Com. v. James

Page 1170

678 N.E.2d 1170

424 Mass. 770

COMMONWEALTH v. William Cory JAMES (and five companion cases ¹).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 9, 1997.

Decided April 23, 1997.

Alan Jay Black, Springfield, for William Cory James.

Bernard Grossberg, Boston, for Carlos Garcia.

Paul B. Linn, Assistant District Attorney, & Kelly Ann Downes, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

MARSHALL, Justice.

On March 12, 1992, at the conclusion of a joint trial, a jury found the defendant William Cory James guilty of murder in the first degree on the theories of extreme atrocity or cruelty and felony-murder, of aggravated rape, and of armed robbery. ² The jury found the defendant Carlos Garcia guilty of murder in the first degree on the theory of felony-murder, aggravated rape, and armed robbery. ³

On direct appeal James alleges error in (1) the denial of a motion for a change of venue and a motion for a continuance; (2) the denial of a motion to suppress evidence seized from his residence and the failure of the trial judge to give a limiting instruction concerning the purpose for which that evidence could be considered; (3) the omission of a cautionary instruction regarding the testimony of one witness; (4) the denial of a motion for required findings of not guilty, and (5) the judge's instructions on reasonable doubt, voluntary intoxication, and extreme atrocity or cruelty. ⁴ Garcia argues that an extrajudicial statement of James was admitted in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We affirm the convictions. We decline to order a new trial or to exercise our extraordinary power under G.L. c. 278, § 33E.

1. Facts. We summarize the pertinent facts as they could have been found by the jury. On October 31, 1990, Halloween evening, the two defendants and six other young men ⁵ gathered at James's residence, drinking from a case of forty-ounce bottles of "Private Stock" beer that James had acquired. After approximately one-half hour of drinking, the group left the house with the intent of robbing "prostitutes." As they walked together across Franklin Field they decided to form two groups. Emerging from Franklin Field, they saw two women, the victim, Kimberly Rae Harbour, and another woman, Linda, ⁶ who were conversing on a sidewalk across from Franklin Field. The two women, seeing the group approaching them, became apprehensive and tried to run away. The young men gave chase. They quickly caught the two women, who were by then on different sides of the street.

After catching Linda, one of the men struck her forcefully across the back of her head with a tree limb. Three of them then intrusively searched her for money but, finding nothing of value, released her. They then crossed the street to join the others who had caught Harbour. Linda testified that she heard Harbour calling for help, witnessed several of the young men kick her as she fell to the ground and then continue to chase her as she attempted to run away again. ⁷

The two defendants were part of the group who initially chased Harbour as she attempted to flee. At trial, another participant, a juvenile, described the events that followed and the roles played by the two defendants. The group caught the victim and, as she shouted for help and struggled, carried her to a remote location in Franklin Field. There, the victim tried to fight and pleaded for the group to let her go. They ignored her entreaties, stripped off her clothes and six of the eight attackers then took turns raping her. The eyewitness testified that James was the first to rape Harbour. Garcia did not rape her. While she was being raped, others repeatedly kicked her, and Garcia struck her in the face with a beer bottle which shattered on impact. James was the first to attack her with his knife. He and at least one other slashed Harbour with a knife, stabbing her arms, stomach, back, and legs. The stabbing wounds inflicted were consistent with cuts inflicted by two different kinds of knives and with cuts from the neck of a broken bottle. One or more of the group also beat her with the tree limb which had been used to assault Linda. The eyewitness also said that Garcia struck her a second time in the face with another beer bottle.

The attacks on Harbour lasted for about one-half hour; she begged for mercy throughout. The group then gathered the victim's clothes which they took away with them. As they were moving away, they discussed whether Harbour was still alive. James turned back to Harbour and with a running jump landed on her, causing her to scream. He then returned to the group and they all left Franklin Field. They threw Harbour's clothes into a dumpster and agreed with each other that they would not say anything about the attack on Harbour. ⁸ The nude, lifeless body of the victim was discovered the next morning.

At the scene of the crime, police found the broken glass fragments of a forty-ounce "Private Stock" beer bottle under and around the victim's head. Near her body they also found the broken parts of a large tree branch, pieces of a condom, and articles of the victim's clothing. A footwear pattern was discovered on one of the pieces of discovered clothing.

