Commonwealth v. Wall , 469 Mass. 652 ( 2014 )

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revision and are superseded by the advance sheets and bound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-09850
COMMONWEALTH vs. GREGORY A. WALL.
Norfolk. May 9, 2014. - September 11, 2014.
Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, JJ.1
Homicide. Intoxication. Malice. Evidence, Intoxication,
Telephone conversation, Relevancy and materiality,
Inflammatory evidence, State of mind, Impeachment of
credibility, Medical record. Witness, Impeachment.
Practice, Criminal, Capital case, State of mind, Assistance
of counsel, Instructions to jury, Objections to jury
instructions. Constitutional Law, Public trial.
Indictment found and returned in the Superior Court
Department on May 30, 2002.
The case was tried before Judith Fabricant, J.; a motion
for a new trial, filed on November 16, 2009, was heard by her;
and a second motion for a new trial, filed on January 11, 2013,
was considered by her.
Matthew A. Kamholtz for the defendant.
Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
CORDY, J. Just before midnight on May 3, 2002, police
responded to 16 Sumner Street in Quincy after a neighbor
telephoned to report that she had just witnessed the defendant,
Gregory A. Wall, moving a trash barrel with a human leg
protruding from it across their shared backyard. On arrival,
the officers observed a trail of red droplets leading to the
defendant's back door. Through a window in the door, one of the
officers observed the legs of someone standing next to a plastic
bag containing two human feet. On entering the apartment, the
officers discovered a horrific scene. A woman's body had been
dismembered. The defendant was found moments later in his
bedroom closet, his clothes and hands stained with the victim's
blood. He would give several explanations to police, generally
claiming that, after the victim came to his apartment, he passed
out due to his consumption of alcohol and prescription
medication (Ativan) and woke up to find the victim dead. He was
taken to the Quincy Medical Center for observation, where
doctors determined that his blood alcohol content (BAC) was 0.21
per cent.
The defendant was charged with murder in the first degree,
and the Commonwealth proceeded on theories of premeditation,
3
extreme atrocity or cruelty, and felony-murder.2 Defense
counsel, relying on evidence of the defendant's intoxication and
statements the defendant made to police, alleged that a third
party -- most likely the victim's boy friend -- entered the
house and killed the victim while the defendant was unconscious
due to severe intoxication, and that the defendant merely
panicked and attempted to clean up the scene after waking up to
the sight of the aftermath of the murder. After a six-day
trial, the defendant was convicted of murder in the first degree
on the theories of premeditation and extreme atrocity or
cruelty.
On appeal, the defendant raises numerous claims of error.
He contends that the trial judge abused her discretion in
admitting in evidence recorded telephone calls made on the day
of the murder between the defendant and his girl friend, Linda
Reid, who was incarcerated at the time; that a medical record
containing the preliminary "urine toxicology screen," which
showed that he tested negative for any drugs, was erroneously
admitted; that counsel was ineffective in failing to object to
the admission of the toxicology report and failing to use a
prior inconsistent statement to impeach Reid on her unfounded
assertion that there was no Ativan in the house at the time of
2
The Commonwealth presented evidence that the defendant had
had sex with the victim and alleged that the murder was
committed in the course of an uncharged aggravated rape.
4
the murder; that the trial judge erred in instructing the jury
that there is no "legal limit" of intoxication for any purposes
other than determining whether one is guilty of operating a
motor vehicle while under the influence of alcohol; and that his
right to a public trial was violated when his uncle was
prevented from entering the court room during jury empanelment.
For the reasons stated below, we find no reversible error, and
discern no basis to exercise our authority under G. L. c. 278,
§ 33E, to reduce or reverse the verdict. As a result, we affirm
the defendant's conviction.
1. Background. We summarize the facts the jury could have
found, in the light most favorable to the Commonwealth.
Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
a. The murder. The victim arrived at the Quincy Adams
Restaurant in Quincy at approximately 1 P.M. on May 3, 2002.
Catriona Craig, a bartender at the restaurant, had known the
victim as a customer for two years. The victim's boy friend,
Evan Baker, whom Craig also had known for over one year, was
already in the restaurant playing the game Keno. The victim sat
on the other side of the bar from Baker, and the two argued a
bit without speaking directly to one another, using Craig as an
intermediary.
At approximately 2 P.M., the defendant entered the
restaurant and sat with the victim at the bar. The two sat
5
together for the entirety of the defendant's stay and struck up
a conversation. Baker never spoke to either the defendant or
the victim. The defendant left the bar between 3:30 and 4 P.M.,
the victim left a few minutes later, and Baker left a minute
after that. Baker returned ten minutes later, alone, to play
Keno for another ten minutes before leaving.
The defendant lived at 16 Sumner Street with his girl
friend, Linda Reid, who had been incarcerated the previous week.
At 4:30 P.M., Joshua Delong, a resident of 18 Sumner Street, saw
the defendant return to the building and enter his apartment
with a woman he would later identify as the victim.
Delong lived with his mother, Shirley Folsom (Shirley), and
his two brothers. At the time of the murder, Shirley's sister,
Donna Hons, and brother-in-law were visiting and staying in the
apartment across the hall from Shirley's. That apartment was
directly above the defendant's apartment.
At approximately 6 P.M., Shirley and her family went out to
dinner. When they returned around 9 P.M., members of the family
heard loud banging noises emanating from the defendant's
apartment, which occurred continuously until 11 P.M. Shortly
thereafter, Hons heard noises coming from outside and looked out
the window to see the defendant dragging a barrel through the
back yard. She watched as he covered the barrel with a blanket
and tried unsuccessfully to lift it into a nearby shopping cart.
6
After watching for a while, she went to get Shirley, who then
observed the defendant dragging a barrel with a human leg
protruding from it, prompting her to call the police.
