Com. v. Oliveira

840 N.E.2d 954

445 Mass. 837

COMMONWEALTH v. Robert J. OLIVEIRA.

Supreme Judicial Court of Massachusetts.

Bristol.

Argued October 7, 2005.

Decided January 23, 2006.

Eric S. Brandt, Committee for Public Counsel Services, for the defendant.

David B. Mark, Assistant District Attorney (Alison R. Bancroft, Assistant District Attorney, with him) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, & CORDY, JJ.

CORDY, J.

Following a jury trial, Robert J. Oliveira was convicted of murder in the first degree of Nancy Shonheinz, a woman with whom he had a sporadic relationship. On appeal, the defendant claims that the judge's jury instructions regarding murder by means of extreme atrocity or cruelty contained two significant errors creating a substantial likelihood of a miscarriage of justice. We find no such likelihood and affirm the conviction. We also decline to exercise our power under G.L. c. 278, § 33E, to reduce the verdict or order a new trial.

1. Background. We summarize the evidence in its light most favorable to the Commonwealth. The victim was a thirty-six year old physical therapist employed by St. Luke's Hospital. She and the defendant had known each other since high school and had an "on and off" relationship for many years. The defendant worked on Cape Cod during the week and often spent the weekends at the victim's house in Fairhaven, where he kept some of his possessions, including exercise equipment. The relationship between the defendant and the victim, however, had been deteriorating and the victim was seeing other men. In early November, 2000, the victim confided in her coworkers that she was "finished" with the defendant and had begun dating someone who she felt was the "right man." On her birthday, November 9, the victim and this man had dinner together. On that same night, the defendant called the victim's sister and asked her to speak to the victim for him. He told her that their relationship was not going well, that he did not want to lose the victim, and that he could not live without her.

At approximately 6 P.M. on Saturday, November 11, the victim arrived at her parents' home, where she spent the next hour. At some point she telephoned her own home to see if the defendant was still there. He answered the telephone, and they argued. The victim's mother overheard her accusing the defendant of going through her pocketbook. The defendant's voice was very loud and the victim held the telephone away from her ear, repeatedly calling him a "wacko." When she finished the telephone call, the victim told her mother that she did not want anything more to do with the defendant and wished him "out of her life forever." The victim left for home at approximately 7 P.M., and her father telephoned and spoke to her there at 9:30 P.M. Sometime after 2 A.M., the victim was beaten with a blunt object, stabbed more than forty times in the chest and back, and died on the floor of one of the bedrooms in her home.

Just before 8 A.M. the following morning, the victim's neighbor, while walking his dog in the nearby woods, saw the silhouette of a person he recognized to be the defendant at the kitchen sink in the victim's house. At about 8:10 A.M., one of the victim's friends placed a telephone call to her. The defendant answered the telephone and told her that the victim was busy. When the friend insisted on speaking to the victim, the defendant told the friend that she was doing laundry and would call her later.

At 8:58 A.M., that same morning, the defendant telephoned his brother, "Teddy" Oliveira, from the victim's home. He told Teddy that something had happened to the victim and that she was "[l]ying in a puddle of blood." He asked Teddy to contact their father because "I think I'm in trouble over here." When Teddy asked what happened to the victim, the defendant repeatedly said, "I don't know." He then screamed, "I think I'm trying to hang myself for the second time." There was a bang, some gurgling, choking sounds, and more screaming. Teddy urged the defendant to pick up the telephone, to talk to him, and to contact the police. At 9:16 A.M., the defendant dialed 911 and told the Fairhaven police department dispatcher, "There's a death here," and "My girlfriend's dead." He also stated, "[T]his is fucking crazy. Somebody get over here," and when asked what had happened, said, "I don't know. I was drinking, we were drinking. This went on since like four o'clock in the morning."¹

Officers Peter Joseph and Christopher Kershaw were the first to arrive at the victim's home. The defendant appeared nervous and frantic, and pointed them to a door at the end of the hallway on the first floor. When the officers opened the door, they found the victim's body on the floor covered with a blanket. There was some blood on a nearby bed and a pool of blood around the victim's head. She had no pulse and her skin was very cold. When the blanket was removed, a number of stab wounds on her chest were apparent. Officer Kershaw escorted the defendant out of the room and down the hall into the living room. The defendant kept asking whether the victim was "okay," even though he had repeatedly told the dispatcher that the victim was dead. The officer noticed that the defendant had abrasions all around his neck, as well as dried blood on his chin.

