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Commonwealth v. Dame

Supreme Judicial Court of Massachusetts, Worcester

February 3, 2016

Ronald C. Dame

         Argued November 6, 2015.

          Indictment found and returned in the Superior Court Department on November 20, 2006.

         A motion to dismiss was heard by James R. Lemire, J.; a pretrial motion to suppress evidence was heard by Peter W. Agnes, Jr., J.; and the case was tried before Richard T. Tucker, J.

Page 525

          A motion for a stay of sentence filed in the Supreme Judicial Court was referred to Spina, J., and was considered by him.

          Theodore F. Riordan ( Deborah Bates Riordan with him) for the defendant.

          Donna-Marie Haran, Assistant District Attorney, the Commonwealth.

         Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.


          [45 N.E.3d 72] Cordy, J.

          Clara Provost (victim) was brutally murdered in the bedroom of her apartment sometime after 10:30 p.m. on January 6 or early in the morning hours of January 7, 1974. The subsequent police investigation focused on several potential suspects. A year of investigation produced a circumstantial but not very strong case against the defendant, including a brief prior dating relationship with the victim that apparently ended badly; a flawed alibi; fresh scratches on his face; and a handprint on the outside of the door through which the murderer forced entry into the apartment.[1] No one was indicted for the murder, and the investigation became largely dormant.[2]

         During the murder investigation in 1974, however, tissue was taken from under the fingernails of both hands of the victim and preserved. More than twenty-five years later, analysis of this evidence proved decisive in the decision to prosecute the case. [45 N.E.3d 73] As increasingly advanced methods of deoxyribonucleic acid (DNA) analysis became more reliable, accurate, and accepted as evidence admissible in Massachusetts proceedings, Commonwealth v. Vao Sok, 425 Mass. 787, 789, 683 N.E.2d 671 (1997) (finding reliable and approving polymerase chain reaction analysis), a new era of investigation commenced. The samples that had been preserved were analyzed and swabs were taken from the previously identified potential suspects. The analysis identified the tissue that contained DNA as consistent with the defendant's DNA and inconsistent with the DNA of the other suspects. This evidence, combined with the fresh scratches observed (and photographed) by the police on the defendant's face when he was interviewed the day after the murder in January, 1974, led to his indictment on

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November 20, 2006, and ultimately his conviction on February 24, 2012, of murder in the first degree on the theory of extreme atrocity or cruelty.[3]

         The defendant raises several claims on appeal. First, he challenges the denial of his pretrial motion to dismiss the murder indictment on the ground that the Commonwealth recklessly or negligently delayed indicting him for thirty-two years, prejudicing his defense. Second, he claims error in the denial of his motion to suppress evidence of a paper towel that the police seized from his vehicle without probable cause to believe that evidence of the crime would be found in there. Finally, the defendant requests relief under G. L. c. 278, § 33E.

         Just before he filed his appellate brief with this court, the defendant filed a motion to stay the execution of his sentence. The motion was referred by the full court to the single justice, who denied it. The defendant's appeal from the denial of this motion was consolidated with his direct appeal.

         Although we agree that the paper towel should have been suppressed,[4] we affirm the defendant's conviction, as well as the denial of his motion to stay the execution of his sentence. After a review of the record, we also decline to grant relief pursuant to G. L. c. 278, § 33E.

         1. Background.

         We summarize the facts the jury could have found, reserving discussion of other evidence to our consideration of the legal issues raised.

         The victim was twenty-three years old at the time of her death. She lived with her three and one-half year old son in the first-floor apartment of a multifamily residence at 30 Lunenburg Street in Fitchburg. The victim's parents, her brother, and three of her sisters lived in the second-floor apartment, which had a separate entrance off 13 Highland Avenue.

         In late November 1973, the defendant met the victim at a country-western club. Shortly thereafter, the defendant took the victim on a date, at which time he engaged in oral sexual relations

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with her. They may have gone on at least one other date. After Thanksgiving and until the time of her murder, however, the victim began a regular dating relationship with another [45 N.E.3d 74] man, Gerard Duhaime, a soldier stationed at Fort Devens.