Officers David Levine and John Michael McGovern of the
Quincy police department responded to the scene at 11:56 P.M.
They proceeded to the back yard, where they found a pile of
garbage bags. After speaking with one of the witnesses, they
rummaged through the trash barrels in the backyard, finding
clothing covered in reddish stains. They also noticed a
similarly stained shower curtain in a shopping cart near the
barrels and a trail of droplets of a red substance leading to
the rear door of the house.
The two officers separated, with Levine staying in the rear
of the house and McGovern heading to the front. Levine
proceeded up to the rear doorway. Looking downward through a
window in the rear door,3 he saw what appeared to be two human
feet sticking out of a plastic shopping bag. He also saw the
legs of someone -- presumably the defendant -- standing by the
feet. He announced his presence and ordered the door open. The
defendant said "hold on," and ran from the room.
3
Officer Levine described the rear door as "a wooden door
with a window in the middle with an interior curtain across."
He was able to look down through the space between the curtain
and the door to see a small portion of the room.
7
Levine forced his way into the apartment and went directly
into the kitchen, where he saw the victim's body in a garbage
barrel. She was placed in the barrel head-first, with her legs
in the air. Her body had been dismembered, with part of her
legs cut off. A blood-stained hacksaw subsequently was found in
the barrel with the victim.
Meanwhile, Officer McGovern heard a commotion and returned
to the back of the building in time to see Levine break into the
apartment. He radioed for assistance and returned to the front
door, which he kicked in. Several officers arrived moments
later and undertook a search of the apartment. The defendant
was found hiding in a bedroom closet with the victim's blood on
his hands and clothes.4 He was ordered to the floor and
arrested. Sergeant Charles E. Santoro immediately read the
defendant the Miranda warnings, which the defendant indicated he
understood. He told Santoro that the person in the barrel was a
woman, and that he had taken "all kinds of pills."
The medical examiner who performed the victim's autopsy
testified that the victim suffered through a series of brutal
injuries before her death. He determined that there were ten
lacerations caused by blunt trauma to her head. Though he could
not testify as to what caused the trauma, a broken hammer with
4
Forensic testing confirmed that the blood on his hands and
clothes was either the victim's blood or a mixture that included
the victim's blood.
8
human hair stuck to it was found in a trash barrel taken from
the backyard.5 The victim had abrasions on her nose, a black
eye, and bruises on her arms, hands, and shoulders. Three
fingers on her left hand and one on her right hand had been
pulled off while she was still alive, with one finger on her
left hand hanging on by the skin. She also suffered three stab
wounds to her left abdomen, one of which perforated her small
intestine. The medical examiner determined her cause of death
to be a combination of the blunt head trauma, abdominal stab
wounds, and traumatic amputation to her fingers. Postmortem,
she suffered a ten-inch long, five- to six-inch deep cut to her
right femur and the total amputation of both legs below the
knee.
b. The defendant's statements. At the booking station,
the defendant made a telephone call to his mother that Officer
David Santosuosso was able to overhear.6 He told her that he had
met a woman earlier in the day, that she had come back to his
apartment, and that a man may have come back with her. He said
that he was either "blacked out" or "whacked out," and told her
that he was charged with murder. He later called her again, at
5
The barrel also contained clothing, a knife, and a human
finger.
6
The defendant told officers that he wished to call his
mother, although they had no way of confirming the identity of
the person to whom he actually spoke.
9
which point Lieutenant John Sullivan overheard him say, "They
think I killed her, I don't know how she got there, I just woke
up and she was there."7
After he was booked, the defendant spoke to several police
officers and detectives and gave conflicting versions of the
events leading to the murder. He told Detective Chris McDermott
that he met the victim and her boy friend (whose name he could
not recall) at the Quincy Adams restaurant, invited both of them
to his apartment, went home alone, and apparently fell asleep.
He claimed that he woke up to the sound of them arguing in his
kitchen, and his next memory was being ordered out of the closet
by police. When asked what happened to the woman found in his
apartment, he said that he did not hurt her, but that he "just
tried to get rid of it."
He told Detective Robert Curtis that he went to the Quincy
Adams restaurant, had about four beers, and spoke to the victim,
whom he knew only as Cathy. He went on to say that he invited
the victim to his house, went home alone, and that she arrived
some time later, alone. He said that her boy friend arrived
after that, and the three had a friendly interaction. Later, he
7
The defendant also told Officer Brian Mahoney while being
booked that he had taken some Ativan that night. The
information was relayed to Lieutenant Sullivan, who decided to
call an ambulance to get the defendant medical attention. He
was taken to the Quincy Medical Center and observed for several
hours, after which he was returned to the police station at
approximately 5:30 A.M.
10
told Curtis that the victim and her boy friend arrived at his
house unexpectedly. But he also stated that he invited the
victim to his house and told her she could bring her boy friend.
In the end, he claimed that he did not remember what had
happened that night, and that he was woken up by the arrival of
the police. When Curtis pointed out the inconsistencies in the
versions of events he had given, the defendant said that he did
not remember his first two explanations and smiled.
The defendant also spoke to State police Trooper Brian
Brooks. The defendant first claimed that he invited the victim
and her boy friend to his apartment, but then went to his
apartment alone and fell asleep. He later recanted and said
that he had invited only the victim, who took it on herself to
invite her boy friend. He went on to state that he and the
victim had consensual sex,8 that her boy friend came over an hour
later, and that he fell asleep in his living room while the
victim and her boy friend talked in the kitchen. He claimed
that the next thing he remembered was "waking up seeing the mess
and the Quincy police at the door."
c. The defense. The defendant pursued a third-party
culprit defense. His primary theory was that he had been
8
The defendant initially denied that he had had sex with
the victim, before eventually admitting to Trooper Brian Brooks
that he had, a fact that subsequently was confirmed by forensic
testing.
