Com. v. Wilson

Page 158

693 N.E.2d 158

427 Mass. 336

COMMONWEALTH v. Albert WILSON.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 6, 1998.

Decided April 22, 1998.

Robert S. Sinsheimer, Boston (Debra Burns Theodorou, Tewksbury, with him), for defendant.

Paul B. Linn, Assistant District Attorney (James W. Coffey, Assistant District Attorney, with him), for the Commonwealth.

Before WILKINS, C.J., and LYNCH, GREANEY, FRIED and IRELAND, JJ.

IRELAND, Justice.

The defendant was convicted on three indictments charging murder in the first degree, with each conviction based on the theories of deliberate premeditation and extreme atrocity or cruelty. The defendant was also convicted on three indictments charging assault by means of a dangerous weapon and one indictment charging unlawful possession of dangerous weapons, namely knives. These latter charges were contained in separate indictments returned by a different grand jury. The defendant claims that the judge erred in (1) denying his motion to suppress evidence obtained pursuant to various search warrants; (2) denying his motion to sever the charges in the separate indictments against him; (3) admitting various hearsay statements in evidence; (4) instructing the jury on reasonable doubt; and (5) denying his request to poll the jurors. The defendant also claims that the prosecutor committed reversible error in his closing statement. Finally, the defendant requests that we exercise our plenary power under G.L. c. 278, § 33E, to order a new trial. For the reasons set forth below, we affirm the convictions and decline to exercise our power under G.L. c. 278, § 33E.

We recount the Commonwealth's evidence in some detail. The murder victims, Jack Bushey, Steven Zaborski, and Denise McLaughlin, were stabbed and shot to death on June 13, 1993, in an apartment on Washington Street in the West Roxbury section of Boston. Bushey and Zaborski had been living in the apartment with a third individual, James Linehan. McLaughlin had been Zaborski's girl friend and often stayed at the apartment.

Two days prior to the murders, the defendant visited the victims' apartment. While alone in one of the bedrooms with Zaborski, the defendant threatened to kill Zaborski, Bushey, Linehan, and another individual because the defendant thought that one or more of them had raped his wife. Zaborski denied the rape allegations. Linehan heard the threats and Zaborski's denial from a nearby room. At some time later that evening, Zaborski told Linehan that the defendant also had placed a .25 caliber handgun to Zaborski's head while making the threats.

At about 11:20 P.M. on June 12, an individual named William Curtis was driving home from work and stopped for a traffic light at a well-lit intersection on Washington Street, near the victims' apartment building. He saw the defendant pacing back and forth near the corner, about twenty feet away. Curtis then saw an elderly woman walking toward the defendant. Curtis's mother had been mugged a few years earlier and Curtis was concerned for the safety of the elderly woman. Curtis remained at the corner for about two and one-half minutes, until the woman had passed safely. ¹

At 5:27 A.M. on June 13, two Boston police officers responded to a radio report of a man passed out on the sidewalk in front of the victims' building. The officers had driven past the building about twenty minutes earlier and had not seen anything then. On arriving, the officers found Bushey's body lying on the sidewalk in a pool of blood. The autopsy report determined that Bushey had a shotgun wound from close range to his neck and jaw area and eight stab wounds to his chest, back, and legs, including a wound to his chest seven inches deep.

The officers followed a trail of blood back to the victims' apartment. On entering, they found Zaborski's body in a bedroom, face down in a pool of blood. His hands, feet, and head were bound with duct tape. The autopsy report determined that he had five stab wounds to his chest, sides, and arms, including a wound almost seven inches deep to his chest. He also had several abrasions on his face, neck, and sides that were consistent with having been caused by the tip of a knife.

The officers then found McLaughlin's body at the bottom of a flight of stairs, slumped against the back door of the building. The autopsy report determined that she had shotgun wounds from close range to her chest and abdomen, a gunshot wound to her right shoulder and right hand, and a stab wound to her arm. She also had several lacerations on her breasts. Shortly thereafter, the police located Linehan, who had spent the night at a friend's home. After interviewing Linehan, the police immediately focused their investigation on the defendant.

