Commonwealth v. Garcia , 482 Mass. 408 ( 2019 )


Menu:
  • NOTICE: All slip opinions and orders are subject to formal
    revision and are superseded by the advance sheets and bound
    volumes of the Official Reports. If you find a typographical
    error or other formal error, please notify the Reporter of
    Decisions, Supreme Judicial Court, John Adams Courthouse, 1
    Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
    1030; SJCReporter@sjc.state.ma.us
    SJC-11423
    COMMONWEALTH   vs.   JESUS GARCIA.
    Hampden.      February 27, 2019. - June 7, 2019.
    Present:    Gants, C.J., Lenk, Gaziano, Lowy, & Kafker, JJ.
    Homicide. Constitutional Law, Sentence, Public trial.
    Practice, Criminal, Instructions to jury, Sentence, Public
    trial, Capital case.
    Indictments found and returned in the Superior Court
    Department on August 13, 2010.
    The cases were tried before Mary-Lou Rup, J., and a motion
    for a new trial was heard by her.
    Alan Jay Black for the defendant.
    Katherine E. McMahon, Assistant District Attorney, for the
    Commonwealth.
    Ryan M. Schiff & David Rossman, for Omar Abdur-Rahim &
    others, amici curiae, submitted a brief.
    LOWY, J.   A jury convicted the defendant of murder in the
    first degree on theories of deliberate premeditation and extreme
    2
    atrocity or cruelty.1    The judge sentenced the defendant to life
    imprisonment without the possibility of parole on the murder
    conviction.2   On appeal, the defendant argues that (1) the judge
    erred in declining to instruct the jury on voluntary
    manslaughter; (2) the defendant's age at the time of his crimes
    -- nineteen years old -- renders his sentence unconstitutional;
    and (3) the judge should have granted a new trial due to a
    partial court room closure.    The defendant also requests that we
    exercise our power under G. L. c. 278, § 33E, to either reduce
    his convictions or grant a new trial.    Because we find neither
    reversible error nor a reason to exercise our authority under
    § 33E, we affirm.3
    Background.     We recite certain facts the jury could have
    found, reserving other details for later discussion.     In July
    2010, the fifteen year old daughter of the murder victim (victim
    1 The defendant also was convicted of armed assault with
    intent to murder; two counts of burglary assault on an occupant,
    one of which the judge set aside as legally inconsistent with
    other verdicts; breaking and entering in the nighttime with
    intent to commit a misdemeanor; two counts of assault and
    battery by means of a dangerous weapon; assault and battery; and
    assault with intent to rape. He was found not guilty of attempt
    to commit rape.
    2 The judge also sentenced the defendant to from seven to
    eight years' imprisonment from and after the life sentence to
    account for crimes committed against individuals other than the
    murder victim.
    3 We acknowledge the amicus brief submitted by Omar Abdur-
    Rahim, Gary Johnson, and Lonnie Watkins.
    3
    or mother) was dating the defendant, who was nineteen.     The
    daughter lived in Hampden with her sister, her stepfather, and
    her mother.    The daughter awoke in her bedroom on July 21 to a
    gloved hand over her mouth.     There was a knife against her
    throat and a masked face staring at her.     The daughter knew from
    the assailant's voice and clothing that he was the defendant,
    and she later recognized him when he took off his mask.     The
    defendant tried to pull the daughter's shorts off multiple times
    but never entirely removed them.     He eventually put the knife
    down and explained to the daughter, "I was trying to see what
    you would do in that situation. . . .    I was trying to show you
    the world wasn't safe."
    The daughter then told her mother the defendant was in her
    room.   They went into the room and found the defendant hiding in
    a closet.     After the victim told the defendant to "[g]et out,"
    the defendant left.
    Following the July 21 incident, the victim became scared
    that the defendant would return to the house.     She started
    locking the doors at night.     The victim also told her daughter
    that the victim would not let anything bad happen to her, and
    that if the defendant came back he would have to get through the
    victim.
    At night on July 29, the daughter sent a text message to
    the defendant stating that their relationship was over.     In the
    4
    morning on July 30, the family dog started barking in the
