Commonwealth v. O'Brien

236 N.E.3d 115

COMMONWEALTH

v.Mark O’BRIEN.

SJC-13078

Supreme Judicial Court of Massachusetts, Plymouth.

March 8, 2024

July 3, 2024

Homicide. Firearms. Burglary. Robbery. Larceny. Evidence, Joint venturer, Expert opinion, Argument by prosecutor, Inference, Informer. Practice, Criminal, Argument by prosecutor, Capital case. Witness, Expert, Police informer. License.

Indictments found and returned in the Superior Court Department on November 24, 2015.

The cases were tried before Jeffrey A. Locke, J.; and a motion for a new trial, filed on August 27, 2021, was heard by Mark A. Hallal, J.

Katherine C. Essington for the defendant.

Christine M. Kiggen, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Wendlandt, & Georges, JJ.

WENDLANDT, J.

The defendant, Mark O’Brien, was convicted of murder in the first degree for the killing of the victim, Robert McKenna, in connection with a scheme during which the defendant and his two coventurers entered the victim’s home to steal marijuana, a firearm collection, and other valuables.¹ The robbery devolved into a bloody melee when the three perpetrators found the victim, apparently to their surprise, to be awake; in the ensuing struggle, they struck the victim repeatedly in the head with a metal frying pan with sufficient ferocity to deform the pan. This blunt force trauma to the head, together with an arterial injury that the victim suffered when he crashed through a large picture window, caused the victim to die of exsanguination. In contrast to his coventurers, no deoxyribonucleic acid (DNA) or other forensic evidence placed the defendant at the scene. Thus, at trial, the defendant’s principal defense was that he was not the third coventurer.

In this consolidated appeal, the defendant claims that the motion judge abused his discretion in denying his motion for a new trial because he received ineffective assistance of counsel; he asserts that trial counsel’s decision to withdraw a request for an involuntary manslaughter jury instruction was manifestly unreasonable. He also contends that the trial judge improperly admitted shoe print expert testimony and that the prosecutor committed reversible misconduct by failing to correct a cooperating witness’s incomplete testimony regarding the financial benefits provided to the witness in exchange for the witness’s testimony. The defendant further challenges the prosecutor’s closing argument; he asserts the prosecutor asked the jury to make unsupported inferences regarding the sequence of the victim’s injuries. Finally, the defendant asks that we exercise our extraordinary authority under G. L. c. 278, § 33E, to reduce his conviction to murder in the second degree or manslaughter.

After carefully reviewing the defendant’s claims on appeal and having conducted an independent review of the entire record, we discern no error and no reason to exercise our extraordinary authority under G. L. c. 278, § 33E, to order a new trial or to reduce the verdict of murder in the first degree to a lesser degree of guilt. Accordingly, we affirm the defendant’s convictions of murder in the first degree, aggravated burglary, unarmed robbery, and larceny of a firearm, and the order denying his motion for a new trial.²

1. Background. a. Commonwealth’s case. The following facts are supported by the evidence presented at trial.

The forty-five year old victim was a retired stockbroker. He lived alone with his two dogs in a spacious, ranch-style home in Marshfield, where he frequently hosted friends, neighbors, and acquaintances. In his retirement, he had accumulated a large collection of African antiques, taxidermies, firearms, and other valuables. He also maintained a substantial marijuana "grow" operation in his basement, consisting of thirty to fifty plants. In addition to smoking cannabis oil, the victim also took apparently unprescribed pain and stimulant medications.

Among the many people the victim hosted at his home was Thomas Gunning, who was introduced to the victim in the summer of 2014. From then until May 2015, Gunning visited the victim approximately a dozen times. Impressed by the victim’s collection of marijuana plants and firearms, which included an AK-47 rifle, among other semiautomatic rifles, Gunning sent photographs of the marijuana plants and firearms to various friends.