11
unconscious during the murder due to severe intoxication from
drug and alcohol use, and that another person, likely Baker,
entered the house and killed the victim while he slept.9
Although he did not explicitly argue it to the jury, his
secondary theory was that if he had killed the victim, he was so
intoxicated as to be unable to form the mental state required
for murder, as evidenced by defense counsel's request for an
intoxication instruction.
On July 27, 2005, after a six-day trial and less than one
day of deliberations, the defendant was convicted of murder in
the first degree on the theories of premeditation and extreme
atrocity or cruelty. He was sentenced to life imprisonment
without the possibility of parole.
9
In response to this argument, the Commonwealth presented
evidence that, on May 4, 2002, police seized the pants, socks,
sneakers, shirt, and cap that Baker was wearing on the night of
the murder, and that each item tested negative for the presence
of human blood. It also called Baker as a witness. Baker
testified that he went to the Quincy Adams Restaurant at
3:30 P.M. to pick the victim up for dinner; that the victim
returned to the bar shortly after they left together; that he
returned to the bar several times -- both alone and with his
mother, Marion Baker (Marion) -- to look for the victim; and
that he finally went home at around 8:30 P.M. Both the
bartender, Catriona Craig, and Marion corroborated Baker's
account that he returned to the bar several times, with Craig
testifying that he was at the bar at 8:30 P.M., that he had not
changed his clothing, and that there was no blood on his
clothing. Finally, Marion testified that Baker was home when
she went to bed around 7 P.M. and woke up at 10 P.M., and that
she did not hear anyone leave the house in between those times.
12
The defendant's first motion for a new trial was filed on
November 16, 2009, and denied on May 27, 2010. On January 11,
2013, the defendant filed a second motion for a new trial,10
alleging for the first time that the court room was closed to
his uncle during jury empanelment. The trial judge deemed the
issue waived in a written decision and order on May 30, 2013,
and took no action on the defendant's argument. This is the
consolidated appeal of the defendant's direct appeal and his
appeal of the trial judge's denial of both motions for a new
trial.
We address other salient facts as they arise below.
2. Discussion. a. Recorded telephone conversations. The
defendant argues that the judge erred in admitting several
recorded telephone conversations made on the day of the murder
between himself and Reid.
Before Reid's testimony, the prosecutor stated an intention
to play five tape-recorded telephone conversations between Reid
and the defendant. These conversations were not being offered
for the truth of what was said, but only to rebut the
defendant's contention that he was severely intoxicated to the
point of unconsciousness around the time of the murder, by
10
Although the defendant characterizes the motion as a
supplemental motion for new trial, we consider it to be a second
motion for new trial, where the defendant advanced three new
arguments that were not raised in his initial 124-page motion
for a new trial and memorandum in support thereof.
13
allowing the jurors "to hear him, what his voice sounds like."
Defense counsel strenuously objected, arguing that, although
"[t]here are no admissions," "[h]e sounds like a lonesome
lover. . . . I don't think he shows himself in a particularly
good light." He went on to contend that Reid "chastises him
throughout the conversations. She is chastising him for not
doing what she wants, for being drunk, for drinking, for doing
one thing or another." The judge overruled the defendant's
objection and allowed the Commonwealth to introduce the
recordings through Reid.
After the second recording was played, the judge instructed
the jury that the recordings were admitted only to allow the
jurors "an opportunity to hear the defendant's voice at the time
and to evaluate his mental and emotional condition . . . . and
condition of sobriety at the time of the conversations."11 After
a recess, defense counsel again objected to their introduction
and filed a written motion for a mistrial. He argued that
"[t]his tape recording has been brought before the jury for one
11
The prosecutor conceded that the telephone conversations
contained statements showing that the defendant took a check
addressed to Reid, cashed it, and spent some of the money on
alcohol, but explained that there was no way to edit that
portion of the tape, and the judge instructed the jury not to
consider the statement for the truth of the matter asserted.
14
thing and one thing only, to show what a low life my client is."
The judge denied the motion.12
Reid testified that the first telephone call was placed at
approximately 10 A.M. on the day of the murder. She described
the defendant as sober and coherent at that time. The second
call was placed between noon and 3 P.M. Reid testified that the
defendant was drunk at that time. In this conversation, and
indeed in the remainder of the conversations, Reid repeatedly
chastised the defendant for being intoxicated, for failing to
assist her in her efforts to secure release from prison, and for
spending her paycheck, which she had earmarked for legal
services and rent, on alcohol. The third call was placed after
6 P.M., the fourth at about 6:45 P.M., and the final call at
8:45 P.M. On the last four calls, the defendant sounds
intoxicated, yet coherent and responsive.
The defendant argues that the recordings should not have
been admitted, because they amounted to an "assault against
[his] character, with repeated references to his being a drunk,
a liar, and a thief." Because the error is preserved, we review
for prejudicial error. Commonwealth v. Flebotte, 417 Mass. 348,
12
The judge did note that the first recording revealed that
the defendant was on probation at the time, and offered to
address the issue with the jury; defense counsel was disinclined
to bring further attention to the matter, and no curative
instruction was given.
15
353 (1994). We conclude that the judge did not abuse her
discretion in allowing the recordings to be played.
Massachusetts law accords relevance a liberal definition.
Commonwealth v. Sicari, 434 Mass. 732, 750 (2001), cert. denied,
534 U.S. 1142 (2002), quoting Commonwealth v. LaCorte, 373 Mass.
700, 702 (1977) ("rational tendency to prove an issue in the
case"). See Commonwealth v. Vitello, 376 Mass. 426, 440 (1978),
overruled on other grounds by Commonwealth v. Mendes, 406 Mass.
