Commonwealth v. Hart

493 Mass. 130

222 N.E.3d 455

COMMONWEALTH

v.Joshua HART.

SJC-13217

Supreme Judicial Court of Massachusetts, Franklin.

Argued September 15, 2023

Decided December 8, 2023

Stephen Paul Maidman, Springfield, for the defendant.

Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth.

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

LOWY, J.

The defendant and his girlfriend entered an elderly couple's home through an unlocked door, stabbed and suffocated the two occupants of the house, and stole their valuables. They then fled the Commonwealth in the victims’ car. One of the victims died immediately, and the other died approximately one month later. Following a jury trial, the defendant was convicted of two charges of murder in the first degree.¹

In this appeal, the defendant argues that his convictions should be reversed on three bases: (1) the defendant's confession to law enforcement was involuntary and should have been suppressed; (2) the trial should have been transferred to another venue due to pretrial publicity; and (3) a victim's out-of-court statement should have been excluded from evidence because it was inadmissible hearsay and the victim did not testify at trial. The defendant further contends that, considering his age at the time of the crimes, his sentences of life without the possibility of parole constitute cruel or unusual punishment. Lastly, the defendant asks us to exercise our authority under G. L. c. 278, § 33E, to order a new trial or remand the case for resentencing. We find no reversible error in any issue raised by the defendant and, after plenary review, no cause to exercise our powers under G. L. c. 278, § 33E. We therefore affirm the defendant's convictions.

1. Background. We recite the facts the jury could have reasonably found, reserving certain details for our analysis of the issues.

a. The attack on Thomas Harty and Joanna Fisher. On October 5, 2016, the defendant and his girlfriend, Brittany Smith, decided that they would leave town in light of pending criminal charges and that they would break into a house to steal a car and money to effectuate their escape. At around 7:30 P.M. , they chose a specific house in Orange because the garage contained an older car, which they believed would be less likely to have a tracking system. The defendant and Smith knew that there were two individuals inside the house, and they intended to intimidate the occupants of the house into providing money and the keys to the car.

The defendant and Smith both entered the garage of the house through an unlocked door, collected a socket wrench from the garage, and proceeded into the house. As they walked through the kitchen towards the living room, each also picked up a knife from the kitchen counter.

Thomas Harty, the ninety-five year old homeowner, stood up from an armchair in the living room to confront the two intruders. The defendant entered the living room, where he stabbed Harty in the neck and multiple times in the chest. The defendant then put a pillow over Harty's face until Harty ceased breathing.

Next, the defendant turned to Joanna Fisher, Harty's seventy-seven year old wife, who was nonambulatory and a full-time wheelchair user. Smith had already assaulted Fisher, and Fisher was lying on the ground. The defendant stabbed Fisher numerous times, stood on her stomach in an attempt to take the air out of her body, and put a pillow over her face to suffocate her.

The defendant and Smith proceeded to steal credit and debit cards, approximately $200, a cell phone, and a car. They then disabled the house telephones and fled.

b. Fisher's statements. At approximately 9:10 A.M. the following day, October 6, 2016, Cindy Sumner-Moryl arrived at the house. Sumner-Moryl was Fisher's nurse and had a scheduled appointment to assist Fisher with physical therapy exercises and other personal care needs. She and another care worker found the house in disarray, Harty motionless in the armchair in the living room, and Fisher on the floor in her bedroom. Fisher had a blanket over her legs, she was lying in a pool of blood, and there was blood on the side of her face. Sumner-Moryl testified as follows at trial:

"I heard her moaning, so I went over to her right away. And she said, [‘]Cindy, is that you?[’] And I said [‘]yes[’] and she said [‘]invasion, ambulance.[’] And I reassured her that we had help coming and that she was safe.... I directed [the other care worker] to call 911.... And I stayed with Ms. Fisher to comfort her.... She wanted to know if she had a black eye and I said yes, she did. And she told me that they tried to kill her, that they kept putting a pillow over her face and tried to smother her[;] she said, [‘]But, I'm tough.[’] Then she told me that she dragged herself out onto the porch and tried to call for help, but no one heard her."

