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Commonwealth v. Gardner

Supreme Judicial Court of Massachusetts, Bristol

June 18, 2018


          Heard: November 10, 2017.

         Indictments found and returned in the Superior Court Department on July 25, 2012. The cases were tried before Gary A. Nickerson, J.

          Theodore F. Riordan (Deborah Bates Riordan also present) for the defendant.

          Stephen C. Nadeau, Assistant District Attorney, for the Commonwealth.

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

          LOWY, J.

         On the morning of Saturday, November 5, 2011, the defendant, Thomas Gardner, and the victim, Michael Duarte, met to conduct a drug transaction at a house in New Bedford that was owned by the defendant's ex-wife. Four days later, after the victim's girl friend had reported him missing, the police found the victim's body wrapped in a painter's tarpaulin hidden beneath the basement stairs of that house. The police also found evidence of the victim's blood in the kitchen, and a trash bag outside the house that contained clothing and a hammer bearing both the victim's and the defendant's blood. Further investigation showed that the victim had died of blunt force trauma to the head. He had suffered nineteen lacerations to his head and had four skull fractures; these injuries were consistent with blows from a hammer.

         A Superior Court jury convicted the defendant of murder in the first degree on the theory of extreme atrocity or cruelty.[1]The defendant appeals from his convictions, claiming that (1) the prosecutor's references to the defendant's prearrest silence during cross-examination and in closing argument were improper; (2) the prosecutor mischaracterized evidence during closing argument; and (3) the judge's instructions to the jury concerning lesser included offenses were erroneous. Although we agree that certain of the prosecutor's questions and comments concerning the defendant's failure to contact the police before his arrest were improper, we conclude that neither these errors nor the other arguments raised by the defendant created a substantial likelihood of a miscarriage of justice. Accordingly, we affirm the defendant's convictions and decline to exercise our extraordinary authority to grant relief under G. L. c. 278, § 33E.


         We summarize the facts relevant to this appeal as the jury could have found them, reserving certain details for later discussion. The victim lived in New Bedford with his girl friend and their two daughters. Shortly before 9 A.M. on November 5, 2011, the victim left his home, driving a Honda Civic automobile, after telling his girl friend that he was going to look at a house, located on Churchill Street, that was for sale. He was supposed to return home shortly to take care of his daughters. When the victim failed to return, his girl friend began calling him repeatedly on his cellular telephone beginning at 9:30 A.M., but she was unable to reach him. That afternoon, she drove to the house on Churchill Street that the victim had gone to see, but no one answered when she knocked on the door. Later that evening she contacted the New Bedford police to report that the victim was missing.

         On the morning of November 9, officers with the Fairfield, Connecticut, police department learned that the victim's Honda Civic was at a rest area off of Interstate Route 95. When the first officer arrived, she observed the victim's vehicle parked at the far end of the parking lot, and the defendant sitting in the driver's seat.

         When the defendant saw the police cruiser, he fled in the vehicle, reaching speeds in excess of one hundred miles per hour and, among other things, struck another vehicle and ran over the foot of a police officer. The defendant eventually lost control of the vehicle, abandoning it in a wooded area. He continued on foot until he reached Westport, Connecticut, where he entered a building that was under construction and hid.

         Shortly afterward, police officers arrested the defendant as he walked through Westport. The defendant initially denied that he was Thomas Gardner and claimed that he was a construction contractor working on the building where he had been hiding.

         The defendant was eventually transported to a police station in Fairfield, Connecticut, where he was questioned by a member of the Massachusetts State police and a detective with the New Bedford police department. The interview was recorded and later shown to the jury at trial.[2] After the police read the defendant the Miranda rights and informed him that the interview was being recorded, the defendant waived his rights and agreed to speak with police. The defendant stated that he was traveling with a "buddy" who was going to Florida and who had agreed to drop the defendant off at his mother's house in Pennsylvania on the way. The defendant said that he and his friend had left New Bedford late in the evening on November 6 in the friend's Honda Civic. En route, they pulled off at the Fairfield rest stop, where they remained for two days. The defendant said that his friend had been inside a restaurant at the rest stop when the police cruiser had appeared, and that the defendant fled without him in the Honda Civic. After some prompting, the defendant indicated that the person he had been traveling with was the victim, who, he suggested, was going to Florida to get away from his girl friend. After further questioning about his trip, the defendant terminated the interview.

