Commonwealth v. Castano ( 2017 )

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SJC-12090
COMMONWEALTH vs. FRANKLIN CASTANO.
Essex. April 7, 2017. - October 6, 2017.
Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.
Homicide. Firearms. Constitutional Law, Assistance of counsel,
Harmless error. Error, Harmless. Practice, Criminal,
Capital case, Assistance of counsel, Harmless error,
Hearsay, State of mind. Evidence, Hearsay, State of mind,
Motive, Expert opinion, Qualification of expert witness.
Witness, Expert.
Indictments found and returned in the Superior Court
Department on March 24, 2014.
A pretrial motion to suppress evidence was heard by Timothy
Q. Feeley, J., and the cases were tried before Mary K. Ames, J.
Elizabeth Caddick for the defendant.
Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. A Superior Court jury convicted the defendant
of murder in the first degree on a theory of deliberate
premeditation, G. L. c. 265, § 1, and of unlawful possession of
2
a firearm, G. L. c. 269, § 10 (h).1 The defendant advances five
arguments on appeal: (1) his statements to police about the
location of the gun involved in the case should have been
suppressed; (2) the trial judge improperly admitted hearsay
statements as motive evidence; (3) the Commonwealth's ballistics
expert was not competent to testify about the trajectory of the
shot that killed the victim; (4) the defendant was deprived of
his right to counsel because his relationship with his attorney
had deteriorated; and (5) the interests of justice require this
court to exercise its power, under G. L. c. 278, § 33E, to
reduce the conviction to murder in the second degree. For the
reasons discussed below, we affirm the convictions and decline
to exercise our authority under § 33E.
Background. On the morning of February 20, 2014, the
defendant, accompanied by two friends, walked into the Lynn
police station. One of the friends, Alvaro Garcia, informed
police that the defendant's girl friend was dead and that the
defendant had killed her. The defendant was placed under
arrest, and police responded to the Peabody apartment that the
defendant shared with his girl friend. There, they found her
1
The judge sentenced the defendant to the mandatory term of
imprisonment for life sentence without parole on the murder
conviction, and to a sentence of two years in a house of
correction on the firearm conviction to be served forthwith.
The defendant filed a timely notice of appeal.
3
dead with a gunshot wound to the head. Two spent casings were
found nearby, but no firearm was observed or recovered.
The events immediately following the defendant's arrival at
the police station were the subject of a motion to suppress, and
we first summarize those facts as found by the motion judge. We
then summarize the evidence at trial, with additional facts
reserved for later discussion.
1. The motion to suppress. The motion judge found the
following facts, which are not in dispute. The defendant, who
is not fluent in English, was booked at the Lynn police station
with the assistance of Officer Francisco Gomez, who is
bilingual. Throughout the course of the day, Gomez administered
Miranda rights to the defendant, in Spanish, at least four
times, including at the Lynn police station and at the Peabody
police station. Soon after the first provision of Miranda
rights, the defendant invoked his right to counsel.
The questioning did not immediately cease. The defendant
was subjected to two sets of questions at the Peabody police
station without ever having the opportunity to speak to a
lawyer. Both sets of postinvocation questions concerned the
disposal of the firearm that police, at that time, believed the
defendant had used to kill the victim.
The first set of questions came from Peabody police Officer
Mark Saia, who asked the defendant where "the gun" was. The
4
defendant replied that he threw it out of his motor vehicle
window near the apartment complex where the killing occurred.
Saia told the defendant that it was important to locate the gun
because of that area's proximity to places where children might
be present. The officer asked the defendant for more detail
about where he had disposed of the gun. The defendant said he
had turned to the left out of the apartment complex and threw
the weapon out the vehicle window near a dry cleaner. Saia
communicated that information to other officers at the scene.
They did not find the gun.
The second set of questions came from Peabody police
Detective Stephanie Lane. Lane had responded to the apartment
complex on the morning of the events in question. She was
familiar with the area described by the defendant. She was
aware that both a church (with a school and day care facility)
and a preschool were located nearby. She also was aware that
the apartment complex itself was home to a number of children.