    victim's house.   The stepfather investigated and noticed the
    cellar door was open.    He closed it, and then went into the
    kitchen to find the victim running toward him.    The victim said
    the defendant was in the daughter's room.    According to the
    stepfather's testimony, "Before she finished saying it, [the
    defendant] came storming out towards us" with a knife.    The
    defendant sliced the stepfather's throat and cut him above the
    eye.   The stepfather went to the door leading outside but could
    not open it, so he turned around and saw the defendant "standing
    over" the victim with the knife.    Although the victim was hidden
    behind a counter, the stepfather heard the victim making sounds
    similar to "somebody getting punched."    As the stepfather
    escaped outside through the door, the defendant stabbed him in
    the back multiple times.
    The victim's daughter left her bedroom when she heard her
    stepfather's screams.    She saw the defendant stabbing her
    mother.    When the daughter tried to escape, the defendant
    dragged her into the kitchen by her hair.    The daughter saw the
    defendant slice her mother's throat, and then she escaped
    outside.
    At trial, defense counsel admitted in the opening statement
    that the defendant killed the victim, and then stated that the
    evidence would show the defendant was guilty of manslaughter
    5
    rather than murder.     After the judge declined to instruct the
    jury on manslaughter, defense counsel argued in closing that the
    defendant was not guilty of murder because he did not act with
    malice, but rather in response to the victim confronting him
    with a knife.   The defendant presented one witness:    an expert
    who testified about, among other things, brain development of
    teenagers.
    A jury convicted the defendant of various crimes, including
    murder in the first degree on theories of deliberate
    premeditation and extreme atrocity or cruelty.     The judge
    sentenced the defendant to life in prison without the
    possibility of parole on the murder conviction.4    The defendant
    appealed, and then moved for a new trial due to an asserted
    partial court room closure.    The judge denied the motion after
    an evidentiary hearing.    We have consolidated the defendant's
    direct appeal with his appeal from the denial of his motion for
    a new trial.
    Discussion.   1.   Voluntary manslaughter instruction.    We
    discern no error in the judge's decision not to instruct on
    voluntary manslaughter.    See Commonwealth v. Gulla, 
    476 Mass. 743
    , 748 (2017).   "A manslaughter instruction is required if the
    evidence, considered in the light most favorable to a defendant,
    4 After the defendant was convicted, he moved for a sentence
    of life with the possibility of parole. The motion was denied.
    6
    would permit a verdict of manslaughter and not murder."
    Commonwealth v. Pina, 
    481 Mass. 413
    , 422 (2019).    "Voluntary
    manslaughter is an unlawful killing 'arising not from malice,
    but "from . . . sudden passion induced by reasonable
    provocation, sudden combat, or excessive force in self-
    defense"'" (citation omitted).    Commonwealth v. Acevedo, 
    446 Mass. 435
    , 443 (2006).
    The defendant argues on appeal, as he did at trial, that
    the jury could have found that the victim armed herself with a
    knife on July 30 to protect her daughter, confronted the
    defendant, and then lost the knife to the defendant, who killed
    her with it.5    There was no direct evidence at trial of such a
    confrontation.    The defendant acknowledges as much and points
    instead to circumstantial evidence.    Viewed in the light most
    favorable to the defendant, that evidence is as follows:    (1)
    after the defendant attacked the victim's daughter on July 21,
    the victim told her daughter that the defendant would have to
    5 On appeal, the defendant also suggests that he was
    provoked by the victim's daughter breaking up with him.
    However, the "provocation must come from the victim."
    Commonwealth v. Hinds, 
    457 Mass. 83
    , 90 (2010), quoting
    Commonwealth v. Ruiz, 
    442 Mass. 826
    , 838-839 (2004). And
    "[m]ere words generally do not constitute sufficient provocation
    to warrant an instruction on [manslaughter]." Commonwealth v.
    Tu Trinh, 
    458 Mass. 776
    , 783 (2011), quoting Commonwealth v.
    Vick, 
    454 Mass. 418
    , 429 (2009). Cf. Commonwealth v. Zagrodny,
    