201 (1989), and cases cited ("renders the desired inference more
probable than it would be without the evidence"). Relevant
evidence is admissible as long as the probative value of the
evidence is not substantially outweighed by the danger of unfair
prejudice. Commonwealth v. Keo, 467 Mass. 25, 32 (2014),
quoting Commonwealth v. Smiley, 431 Mass. 477, 484 (2000).
"Whether evidence is relevant in any particular instance, and
whether the probative value of relevant evidence is outweighed
by its prejudicial effect, are questions within the sound
discretion of the judge." Commonwealth v. Marrero, 427 Mass.
65, 67-68 (1998), quoting Commonwealth v. Valentin, 420 Mass.
263, 270 (1995).
The relevance of the first recording -- a call that was
placed to Reid at approximately 10 A.M. on the morning of the
murder -- well before the defendant met the victim at the Quincy
Adams Restaurant -- and in which the defendant was apparently
16
sober, may seem marginal. It is not relevant to his
consciousness, sobriety, or general state of mind during the
events leading to the victim's murder. However, its relevance
is in establishing a base line for the jury regarding the
defendant's speech and voice patterns when he is sober, a base
line that may have been useful to them for comparison purposes
with the defendant's later calls. The defendant comes across
during the conversation as sober, coherent, and devoted to Reid.
The conversation is amicable, the two do not argue, and Reid
does not accuse the defendant of lying or stealing. While the
call does reveal that the defendant was on probation at the
time, the jury were not likely to have believed that the
defendant was guilty of a horrific murder by virtue of being on
probation for an unknown offense. In addition, the judge
offered to give a limiting instruction on the matter, which
defense counsel declined. We see no abuse of discretion in
these circumstances.
The remaining four calls are plainly relevant to show the
defendant's "mental state at or about the time of the homicide,
so as to respond to the defendant's contention that he was so
impaired by alcohol or drugs as to be incapable of forming the
intent necessary for the crime, as well as his contention that
he was unconscious when someone else killed the victim."
17
The second call was placed between noon and 3 P.M., a time
frame which encompasses his initial meeting with the victim at
the Quincy Adams Restaurant. His level of intoxication
beginning at that time was highly relevant to the Commonwealth's
theory -- that he was not so intoxicated as to be unable to
commit the murder or form the required mental state for malice.
The final three recordings were even more plainly relevant.
According to Delong, the defendant returned to his apartment
with the victim at 4:30 P.M., well before the third call was
placed by Reid at 6 P.M. Thus, the three calls captured a time
period where the defendant and the victim were at his apartment,
a time period where the murder may well have taken place.13
Combined with Hons's testimony that she heard loud noises coming
from the defendant's apartment between 8:15 P.M. and 11 P.M.;
testimony from Hons and Shirley that the defendant was moving
trash barrels at 11 P.M.; testimony from Kathleen McLaughlin,
Reid's friend, affirming that she spoke to the defendant on the
telephone between 8:30 and 8:45 P.M.;14 and testimony from Linda
Reid's mother stating that she received a telephone call from
the defendant's apartment at 10:25 P.M., the recordings were
13
The medical examiner was unable to determine either the
time of injury or the time of death with any specificity.
14
Kathleen McLaughlin testified that the defendant "wasn't
totally drunk," and that he "wasn't in a bad mood. He was calm.
He just didn't sound like someone that had been drinking a lot."
18
relevant to show that the defendant's assertion that he was
unconscious when the murder took place was a fabrication. They
also allowed the jury to assess his coherence at the time, in
order to determine whether he was capable of forming the
required mental state for malice.
To be sure, the final four recordings do not paint the
defendant in an especially positive light. However, they do not
suggest that the defendant had a propensity for violence of any
kind, and certainly not the type of violence that would soon
occur at his apartment. To the contrary, the picture painted by
the recordings was largely consistent with defense counsel's
portrayal of the defendant. Defense counsel's opening statement
characterized the defendant as an alcoholic, and described him
as "a drunk, a whimpering sort of fellow . . . a patsy." He
began his closing by asking the jury, "Did you listen to that
tape with Greg Wall and Ms. Reid? Did you hear Greg Wall? Was
that the sound of a killer or a wimp?" His strategy at trial
was to color the defendant as a drunk who was unwittingly caught
in the middle of a domestic dispute between Baker and the
victim. The recordings are more in line with the defendant's
theory of the case than with an overt suggestion that the
defendant was a man capable of the violence inflicted on the
victim.
19
In any event, any prejudice was cured by the judge's
extensive instructions to consider the recordings only regarding
the defendant's mental and emotional state at the time, and her
instructions to ignore references to the defendant's alleged
cashing of Reid's paycheck. See Commonwealth v. Sylvia, 456
Mass. 182, 195 (2010), citing Commonwealth v. Pope, 406 Mass.
581, 588 (1990) (jury presumed to have followed judge's
instructions). We therefore conclude that, although the judge
erred in allowing the first recording in evidence, the rest were
properly admitted, and the probative value of the calls readily
outweighed any prejudicial effect.
b. Impeachment of Reid. The defendant also argues that
his defense counsel was ineffective for failing to impeach Reid
on her testimony that the defendant did not have Ativan in their
apartment at the time of the murder. We disagree.
As noted above, both of the defendant's theories of the
case rested on the premise that he was severely intoxicated at
the time of the murder, specifically due to his professed use of
alcohol and Ativan. Pursuant to that defense, on cross-
examination, defense counsel elicited testimony from Reid
suggesting that the defendant was a heavy drinker, and that he
was severely intoxicated during the final four telephone
conversations. Regarding the conversation at 6 P.M., counsel
asked Reid whether the two spoke about drugs. She responded
20
that "[h]e was looking for Ativan in the house." She added that
he used Ativan whenever she "didn't throw them out on him," and
testified that she often threw them out "[b]ecause he was crazy
when he was taking them." She then added, "[t]here was none in
the house at that time."