Pursuant to a warrant, the police searched the victims' apartment. They found three spent .25 caliber casings and a spent .25 caliber bullet. A spent .25 caliber bullet was later recovered from McLaughlin's body. A police expert testified that the three casings and the two bullets had all been fired from the same gun. The police also found a piece of duct tape, with the fingertips from a pair of rubber surgical gloves stuck to it, in a wastebasket in the apartment. The police later found three more rubber surgical gloves in an old desk in an alley behind the apartment. The police also found evidence of type B blood in the apartment. All the victims had type O blood. The defendant has type B blood. ²

The defendant spent the night of June 13 at his mother's house in West Roxbury. The next day at about 10:10 A.M., he called for a taxicab and instructed the driver to go toward a restaurant on Washington Street in Dedham. The defendant was carrying what appeared to be a gym bag and a duffel bag, both of which appeared to be full. Just after crossing into Dedham, the defendant told the driver to stop, at no apparent specific address. The defendant got out of the taxicab with his bags and shortly thereafter began walking toward Draper Field, a large wooded area that was a short distance away.

Several witnesses saw the defendant early that afternoon in the Haymarket area of Boston, near the location of a methadone clinic that he regularly visited. He returned to his mother's house at some point in time. At about 8 P.M., the police arrived at his mother's house with a warrant for his arrest on charges of armed assault in a dwelling (stemming from the threats to Zaborski on June 11). The police found the defendant hiding in a coal bin in the cellar. He was armed with a rifle, ammunition, and several knives. There was a brief standoff, during which the police negotiated with the defendant in an attempt to get him to come out of the cellar. At sometime, the defendant pointed his rifle at three police officers who were located outside the door of the coal bin. During the course of the standoff, the defendant made several statements to the effect, "What would you have done if your wife was raped?" The defendant also made statements that the whole thing had gotten out of control and that Linehan had set him up. The defendant ultimately surrendered peacefully. As the police escorted him out of the cellar, the defendant had no apparent trouble walking and showed no signs of intoxication. At the police station, a detective noticed that the defendant had a large cut on his thumb.

Over the next several days, the police obtained four search warrants, covering the defendant's vehicle, his locker and work area at his place of employment, his house, and his mother's house. The police recovered three rubber surgical gloves from the defendant's house and one from his locker at work. A prosecution expert testified that the gloves found behind the apartment and two of the gloves found at the defendant's house were similar in size and composition and could have come from the same source. The expert concluded that the other two gloves were from a different source.

The police recovered a spent .25 caliber casing at the defendant's house. A police expert testified that the casing matched those found in the victims' apartment and had been fired from the same gun. The police also found a carrying case for a shotgun or a rifle in the garage at the defendant's mother's house, and two knives in a closet inside the house. The knives were consistent with the victims' wounds and abrasions, and one knife had blood on both sides of the blade. The police were not able to locate the guns used in the murders.

On June 23, 1993, a Suffolk County grand jury returned three indictments charging the defendant with assault by means of a dangerous weapon and one indictment charging him with the unlawful possession of knives. These indictments stemmed from his arrest at his mother's house. One month later, another grand jury returned three indictments charging the defendant with murder in the first degree, one indictment charging him with the illegal possession of a firearm, and one indictment charging him with stalking. ³

The defendant filed pretrial motions to suppress evidence seized pursuant to the various search warrants and to sever the two sets of indictments. These motions were all denied. The defendant also filed a motion in limine to exclude as hearsay various statements made by his wife and by Zaborski. The judge excluded one statement that the defendant's wife made to police after the murders, but denied the rest of the motion.

At trial, the defendant testified on his own behalf. The essence of his testimony was that he denied having threatened or killed the victims, that he was asleep at his place of employment while off duty at the time of the murders, and that the cut on his hand was work related. ⁴ According to the defendant's testimony, he called the taxicab on the morning of June 14 because his vehicle would not start, and he was carrying one duffel bag of clothing when the taxicab arrived because he had intended to go to the Foxwoods Casino in...