Fisher was brought to the hospital for medical attention for stab wounds, loss of blood, rib fractures, and other abrasions and lacerations. Harty was declared deceased; Fisher died weeks later from complications arising from the attack.

c. The police investigation. Shortly after Sumner-Moryl found Fisher, police arrived at Harty and Fisher's home. There was evidence of an attack throughout the house. Harty lay lifeless in the armchair in the living room, and there were bloodstains across the living room -- on the floor, on multiple pillows, and on the chair in which Harty was found dead -- as well as in the rest of the house. The police found a socket wrench and a disabled cordless telephone on the dining room table, and a disabled cordless telephone in the living room.

Within hours of the attack, the police were notified that someone attempted to use Harty's credit card at a store in Worcester. The police then obtained photographs showing the defendant and Smith attempting to use Harty's credit card and successfully using Fisher's debit card there. A photograph and a video recording also showed the defendant and Smith in the store's parking lot with Harty and Fisher's car. The police were first able to identify the defendant and Smith based on these photographs.

The police proceeded to speak with witnesses who stated that they saw the defendant and Smith together immediately before the attack. Surveillance footage from a small market further placed the couple together near the victims’ house around the time of the attack, and the local police's bloodhound tracked Smith from the market to the victims’ home based on the scent of a shirt Smith had been wearing shortly before the attack.

Forensic and physical evidence also tied the defendant and Smith to the crime scene. Rosary beads, matching a description from a rosary worn by the defendant on the night of the attack, were discovered on the living room floor and in the chair in which Harty was found. The defendant's fingerprint was found on a window shade behind Harty's body, and Smith's fingerprints were found on various windows around the house. A footwear impression consistent with the heel print of a Nike Air Jordan, the type of sneaker the defendant wore on the night of the attack, was found on the floor of the living room.

Massachusetts law enforcement tracked the defendant and Smith over the following days as the two assailants fled down the east coast. On October 8, 2016, Rockbridge County, Virginia, deputy sheriffs (Virginia officers) arrested the defendant and Smith. The victims’ car was found in a nearby U-Haul parking lot. The police later learned that the defendant and Smith had rented a U-Haul motor vehicle after the car had broken down. The defendant's and Smith's fingerprints were found in the car, along with Smith's pocketbook, a wallet with the defendant's MassHealth card, receipts showing purchases with Fisher's debit card, and an identification card for Harty.

d. The defendant's interrogations with law enforcement. Once in custody, the defendant immediately indicated that he wanted to speak with the Virginia officers. The Virginia officers, after consultation with Massachusetts law enforcement officers, agreed to meet with the defendant and brought him from his cell to an interview room. During an approximately one-hour long audio-recorded conversation, the defendant confessed to the attack on Harty and Fisher. The defendant also provided a sketch of the victims’ house and a written confession.

The next day, two Massachusetts State police troopers (Massachusetts officers) met with the defendant in the Rockbridge County, Virginia, sheriff's office. This conversation was also audio recorded and lasted approximately two hours and ten minutes. The defendant again made numerous admissions detailing the crimes that he and Smith committed.

e. The defendant's convictions and sentencing. On April 13, 2018, following a jury trial, the defendant was convicted of murder in the first degree for Harty's death based on the theory of felony-murder; murder in the first degree for Fisher's death based on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder; and other charges.² The defendant was sentenced to life without the possibility of parole for each conviction of murder in the first degree, to be served consecutively.

The defendant's codefendant, Brittany Smith, was subsequently and separately tried for and convicted of two charges of murder in the first degree for killing Harty and Fisher, among other charges. See Commonwealth v. Smith, 492 Mass. 604, 604-605, 213 N.E.3d 1133 (2023).

2. Discussion. a. Voluntariness of confession. The defendant argues that his rights under art. 12 of the Massachusetts Declaration of Rights and the Fifth Amendment to the United States Constitution were violated because the trial judge improperly denied the defendant's motion to suppress his allegedly involuntary confession to the Virginia officers.³ When reviewing a trial judge's denial of a motion to suppress, we "conduct an independent review of [the trial judge's] ultimate...