The defendant contends, correctly, that Reid could not
possibly have known with any certainty whether there was any
Ativan in the house, given that she had been incarcerated since
April 28.15 He also notes that Reid's testimony directly
contradicted a statement she made to Dr. Ira K. Packer, a
psychologist from Bridgewater State Hospital who examined the
defendant with respect to his criminal responsibility before
trial.16 According to Dr. Packer's report, which was not in
evidence, Reid told him that, on the night of the murder, she
called the defendant at approximately 9 P.M. Packer noted that
"[Reid] indicated that he seemed 'buzzed' and reported that he
15
Although the details of Reid's incarceration are not in
the record, Detective Robert Curtis testified that both Reid and
the defendant were placed in protective custody for intoxication
on April 28, 2002. He added that, because Reid was on probation
on an unrelated matter, she was transferred to the Massachusetts
Correctional Institute at Framingham the next day. The
defendant was released.
16
The examination of the defendant's criminal
responsibility was ordered by the judge. The defendant did not
pursue a defense of not guilty by reason of mental disease or
defect, and thus Dr. Ira K. Packer did not testify.
21
had drunk between six and twelve beers plus having taken some
pills."
Defense counsel did not impeach Reid with either her
statement to Dr. Packer or the commonsense notion that she could
not be sure whether there were pills in the house because she
had been incarcerated for five days. Indeed, he did not
question Reid's statement in any way. He later affirmed that he
did not have a strategic reason for his failure to cross-examine
Reid on the issue.
"Counsel is ineffective where his conduct falls 'below that
which might be expected from an ordinary fallible lawyer' and
prejudices the defendant by depriving him 'of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Lavoie, 464 Mass. 83, 89, cert. denied, 133 S. Ct. 2356 (2013),
quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Generally, even on the more favorable standard of review under
§ 33E, "failure to impeach a witness does not amount to
ineffective assistance of counsel." Commonwealth v. Fisher, 433
Mass. 340, 357 (2001). Commonwealth v. Bart B., 424 Mass. 911,
916 (1997). "[A]bsent counsel's failure to pursue some
obviously powerful form of impeachment available at trial, it is
speculative to conclude that a different approach to impeachment
would likely have affected the jury's conclusion." Fisher,
supra.
22
The defendant has failed to meet his burden. First, the
jury were informed that Reid was incarcerated at the time of the
murder, and listened to five telephone calls, each of which
began with a recorded statement that the call was being placed
from a correctional institution. The jury were likely able to
discern that Reid did not have personal knowledge of the
presence of Ativan in the house on May 2 without counsel cross-
examining her on the matter.
Second, Reid's testimony does not directly contradict her
statement to Dr. Packer. She merely told Dr. Packer that the
defendant took some "pills," which were not necessarily Ativan.
Further, the introduction of Dr. Packer's report to refute
Reid's testimony was fraught with risks, as the record before us
includes several statements from Reid which would reflect poorly
on the defendant.17,18
Finally, even if defense counsel's failure to cross-examine
Reid on the issue fell below the standards expected of an
17
For example, Reid told Dr. Packer that the defendant
threatened to kill his landlord by "knocking him in the head,
cutting him up, and throwing him in the ocean" due to the
defendant's jealousy over the landlord's interactions with Reid.
The defendant also allegedly woke her one night and "had an evil
look and said if [Reid] ever cheated on him he'd beat [her]
within an inch of [her] life."
18
Although the Commonwealth asserts that Dr. Packer
concluded in his report that the defendant was criminally
responsible, that portion of the report is not before us.
However, if the Commonwealth is correct, we cannot say that
defense counsel erred in opting not to introduce such evidence.
23
ordinary, fallible lawyer, the defendant still would not have
been materially prejudiced. The weight of the evidence against
the defendant was overwhelming, where he was seen dragging a
garbage barrel containing a leg through his back yard and was
later found hiding in his closet, covered in blood from the
dismembered body in his kitchen, offering only the defense that
he had slept through a brutal murder committed by a third party
and attempted to dispose of the evidence. Further, the
defendant offered no expert testimony on the nature or effects
of Ativan in support of his theory that it contributed to his
intoxication. See Commonwealth v. Green, 408 Mass. 48, 50-51
(1990) (expert testimony required to prove codeine is opium
derivative). Thus, there is no reason to believe that the
jury's verdict was swayed by Reid's plainly unfounded
speculation that there was no Ativan in the house at the time of
the murder.
c. Toxicology report. The defendant also argues that the
admission of preliminary negative toxicology results in a
medical record was improper. He did not object to the admission
of the record. Consequently, we review his claim only to
determine whether any error created a substantial likelihood of
a miscarriage of justice. Commonwealth v. Francis, 450 Mass.
132, 138 (2007). While the report was admitted erroneously, we
24
find no such likelihood, and thus reject the defendant's
argument.
In a continuing effort to show the defendant's alleged
intoxication at the time of the murder, defense counsel asked
nearly every witness that came into contact with the defendant
in the hours before and after the crime whether the defendant
appeared to be intoxicated. With one exception,19 every witness
testified either that the witness did not notice whether the
defendant appeared to be intoxicated or that he did not appear
to be impaired.
In order to bolster his argument, the defendant moved at
sidebar to offer the first page of the medical record from his
stay at the Quincy Medical Center. The proffered portion of the
record showed that the defendant's serum alcohol, as measured at
2 A.M. on May 4, 2002, was 243, which the parties stipulated was
equivalent to a BAC of 0.21 per cent as measured by a
breathalyzer. It also contained a note that there was
"[a]lcohol on [the defendant's] breath."