Lane further knew that police had not recovered the weapon from
the apartment or from their subsequent search of its environs.
When Lane returned to the station, she spoke to the
defendant in the holding cell area and essentially repeated the
questions asked by Saia. The defendant provided the same
information and described the firearm as silver in color. Lane
asked if the defendant would be willing to accompany her and
5
other officers to help find the firearm. He agreed to
cooperate. Police placed the defendant in the back of a cruiser
and drove to the area adjacent to the apartment complex. The
defendant pointed out the direction in which he had thrown the
firearm. Still, police never recovered the weapon.
The motion judge ruled that the defendant's responses to
these two sets of inquiries were admissible at trial under the
public safety exception to the Miranda exclusionary rule, as
first established in New York v. Quarles, 467 U.S. 649, 655-656
(1984). He concluded that (1) the Quarles exception extends to
postinvocation questioning and (2) it applied here because
officers had an objectively reasonable need to protect the
public from danger when they asked the defendant about the
location of the gun.
2. The evidence at trial. We summarize the facts at trial
as the jury could have found them.
a. Communication with Garcia. Garcia, a friend of the
defendant for several years, testified about communication he
had had with the defendant on the night of the killing and the
morning after. Garcia also knew the victim, having nicknamed
her "Explosive" because she was "the kind of person you [could]
meet and connect [with] right away" and "[a]lways happy."
On the night of February 19, 2014, Garcia was working at
his job for a cleaning company. Around 10:30 P.M., the
6
defendant began posting comments directed at Garcia on a social
networking Web site, one of which struck Garcia as unusual. As
a result, Garcia telephoned the defendant, who said only that he
would call Garcia later. About an hour later, the defendant
called Garcia and asked him to come by the defendant's apartment
because the defendant needed to talk to him. The defendant
sounded "weird" and "nervous." Garcia tentatively agreed to
come by the apartment, or at least call the defendant, when his
shift ended at 2 A.M. on February 20.
The defendant subsequently sent Garcia another message,
through the messaging application WhatsApp, asking if he had
finished his shift yet. Garcia asked why the defendant wanted
him to come by the apartment. The defendant replied that he had
"problems" or "a thing on [his] hands." The defendant also sent
an emoji2 of a face with X's for eyes,3 and the word "Explosive."
At that point, Garcia knew that "something was happening," and
he told the defendant that he would call the defendant after
work.
2
An emoji is "any of various small images, symbols, or
icons used in text fields in electronic communication (as in
text messages, [electronic ]mail, and social media) to express
the emotional attitude of the writer, convey information
succinctly, communicate a message playfully without using words,
etc." Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/emoji [https://perma.cc/QUC5-SA8E].
3
7
Garcia sent the defendant a text message when he was
leaving work around 2 A.M., and again when he reached his home
around 2:30 A.M., but the defendant did not respond to either.
Garcia did not hear from the defendant again until around 7
A.M., when the defendant called on the telephone while Garcia
was working at his second job. The defendant again told Garcia
that he had "problems" -- "something serious" or "something big"
-- and that he wanted Garcia to come by his apartment. At this
point, the defendant sounded "desperate."
Garcia left work and went to the defendant's apartment in
Peabody. When he arrived, the defendant opened the door to let
Garcia in, turned, and said, "I'm fucked." Garcia asked what
happened, and the defendant said, "Explosive is dead." The
defendant told Garcia that the victim was "in the other room,"
but he did not explain what happened before Garcia got scared
and decided to leave.
Garcia returned to his home in Lynn and spoke with his
wife; they agreed to go to the Lynn police station. At that
point, the defendant telephoned Garcia and said that he was on
his way to Garcia's house. Garcia and his wife waited in the
vehicle for the defendant to arrive, planning to accompany him
to the police station.
