Commonwealth v. Philbrook , 475 Mass. 20 ( 2016 )

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SJC-11615
COMMONWEALTH vs. GEORGE PHILBROOK.
Middlesex. December 11, 2015. - July 28, 2016.
Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines,
JJ.1
Homicide. Evidence, Prior violent conduct, State of mind,
Intent. Practice, Criminal, Capital case, Argument by
prosecutor, Mistrial, Jury and jurors, Conduct of juror.
Jury and Jurors.
Indictments found and returned in the Superior Court
Department on September 27, 2007.
The cases were tried before Kathe M. Tuttman, J.
Elizabeth Caddick for the defendant.
Bethany Stevens, Assistant District Attorney, for the
Commonwealth.
DUFFLY, J. The defendant was convicted of murder in the
first degree on a theory of deliberate premeditation in the
1
Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
2
shooting death of his former wife, Dorothy Philbrook.2 The
defendant and his former wife were divorced in 1975, but had
been living together for many years when, on August 17, 2007,
the defendant shot her five times on the street in front of
their house in Everett, in view of some of their neighbors. The
defendant does not dispute that he was the shooter. His defense
at trial was that he was not criminally responsible because the
prescription medications that he was taking exacerbated an
underlying brain disease, creating a mental disease or defect
that caused him to be unable to conform his actions to the law.3
On appeal, the defendant contends that the judge abused her
discretion in allowing the admission of evidence of prior bad
acts shortly prior to and immediately following the killing.
The defendant also claims that the judge erred in denying his
motion for a mistrial after learning that three jurors had
discussed the case before deliberations began. Finally, while
conceding that the evidence was sufficient to support his
2
The defendant also was convicted of possession of a
firearm with a defaced serial number during the commission of a
felony, G. L. c. 269, § 11B; unlawful possession of a firearm,
G. L. c. 269, § 10 (a); and unlawful possession of ammunition,
G. L. c. 269, § 10 (h).
3
A "defendant is not criminally responsible for his actions
-- and therefore entitled to a verdict of not guilty -- if, at
the relevant time and due to a mental illness (mental disease or
defect), he lacks the substantial capacity to appreciate the
wrongfulness of an action or to act in conformity with the law."
Commonwealth v. DiPadova, 460 Mass. 424, 431 (2011), citing
Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967).
3
conviction of murder in the first degree, the defendant argues
that a reduction in the verdict would be more consonant with
justice, and asks that we exercise our power pursuant to G. L.
c. 278, § 33E, to reduce the verdict of murder in the first
degree to a lesser degree of guilt.
We affirm the convictions, and discern no reason to
exercise our power under G. L. c. 278, § 33E.
1. Background. a. Commonwealth's case. We summarize the
facts the jury could have found. The defendant and the victim,
who had divorced in 1975, renewed their relationship in 1980.
They did not remarry, but lived together in a house in Everett.
Their relationship was tumultuous, and they "constantly" fought
about money. In the week prior to the shooting, the defendant
told his granddaughter that he believed the victim had stolen
$50,000 from him and had spent the money on lottery tickets. He
said that if he learned his suspicions were correct, he would
shoot and kill her.4 On August 15, 2007, two days before the
shooting, the defendant went to an athletic club where he worked
as a janitor and struck one of the club patrons with a baseball
bat. He told police he had done so because he believed that the
4
The defendant's granddaughter, who was a young adult at
the time of trial, but was a minor at the time of the shooting,
had lived with him and the victim until approximately two weeks
before the shooting. She testified in response to questions
regarding the victim's purchase of lottery tickets that the
victim "would play the daily numbers once or twice a day," but
spent only small amounts of money on each purchase.
4
patron had stolen $700 from him.5 Following this incident, the
defendant was fired from his job at the club.
At 8:16 P.M. on August 17, 2007, the victim telephoned her
adult son from her cordless home telephone and spoke with him as
she stood outside her house. She was upset and said she was
"fed up" with the defendant and was going to call the police.
The son heard the defendant pick up another telephone, located
inside the house, enabling him to hear the conversation on that
extension. The defendant was "very angry," and began "yelling"
and swearing, "[Y]ou're going to call the fucking police?"
Several neighbors saw or heard the events leading up to the
shooting, the shooting itself, and its immediate aftermath. At
approximately 8:20 P.M., the victim ran across the street away
from her house, screaming. The defendant followed her, walking
calmly, his arm extended and holding a gun in his hand. As the
victim continued running, she tripped on the curb and turned
toward the defendant, who began shooting at her, repeating "take
that," after each of the first three shots. The victim fell
face down on the ground. Standing over her, the defendant said,
"Go ahead. Call the fucking police," then walked away. In all,
the defendant fired six shots; the victim was struck by five of
the bullets. Four of the bullets penetrated her body, in her
5
The defendant was charged with assault and battery, G. L.
c. 265, § 15A (b), as a result of this attack; trial on that
charge was severed from the defendant's murder trial.