At the time, Gunning suffered from a substance use disorder. He purchased drugs from one of the defendant’s coventurers, Michael Moscaritolo, to whom Gunning sent photographs of the victim’s marijuana plants. Moscaritolo, who was a lawyer, expressed a keen interest in the victim’s marijuana production, home, and habits, often peppering Gunning with questions about the victim. In particular, Moscaritolo sought, and Gunning supplied, a diagram of the floor plan of the victim’s home. Moscaritolo also wanted to know whether the victim ever left the home, when the marijuana would be harvested, and whether the victim owned weapons. "[I]n case I go in there and get the pot, I want to know if I’m going to get shot," Moscaritolo explained to Gunning.³

Based on the information he received, Moscaritolo devised a scheme to rob the victim. He enlisted the help of his friend and the second of the defendant’s coventurers, James Ferguson. On a telephone call on September 12, 2015, four days before the victim’s killing, Ferguson and Moscaritolo discussed a plan to rob a "heroin addict … [who] had a lot of money." Ferguson told his girlfriend, who had overheard the conversation between Ferguson and Moscaritolo, that they needed a driver to assist with the plan.

Three days later, at approximately 2:30 pm. on the afternoon of September 15, 2015, the defendant drove Ferguson to a home improvement store and an electronics store in the defendant’s gray Isuzu Rodeo sport utility vehicle (SUV).⁴ Later that day, at around 8 or 9 p.m, Ferguson’s roommate observed the defendant arrive in his car at Ferguson’s home with another person in the vehicle. At around 9 p m, as the roommate left the house, the roommate observed that the defendant was still outside.

The victim was killed in the early morning hours of September 16, 2015. At 1 a m that morning, one of the victim’s neighbors was awoken by his dog; and between 3 and 3:30 a.m he was again awoken, this time by the sounds of dogs barking from inside the victim’s home. The neighbor heard a male voice, and as he looked out the window toward the victim’s home, he saw a man leaving the victim’s driveway. The man was holding a flashlight and what appeared to be a rolled-up bag. The man entered a black or dark-colored car.

Another of the victim’s neighbors, whose bedroom was twenty to thirty feet from the victim’s garage, also was awoken at 1 a m She heard the sound of glass breaking. She fell back asleep. At 3 a m, she again was roused, this time by the sound of a loud crash, followed by approximately five loud banging sounds. She heard the voices of three or four men arguing and dogs barking, and then saw a black or dark-colored car leaving the victim’s driveway. The neighbor and her roommate went over to the victim’s house to investigate but found nothing amiss from the outside.

On the afternoon of September 16, at around 3:30 or 4 p m, a close friend of the victim arrived at the victim’s home. Using a spare key to enter, he found the victim’s two dogs in the garage with blood on them. Entering the main portion of the house, he discovered the victim’s body lying on the kitchen floor. He called 911, and police and paramedics arrived shortly thereafter.

The victim’s body lay face up in a pool of blood, dressed only in underwear. A cellular telephone was found under the victim’s bare foot. The victim had multiple lacerations caused by blunt force trauma to the back of his head, as well as lacerations, bruising, and blunt force injuries to the front of his head and his torso and upper and lower extremities. The victim also had a deep laceration under his arm. The medical examiner determined that the cause of death was blood loss caused by a combination of the laceration under his arm and the head injuries. He opined that the arm laceration alone would have proven fatal within several minutes; the head lacerations potentially could have caused fatal blood loss if the bleeding was not stopped promptly. A faint partial shoe print was found on the victim’s chest.

Blood was found throughout the house, covering walls, floors, and furniture in the kitchen, hallway, master bedroom, and spare bedroom. The house showed other signs of struggle. In the kitchen, pans were knocked over; in the master bedroom, dresser drawers were on the floor and a stool was knocked over. Two loaded revolvers were found, along with shotgun shells, and two "long guns" on the floor of the master bedroom. Three sets of shoe prints and one set of bare footprints were found in blood throughout the house. On the dining room floor, officers found a purple latex glove turned inside out.

In the spare bedroom, police found a shattered picture window and copious amounts of blood. In the master bedroom, which was also covered in blood, officers recovered a metal frying pan splattered with blood. One edge of the pan was caved in. Investigators determined that the lacerations to the victim’s head likely were caused by being struck with the frying pan. The deep laceration under the victim’s arm likely was sustained from broken glass shards from crashing through the large picture window.⁵

Police recovered several items of clothing scattered alongside roads within several miles of the house, including a black and gold work glove, a pair of Nike Air Max sneakers, one of which was bloodstained, a pair of camouflage shorts, a camouflage jacket, and a bloodstained blue shirt labeled with the name of a charity golf event that Moscaritolo had attended.

Moscaritolo’s DNA was recovered from the purple latex glove found inside the house. DNA analysis showed that Moscaritolo and...