19
Officer John McGovern testified that the defendant
appeared sober when he was arrested. However, he would later
admit on cross-examination that the defendant was "barely
coherent," "confused," and "not mak[ing] a lot of sense," and
described his eyes as "bugged out." No other witness testified
that the defendant smelled of alcohol or looked or acted
intoxicated on the night in question, despite defense counsel's
repeated questions on the matter.
25
In response to the defendant's proffer, the prosecutor
said, "I'm going to put in the whole [medical record], so why
don't we just put the whole thing in?" Defense counsel did not
object and the entire medical record, consisting of eleven pages
including laboratory results, was admitted in evidence.
The defendant's medical record also contained the results
of a toxicology screen. Because the defendant self-reported
that he had taken Ativan pills, a urine test for drugs was
performed. The toxicology screen report stated that defendant
tested negative for benzodiazepines,20 amphetamine, cocaine,
"tetrahydo," tricyclic antidepressants, barbiturates, and
opiates. The report contained a disclaimer, however, noting
that "[u]rine results are presumptive based only on screening
methods, and they have not been confirmed by a second
independent chemical method. These results should be used only
by physicians to render diagnosis or treatment or to monitor
progress of medical conditions." The medical record also
contained clinician's notes from an examination of the
defendant, stating that, "his urine toxicology screen was
negative for [Ativan]," and another note reading, "Drug screen:
Negative (including for benzodiazepines)."21
20
Ativan is a brand name for lorazepam, a benzodiazepine.
26
The defendant now argues that the portions of the record
pertaining to his negative drug test were not presumptively
reliable and therefore inadmissible. We agree that had there
been an objection, the portion of the records in question would
not have properly been admitted, but we conclude that there was
no substantial likelihood of a miscarriage of justice arising
from their admission.
"Records kept by hospitals . . . may be admitted . . . as
evidence in the courts of the Commonwealth so far as such
records relate to the treatment and medical history of such
cases." G. L. c. 233, § 79. "[T]he statute allows admission of
the substantive content of hospital records because of the
presumption of reliability which attaches to statements relating
to treatment and medical history in these records." Bouchie v.
Murray, 376 Mass. 524, 527-528 (1978). See Commonwealth v.
Irene, 462 Mass. 600, 612, cert. denied, 133 S. Ct. 487 (2012),
quoting Doyle v. Dong, 412 Mass. 682, 685 (1992) ("we have
considered the contents of hospital records to be reliable,
'because the entries relating to treatment and medical history
are routinely made by those responsible for making accurate
entries and are relied on in the course of treating patients'").
Section 79 was enacted "primarily to relieve the physicians and
21
The drug screen note was on the summary report prepared
by the treating clinician, just below the results of the serum
alcohol text.
27
nurses of public hospitals from the hardship and inconvenience
of attending court as witnesses to facts which ordinarily would
be found recorded in the hospital books." Commonwealth v.
Gogan, 389 Mass. 255, 263 (1983), quoting Leonard v. Boston
Elevated Ry., 234 Mass. 480, 482 (1920).
However, "[t]he statute is not to be interpreted as
rendering admissible all the contents of hospital records;
rather the medical records exception statute makes admissible
only those portions of records relating to treatment and medical
history which possess the characteristics justifying the
presumption of reliability." Bouchie, 376 Mass. at 528.
Pursuant to the four-part test announced in Bouchie, supra at
531, in determining whether material contained in a hospital
record is admissible, we must consider whether: (1) the
document is the type of record contemplated by G. L. c. 233,
§ 79; (2) the information is germane to the patient's treatment
or medical history; (3) the information was recorded from the
personal knowledge of the entrant or from a compilation of the
personal knowledge of those who are under a medical obligation
to transmit such information; and (4) the statements contained
in the record are inadmissible as third-party hearsay statements
not within any exception.
The record here would initially seem to fall well within
the parameters of the Bouchie test, as there is no doubt that
28
the medical personnel obtained and recorded the results of the
toxicology screen for the purpose of treating the defendant's
self-reported drug ingestion. However, the defendant points us
to two Appeals Court cases concluding that toxicology reports in
markedly similar circumstances were inadmissible. In
Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 344 (2005), a
preliminary toxicology report was held to be inadmissible where
it contained a disclaimer indicating that "[p]ositive results of
screening tests are not confirmed." The same was true in
Commonwealth v. Johnson, 59 Mass. App. Ct. 164, 167-168 (2003),
where the record indicated that "a second [test] must be used to
obtain a confirmed analytical result." In both cases, the
disclaimers "call[ed] the reliability of the test into
sufficient question as to create doubt as to whether the record
alone can stand competent as proof of the medical facts recited
therein." Id. at 168.
We conclude that the presumption of reliability that
attaches to the content of hospital records is defeated where
the record explicitly indicates that the results of a toxicology
screen are "presumptive based only on screening methods and have
not been confirmed by a second independent chemical method."
The Commonwealth's argument that it could have introduced the
results of the drug screen through the testimony of uncalled
medical personnel is unavailing. The fact that the report
29
hypothetically could have been introduced in another way does
not alter the fact that the medical record as introduced was
inadmissible hearsay. We are further unmoved by the fact that
Lampron and Johnson were cases where the presence of drugs were
elements of the charged offenses.
Despite the error, the defendant suffered no risk of a
miscarriage of justice where the weight of the evidence against
him was overwhelming, and the improper evidence was cumulative
on the issue of the credibility of his story.22
d. Intoxication instruction. The defendant argues that
the judge erred in instructing the jury that the presumption of
intoxication present where the charge is operating under the
influence was inapplicable to this case. Where the defendant
objected at trial, we review for prejudicial error. Flebotte,
417 Mass. at 353. Because the instruction was an accurate
statement of the law, we affirm.
