Commonwealth v. Honsch

226 N.E.3d 287

493 Mass. 436

493 Mass. 436

COMMONWEALTH

v.Robert L. HONSCH.

SJC-12420

Supreme Judicial Court of Massachusetts, Hampden.

Argued October 6, 2023

Decided January 30, 2024

Homicide. Evidence, Consciousness of guilt, Identity, Prior misconduct, Subsequent misconduct, Relevancy and materiality, Inflammatory evidence, Photograph, Fingerprints, Expert opinion, Qualification of expert witness, Third-party culprit, Voluntariness of statement, Hearsay. Constitutional Law, Confrontation of witnesses. Witness, Expert. Jury and Jurors. Practice, Criminal, Capital case, Confrontation of witnesses, Assistance of counsel, Voluntariness of statement, Transcript of evidence, Hearsay, Redaction, Argument by prosecutor, Instructions to jury, Jury and jurors, Conduct of juror.

Indictment found and returned in the Superior Court Department on September 11, 2014.

The case was tried before Constance M. Sweeney, J.

Neil L. Fishman for the defendant.

Travis H. Lynch, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Wendlandt, JJ.¹

LOWY, J.

₄₃₇In 1995, the bodies of the defendant’s wife and daughter were found in secluded locations in Massachusetts and Connecticut, respectively. More than twenty years later, the defendant was convicted in Massachusetts of murder in the first degree for the killing of his wife.

In this direct appeal from his conviction, the defendant contends that (1) there was insufficient evidence to establish identity and deliberate premeditation; (2) the evidence of his daughter’s murder was erroneously allowed in evidence; (3) the testimony of two latent print examiners was erroneously and unconstitutionally allowed in evidence; and (4) the defendant was Unfairly precluded from demonstrating that there was a potential third-party culprit and that police failed to adequately investigate such a possibility. The defendant lastly asks us to exercise our authority under G. L. c. 278, § 33E, to order a new trial or direct the entry of a verdict of a lesser degree of guilt. We conclude that there was no reversible error with respect to 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 conviction.

1. Background. We recite the facts a rational jury could have found, viewing the evidence in the light most favorable to the ₄₃₈Commonwealth, reserving certain details for our analysis of the issues.

a. The discovery of Marcia’s and Elizabeth’s bodies.² On September 28, 1995, police officers discovered a female body behind a strip mall in New Britain, Connecticut. Police identified this body in 2014 as that of Elizabeth. Her body was inside two overlapping garbage bags, and both it and the garbage bags were wrapped in two overlapping sleeping bags. The cause of death was later found to be a gunshot wound to the head, resulting from a medium to large caliber bullet, and Elizabeth had likely been killed only a few hours before her body was discovered.

On October 6, 1995, an individual camping in Tolland State Forest in Tolland discovered a different female body near the campsite’s dump station. Police identified this body in 2014 as that of Marcia. The body was about nine feet down an embankment from a wooden guardrail. One of the vertical portions of the guardrail had fresh damage from a projectile strike, and there was a large pool of blood in the paved area near the guardrail. Investigators recovered several items near the body, including a discharged .45 caliber cartridge casing, a blue and green towel with three holes in it, and an empty package of cigarettes. Based on the guardrail damage, the discharged casing found at the crime scene, and a bullet jacket discovered during the autopsy of the body, there was evidence of at least two gunshots, and possibly three, fired at Marcia. The decomposition of Marcia’s body indicated that Marcia died between September 22, 1995, and October 2, 1995. The cause of death was a gunshot wound to the head, likely resulting from a medium to large caliber bullet.

b. The defendant’s consciousness of guilt. In September 1995, the defendant was living with his wife, Marcia, and his teenage daughter, Elizabeth, in Brewster, New York. The defendant and his wife were previously separated, but they had recently reunited.

In late September 1995, the defendant visited one of Marcia’s daughters from a previous marriage. The defendant would not make eye contact with her and appeared disheveled and stressed. He told the daughter that he had been given job offers in several countries, including England and Australia. Later during that visit, the defendant explained to the daughter that Marcia and ₄₃₉Elizabeth had already moved to Australia. The defendant also visited Marcia’s son-in-law -- married to another one of Marcia’s daughters from the previous marriage — at around the same time. The defendant told the son-in-law that he was moving to Australia and did not respond when the son-in-law inquired whether Marcia and Elizabeth knew about the planned move.