When the defendant arrived, he leaned in the driver's side
window of Garcia's vehicle. Garcia's wife asked the defendant
8
what had happened. The defendant explained that he was counting
money at a table, upon which there was a gun. According to the
defendant, the victim grabbed the gun and said, "I don't know
why you have this in here." The victim then "dropped" the gun
back onto the table. It fell off of the table, and the
defendant "grabbed" it. After grabbing the gun, the defendant
said something along the lines of "leave me alone, asshole" and
swung his arm backward. The defendant said the motion caused
him to shoot the victim, and then he got scared and a second
shot fired into the wall. The defendant told Garcia it was an
accident and he wanted to "do the right thing" and surrender
himself to police.
b. Defendant's statements to police. The testimony at
trial regarding the defendant's statements to police was
essentially consistent with the testimony at the suppression
hearing, discussed above. Officer Gomez and Detective Lane
testified that the defendant told them that he "threw [the gun]
out of the car" at some point after the incident. Both Officer
Saia and Detective Lane described police efforts to locate the
gun based on information given to them by the defendant.
c. Physical evidence. Although police never recovered the
weapon, the Commonwealth presented other pieces of physical
evidence linking the defendant to the crime. When police
entered the apartment, it appeared relatively clean and
9
undisturbed, other than a small lamp near the victim's feet that
had been knocked over and a suitcase on the floor of the room
where the victim was found.
Photographs of the inside of the apartment showed that
police discovered the victim lying face-down on a small couch,
with a sweatshirt covering her head. Blood had pooled in the
corner of the couch next to the victim's head and on the floor
nearby. Police found one earring in a crevice of the couch; the
other remained in the victim's left ear.
Police also located two spent shell casings inside the
apartment -- one on the floor near the couch and one on a
windowsill in the corner of the same room. They recovered two
spent projectiles -- one from inside the arm of the couch, and
one from inside the wall above the victim's feet.
The exhibits also included two pairs of examination gloves
and one pair of winter gloves that police found sitting out on a
coffee table and a bureau inside the apartment. The outside of
one pair of examination gloves tested positive for gunshot
residue.
d. Motive evidence. The Commonwealth's theory of motive
was based largely on the testimony of two acquaintances of the
victim -- a cousin and a friend. The cousin testified that she
saw the victim on February 13 and 14, 2014. She testified that
on February 13, the victim told her that, the night before, she
10
and the defendant had gotten into an argument over the way the
defendant opened a bag of cotton balls. The argument progressed
to the point where the victim told the defendant she wanted to
end their relationship. According to the cousin, the victim
also had received gifts from the defendant for their
anniversary, on February 13, but had told the defendant that she
did not want them.
The friend testified that, on the Monday before she was
killed, the victim had told the friend that she was planning to
end her relationship with the defendant and that his belongings
were already packed. The victim said that "[s]he wanted him out
of the apartment so she could continue her life without him."
There also was testimony from the leasing agent for the
apartment complex where the defendant and the victim lived. The
leasing agent testified that on the afternoon of February 19,
2014, the victim came into her office to obtain a roommate
release form. The leasing agent provided the victim with the
form, along with instructions for completing it.
e. Medical evidence. The medical examiner testified to
her autopsy findings underlying her opinion that the victim died
from a gunshot wound to the head. She described the entrance
wound above the victim's right temple and the exit wound in the
lower, left part of her skull. She also opined that the
11
entrance wound was a "contact wound," meaning the gun was fired
while in contact with the victim's head.
The autopsy revealed other injuries. The victim had
abrasions around her neck, roughly matching the pattern of a
necklace she was wearing. The abrasions, along with petechial
hemorrhages in the victim's eye and face, indicated possible
ligature strangulation. The medical examiner also observed
bruising and abrasions on the victim's right cheek, as well as a
bruise on the back of her left hand.
f. The defense. The theory of the defense was that the
victim's death was accidental. The defendant did not put on his
own case. However, in addition to the evidence already
discussed, the defendant, without objection, elicited testimony
from Garcia and Garcia's wife about how the defendant had told
them, before they all went to the police station, that the
shooting was an accident. He argued in closing that the
shooting was accidental and there was reasonable doubt about his
alleged motive.