         Later that same day, the New Bedford police department contacted the defendant's ex-wife and obtained her permission to search the Churchill Street house. There, the police discovered the victim's body hidden beneath a staircase in the basement, wrapped in a painter's tarpaulin secured with tape, with a plastic bag placed over his head. A paint can, a white painter's cloth, and other painter's materials had been piled on top of the body. In the kitchen, blood was found on the floor, a ceiling fan, and a wall clock. Police also detected blood on the basement stairs. There was testimony that the blood on the wall clock in the kitchen belonged to the victim. Outside the house, the police discovered a trash bag containing a sweatshirt with both the victim's and the defendant's blood on a sleeve, a T-shirt with the victim's blood on the back, and a hammer bearing both the victim's and the defendant's blood. Subsequent investigation of the defendant's cellular telephone showed that on November 5, 2011, the defendant had called the victim at 8:24 A.M. and 10:47 A.M., and that the victim had called the defendant at 8:38 A.M. and 9:06 A.M.

         The medical examiner testified that the victim's death was caused by blunt force trauma to the head and brain injuries. The victim had suffered nineteen lacerations and two abrasions to his head; thirteen of the lacerations went to the bone. There were four distinct skull fractures. All of these injuries were consistent with having been caused by blows from a hammer. All the injuries were inflicted at around the same time and, although any one laceration alone could have been fatal, there was no way to determine the order in which the injuries were sustained, which injury rendered the victim unconscious, or which caused his death. The victim also had lacerations on his face, bleeding around both eyes, and minor abrasions on his right hand. He was missing some teeth that were later discovered in his stomach. The medical examiner opined that the victim had swallowed them prior to his death.

         At trial, the defendant testified in his own defense. He admitted that he had killed the victim with the hammer that the police had found, but claimed that he had acted in self-defense. He testified that he was living at the Churchill Street house and that, on the morning of November 5, 2011, he had arranged to meet the victim there to buy heroin from him. When the defendant gave the victim money for the heroin purchase, however, the victim became angry because the defendant already owed him money and did not have enough cash for the new purchase. According to the defendant, the victim punched him and a fight ensued, during which the victim tackled him and slammed him to the floor; the victim then got on top of the defendant, putting his knees on the defendant's chest and his hands around the defendant's throat, choking him. The defendant testified that he then grabbed a hammer from a nearby shelf and began "slapping" the victim's head with the side of the hammer before finally striking him with the face of the hammer and knocking him out briefly. After the defendant stood up and tried to catch his breath, however, the victim regained consciousness, grabbed the defendant's pants leg, and tried to yank the defendant back down to the ground. At that point, the defendant testified, he struck the victim again with the face of the hammer, killing him. The defendant then wrapped the victim's body in a tarpaulin and put it in the basement; disposed of the hammer and clothes in the trash; took the money from the victim's wallet; sent a false text message to the victim's cellular telephone asking him why he had not yet arrived; hid the victim's wallet and the victim's cellular telephone; and arranged to meet a friend to sell him the victim's drugs. The next day the defendant fled New Bedford.


         1. Prosecutor's references to the defendant's prearrest silence.

         The defendant argues that the prosecutor improperly cross-examined him about his prearrest silence, [3] and exploited that evidence in closing argument, in violation of the common law and his privilege against self-incrimination under art. 12 of the Massachusetts Declaration of Rights. The Commonwealth contends that the prosecutor's cross-examination concerning the defendant's prearrest silence was permissible in light of the omissions and falsehoods in the defendant's postarrest statements.

         We begin our analysis by noting that we have not previously considered whether art. 12 prohibits use of a defendant's prearrest silence for impeachment. See Commonwealth v. Nickerson, 386 Mass. 54, 59 (1982) .[4] Instead, we have resolved issues involving use of a defendant's prearrest silence for impeachment on evidentiary grounds. See Commonwealth v. Niemic, 472 Mass. 665, 672-673 (2015); Nickerson, supra at 60-61.[5]

         We first addressed the use of a defendant's prearrest silence for impeachment in Nickerson, 386 Mass. at 54. We recognized that where a defendant does not contact the police to tell them his story before he is arrested, and later testifies at trial to facts that he failed to disclose to the police before his arrest, the defendant's prearrest silence typically is of limited probative value with respect to the credibility of his testimony. See Id. at 60-61 & n.6. We explained that there may be many reasons why a defendant does not wish to come forward and speak to the police that have no bearing on his guilt or innocence. See Id. at 61 n.6. " [A] n individual's failure to speak may be the result of his awareness that he has no obligation to speak, his caution arising from knowledge that anything he says may be used against him, and his belief that efforts to exonerate ...

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