Commonwealth v. Bruneau , 472 Mass. 510 ( 2015 )

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SJC-11820
COMMONWEALTH vs. PETER BRUNEAU.
Hampden. April 7, 2015. - August 27, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Homicide. Mental Impairment. Practice, Criminal, Appeal,
Judgment.
Indictment found and returned in the Superior Court
Department on October 1, 2008.
The case was heard by Richard J. Carey, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Rebecca A. Jacobstein, Committee for Public Counsel
Services, for the defendant.
Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.
DUFFLY, J. We are asked in this case to determine whether
a defendant who has been found not guilty of murder in the
second degree by reason of mental illness may appeal from his
conviction pursuant to G. L. c. 278, § 28, or, whether, as the
2
Commonwealth contends, the sole avenue by which such a defendant
may seek to appeal is a petition filed pursuant to G. L. c. 211,
§ 3.
In 2008, the defendant was indicted on a charge of murder
in the first degree for the stabbing death of the victim, George
Roy, but was repeatedly found not competent to stand trial until
2013. At that time, having heard testimony by a medical expert
and having considered representations by defense counsel, a
Superior Court judge concluded that the defendant was then
competent. The Commonwealth filed a nolle prosequi with respect
to so much of the indictment that charged murder in the first
degree, and after a colloquy, the defendant waived his right to
a jury trial and agreed to the entry of stipulations to numerous
facts. The defendant's motions for a required finding of not
guilty, made at the close of the Commonwealth's case and at the
close of all evidence, were denied. The sole defense offered by
the defendant at trial was that, at the time he committed the
murder, he lacked criminal responsibility due to mental illness.
In his closing argument, the defendant's counsel conceded that
the defendant killed the victim by "stabbing him repeatedly."
The defendant was found not guilty by reason of mental illness
and ordered hospitalized at Bridgewater State Hospital pursuant
to G. L. c. 123, § 16. The defendant filed an appeal under
3
G. L. c. 278, § 28, which the Commonwealth argues was
inappropriate, and we granted his application for direct
appellate review.
We conclude that a defendant who is found not guilty by
reason of mental illness may appeal under G. L. c. 278, § 28.
We conclude also that the evidence in this case was sufficient
to support a conviction of murder in the second degree and,
therefore, that the judge did not err in denying the defendant's
motion for a required finding of not guilty.
Facts. We recite the facts a fact finder could have found.
On September 5, 2008, Chicopee police Officer John Provost,
responding to reports that the victim had not been at work for
several days, went to the victim's second-floor apartment in a
building on Florence Street in Chicopee to conduct a well-being
check. Provost rang the doorbell and knocked loudly on the
front and back doors several times, but there was no answer.
After seeing an open window to the apartment, he called for a
supervisor and a fire engine. Three other officers arrived on
the scene. Sergeant Roy Landry and Sergeant David Heroux, the
victim's nephew, again rang the doorbell and knocked loudly on
the front and back doors but received no response. Members of
the fire department arrived and put up a ladder to the open
second-floor window; a fire fighter gained access to the
4
apartment and opened the back door, through which Provost and
Heroux entered. The officers saw the defendant, who lived with
the victim, standing in the kitchen with the fire fighter. The
defendant was wearing shorts and was sweating; a pornographic
movie was playing on a television. The victim's automobile was
later found parked on the street outside the apartment, covered
in a layer of pollen. According to Provost, this was unusual,
because the victim washed his vehicle frequently, sometimes as
often as daily.
In response to questions from Heroux, the defendant
responded that he had not answered the door despite the repeated
knocking and doorbell ringing, because he had been sleeping.
When asked when he had last seen the victim the defendant said
that he had not seen the victim since Tuesday night, three days
previously, when the victim had come home with a "lover," a man
named Chet. When Heroux again asked the defendant when he had
last seen the victim, the defendant responded that it had been
about two weeks earlier. Reminded that he had said he saw the
victim on the previous Tuesday night, three days earlier, the
defendant said, "Oh, yeah, it was Tuesday night." Landry asked
the defendant if he was injured, and the defendant said either,
"I got stabbed" or, "I got stab wounds also." The defendant
pulled up his shirt and pulled down his pants to expose his
5
groin; there were no visible injuries.