Discussion. 1. Defendant's statements to police. There
is no dispute that the defendant invoked his right to counsel
shortly after appearing at the Lynn police station on the
morning of February 20, 2014, and well before officers asked him
about the location of the gun. The Commonwealth conceded at the
suppression stage that because police continued to question the
12
defendant after he had invoked his right to counsel, his
statements in response to those questions were not admissible
under the general parameters of Edwards v. Arizona, 451 U.S.
477, 484-485 (1981).
However, the Commonwealth urges this court to adopt the
reasoning of the motion judge -- in particular, that the public
safety exception to the Miranda exclusionary rule, announced by
the United States Supreme Court in Quarles, 467 U.S. at 655-656,
authorizes the admission of the defendant's postinvocation
statements to police regarding the whereabouts of the gun. The
defendant argues that this court has never, and should not now,
apply Quarles to post-Miranda, postinvocation questioning. He
further argues that even if Quarles applied in such a scenario,
it should not apply here because there was no objectively
reasonable concern that police or the public faced any immediate
danger from the gun that the defendant discarded.
Although ably argued by both sides, we need not decide
whether Quarles might apply in a postinvocation setting such as
this one, or, if so, whether the circumstances here would meet
the requirements of the public safety exception. Even if we
assume, without deciding, that it was constitutional error to
admit the defendant's postinvocation statements and the evidence
about the ensuing, but fruitless, police search for the gun, any
such error would not require reversal in this case.
13
Where the Commonwealth introduces evidence in violation of
a defendant's constitutional rights, "we examine the case to
determine whether the erroneous admission was harmless beyond a
reasonable doubt." Commonwealth v. Dagraca, 447 Mass. 546, 552
(2006). In order to answer that question, we look to several
factors, including, as relevant here, the importance of the
evidence in the prosecution's case, the relationship between the
evidence and the premise of the defense, and the weight or
quantum of evidence of guilt. Id. at 552–553 (listing factors).
"An assertion that the error is harmless beyond a reasonable
doubt is most particularly vulnerable where the over-all
strength of the Commonwealth's case radiates from a core of
tainted evidence." Commonwealth v. Tyree, 455 Mass. 676, 701-
702 (2010). On the other hand, an error may be harmless beyond
a reasonable doubt where the Commonwealth's evidence is so
"overwhelming" that it "nullif[ies] any effect the erroneously
admitted [evidence] might have had on the jury or the verdict."
Dagraca, supra at 555.
The defendant argues that the prejudice calculus tips in
his favor because the Commonwealth presented testimony from
several police officers not only regarding the defendant's
statements to them about throwing away the gun, but also -- and
perhaps more harmfully -- about their extensive, yet
unsuccessful, search effort that resulted from those statements.
14
Indeed, the Commonwealth's case included testimony that the
search involved personnel from the State police and at least
four municipal police departments, a canine unit, and a front-
end loader digging through the snow over the course of about
four hours, all in a fruitless search for the gun. All of this
provided a foundation for the prosecutor to argue, in closing,
that the defendant "manipulated the police" into "a wild goose
chase looking for a gun."
Nevertheless, we are satisfied that the evidence of
premeditation was so "overwhelming" as to "nullify any effect"
that this evidence might have had on the jury or the verdicts.
Dagraca, 447 Mass. at 555. See id. at 556-557 (collecting
cases). The gun itself was not an important piece of evidence
in the case, given that it was never recovered and that the
victim's cause of death -- a gunshot wound to the head -- was
never in dispute. Rather, it is clear to us that, as laid out
below, the physical evidence, the motive evidence, and the
evidence of the defendant's communications with Garcia formed
the center of gravity of the Commonwealth's case. The
defendant's statements to police and the ensuing search for the
gun were peripheral to it, and not a "core of tainted evidence,"
Tyree, 455 Mass. at 702, from which the verdicts flowed.4
4
Although our determination is far from mathematical, a
survey of the prosecutor's closing argument illustrates this
15
Moreover, the challenged evidence was not totally inimical
to the defendant's own theory of the case. Indeed, defense
counsel, in closing, directed the jury's attention to the fact
that the defendant had surrendered himself to police and later
helped them search for the gun. The implication of this
argument was that a person who was guilty of premeditated murder
would not do these things, but one who had committed an
accidental killing would.
