Commonwealth v. Kenney

769 N.E.2d 1231, 437 Mass. 141, 2002 Mass. LEXIS 389
CourtMassachusetts Supreme Judicial Court
DecidedJune 13, 2002
StatusPublished
Cited by7 cases

This text of 769 N.E.2d 1231 (Commonwealth v. Kenney) 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. Kenney, 769 N.E.2d 1231, 437 Mass. 141, 2002 Mass. LEXIS 389 (Mass. 2002).

Opinion

Spina, J.

The defendant, Richard Kenney, was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty, and of unlawful possession of a firearm. On appeal, he claims that the trial judge, who also heard his motion to suppress, erred in (1) denying his motion to suppress statements he made while in police custody; (2) denying his motion to suppress unduly suggestive identifications; (3) denying his motion for fees for an expert witness to assist him in calling certain children as witnesses; (4) empanel-ling only fifteen jurors; (5) refusing to order a medical examination of the defendant during trial; (6) failing to order stand-by counsel to resume representation; (7) admitting spontaneous utterances by the defendant’s child and another child that identified “daddy” as the shooter; (8) admitting testimony explaining that “daddy,” as used in the spontaneous utterances, referred to the defendant; (9) admitting autopsy photographs; (10) excluding testimony regarding the defendant’s shoe size; (11) allowing the prosecutor to ask inflammatory questions of the defendant during cross-examination; (12) excluding testimony from several defense witnesses; (13) excluding evidence of a witness’s bias and motive to lie; and (14) denying the defendant’s request for an alibi instruction. The defendant also asks us to grant him a new trial or reduce the verdict pursuant to G. L. c. 278, § 33E. We affirm the convictions and decline to order a new trial or otherwise grant § 33E relief.

1. Facts. The defendant shot his former girl friend, Annie Glenn, while she waited with her children at a school bus stop. Glenn had three children: four-year old Marquis Rivera, three-year old Darnell Kenney, and one year old Desiree Kenney. Darnell and Desiree were the defendant’s biological children. Darnell called the defendant “daddy.” The defendant had acted as Marquis’s father, and Marquis referred to the defendant as “daddy.”

Glenn lived at the House of Hope, a shelter for women and children located in Lowell. Shortly after 7 a.m. on Tuesday, [144]*144October 21, 1997, she left the shelter to bring her three children to a nearby bus stop, where Marquis took the bus to school. When they arrived, other children were waiting across the street for a different bus, some of whom witnessed the shooting and testified at trial. Moments after Annie arrived with her children, the defendant approached in Glenn’s black Mercury Cougar and stopped near the bus stop.1 He stepped out of the car, approached Glenn, and after speaking with her briefly, began arguing with her. The defendant said, “Give me my kid,” referring to Desiree. Glenn refused, and put the baby down. The defendant pushed Glenn, then produced a gun. Glenn yelled, “No!” The defendant shot her in the chest. She screamed and fell to the sidewalk. Ignoring a plea from one of her sons to leave Glenn alone, the defendant shot her twice more in the head while she lay on the ground. He returned to the car and drove away, leaving Darnell and. Marquis crying and holding their mother’s hands.

Officer Steven Coyle of the Lowell police arrived at the bus stop and went over to Glenn. Finding no pulse, he called for assistance and attempted to revive her. He asked her sons whether Glenn was their mother. When he asked what happened, they stated that their daddy had a gun and that he just came and hit her. Glenn died minutes after the shooting.

Officer Michael Pelletier arrived as paramedics were trying to save Glenn. He attended to Marquis, who appeared withdrawn and. in shock. Spontaneously, Marquis said, “daddy shot mommy.” Pelletier, accompanied by another officer, walked the children back to the shelter. The boys were in a state of shock as a result of the incident. When they arrived at the shelter, Darnell told the program coordinator at the House of Hope that “dada shot mommy.” He repeated the statement throughout the day.

At around 10:30 a.m., the Children were brought to the Lowell police station, where Detective Gerald Wayne and State Trooper Steven Belanger separately interviewed Marquis and Darnell. Wayne asked each child what happened to their mother. Marquis told Wayne, “daddy shot mommy.” Darnell, in turn, told Wayne, “daddy shot mommy in the hair.” Both boys told [145]*145him that Glenn referred to “daddy” as “Rich.” Marquis also told Wayne that “daddy” jumped in the car and left after the shootings. Meanwhile, the Lowell police compiled a photographic array containing a photograph of the defendant. Wayne showed each of the boys, separately, an array with nine photographs and asked whether they saw a picture of the person they called “daddy.” Each pointed at a photograph of the defendant.

After the shooting, the defendant drove to his mother’s house in Derry, New Hampshire, arriving at around 8 a.m. on October 21. He asked his brother for a few dollars for gasoline, then left a few minutes later. The defendant next drove to East Cambridge, in search of his uncle, Ronald Kenney. He found Ronald at a supermarket. They returned to Ronald’s house in Cambridge, where they spent the morning together.

Meanwhile, a Cambridge traffic department employee had found the Cougar illegally parked and ticketed it. Later, she learned that the police were searching for the car and reported its location to the Cambridge police, who set up surveillance around the car. At around 1:30 p.m., the defendant went to the car to look for change to buy cigarettes. Detective John Lopes of the Cambridge police waited for the defendant to enter the Cougar, then approached the vehicle, identified himself as a police officer, and ordered the defendant not to move. When asked, the defendant identified himself. Officers pat frisked the defendant. He told them, “I fucked up. The gun’s in my uncle’s house on Spring Street, 138. My uncle had nothing to do with it.” He told the officers that the gun was in the house in his sneaker. Lopez read the defendant his Miranda rights from a card. The defendant complained of stomach pain, but he had no difficulty walking after the police allowed him to compose himself. His speech was coherent and he appeared to understand everything that was said. The defendant was eventually brought to the Lowell police station, where he confessed in detail to shooting Glenn.

After the defendant’s arrest, Sergeants Patrick Nagle and Lester Sullivan of the Cambridge police went to Ronald Kenney’s house. Kenney allowed them to enter and showed them where the defendant had been sitting. He identified a pair of [146]*146sneakers in the living room as belonging to the defendant. A pistol protruded from one of the sneakers. After securing the area, the officers obtained a search warrant for the gun and sneakers. Trooper Brian Gavioli, a ballistician, tested the gun and concluded that spent rounds and casings retrieved from the crime scene were fired from the defendant’s gun. Police also obtained a search warrant for the Cougar. A search of the car revealed a letter from Glenn to the defendant stating that although she intended to allow him to continue seeing the children, she was breaking up with him because she could no longer trust him.

The defendant filed several motions to suppress identifications and to suppress statements, which were denied. On the first day of trial, the defendant filed a motion and supporting affidavit seeking dismissal of his two attorneys and leave to proceed pro se. After a colloquy, the defendant signed a waiver of counsel and he was allowed to proceed pro se.

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Bluebook (online)
769 N.E.2d 1231, 437 Mass. 141, 2002 Mass. LEXIS 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kenney-mass-2002.