The police officers searched the apartment for the victim,
but he was not found. They noticed some red-brown stains on a
rug in the doorway of the victim's bedroom that appeared to be
blood. There were no apparent blood stains in the defendant's
bedroom. There were red-brown stains on a cushioned chair in
the living room, a pool of red-brown liquid in a corner of the
chair, and spatter stains behind and around the chair. Police
also found red-brown stains on the stairs leading to the second
floor of the apartment building. A screening test of the stains
on the rug and the stairs was positive for human blood. Samples
were collected for further testing; that testing confirmed that
the stains were human blood. Samples also were sent to the
State police laboratory for deoxyribonucleic acid (DNA) testing,
which established that the DNA matched that of the victim.
After obtaining a search warrant, police returned to search
the defendant's apartment. They found additional stains in the
kitchen in front of the oven and underneath a rug. In the
defendant's bedroom, police found a hatchet leaning against a
bureau. The bottom of the hatchet had a label with a bar code.
Police also searched the defendant's vehicle. They found a
single cinder block in the bed of the defendant's truck.
The next day, September 6, 2008, Chicopee police received
6
an announcement from the Vermont State police that a body had
been found along the side of the road on the northbound side of
Interstate Route 91. The body, with multiple stab wounds to the
abdomen,1 was wrapped in a sheet, duct tape, and a ten-foot
length of chain. Attached to the chain was a tag with the
letter "D" in white and orange, similar to a tag from a chain
home improvement store. Chicopee police arranged for George
Roy's fingerprints2 to be sent to Vermont, where testing
confirmed the body was Roy's.
On their way back from Vermont, Chicopee police officers
stopped at one of the chain's home improvement stores in West
Springfield. They gave store employees the bar code number from
the label on the hatchet found in the defendant's room, and a
description of the hatchet. A store employee was able to
determine that two such hatchets had been purchased at that
store, one six days earlier, and one about a year previously.
The receipt for the hatchet that had been purchased six days
earlier, in cash, showed that an eight-inch square cinder block,
ten feet of zinc chain, and a pair of latex gloves had been
1
There is no indication that the stab wounds were inflicted
by the hatchet found in the defendant's room.
2
George Roy's fingerprints were on file in connection with
his application for a license to carry a firearm.
7
purchased at the same time. Store surveillance video recordings
showed the defendant making these purchases.
Discussion. 1. Right to appeal. There is no
constitutional right to appeal from a criminal conviction. See
Dickerson v. Attorney Gen., 396 Mass. 740, 743 n.3 (1986) ("The
due process clause does not require a State to afford any
appellate process whatsoever"). The right to appeal is granted
by statute. See, e.g., G. L. c. 278, § 28 (appeal by persons
"aggrieved by a judgment" of District or Superior Court); G. L.
c. 278, § 33E (direct appeal to Supreme Judicial Court for
defendants convicted of murder in first degree).
The defendant's appeal from the denial of his motion for a
required finding of not guilty was filed under G. L. c. 278,
§ 28. General Laws c. 278, § 28, provides that a "defendant
aggrieved by a judgment of the [D]istrict [C]ourt or of the
[S]uperior [C]ourt in any criminal proceeding may appeal
therefrom to the [S]upreme [J]udicial [C]ourt." The
Commonwealth argues that the defendant's appeal does not lie
under G. L. c. 278, § 28, because a finding of not guilty by
reason of mental illness is not a "judgment," and the defendant
is not "aggrieved" since he has not been convicted. The
Commonwealth contends that the defendant may seek to pursue an
appeal only by filing a petition for extraordinary relief
8
pursuant to G. L. c. 211, § 3.3
We do not agree. We conclude that an appeal under G. L.
c. 278, § 28, is the appropriate avenue by which a defendant
found not guilty by reason of mental illness may challenge that
verdict.