The police obtained and executed a search warrant for the house. The house had a working burglar alarm, and there were no signs of forced entry. There was a groove in the stairway banister with a fiber affixed to it matching a bloodstained rope, found in the basement, which the defendant had apparently used in attempting to hang himself.² There was evidence of an effort to clean up and dispose of some of the victim's blood in the kitchen sink. In an upstairs bathroom, bloodstains were found in the sinks and on the faucet of one sink. The first-floor bathroom tested positive for blood in the sink, on the faucets, and on the shower floor. Subsequently, at the police station, the defendant tested positive for blood on his left and right hands, his neck area, the inner elbow area of his right arm, his right and left upper arms, his right calf area, and his lower back. His underwear, jeans, T-shirt, and socks also tested positively for blood.

In the kitchen, the police found six empty twelve-ounce "hard lemonade" bottles, two empty beer bottles, a one-gallon Peach Tree Schnapps bottle that was three-quarters full, and one empty Rumplemintz "shot" bottle. Another hard lemonade bottle was found half full on the kitchen table. Testing conducted during the autopsy revealed that the victim did not have any alcohol in her system at the time of her death.

At several points at the house and later at the police station, the defendant gave varying accounts of how much he had had to drink that night, ranging from "two beers" to whatever was found "downstairs" (in the kitchen). Officers who spoke to the defendant testified that they had no trouble understanding him and that he did not appear to be intoxicated, although he did smell of alcohol.³

When the defendant was asked about the dark purplish ring around his neck, he responded, "Never mind me. What the fuck happened to Nancy?" When asked if he had tried to take his own life, he stated that he did not know. When asked why his jaw was twitching, he answered, "Well, wouldn't you be nervous? This is fucked up." He eventually told the officers that he and the victim were supposed to go to the movies the night before but they had had an argument so they went back into the house and he had a couple of beers. When asked what the argument was about, the defendant replied, "You don't know the half of it." When asked whether they fought over a boy friend, the defendant answered that he was not sure whether she was dating anyone at the time. He later admitted that the victim told him that he could be replaced and that he knew she was seeing other men.

The defendant also told the police that he and the victim were the only two people in the house, that the victim slept upstairs with him, and that he remembered waking up because the victim was no longer in bed. He looked for the victim and found her lying injured in the downstairs bedroom and telephoned 911. He denied knowing what happened to the victim and claimed that it was a "blank," or "blurry." He did not mention speaking by telephone to either his brother or the victim's friend.

The medical examiner testified that the victim suffered forty-four stab wounds, all inflicted while she was alive. He also testified that there were two lacerations to the back of her head, a "semi-sharp blunt object" having caused the larger one, resulting in a triangular piece of the victim's skull being pushed about one inch into her brain. The victim also had scattered abrasions on her chest and face as well as defensive lacerations on her hands. Multiple sharp and blunt force injuries were the cause of death.

At trial, the Commonwealth proceeded on two theories of murder in the first degree: deliberate premeditation and extreme atrocity or cruelty. Defense counsel did not concede that the defendant was the person who killed the victim. However, he developed evidence of the defendant's intoxication throughout the trial. In closing, defense counsel argued that if the jury should find that the defendant stabbed the victim, intoxication would be a mitigating factor bearing on premeditation, intent, knowledge, and whether the killing was committed with extreme atrocity or cruelty, and that they should find him guilty only of murder in the second degree. The jury found the defendant guilty of murder in the first degree on the theory of extreme atrocity or cruelty.

2. Discussion. The only issues the defendant raises on appeal concern the judge's jury instructions on malice and intoxication. The defendant did not object to the instructions at trial. We therefore review the challenged instructions, pursuant to...