    443 Mass. 93
    , 106 (2004) ("victim's 'leaving' her husband and
    'taking' their children is not evidence of provocation
    sufficient to warrant a voluntary manslaughter instruction").
    7
    get through her if he ever came back; (2) when the victim and
    her family peacefully confronted the defendant on July 21, the
    defendant left peacefully; (3) the murder weapon came from the
    victim's house; (4) the victim held the murder weapon at some
    point, as shown by her deoxyribonucleic acid on its handle; and
    (5) the defendant had fresh cuts and scratches on his body when
    he was interviewed by police on July 30.
    The defendant's theory of events "is entirely speculative."
    Pina, 481 Mass. at 424.     The evidence provides no detail about
    the victim's supposed attack against the defendant, and "a judge
    should not instruct the jury 'on a hypothesis not supported by
    the evidence.'"   Id. at 422, quoting Commonwealth v. Vanderpool,
    
    367 Mass. 743
    , 746 (1975).    Thus, a voluntary manslaughter
    instruction was not warranted.    See Commonwealth v. Rodriquez,
    
    461 Mass. 100
    , 108 (2011), quoting Commonwealth v. Espada, 
    450 Mass. 687
    , 696-697 (2008) ("Generally, for sudden combat to be
    the basis of a voluntary manslaughter instruction, the 'victim
    . . . must attack the defendant or at least strike a blow
    against the defendant'").    See also Commonwealth v. Brum, 
    441 Mass. 199
    , 206 n.12 (2004) ("Even if a victim brandishes a
    weapon or attacks a defendant, it does not necessarily create
    sudden combat or reasonable provocation").     Cf. Gulla, 476 Mass.
    at 748 (evidence did not support voluntary manslaughter
    instruction where defendant had "injury to the back of his head"
    8
    and "defendant told first responders that the victim bit him,"
    but there was "no evidence that [the victim] initiated physical
    contact").
    2.      Constitutionality of sentence.   The defendant argues,
    as he did at trial, that mandatory sentences of life in prison
    without the possibility of parole are unconstitutional as
    applied to defendants who committed murder in the first degree
    when they were teenagers or in their early twenties.     See G. L.
    c. 265, § 2.    Because the defendant was nineteen years old at
    the time of his crimes, he contends that his sentence violates
    the prohibition on "cruel and unusual punishments" under the
    Eighth and Fourteenth Amendments to the United States
    Constitution and the prohibition on "cruel or unusual
    punishments" under art. 26 of the Massachusetts Declaration of
    Rights.     On this record, we decline to hold the defendant's
    sentence unconstitutional.
    In Miller v. Alabama, 
    567 U.S. 460
    , 465, 470 (2012), the
    United States Supreme Court held that mandatory sentences of
    life without parole violate the Eighth Amendment when imposed on
    those who are under the age of eighteen when they commit
    homicide.    In Diatchenko v. District Attorney for the Suffolk
    Dist., 
    466 Mass. 655
    , 673 (2013), S.C., 
    471 Mass. 12
     (2015), we
    decided that sentences of life without parole, whether mandatory
    or discretionary, violate art. 26 where imposed on individuals
    9
    who are under the age of eighteen when they commit murder in the
    first degree.   See Commonwealth v. Lugo, 
    482 Mass. 94
    , 98-101
    (2019) (describing Miller and Diatchenko).     The rulings in
    Miller and Diatchenko do not apply to the defendant here, who
    committed his crimes at the age of nineteen.
    We recognize that "[s]cientific and social science research
    on adolescent brain development . . . continues."    Commonwealth
    v. Okoro, 
    471 Mass. 51
    , 59-60 (2015).    "For example, researchers
    continue to study the age range at which most individuals reach
    adult neurobiological maturity, with evidence that although some
    brain systems have fully matured in most individuals by around
    age fifteen, other brain functions are not likely to be fully
    matured until around age twenty-two."    
    Id.
     at 60 n.14.   Indeed,
    the defendant's expert testified that certain parts of the
    brain, the frontal lobes, take over twenty years to "finish
    developing."    According to the expert, these portions of the
    brain regulate important functions such as "controlling
    impulses, . . . inhibition of unwanted behaviors, [and]
    decision-making."
    Although this testimony and similar research may relate to
    the constitutionality of sentences of life without parole for
    individuals other than juveniles,6 "we appear to deal here with a
    6 The term "juvenile" refers in this opinion to someone
    under the age of eighteen at the time of his or her crimes.
    10
    rapidly changing field of study and knowledge."     Id. at 60.      The
    minimal record on brain development in this case, consisting of
    one expert's testimony presented during trial rather than at
    sentencing, does not allow us to reach an informed conclusion on
    whether individuals in their late teens or early twenties should
    be given the same constitutional protections as juveniles for
    purposes of the Eighth Amendment and art. 26.     We decline on
    this record to extend beyond juveniles the decisions in Miller
    and Diatchenko.    Cf. Commonwealth v. Chukwuezi, 
    475 Mass. 597
    ,
    610 (2016) (upholding constitutionality of mandatory sentence of
    life without parole for defendant who was eighteen years old at
    time of crime).
    3.   Court room closure.     The judge found the following
    facts after an evidentiary hearing on the defendant's motion for
    a new trial.    We accept the facts as they are not clearly
    erroneous.     See Commonwealth v. Rakes, 
    478 Mass. 22
    , 36 (2017).
    An investigator with the Committee for Public Counsel
    Services (CPCS) was standing inside the court room during
    closing arguments because he did not see any seats available.        A
    court officer "approached [the investigator] and told him he
    could not stand there as the back doors of the courtroom needed
    to remain clear. . . .    [H]e told [the investigator] to take a
    seat or [the court officer] would find a seat for him."       The
    11
    investigator then left the court room after telling the court
    officer "he would wait outside."7
    While outside, the investigator told or suggested to two
    people, a relative of the victim and a CPCS attorney, that they
    could not enter the court room because standing was not allowed.
    After speaking with the investigator, the relative entered the
    court room, found a seat, and watched the proceedings for a time
    before leaving.   The CPCS attorney looked in the court room, saw
    that it was crowded, and left.    No court officer excluded either
    individual from the court room.
    The Sixth and Fourteenth Amendments to the United States
    Constitution guarantee defendants "the right to a . . . public
    trial."   Rather than risk violating this right by telling a
    spectator to leave, the court officer here offered to find the
    investigator a seat.   It is irrelevant that the investigator
    then told or suggested to other spectators that they could not
    7 The investigator with the Committee for Public Counsel
    Services testified that the court officer told him he needed to
    wait outside the court room because there were no seats
    available. The judge discredited this testimony, finding that
    the court officer "did not tell [the investigator] that he had
    to leave and remain outside the courtroom, but only that he
    could not stand blocking the public exit doors." Although the
    defendant argues the judge should have believed the
    investigator, "[t]he judge was not required to credit the
    [investigator's] testimony," Commonwealth v. Rakes, 
    478 Mass. 22
    , 36 (2017), and we accord special deference to the judge's
    findings "where, as here, the motion judge was also the trial
    judge." 
    Id.
    12
    enter the court room.   For there to be closure in the
    constitutional sense, "[s]ome affirmative act by the court or
    one acting on its behalf is required."   Commonwealth v. Rogers,
    