Prior to the enactment of the Massachusetts Rules of
Appellate Procedure, we allowed a defendant found not guilty by
reason of insanity to appeal under G. L. c. 278, § 33B, from the
denial of his motion for a required finding of not guilty. See
Commonwealth v. Curtis, 318 Mass. 584, 585 (1945) (Curtis). At
that time, G. L. c. 278, § 33B,4 controlled the procedure for
3
General Laws c. 211, § 3, provides, in relevant part, "The
[S]upreme [J]udicial [C]ourt shall have general superintendence
of all courts of inferior jurisdiction to correct and prevent
errors and abuses therein if no other remedy is expressly
provided." Review under G. L. c. 211, § 3, is "extraordinary"
and is not available "for ordinary cases." Commonwealth v.
DeJesus, 440 Mass. 147, 150 (2003), quoting Commonwealth v.
Lowder, 432 Mass. 92, 94 (2000). A party seeking relief under
G. L. c. 211, § 3, must demonstrate a substantial violation of a
substantive right and harm that cannot be remedied in the
ordinary course of appeal. Commonwealth v. Negron, 441 Mass.
685, 688 n.4 (2004).
4
General Laws c. 278, § 33B, provided:
"A defendant in a case of murder or manslaughter,
or other felony . . . , aggrieved by an opinion,
ruling, direction or judgment of the [S]uperior
[C]ourt, rendered upon any question of law arising out
of such case or upon a motion for new trial, but not
upon a plea in abatement, who desires to appeal
therefrom and whose exceptions thereto have been
9
filing an appeal from convictions under G. L. c. 278, §§ 33A-
33G. General Laws c. 278, § 33B, was repealed in 1979, when the
Massachusetts Rules of Appellate Procedure took effect. See
St. 1979 c. 346, § 1. Today, the Massachusetts Rules of
Appellate Procedure establish the procedure for filing an
appeal. Although the rules changed certain aspects of the
procedures to be followed in filing an appeal, compare Guerin v.
Commonwealth, 337 Mass. 264, 266 (1958), with Mass. R. A. P.
8 (a), as amended, 378 Mass. 932 (1979), they "shall not be
construed to extend or limit the jurisdiction, as established by
law, of the Supreme Judicial Court." Mass. R. A. P. 1 (b), as
amended, 421 Mass. 1601 (1995).
2. General Laws c. 278, § 28. We allowed a defendant
found not guilty by reason of insanity to appeal under G. L.
c. 278, § 33B, because "the defendant was aggrieved unless there
was evidence warranting a verdict of guilty." Curtis, supra at
585. We must determine whether such an appeal is proper under
G. L. c. 278, § 28. We review questions of statutory
interpretation de novo. Sheehan v. Weaver, 467 Mass. 734, 737
(2014).
seasonably saved shall, within twenty days after
verdict, file a claim of appeal in writing with the
clerk, who shall forthwith notify the district
attorney of such claim."
10
a. Judgment. A defendant in a criminal case may appeal
under G. L. c. 278, § 28, only if the defendant is "aggrieved by
a judgment." The concept of finality underlies the definition
of a judgment; generally, a judgment must be final to be
appealable. See generally Crick, The Final Judgment as a Basis
for Appeal, 41 Yale L.J. 539, 552 (1932) ("The basic principle,
then, in practically all jurisdictions in this country is that
only final judgments are appealable"). See also Judiciary Act
of 1789 § 22, 1 Stat. 73, 84-85 (1789) (requiring final
judgments for Federal appeals).
A judgment becomes final for purposes of appellate review
"when the [court of first instance] disassociates itself from
the case, leaving nothing to be done at the court of first
instance save execution of the judgment." Clay v. United
States, 537 U.S. 522, 527 (2003). For other purposes, however,
"finality attaches at a different stage . . . [at] issuance of
the appellate court's mandate." Id. (noting certain
determinations under Speedy Trial Act of 1974, 18 U.S.C.
