Commonwealth v. Womack

929 N.E.2d 943, 457 Mass. 268, 2010 Mass. LEXIS 403
CourtMassachusetts Supreme Judicial Court
DecidedJuly 13, 2010
StatusPublished
Cited by32 cases

This text of 929 N.E.2d 943 (Commonwealth v. Womack) 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. Womack, 929 N.E.2d 943, 457 Mass. 268, 2010 Mass. LEXIS 403 (Mass. 2010).

Opinion

Spina, J.

The defendant was convicted of felony-murder in the first degree. The underlying felony was an armed robbery while masked. The defendant appealed. He filed a motion for a new trial, which was denied by the trial judge. The appeal from the denial of the motion was consolidated with his direct appeal. On appeal he asserts error in (1) the admission of evidence of accusations by police during custodial interrogation, together with evidence of the defendant’s blanket denials and his silence, and (2) the failure to declare a mistrial based on evidence of alleged juror intimidation. We affirm the conviction, affirm the order denying the motion for a new trial, and decline to reduce the degree of guilt or order a new trial.

1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues. At 3:49 a.m. on February 12, 2004, a man entered a 7-Eleven convenience store on Western Avenue in Lynn. He approached the store clerk and demanded that he open the cash register. He then stabbed the clerk once in the chest, stole about $403 in cash from the register, and fled. The store clerk died as a result of the stab wound. The incident was recorded by four security video cameras in the store. The perpetrator’s facial features were partially concealed by a hat and towel around his head.

The videotape showed the defendant entering the store twice shortly before the incident, first at 3:12 a.m. and again at 3:17 a.m. His clothing differed from that worn by the perpetrator, but his height, weight, and gait were similar. The perpetrator wore a pair of sneakers that were similar, based on seventeen points of comparison by an expert witness, to sneakers worn by the defendant on January 18, 2004, as seen on a videotape showing him inside that 7-Eleven store on that date. During his first entrance on February 12, the defendant’s coat was open, he wore nothing on his head, and he purchased a fruit drink. When he entered the second time his coat was closed, he wore a hat pulled [270]*270down over his face,1 he made no purchase, and he appeared to be studying his appearance on the security camera monitor. At 3:37:59 and 3:41:09 a.m. on February 12, the defendant made two credit card purchases (gasoline, then cigarettes) at a Hess gasoline station (Hess) that was an eight- to ten-minute drive from the 7-Eleven store.

The defendant was arrested on February 14, 2004, after police obtained the videotape created by the security cameras in the store and recognized the defendant. Police searched his home for the clothing worn by the perpetrator, but found none. However, the defendant owned gloves, as well as sneakers, similar to those worn by the perpetrator.

The defendant waived his Miranda rights and spoke with police. He said he often went to this 7-Eleven store. When asked to describe his whereabouts in the early morning of February 12, the defendant began by saying he was awakened by the crying of his thirteen month old son. He yelled at his son, which resulted in an argument between the defendant and his wife. He said he left and went to the 7-Eleven store, arriving at about 2 a.m., and bought a fruit drink. He then went home. The defendant told the officers he had been inside the store only once that night. After he was confronted with photographs showing him inside the store a second time, he said he had returned to the store to buy diapers, then decided instead to return the next day after he received his paycheck. When asked why, after his first entrance into the store and before his second, he stood in the doorway for two seconds without entering, the defendant was silent, and the interview continued. He denied any involvement in the robbery and the killing. He never mentioned going to Hess after leaving the 7-Eleven store.

Before trial, the defendant was held as a pretrial detainee, sharing a cell with another inmate. That inmate testified that the defendant told him he had robbed the 7-Eleven store and stabbed the clerk. The inmate admitted that he expected consideration in his pending felony case from the district attorney in exchange for his cooperation in the prosecution of the defendant. He conceded that he could have reviewed the defendant’s legal [271]*271papers when they shared a cell, but he said he never in fact did so.

The defendant offered alibi testimony of his wife to the effect that he went out between 2:25 and 2:30 a.m. on February 12, and returned within one hour.

2. Accusations and denials. The defendant argues that the judge erroneously admitted, over objection, two extrajudicial accusatory statements by police during his custodial interrogation, and his unequivocal denials of those accusations.

Shortly after his arrest, the defendant was interviewed at the Lynn police station by Lieutenant Gerald Stevens of the Lynn police department and Lieutenant Norman Zuk of the State police. He was advised of the Miranda rights, he waived his rights, and he agreed to speak to the officers. The interview was not tape-recorded.2 Lieutenant Zuk testified that he advised the defendant that “he was under arrest because he was identified by Lynn police officers as being in the 7-Eleven store on Western Avenue just prior to a victim’s being stabbed there, and that he fit the same height, weight and same gait, and some of the clothing that was observed was consistent.” Defense counsel objected on grounds that this was an accusation, and the judge sustained the objection. There was no motion to strike Zuk’s testimony.

The prosecutor rephrased his question and Lieutenant Zuk essentially repeated what he had said before, without objection. He further testified that he told the defendant that “the whole event was recorded on video and it was also recorded with audio, and you could hear him speaking and you could also hear the clerk scream when he was stabbed.” The defendant responded by saying, “It wasn’t me.”

Later in his direct examination Lieutenant Zuk testified that he and Lieutenant Stevens showed the defendant three still photographs taken from the videotape. Lieutenant Zuk showed the defendant a photograph taken at 3:12 a.m. on February 12, depicting the defendant in the store with no hat and coat unzipped. He said to the defendant, “Here you are coming in, buying your drink. You’re looking around.” Defense counsel objected on [272]*272grounds that the statements were accusations. The objection was overruled. Lieutenant Zuk continued, testifying that he showed the defendant a second photograph, taken at 3:17 a.m., and a third photograph, taken at 3:49 a.m., and said to him, “Here you are coming in, seeing what you might look like with a hat on and your coat zipped up. And you’re checking yourself out in the monitor. You didn’t like what you saw, so you went in and then you went out and got a towel to cover your face. You came back, you robbed the place, and you stabbed the clerk.” The defendant responded, “I saw the news. I saw the papers. I saw the reward. I didn’t do anything. I bought a juice.”

Extrajudicial accusatory statements made in the presence of a defendant, which he has unequivocally denied, are hearsay3 and inadmissible4 as evidence of guilt in the Commonwealth’s casein-chief.5 See Commonwealth v. Cruz, 373 Mass. 676, 691 (1977); Commonwealth v. Locke, 335 Mass. 106, 115 (1956); Commonwealth v. Twombly, 319 Mass. 464, 465 (1946);

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Cite This Page — Counsel Stack

Bluebook (online)
929 N.E.2d 943, 457 Mass. 268, 2010 Mass. LEXIS 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-womack-mass-2010.