth v. O’Brien, 432 Mass. 578, 590 (2000).

The evidence was relevant to the defendant’s motive and state of mind and to explain what otherwise might be seen as an inexplicable act of violence. Id. See Commonwealth v. Bradshaw, 385 Mass. 244, 269 (1985). The prosecutor elicited the testimony and referred to it in his closing in a technical, analytical manner, [444]*444without drama or undue emphasis that might have released its potential for unfair prejudice.

There is no merit to the claim that testimony about his books on serial killings, which allegedly were seized approximately four years after the killing in this case, was temporally too remote to be relevant. The books were not seized from his mother’s home. They were seized from the defendant’s apartment in September, 1999, in connection with a prior case,4 not in connection with this case. Moreover, four coworkers testified that he often read such books. Evidence of the defendant’s fascination with murder and serial killings was relevant to the issue of intent and motive, and was not temporally remote. There was no abuse of discretion.

3. Prosecutor’s closing argument. The defendant asserts error in the judge’s denial of his motion for a mistrial based on the prosecutor’s closing argument. The prosecutor had addressed a point made by defense counsel in his opening statement to the effect that the jury would have to “decide whether or not [the Commonwealth] proved beyond a reasonable doubt [and] to a moral certainty they got it right this time,” referring to the decision to nol pros the charges against the person first arrested for this murder (emphasis added). The prosecutor had argued to the jury:

“When [defense counsel] finished his opening statement to you, he asked a question. And the question that he asked was did they get it right this time.

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Cite This Page — Counsel Stack

Bluebook (online)
910 N.E.2d 358, 454 Mass. 440, 2009 Mass. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-guy-mass-2009.