That articulation of the issue points to the crux of the
defendant's argument on prejudice: that the jury could have
used the "wild goose chase" evidence as a reason to disbelieve
his version of events (the shooting was accidental) and instead
believe the Commonwealth's version (the shooting was
premeditated). However, the evidence supporting deliberate
premeditation was plentiful and potent, and each piece provided
the jury with a reason to reject the defendant's theory of
accident that was wholly independent of the "wild goose chase"
evidence.
As already discussed, the victim died of a contact gunshot
wound to the head. And, as discussed in more detail below, the
evidence showed that this gunshot was likely fired in a
"downward trajectory" through the victim's head and into the arm
point. Her closing argument spanned 268 lines of transcript;
the "wild goose chase" evidence took up about ten lines, or
about four per cent, of the argument.
16
of the couch. The victim was found lying face-down, with her
head pressed into the corner of the couch and her feet in the
air. All of this suggests that the shooter had leverage over
the victim, forced her head against the armrest of the couch,
and held the gun against her temple before firing. That version
of events, as corroborated by the physical evidence, flatly
contradicts the story that the defendant told Garcia -- that he
accidentally fired the gun when he swung his arm backward while
seated at a table.
Similarly, the medical examiner's extensive testimony about
the abrasions on the victim's neck, the petechial hemorrhages in
her face, and the bruising to her head and hand refutes the
defendant's accident theory. These injuries, along with the
fact that one of the victim's earrings was found in the seam of
the couch while the other remained in her ear, indicate that
some sort of struggle, and possibly strangulation, took place on
the couch before the shooting. Again, this evidence cannot be
squared with the story that the defendant told Garcia.
The Commonwealth's case also included substantial evidence
of motive. As discussed in more detail below, the jury
reasonably could have inferred that the defendant was aware that
the victim wanted to end their relationship and kick him out of
the apartment they shared, and that this motivated the killing.
17
This evidence, if believed, would give the jury yet another
reason to reject the defendant's theory of accident.
The defendant's communication with Garcia also was
irreconcilable with an accidental shooting. Between 10:30 P.M.
on February 19 and 2 A.M. on February 20, the defendant
initiated numerous communications with Garcia -- including
sending an emoji face with X's for eyes alongside the victim's
nickname "Explosive" -- that suggested the shooting had already
occurred. Yet, there was no evidence that the defendant ever
called 911 or otherwise sought to aid the victim. Instead, when
Garcia finally visited the apartment after 7 A.M., the defendant
opened the door and said, simply, "I'm fucked." Shortly after,
when Garcia told the defendant of his intention to call the
police, the defendant immediately asked him not to, pleading,
"[D]o not do that to me."
Finally, there was some evidence that the defendant may
have manipulated the crime scene. In particular, when police
searched the apartment, they observed three pairs of gloves and
a spray bottle of cleaner sitting out in the open, along with
numerous aromatic candles burning.
The totality of the evidence so overwhelmingly refutes the
defendant's accident defense that we are convinced beyond a
reasonable doubt that no reasonable jury would have been
affected in their deliberations by the evidence the admission of
18
which is alleged to be constitutional error. Accordingly, we
conclude that the Commonwealth's properly admitted evidence was
"so powerful as to neutralize," Dagraca, 447 Mass. at 555, any
prejudice that may have arisen from the admission of the
defendant's statements about the location of the gun and the
resulting search.
2. Hearsay statements. The defendant next argues that the
trial judge abused her discretion in admitting statements of the
victim, to her cousin and her friend, that she was planning to
end her relationship with the defendant because there was no
evidence that the defendant was aware of this plan. We discern
no error.