The defendant never applied for an Australian visa or visited Australia. Instead, on November 24, 1995, the defendant moved to Africa. He traveled throughout several countries in Africa for approximately four years and moved back to the United States during the summer of 1999. Shortly thereafter, in 2000, he remarried and changed his surname to his new wife’s surname. He and his new wife lived in various States before ultimately settling down in Ohio.

Another one of Marcia’s daughters discovered the defendant’s location and, in November 2013, telephoned the defendant. The defendant stated during this conversation that Marcia left him in Australia for another man, and Elizabeth stayed with them.

In 2014, a relative of Marcia and Elizabeth filed a missing person’s report for Marcia and Elizabeth with the New York State police. The officer working on the report connected the two unknown female bodies from 1995 to Marcia’s and Elizabeth’s disappearance during the same time frame. Marcia’s and Elizabeth’s family thereafter confirmed the identity of each victim: Elizabeth (Connecticut) and Marcia (Massachusetts).

Soon after Marcia and Elizabeth were identified, a Massachusetts State police trooper, along with officers from other jurisdictions, visited the defendant in Ohio. The State police trooper asked if the defendant would speak with him and a Connecticut law enforcement officer, and the defendant invited them both into his house. The defendant told the State trooper that he had not seen Marcia or Elizabeth since 1995 and had moved to Africa some point after seeing Marcia and Elizabeth for the last time. Other than that, he claimed to have no memory as to what occurred in 1995.

Following this conversation, the State trooper took the defendant to the Wayne County sheriff’s office in Ohio, provided the defendant with Miranda warnings, and again interviewed the defendant. The defendant continued to claim that he had no memory of what occurred in 1995. The defendant did admit, however, that the two sleeping bags found at Elizabeth’s crime scene were his.

c. Forensic evidence. Following the defendant’s interviews, law enforcement obtained additional analyses of evidence from ₄₄₀both Marcia’s and Elizabeth’s crime scenes. The defendant’s deoxyribonucleic acid (DNA) profile was found to be consistent with the DNA profile from sperm cells detected inside Marcia’s body. Additionally, the defendant was not able to be excluded as the source of the hair taken from Elizabeth’s crime scene, but he was excluded as a possible contributor to a mixture of DNA recovered from Elizabeth’s fingernail scrapings, the sperm obtained from her underwear, and three DNA profiles obtained from the garbage bags covering Elizabeth. Lastly, two latent print examiners, Sarah K. Pivovar and Christopher M. Dolan, opined that three palm prints on the garbage bags covering Elizabeth originated from the defendant.

d. The defendant’s conviction and sentencing. The defendant was ultimately indicted in Massachusetts in connection with Marcia’s death. There was no indictment in Massachusetts in connection with the killing of Elizabeth, whose body was found out of State. On June 12, 2017, following a jury trial, the defendant was convicted of murder in the first degree in connection with Marcia’s death, based on the theory of deliberate premeditation. He was sentenced to life without the possibility of parole.

2. Discussion. a. Sufficiency of the evidence. At the close of the Commonwealth’s case, the defendant moved for a required finding of not guilty, arguing that the evidence was insufficient to support a conviction of murder in the first degree. The trial judge denied the motion as to the murder charge under a theory of deliberate premeditation.³ The defendant now reasserts the argument on appeal that the evidence presented by the Commonwealth was insufficient (i) to prove his identity as Marcia’s killer and (ii) to prove he killed Marcia with deliberate premeditation.

[1–3] When we review the denial of a motion for a required finding of not guilty, we "consider whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. MacCormack, 491 Mass. 848, 854, 208 N.E.3d 33 (2023). The jury may primarily or entirely rely on circumstantial evidence, and "the reasonable inferences drawn from such evidence ‘need not be necessary or inescapable,’ only ‘reasonable and possible.’" Id., quoting Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005), S.C., 450 Mass. 215, 877 N.E.2d 557 (2007) and ₄₄₁460 Mass. 12, 948 N.E.2d 1209 (2011). A jury cannot convict based on "the piling of inference upon inference or on conjecture and speculation," however, MacCormack, supra.

In sum, we decide whether...