The medical examiner determined that Harbour had died from 132 knife wounds covering her entire body, at least eighteen blunt force injuries, and extensive blood loss. The pattern of blood loss suggested that Harbour had sustained the wounds while she was struggling, and that she had died slowly from loss of blood. He further determined that there were variations in the knife wounds that were consistent with wounds caused by both single-edged knives, such as the knife later found in James's residence, and double-edged knives, such as the knife found later in Garcia's residence.

During the subsequent investigation, one of the attackers gave a statement to the police identifying the assailants, including both defendants. ⁹ On November 18, 1990, the police obtained warrants to search the defendants' homes for "007" or similar knives, dark clothing, face masks, and sneakers. ¹⁰ At James's residence, the police recovered an "007" knife and five pairs of sneakers. The police seized a knife and two pairs of sneakers from Garcia's residence.

On November 19, 1990, James waived his Miranda rights and made a statement to the police that was recorded. He told the police that on the night of the killing he had been at home drinking beer with friends. He identified Garcia as one of those present. He said that at approximately 8 P.M. he and the others left his house; they walked with Garcia to his nearby residence, left him there and then all went their separate ways. James said that Garcia mentioned in passing that he might go to his girl friend's house, but James did not know whether he had done so. James told the police that he himself had gone to his girl friend's house, where he stayed for the remainder of that night. He recalled that the next day, at approximately 1 P.M. or 2 P.M., he had received a telephone call from "one of [his] boys," whom he thought was Garcia. James denied participating in the rape and murder of Harbour.

This young woman testified at trial. She contradicted the statement James had given to the police and denied that he had been with her on the night of Halloween, 1990. James did not testify. Garcia presented an alibi defense. His brother and his brother's girl friend each testified that from 8:30 to 10:30 P.M. on the night of the attack on Harbour, they had visited Garcia's home where he lived with his mother. They said that Garcia was at home during that entire time, studying for a Spanish test. ¹¹

2. Change of venue or continuance. There was extensive media coverage of the crimes. In addition, two days before the start of the trial, there was a march and candlelight vigil to oppose crimes of violence within the Black community, during the course of which the victim and the circumstances of her death were remembered. ¹² Those events also were widely covered by the media. In light of this, the defendants sought a change of venue or, in the alternative, a continuance of the trial. The judge denied both motions, rulings that the defendants allege deprived them of their right to a fair and impartial jury. A trial judge has substantial discretion in deciding whether to grant a motion for change of venue or continuance based on pretrial publicity. See Commonwealth v. Colon-Cruz, 408 Mass. 533, 551, 562 N.E.2d 797 (1990); Commonwealth v. Bianco, 388 Mass. 358, 367, 446 N.E.2d 1041, S.C., 390 Mass. 254, 454 N.E.2d 901 (1983). We conclude that the judge did not abuse his discretion in denying the motions.

We have said that a trial judge should exercise the discretion to change venue or to continue a trial "with great caution and only after a solid foundation of fact has been first established." Commonwealth v. Colon-Cruz, supra at 551, 562 N.E.2d 797, quoting Commonwealth v. Smith, 357 Mass. 168, 173, 258 N.E.2d 13 (1970). There is no dispute here concerning the extent of the pretrial publicity. But the existence of pretrial publicity alone, even if extensive, does not constitute such a foundation. See Commonwealth v. Colon-Cruz, supra, and cases cited; Delle Chiaie v. Commonwealth, 367 Mass. 527, 532, 327 N.E.2d 696 (1975), citing Sheppard v. Maxwell, 384 U.S. 333, 354-355, 86 S.Ct. 1507, 1517-1518, 16 L.Ed.2d 600 (1966). Rather, a defendant must show that in the totality of the circumstances, "such publicity deprived him of his right to a fair trial." Delle Chiaie v. Commonwealth, supra. See Commonwealth v. Angiulo, 415 Mass. 502, 515, 615 N.E.2d 155 (1993).

The defendants failed to make that showing. On appeal, as they did below, the defendants emphasize in particular the march and candlelight vigil and the media coverage of those events two days...