There is no dispute that the victim's statements to her
cousin and her friend ordinarily would constitute hearsay. See
generally Mass. G. Evid. §§ 801(c), 802 (2017). However, in
certain circumstances, an exception to the hearsay rule permits
the admission of evidence of a murder victim's state of mind as
proof of the defendant's motive to kill the victim. See
Commonwealth v. Qualls, 425 Mass. 163, 167 (1997), S.C., 440
Mass. 576 (2003). Such evidence is admissible "when and only
when there also is evidence that the defendant was aware of that
state of mind at the time of the crime and would be likely to
respond to it." Id. There need not be direct evidence that the
defendant learned of the victim's state of mind, so long as the
19
jury reasonably could have inferred that he or she did learn of
it. Commonwealth v. Franklin, 465 Mass. 895, 907 (2013).
Here, there was adequate evidence for the jury to infer
that the defendant was aware of the victim's plan to end their
relationship. In particular, the evidence showed that a
suitcase lay in the middle of the floor of the room where the
victim's body was found. The evidence also showed that, the
afternoon before the killing, the victim obtained a roommate
release form from the apartment leasing agent, and received
specific instructions on how to fill it out in order to remove
the defendant from the lease. Police later recovered the form
from the victim's automobile, although there was no evidence
that the defendant actually saw it. Further, even in the
defendant's own description of the purportedly accidental
shooting, he and the victim were arguing in the moments leading
up to it.
These pieces of evidence, considered together and in the
context of the location and manner of the victim's death,
provided the jury with a sufficient foundation to reasonably
infer that the victim made the defendant aware of her desire to
end their relationship and for the defendant to move out of the
apartment not long before the killing occurred.5 Compare
5
The Commonwealth asserts that additional hearsay
statements -- testimony to the effect that the victim told her
20
Franklin, 465 Mass. at 907-908 (defendant's statements permitted
inference that he learned of victim's threat and that it was
motive in killing); Commonwealth v. Sharpe, 454 Mass. 135, 142
(2009) (defendant's request to friend for help getting new
apartment reasonably implied he was aware of victim's plan to
move without him to new apartment); Commonwealth v. Cruz, 424
Mass. 207, 212 (1997) (proper evidence of "threats" and
"discord" in relationship demonstrated respective states of mind
of victim and defendant); Commonwealth v. Weichell, 390 Mass.
62, 74 (1983), cert. denied, 465 U.S. 1032 (1984) (defendant's
statements and actions, including heated argument with victim in
week before murder, permitted inference that defendant and
victim had communicated hostile intentions toward each other);
Commonwealth v. Borodine, 371 Mass. 1, 8 (1976), cert. denied,
429 U.S. 1049 (1977) (defendant's statements to others
concerning argument with victim over their relationship, coupled
with victim's willingness to tell third parties that her
cousin and her friend that she had told the defendant of her
desire to end her relationship with him -- lent further support
to the inference that the defendant was made aware of the
victim's state of mind. Compare Commonwealth v. Borodine, 371
Mass. 1, 8 (1976), cert. denied, 429 U.S. 1049 (1977) ("If the
victim was willing to tell third persons that her relationship
with the defendant had deteriorated and that she had told or
would tell the defendant that their relationship would end, it
is inferable that by word or action, or both, she communicated
her feelings to the defendant"). Given the nonhearsay basis for
the inference of the defendant's awareness discussed in the
text, we need not reach this question.
21
relationship with defendant had deteriorated, permitted
inference that defendant was made aware of victim's state of
mind).
Of course, the jury were not required to make this
inference. But the fact that they permissibly could have means
that "[i]t was within the judge's discretion," Commonwealth v.
Bins, 465 Mass. 348, 366 (2013), to admit the victim's
statements under the state-of-mind exception to the hearsay
rule. See Franklin, 465 Mass. at 908. Moreover, the judge
issued timely and forceful instructions to the jury regarding
the limited purpose of this evidence. See Bins, supra. There
was no error.