Given that the crux of his defense was an argument that he
was too intoxicated to have killed the victim, the defendant
22
The defendant also argues that defense counsel was
ineffective for agreeing to the introduction of the preliminary
toxicology report. For the reasons stated above, counsel could
not have been ineffective where the admission of the report did
not create a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Wright, 411 Mass. 678, 682 (1992) (where on
review pursuant to G. L. c. 278, § 33E, defendant fails "to show
. . . that, as to an unpreserved claim of error, there is a
substantial likelihood of a miscarriage of justice, he would not
prevail by asserting as to the same issue the ineffectiveness of
his counsel").
30
elicited a great deal of testimony regarding his BAC, which was
measured at the hospital as 0.21 per cent. He asked nearly
every police officer about their experiences with intoxicated
drivers and the legal presumption that a person with a BAC of
0.08 per cent or above is intoxicated for the purposes of the
statute criminalizing operating a vehicle while intoxicated,
G. L. c. 90, § 24 (1) (a) (1). In closing, defense counsel
stated:
"that hospital record you will take a look at, I am sure,
and you will see that his blood serum alcohol was 243, and
there is a stipulation which we agree and thus you must
accept it, that that means [0].21 on a breathalyzer -- and
you heard a lot of conversations between myself and those
officers about what 0.08 meant in terms of the need to
arrest somebody who blows that in a breathalyzer for
operating under a motor vehicle and legal drunk and the
rest of it. You know that [0].21 is almost three times
higher than the legal limit. You know that he was very
much under the influence of alcohol."
As requested by defense counsel, the judge instructed the
jury on the issue of intoxication:
"[Y]ou may consider any credible evidence of the
defendant's consumption of alcohol or other drugs in
determining whether the defendant deliberately premeditated
the killing of the deceased, that is whether the defendant
thought before he acted and whether the defendant reached
the decision to kill after reflection at least for a short
period of time. You may also consider those circumstances
. . . in determining whether the defendant intended to kill
and with respect to the issue of malice for purposes of the
theory of first degree murder based on extreme atrocity or
cruelty. . . . You may also consider those circumstances in
determining whether the defendant acted in a cruel or
atrocious manner in causing the death of the deceased. I
reiterate that whenever the Commonwealth must prove that
the defendant intended to do something or had knowledge of
31
certain facts or circumstances, in order to prove the
crime, you may consider any evidence of intoxication in
determining whether the Commonwealth has met its burden of
proving the defendant's intent or knowledge."
Immediately after her instruction on intoxication, the
judge, sua sponte, gave a limiting instruction:
"Now, I want to clarify one point. In this case, you heard
various references to a legal limit with respect to
operation of a motor vehicle. And I want to just clarify
something on that topic. In Massachusetts, the law is that
it is unlawful to operate a motor vehicle with a blood
alcohol content of .08 or more. That is what is referred
to by the legal limit for purposes of operating a motor
vehicle. There is no such legal limit for any other
purpose other than for purposes of operating a motor
vehicle."
The defendant objected to the instruction, arguing that it
"diminished the defendant's proof of intoxication."
A trial judge has the duty to state the applicable law
clearly and correctly. Commonwealth v. Corcione, 364 Mass. 611,
618 (1974), and cases cited. "In assessing the sufficiency of
the jury instructions, we consider the charge in its entirety,
to determine the 'probable impact, appraised realistically . . .
upon the jury's factfinding function.'" Commonwealth v.
Batchelder, 407 Mass. 752, 759 (1990), quoting Commonwealth v.
Richards, 384 Mass. 396, 399-400 (1981).
The defendant does not argue -- and we discern no reason to
conclude -- that the judge's instructions on the elements of
murder or intoxication were inaccurate. Instead, he merely
argues that the judge's supplemental instruction that the "legal
32
limit" for intoxication repeatedly referenced pertained only to
charges of operating a motor vehicle while under the influence
was erroneous. We disagree.
First, the judge's instruction was legally and factually
accurate. The only "legal limit" recognized by the Commonwealth
in the context of criminal conduct is the presumption of
intoxication when driving an automobile with a BAC of 0.08 per
cent or above. The defendant argues that the "legal limit" also
appears in G. L. c. 111B, § 8 -- the incapacitated person
statute -- which provides that a person is presumed intoxicated
if a breathalyzer examination shows his BAC to be 0.1 per cent
or higher, and that the person shall then "be placed in
protected custody at a police station or transferred to a
facility." Although he is correct, the incapacitated person
statute is not a criminal statute, and specifically provides
that a person placed in protected custody "shall not be
considered to have been arrested or to have been charged with
any crime." G. L. c. 111B, § 8. Thus, the judge's instruction
was accurate.
The instruction also was not misleading. Contrary to the
defendant's argument, the judge did not "dilute both the
intoxication instruction . . . and the evidence of
intoxication." The judge did not suggest that the defendant was
not intoxicated. She simply, and correctly, informed the jury
33
that the defendant's BAC was not dispositive proof of
intoxication for the purposes of determining whether he acted
with malice aforethought, as it would be in a case charging a
defendant with operating a motor vehicle while under the
influence. She did not suggest in any way that the defendant
was not impaired.
Further, the judge's instruction did not preclude the jury
from concluding that the defendant was severely intoxicated.
The "effects of liquor upon the mind and actions of men are well
known to everybody." Commonwealth v. Taylor, 263 Mass. 356, 362
(1928). It was repeatedly put before the jury, by means of a
stipulation by the parties, that the defendant's BAC was 0.21
per cent. Defense counsel ably elicited testimony from several
police officers opining that, in their experience, the
defendant's BAC was very high. In addition, the jury could use
their common sense to ascertain that, if the defendant's BAC was
nearly three times higher than the legal limit to drive an
automobile, he was likely to have been fairly severely
intoxicated.23 In short, the judge's instruction was accurate
and appropriate, and was therefore not given in error.
