Commonwealth v. Magraw

690 N.E.2d 400, 426 Mass. 589, 1998 Mass. LEXIS 35
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 4, 1998
StatusPublished
Cited by27 cases

This text of 690 N.E.2d 400 (Commonwealth v. Magraw) 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. Magraw, 690 N.E.2d 400, 426 Mass. 589, 1998 Mass. LEXIS 35 (Mass. 1998).

Opinion

Ireland, J.

A jury convicted the defendant of murder in the first degree with extreme atrocity or cruelty for killing his wife [590]*590Nancy. The defendant argues that certain hearsay evidence regarding the alleged victim’s state of mind was improperly admitted such that his Federal and State constitutional rights to confrontation and due process were violated. Because we conclude that there were several evidentiary errors which were prejudicial to the defendant’s case, we do not reach any constitutional issue. Therefore, we reverse and remand for a new trial. Because there will be a new trial, we comment briefly on the admissibility of other evidence which the defendant claims was improperly admitted.

We summarize the evidence. The defendant and the alleged victim (victim) were married in June, 1974. In early 1989, the couple began discussing a divorce. Sometime in the fall of 1989, both hired attorneys and began negotiating the possible terms of a divorce settlement.

Evidence appears from a February, 1990, meeting between the two and their attorneys that the defendant was angry about having to divide marital assets that he viewed as his own.1 Nevertheless, another meeting was scheduled for July 23, 1990, between the victim, defendant, and their attorneys to discuss further the disposition of the marital assets.

When the victim failed to arrive at the July 23 meeting, her attorney sought to reach her by telephone a number of times. Although unable to reach her, the attorney proceeded with the meeting in her absence, because he knew the details of the settlement that the victim wished to obtain. During the meeting, the defendant mentioned that he had been to the victim’s home that morning and knew that the victim was aware of the meeting.

Shortly after 3 p.m., the victim’s attorney again tried to reach her. This time one of her sons answered the telephone. He seemed out of breath and stated that he had just arrived home. When the attorney asked to speak to the victim, her son responded that he would look for her. He returned to the telephone, saying very excitedly that he had to hang up and call his father. The attorney [591]*591handed the phone to the defendant who spoke briefly to his son. After hanging up, the defendant said, “She’s dead. She’s gone.”

The attorneys and the defendant drove to the victim’s house. When they arrived, the defendant entered the house. While the victim’s attorney was still outside, the defendant walked out of the house and said, “We were so happy.” He remarked, “She was depressed. She was, she was on pills.” The defendant also stated that the victim had been seeing a psychiatrist and then went back inside the house.

. The victim’s son had found her body lying face down in the living room on the edge of some tiles next to a wood-burning stove. The defendant stayed in the kitchen, and did not go into the living room to see the victim’s body. An emergency medical technician who arrived at the scene moments later observed that the victim had abrasions on her hands and face and that rigor mortis had set in. The Walpole police who also arrived on the scene noted no sign of a struggle or a forced entry.2

At some point, the police began to question the defendant. After waiving his Miranda rights, the defendant told a police officer, among other things, that he had gone to the victim’s house that morning because the two had agreed to write a joint letter to their son who was at camp. He also told the officer about a recent incident with his wife relative to some rifles. The defendant stated that he had owned two .22 caliber rifles and that he had left one of them lying on a bed in the house — a gesture the victim took as a threat. He told the officer that he had left the gun on the bed because he hoped that his wife would think he was contemplating suicide and would therefore take pity on him.

Considerable evidence was introduced at trial that, in the months leading up to her death, the victim had made various statements to family members, friends, her attorney, and her psychiatrist that she feared the defendant and was concerned about the custody of their youngest son, John. Most of that [592]*592evidence was introduced by the Commonwealth over the defendant’s objection.3 For example, the victim’s brother testified that the victim had told him in early 1990 that “a number of things had occurred which made her very frightened.” According to her brother, “[s]he would wake up in the middle of the night and [would] occasionally find her husband in the bedroom. . . He would arrive at the house at strange times unannounced.” She also told her brother, according to his testimony, that she was afraid something was going to happen to her. When he suggested that she obtain a protective order against the defendant she told her brother, “I am afraid that if I got a court order I would inflame [the defendant], I don’t want to do anything that will inflame my husband.” She also sent a letter to her brother in which she expressed her concern about who would have custody of her son John, “if something were to happen to me.”

The victim also wrote to her attorney that she did not want to be alone with the defendant in her house. She wrote that “the Stuart case has set me to thinking about what would happen to [my son] if something happened to me.”4 Likewise, the victim expressed concerns, both to her psychiatrist and to a close friend, that she was afraid that the defendant would hit her. She also told a friend that she did not want to ride in a car with the defendant unless she was driving. Finally, the victim told a number of family members that the defendant had tried to reconcile with her, but that she had refused his offer because she viewed this merely as an attempt by him to retain his property.

The judge had excluded certain portions of the psychiatrist’s testimony. During direct examination, the defendant expressed [593]*593concern that the psychiatrist might testify to something that had been explicitly excluded by the judge. The judge then permitted a brief recess so that the prosecutor could warn the psychiatrist not to say anything about the excluded evidence. One excluded piece was the victim’s statement to the psychiatrist that she feared that the defendant was going to murder her and make it look like an accident.

During direct examination the psychiatrist did not testify as to any of the excluded evidence. However, during cross-examination, the following colloquy occurred:

Counsel for the defendant: “And [the victim] told you that she was afraid that [the defendant] would hit her even though he had never hit her before?”
The witness: “There is no, I don’t see anything about him hitting her. She was afraid that something would happen to her.”
Counsel for the defendant: “Even though he had never hit her in the past. Is that trae?”
The witness: “She did not say she was afraid he would hit her. She was afraid she would accidentally be found dead.”

The psychiatrist referred to that conversation with the victim in violation of instructions that the district attorney had given or should have given her at the direction of the judge.

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Cite This Page — Counsel Stack

Bluebook (online)
690 N.E.2d 400, 426 Mass. 589, 1998 Mass. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-magraw-mass-1998.