3. Shot trajectory. The defendant also argues that the
Commonwealth's ballistics expert was not qualified to offer an
expert opinion on the trajectory of the shot that killed the
victim. In particular, he takes issue with the fact that a
member of the firearms identification section of the State
police was permitted to testify that, in his opinion, the shot
that killed the victim traveled in a "downward trajectory."
There was no objection to that testimony at trial, nor is there
any indication that defense counsel sought a Daubert-Lanigan
hearing to investigate the trooper's qualifications to offer
this opinion. See Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).
22
Typically, a trial judge has wide discretion in qualifying
a witness to offer an expert opinion and that determination will
not be upset on appeal if any reasonable basis appears for it.
Commonwealth v. Avila, 454 Mass. 744, 764 (2009), quoting
Commonwealth v. Rice, 441 Mass. 291, 298 (2004). Here, the
record demonstrates that the judge was well within her
discretion in admitting the opinion of the Commonwealth's
ballistics expert because that opinion did not require
qualifications beyond those the witness possessed. The evidence
showed that the victim was found lying on her stomach with the
left side of her face pressed into the corner of a small couch.
The medical examiner testified that the fatal shot entered the
victim's skull near the right temple and exited through the back
left side of the skull. There was a bullet hole, with hairs
around it, in the armrest nearest the victim's head.
Investigators retrieved a bullet buried inside the armrest of
the couch.
Considering these pieces of evidence together, mere common
sense permits the inference that the bullet traveled in a
downward trajectory. That is, it does not take an expert to
draw a straight line between three points -- from the entrance
wound on the victim's right temple, through the exit wound on
the left side of her skull, to the bullet's final resting place
inside the armrest of the couch. Compare Commonwealth v.
23
Pasteur, 66 Mass. App. Ct. 812, 826–827 (2006) (discussing
expert testimony of State police firearms examiner on ricochet
trajectory of bullet). At most, drawing such a conclusion might
require basic familiarity with the operation of firearms.
Compare Commonwealth v. Lodge, 431 Mass. 461, 469 (2000), citing
Cammon v. State, 269 Ga. 470, 471–474 (1998) (testimony about
direction in which blood typically falls "may well be within the
general knowledge" of experienced police homicide investigator,
provided appropriate foundation questions are asked regarding
investigator's experience). Assuming such familiarity was
required, this witness clearly possessed it, having test-fired
over 1,000 weapons and having worked as a State police
ballistician for over eight years. See Commonwealth v. Fritz,
472 Mass. 341, 349 (2015) (officer's experience in firearms
identification supported judge's determination that officer
satisfied foundational requirements to qualify as expert).
There was no error.
4. Right to counsel. The defendant further argues that
the trial judge abused her discretion by denying his request for
new counsel after jury selection, but before trial began. The
request was premised on the defendant's assertion that his
attorney was acting ineffectively and that communication between
the two had broken down beyond repair. On appeal, the defendant
24
mainly takes issue with the judge's suggestion that his last-
minute request for a new lawyer was a delay tactic.
The defendant states the correct standard of review: a
defendant's motion to discharge counsel, when made on the eve of
trial, is a matter left to the sound discretion of the trial
judge. Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985).
However, his argument misconstrues what happened below. In
fact, the trial judge stated -- on the record and in
considerable detail -- that she had been closely observing the
interactions between the defendant and his attorney, and that
she saw "nothing to indicate . . . that any relationship ha[d]
broken down." To the contrary, she determined that the
defendant's attorney had acted with "the highest degree of
professionalism," went "beyond the call of duty," and
"communicat[ed] quite effectively" with his client. Given these
findings, the judge's decision to deny the defendant's request
for new counsel fell squarely within "the range of reasonable
alternatives," L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014), available to her.
5. Review under G. L. c. 278, § 33E. Finally, the
defendant contends that a conviction of murder in the second
degree would be more consonant with justice. As already
discussed, ample evidence supported the jury's finding of
deliberate premeditation. After a thorough review of the
25
record, we see no reason to exercise our power under G. L.
c. 278, § 33E, to reduce the verdict.
Judgments affirmed.