         On Saturday, January 5, 1974, the victim and her sister Beatrice were walking to a local bar about five minutes from their residence when they saw the defendant drive by them very slowly. The victim's demeanor changed after this encounter; she had previously been very excited about going out with her sister. After arriving at the bar, the victim realized she had forgotten her driver's license and returned home alone to retrieve it. Her sister Sheila, who was at the victim's apartment taking care of the victim's son, testified that the victim returned to her apartment " in a rush," grabbed her driver's license on the table, and left. Beatrice testified that the victim took an unusually long time, more than one-half hour, to return to the bar, and when she returned it was as if " she was in another world. She wouldn't even talk."

         On Sunday, January 6, 1974, the victim spent the day with her son and Sheila. Sheila left the victim's apartment at around 6 p.m. The victim asked Sheila to unlock the door downstairs for her boy friend, Duhaime, who was coming later that night. Duhaime was at the victim's apartment from approximately 7:30 p.m. to 10:30 p.m. He made sure the door was locked when he left.

         On the way to his vehicle, Duhaime noticed a man sitting in a dark pick-up truck with the engine running, staring at him. Duhaime made eye contact with the man a few times and the encounter made him " very uncomfortable" and " kind of nervous." As Duhaime drove away in his vehicle, the truck followed him at a close distance with its headlights on, but turned off shortly thereafter. After the victim's murder, the police showed Duhaime the defendant's photograph. Duhaime said that the defendant's eyes reminded him of the same eyes, with " that same cold, mean look," he saw when he was leaving the victim's apartment on January 6.

         That same evening, shortly after midnight, Steven Svolis was driving his vehicle in the area of Lunenburg Street when he saw a man jumping over the wall between the victim's apartment building and the building next to it. Svolis described the man as being tall and thin, and having long straight hair on the top, which was consistent with the defendant's appearance. The man was wearing a suede coat with sheepskin lining that was a " car-coat length,"

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dark pants, light socks, and dark shoes.[5]

         On January 6, 1974, Colleen Regan, a young woman who had been regularly dating the defendant since the prior year, told the defendant that she had plans to go on a date with another man that night. The defendant was upset about the date and went to her house to see if she would change her mind. Regan told the defendant she was going to go on the date, and he told her he would be at the Eastwood Club that evening. A few days later, Regan saw the defendant and observed that he had scratches on his face that were not there when she saw him on January 6.

         On January 7, 1974, the victim was found lying on her bed, naked from the waist down. Blood was pooling on her bed. Her head was wedged between the headboard and the mattress and her throat had been severely slashed. During his examination of the crime scene, a State police trooper observed a smeared bloody handprint on the victim's left inner thigh. He also observed that the door to the [45 N.E.3d 75] victim's apartment had been forced open, with the latch broken. Other police officers found " some pieces of paper towel" on the floor in front of the stove. No usable fingerprints, besides those of the victim, were found in the apartment. On the front door, however, a palm print and three latent prints that matched the defendant's fingerprints were found slightly above the broken latch. Scrapings from under the victim's fingernails from both hands were preserved because they contained human blood and skin tissue.

         Later that day, the Fitchburg police interviewed the defendant. There were several scratches on the defendant's left cheek, which were then photographed. During the interview, the police went outside to the defendant's vehicle, opened the rear door, and retrieved a paper towel from the back seat area. Sperm cells were later detected on the paper towel that was found in the defendant's vehicle. The defendant was subsequently interviewed by the police multiple times in January, 1974. No one was charged with the victim's murder.[6]

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          More than twenty-five years later, on December 1, 1999, a chemist at the State police crime laboratory sent samples from the paper towel found in the defendant's vehicle and from the fingernail scrapings to the Federal Bureau of Investigation (FBI) for DNA testing. Between 2000 and ...

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