23
We also note the possibility that the judge gave the
instruction in response to defense counsel's actions in
repeatedly referencing 0.08 per cent as the "legal limit" for
intoxication. At sidebar during Officer Levine's testimony, the
judge informed defense counsel that she did not approve of a
question asking whether Levine was aware that a person with a
34
e. Closed court room. The defendant finally argues that
his right to a public trial was violated when his uncle was
allegedly prevented from entering the court room during jury
empanelment. We agree with the judge that the issue was waived.
The uncle's exclusion, assuming it occurred, was not raised
by the defendant at trial. Nor was it raised in the defendant's
first motion for new trial filed on November 16, 2009. In his
second motion for new trial filed on January 11, 2013 -- almost
four years after he filed his first motion for new trial, and
over seven years after his conviction, the defendant alleges
that his right to a public trial under the Sixth Amendment to
the United States Constitution was violated when his uncle was
barred from the court room during the jury empanelment process.
In support of his argument, he proffered an affidavit from the
uncle, in which he alleged that a court officer prevented him
0.08 per cent blood alcohol content is presumptively under the
influence of liquor. She stated, "there is no presumption of
under the influence for any purpose other than driving. This
defendant wasn't driving a car, so I'm going to ask you to steer
clear of that sort of thing." She went on to say: "It's a
determination by the Legislature that a person shouldn't drive
at a certain level. It has nothing to do with any other
purposes. But, in any event, that's a legal matter, not a
factual matter. It's not a question to ask a witness about.
So, I'm going to ask you to steer clear of that." Given that
defense counsel continued to broach the subject, the judge
likely wished to ensure that the jury did not believe that the
defendant was, as a matter of law, too intoxicated to form the
intent for murder; an impression to which defense counsel
contributed.
35
from entering the court room while the jury were being
selected.24
The judge took no action on the defendant's second motion
for new trial. She determined that the defendant waived his
argument by failing to raise the issue in his original motion
for new trial. He now appeals from what amounted to the denial
of his motion for new trial.
The Sixth Amendment right to a public trial extends to the
jury selection process. See Commonwealth v. Cohen (No. 1), 456
Mass. 94, 106 (2010) (citation omitted). It is well settled
that the violation of a defendant's right to a public trial is
structural error requiring reversal. See United States v.
Marcus, 560 U.S. 258, 263 (2010) (citation omitted); Cohen (No.
1), supra at 105 (citation omitted). However, even structural
error "is subject to the doctrine of waiver." Id. at 106,
quoting Mains v. Commonwealth, 433 Mass. 30, 33 n.3 (2000). A
defendant need not consent personally to the waiver of his right
to a public trial; trial counsel may waive the right to a public
trial as a tactical decision without the defendant's express
consent. Lavoie, 464 Mass. at 88-89. Further, the right to a
public trial may be procedurally waived whenever a litigant
fails to make a timely objection to an error. Commonwealth v.
24
The defendant also offered an affidavit from defense
counsel averring that he was not aware of any closure and never
discussed the issue with the defendant.
36
Morganti, 467 Mass. 96, 102 (2014). A procedural waiver may
occur where the failure to object is inadvertent. See id. at
102 (holding public trial claim waived where counsel failed to
object to court room closure during jury empanelment despite
having no tactical reason); Commonwealth v. Alebord, 467 Mass.
106, 113, cert. denied, 134 S. Ct. 2830 (2014) (same).
Where defense counsel did not object to any alleged court
room closure at trial, and the defendant failed to raise the
claim in his first motion for new trial, we conclude the
defendant's right to a public trial during jury empanelment has
been waived. See Morganti, 467 Mass. at 102; Alebord, 467 Mass.
at 113. See also Commonwealth v. Amirault, 424 Mass. 618, 641
(1997), quoting K.B. Smith, Criminal Practice and Procedure
§§ 2070, 2084 (Supp. 1986) (doctrine of waiver applies equally
to constitutional claims not properly raised on direct appeal or
in prior motion for new trial). "To conclude otherwise would
tear the fabric of our well-established waiver jurisprudence
that 'a defendant must raise a claim of error at the first
available opportunity.'" Morganti, supra at 102-103, quoting
Commonwealth v. Randolph, 438 Mass. 290, 294 (2002).
Despite the fact that the claim is waived, we still analyze
the defendant's claim pursuant to G. L. c. 278, § 33E, to
determine whether a closure would subject him to a substantial
likelihood of a miscarriage of justice. Contrary to the
37
defendant's assertion that the evidence is "clear and at this
stage uncontested" that the court room was closed during jury
empanelment, the record contains no such findings from the trial
judge, and indeed the record is insufficient to determine
whether a closure actually took place. However, we need not
remand the case for further findings. Even if we were to assume
that the court room was closed in the manner alleged by the
uncle, the closure would not have caused the defendant to suffer
a substantial likelihood of a miscarriage of justice because
there is no "serious doubt whether the result of the trial might
have been different" had the court room not been closed to the
defendant's uncle. Randolph, 438 Mass. at 297, quoting
Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.
72 (2005). See Commonwealth v. Dyer, 460 Mass. 728, 736-737
(2011), cert. denied, 132 S. Ct. 2693 (2012); Commonwealth v.
Horton, 434 Mass. 823, 833 (2001).
f. General Laws c. 278, § 33E. We have reviewed the
record in accordance with G. L. c. 278, § 33E, to determine
whether there is any basis to set aside or reduce the verdict of
murder in the first degree, regardless of whether such grounds
were raised on appeal. We find no such reason, and we decline
to exercise our powers under the statute.
Judgment affirmed.