    459 Mass. 249
    , 263, cert. denied, 
    565 U.S. 1080
     (2011).    There
    was no official act of exclusion here.
    The defendant argues that attorneys should have been asked
    to move in front of the attorneys' bar to make room in the
    public seating area for nonattorney spectators.   The judge found
    that the district attorney for the Hampden district and an
    assistant district attorney entered around the time of closing
    arguments and sat in chairs in front of the attorneys' bar.       But
    the investigator never gave the court officer an opportunity to
    rearrange the seating, deciding instead to wait outside.    And
    the court was not obliged preemptively to seat in front of the
    attorneys' bar lawyers uninvolved in the case.
    The defendant argues also that the court officer should
    have brought to the judge's attention the investigator's
    inability to find a seat.   However, the judge did not need to
    address the issue because the court officer offered to find the
    investigator somewhere to sit, meaning there was no risk that a
    spectator would be excluded.   Cf. Commonwealth v. Fernandes, 
    478 Mass. 725
    , 732-733 (2018), quoting Commonwealth v. Cohen
    (No. 1), 
    456 Mass. 94
    , 115 (2010) (among other requirements,
    "judge must make 'findings adequate to support the closure'"
    13
    where there is partial closure, although "reviewing court may
    examine the record itself to see if it contains sufficient
    support for the closure . . . in the absence of formal or
    express findings by the judge").   There was no error in denying
    the defendant's motion for a new trial.8
    4.   Review under G. L. c. 278, § 33E.   After reviewing the
    entire record pursuant to our obligation under § 33E, we decline
    to reduce the murder verdict to a lesser degree of guilt or to
    order a new trial.
    Judgments affirmed.
    8 The defendant did not raise at trial the issue of court
    room closure, as it appears defense counsel did not learn of the
    asserted closure until after sentencing. Therefore, the
    defendant's claim is procedurally waived and any error, instead
    of resulting in automatic reversal, is reviewed for a
    substantial likelihood of a miscarriage of justice. See
    Commonwealth v. Robinson, 
    480 Mass. 146
    , 149-150, 153, 154-155
    (2018). Even if there were error, it would not warrant reversal
    under that standard.
    

Document Info

Docket Number: SJC 11423

Citation Numbers: 123 N.E.3d 766, 482 Mass. 408

Judges: Gants, Lenk, Gaziano, Lowy, Kafker

Filed Date: 6/7/2019

Precedential Status: Precedential

Modified Date: 10/19/2024