§ 3161). "In a criminal case the [final judgment] rule
prohibits appellate review until conviction and imposition of
sentence." Flanagan v. United States, 465 U.S. 259, 263 (1984).
See Berman v. United States, 302 U.S. 211, 212 (1937) ("[f]inal
judgment in a criminal case means sentence. The sentence is the
11
judgment"). The common theme is that "a 'final decision'
generally is one which ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment."
United States v. Vela, 624 F.3d 1148, 1151 (9th Cir. 2010),
cert. denied, 131 S. Ct. 2152 (2011), quoting United States v.
Ray, 375 F.3d 980, 985 (9th Cir. 2004) (concluding that
defendant found not guilty by reason of insanity had right to
appeal under 28 U.S.C. § 1291). "When a criminal defendant is
found guilty, it is unremarkable that there is no final judgment
until the defendant is sentenced; it is only at sentencing that
the criminal action terminates and 'nothing [is left] for the
court to do but execute the judgment.'" United States v. Vela,
supra, quoting Midland Asphalt Corp. v. United States, 489 U.S.
794, 798 (1989).
Our jurisprudence has recognized consistently that, in
general, "[i]n criminal cases, the final judgment is the
sentence." Commonwealth v. Brown, 466 Mass. 676, 679 (2013),
quoting Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender
Registry Bd., 459 Mass. 603, 621 (2011). See, e.g.,
Commonwealth v. Caetano, 470 Mass. 774, 777 (2015), citing
Commonwealth v. Delgado, 367 Mass. 432, 438 (1975) ("no appeal
may come before us until after judgment, which in criminal cases
is the sentence"). In the case of a defendant found not guilty
12
by reason of insanity, however, there is no sentence because
there is no conviction. See Commonwealth v. McLaughlin, 431
Mass. 506, 507 (2000) ("A verdict of not guilty by reason of
insanity is not a 'conviction' within the meaning of [G. L.
c. 278,] § 33E").
A verdict of not guilty by reason of insanity is,
nonetheless, a final judgment. When a finder of fact finds a
criminal defendant "not guilty by reason of insanity, the
docketing of the verdict amounts to a final judgment because the
criminal proceeding has come to an end and no criminal sentence
will follow." United States v. Vela, supra. See Mass. R. Crim.
P. 28 (a), 378 Mass. 898 (1979). After a verdict of not guilty
by reason of insanity is docketed, there are no additional
matters for a judge to dispose of, and the "court disassociates
itself from the case, leaving nothing to be done . . . save
execution of the judgment." Clay v. United States, supra at
527. An acquittal solely by reason of insanity conclusively
resolves the underlying criminal proceedings, and the criminal
proceeding becomes final with the verdict. See Curtis, 318
Mass. at 585 (allowing defendant found not guilty by reason of
insanity to appeal under G. L. c. 278, §§ 33A-33G); United
States v. Stewart, 452 F.3d 266, 272 (3d Cir. 2006). Civil
commitment proceedings under G. L. c. 123, § 16, which follow a
13
verdict of not guilty by reason of mental illness, are civil in
nature, not criminal.
The Commonwealth argues that a finding of not guilty by
reason of insanity is an acquittal, and therefore not
appealable. This contention is unavailing. An acquittal is
also a judgment, notwithstanding the lack of a sentence. See,
e.g., Commonwealth v. Labadie, 467 Mass. 81, 82, cert. denied,
135 S. Ct. 257 (2014). The prohibition on appealing from an
acquittal comes not from its lack of finality, or because an
acquittal is not a judgment, but, rather, because in the case of
an acquittal, a defendant is not "aggrieved" under the statute,
and therefore may not appeal under G. L. c. 278, § 28, and the
double jeopardy clause bars the Commonwealth from any appeal.
See, e.g., Huss v. Graves, 252 F.3d 952, 956 (8th Cir. 2001),
cert. denied, 535 U.S. 933 and 535 U.S. 551 (2002) (jeopardy
attached at bench trial deciding whether defendant should be
found not guilty by reason of insanity; defendant could not be
retried). See also Commonwealth v. Therrien, 383 Mass. 529, 532
(1981) ("It has long been accepted that the Commonwealth may not
appeal from an acquittal of a criminal defendant . . .").
Although a finding of not guilty by reason of mental
illness is an acquittal, in the sense that it absolves a
defendant of criminal responsibility, it is unlike an acquittal
14
because it includes a finding that the defendant committed the
criminal act. Compare Jones v. United States, 463 U.S. 354, 363
(1983) ("A verdict of not guilty by reason of insanity
establishes two facts: [i] the defendant committed an act that
constitutes a criminal offense, and [ii] he committed the act
because of mental illness"), with United States v. Martin Linen
Supply Co., 430 U.S. 564, 579 (1977) (Stevens, J., concurring in
the judgment) ("true acquittal is based upon the insufficiency
of the evidence to prove an element of the offense" [quotation
and citation omitted]). If a jury has a reasonable doubt
whether a defendant committed each of the required elements of
the crime, it must find the defendant not guilty; if there is a
reasonable doubt about the defendant's criminal responsibility
at the time of the crime, then the jury must find the defendant
not guilty by reason of mental illness. See Instruction 9.200
of the Criminal Model Jury Instructions for Use in the District
Court (2009).
b. Whether defendant is "aggrieved". Where a defendant
asserts a defense of mental illness, the Commonwealth must prove
beyond a reasonable doubt both that the defendant committed the
crime and that the defendant was criminally responsible at the
time the crime was committed. See Jones v. United States,
supra. If the Commonwealth has not met its burden to prove that
15
the defendant committed the crime, the defendant is aggrieved by
a verdict of not guilty by reason of mental illness.
Furthermore, although such a defendant has not been found
guilty, and has not been sentenced, a defendant found not guilty
by reason of mental illness faces harsh consequences because the
defendant is eligible for civil commitment under strict
security, where he would be confined for an indefinite period of
time. See G. L. c. 123, § 16. Accordingly, where a defendant
chooses to pursue a defense of lack of criminal responsibility
due to mental illness, judges are required, upon request by the
defendant, to inform the jury of the "consequences of a verdict
of not guilty by reason of insanity." See Commonwealth v.
Biancardi, 421 Mass. 251, 251-252 (1995), quoting Commonwealth
v. Mutina, 366 Mass. 810, 823 n.12 (1975).
Because a defendant found not guilty by reason of mental
illness has been "aggrieved by a judgment," the defendant may
appeal from that verdict under G. L. c. 278, § 28.5
5
We recognize that Mass. R. Crim. P. 28 (c), 378 Mass. 898
(1979), which provides for notification of the right to appeal
"[a]fter a judgment of guilty is entered," does not by its terms
require notification for defendants found not guilty by reason
of mental illness of their right to appeal. We therefore refer
the rule to the standing committee of this court for criminal
rules. See Commonwealth v. Simmons, 448 Mass. 687, 699-700
(2007).
16
3. Sufficiency of the evidence. We review a denial of a
motion for a required finding of not guilty to determine
whether, viewing the evidence in the light most favorable to the
Commonwealth, there is sufficient evidence for a rational trier
of fact to find the essential elements of the crime beyond a
reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-
677 (1979). "We consider the state of the evidence at the close
of the Commonwealth's case to determine whether the defendant's
motion should have been granted at that time." Commonwealth v.
Sheline, 391 Mass. 279, 283 (1984).
"Murder in the second degree is the unlawful killing of a
human being with malice aforethought." Commonwealth v. McGuirk,
376 Mass. 338, 344 (1978), cert. denied, 439 U.S. 1120 (1979).
"Circumstantial evidence alone may be sufficient to meet the
burden of establishing guilt." Commonwealth v. Woods, 466 Mass.
707, 713, cert. denied. 134 S. Ct. 2855 (2014). "[I]nferences
drawn from that evidence 'need only be reasonable and possible';
[they] need not be necessary or inescapable." Id., quoting
Commonwealth v. Merola, 405 Mass. 529, 533 (1989).
Here, viewing the evidence in the light most favorable to
the Commonwealth, there was sufficient evidence from which a
trier of fact could have concluded that the defendant had
committed each element of the crime, and thus that the
17
defendant's motion for a required finding of not guilty properly
was denied.
A fact finder could infer from the many blood stains in the
apartment that the victim had been stabbed to death in the
apartment he shared with the defendant. The receipt from the
purchases at the home improvement store support an inference
that the defendant acquired the means to kill, and planned to
kill, the victim. A surveillance video recording of the
defendant, recorded six days before the body was found, shows
him purchasing a hatchet identical to the one found in his
bedroom, a cinder block of the sort found in his truck, latex
gloves, and ten feet of zinc chain identical to the chain used
to bind the victim's body. The hatchet and the chain both had
inventory labels on them with bar code numbers matching those on
the receipt associated with the defendant's purchases, which
were matched to the store's inventory. This evidence "allowed a
rational jury to infer that the defendant had the means (one of
the tools lying around the victim's house) and opportunity to
kill the victim." Commonwealth v. Evans, 469 Mass. 834, 843
(2014). The evidence "not only corroborate[d] the essential
elements needed to convict the defendant [of murder] but also
link[ed him] to the crime." Commonwealth v. Vacher, 469 Mass.
425, 440 (2014), quoting Commonwealth v. Fernandes, 425 Mass.
18
357, 360 (1997). See Commonwealth v. Donahue, 430 Mass. 710,
711 (2000) (sufficient evidence of murder in first degree where
human blood stains were present in bedroom, basement, and
defendant's automobile, receipts were found for purchase of
fifty-gallon plastic container and storage locker rental, and
defendant stored victim's body in identical container in storage
locker); Commonwealth v. Taylor, 426 Mass. 189, 192-193 (1997)
(sufficient evidence that defendant "deliberately set fire with
specific intent to murder his parents" where, among other
things, defendant put gasoline he bought in portable canister
day before fire).
There was also considerable evidence that the defendant
demonstrated consciousness of guilt. The defendant did not
answer the door in response to repeated knocking by police. See
Commonwealth v. Toney, 385 Mass. 575, 584 (1982) (inference of
consciousness of guilt "may be drawn from evidence of flight,
concealment, or similar acts"). After the fire fighter
ultimately entered through a window and admitted the police
officers, the defendant's statements to police about when he had
last seen the victim were inconsistent. See Commonwealth v.
Woods, supra at 715 (consciousness of guilt "includes making
false or inconsistent statements to police").
The defendant also told officers that he had been "stabbed"
19
or that he had "stab wounds also," although he had no apparent
injuries. This evidence supported an inference that the
defendant was present at the time of the stabbing, and stabbed
the victim, because he had knowledge of the method of the
killing. See Commonwealth v. Thompson, 431 Mass. 108, 114,
cert. denied, 531 U.S. 864 (2000) (sufficient evidence where
defendant assumed victim "had been stabbed even though he had
not been informed of the circumstances of [the victim's]
death"); Commonwealth v. Cordle, 404 Mass. 733, 741-742 (1989),
S.C., 412 Mass. 172 (1992) (sufficient evidence where jury
plausibly could infer defendant was present at time of shooting,
had motive for killing, and evidenced consciousness of guilt).
In addition, the defendant expressed no alarm over the blood
stains in the apartment that were readily apparent. See
Commonwealth v. Thompson, supra (defendant's unusual behavior
included lack of inquiry as to manner of victim's death).
Although a conviction may not "rest upon the piling of
inference upon inference or on conjecture and speculation."
Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450
Mass. 215 (2007) and 460 Mass. 12 (2011), viewing these facts in
the light most favorable to the Commonwealth, there was
20
sufficient evidence to establish that the defendant committed
each element of the murder.
Judgment affirmed.