5
left arm, left torso, the back of her neck, and the left side of
her head, and a fifth grazed the back of her neck. She died as
a result of the gunshot wounds.6
Neighbors telephoned 911, and police arrived within minutes
of the shooting. Shortly after the shooting, a neighbor saw the
defendant standing on the corner of his street, craning his neck
and looking in the direction of his house. He then turned
around and "took off" away from the scene.
Approximately one-half hour later, the defendant approached
a couple who were sitting on the steps of their apartment
building listening to a police scanner and spoke to them. The
man had just heard that police were looking for a suspect with a
gun. When he noticed that the defendant was carrying a gun in
his pants, the woman telephoned 911. The defendant was
apprehended in a liquor store shortly thereafter, while
attempting to purchase a six-pack of beer, cigarettes, and
candy.
b. Defendant's case. The defendant's trial took place in
February, 2013. The roughly six-year period between the
shooting and the trial was due in part to several continuances
for competency evaluations by different experts.
The defendant introduced testimony by three psychiatric
6
It could not be determined which of the shots caused the
victim's death.
6
experts who opined that he suffered from an organic brain
disease that had resulted in shrinkage of his frontal lobe.7 One
of the experts, a clinical professor of psychiatry at Harvard
Medical School, testified that the defendant had "organic brain
syndrome" as a result of brain injuries and the combined side
effects of the prescription medications he was taking at the
time of the shooting,8 in conjunction with chronic alcohol and
illegal drug abuse (cocaine), which exacerbated the organic
brain disease. The expert testified that "compulsive behavior"
is a known side effect of the most recently prescribed of the
defendant's medications, Requip. He opined that, in combination
with the defendant's brain disease and the other prescription
medications the defendant was taking, Requip had caused an
"acute" side effect, such that the defendant was "tipped . . .
over into a compulsive behavior . . . [and] unable to control
7
Experts for the Commonwealth and the defendant disputed
whether "organic brain syndrome" was at that time an accepted
diagnosis under the Diagnostic and Statistical Manual (DSM-IV).
It was undisputed, however, that the symptoms previously
associated with that syndrome continued to be recognized under
other diagnostic names. It was also undisputed that magnetic
resonance imaging (MRI) tests performed on the defendant in
2008, soon after the shooting, revealed some shrinkage of his
frontal lobe, which is one of the symptoms of what had been
called "organic brain syndrome." The contested issue centered
on the extent to which this physical defect had resulted in
cognitive or emotional impairments in the defendant's mental
state at the time of the shooting.
8
These medications included: Cymbalta, alprazolam (Xanax),
mirtazapine (Remeron), gabapentin (Neurontin), ropinirole
(Requip), tramadol (Ultram), and propoxy (Darvocet).
7
his behavior." This expert also testified that, at the time of
the shooting, the defendant's brain disease, exacerbated by the
medications he was taking, caused him to develop a delusional
belief that his former wife was stealing money from him.
Because of the compulsive side effects from the defendant's
medication, this delusional belief was "translated . . . into an
action"; as his behavior was compulsive, the defendant had been
unable to conform his conduct to the law.9
Another expert testified that the defendant had
difficulties with executive function, or "thinking in an
organized way." Such functions are controlled by the frontal
lobe, which plays an important role in an individual's ability
to control emotions and behavior. The third expert opined that
the defendant appeared to have memory deficits and it was
likely, based on the defendant's speech and vocabulary, that he
had below-average intelligence; this expert did not opine
whether these deficits were as a result of the defendant's brain
injury. Two of the defendant's experts also testified that
long-term substance abuse or alcohol abuse could have aggravated
the symptoms of his brain disease.
A neighbor who witnessed the shooting testified that after
9
While the expert opined that the defendant could not
conform his conduct to the law, he was not able to form an
opinion as to whether the defendant could appreciate the
consequences of his actions.
8
shooting the victim the defendant had a "blank look," that he
thought was similar to "tunnel vision."10 In addition, a witness
who had known the defendant for thirty years testified that,
during the month before the shooting, the defendant was "very,
very moody" and "paranoid" about the possibility that he would
lose his job, and was irritable and angry.11 The defendant also
introduced evidence concerning his prior abuse of cocaine,
marijuana, and alcohol.12
10
The defendant does not assert that he was intoxicated by
alcohol at the time of the shooting. In his recorded police
interview, which was played for the jury, the defendant stated
that he had consumed somewhere between one and four beers the
morning of the murder, but had consumed his last beer more than
eight hours before the shooting occurred.
11
To show the extent of his delusion, the defendant
introduced the testimony of a neighbor who said that, at
approximately 7 P.M. on August 17, 2007, he overheard the
defendant arguing with the victim and yelling, "[W]here's my
money? You spent all my money on scratch tickets?"
12
At the close of the defendant's case, the Commonwealth
introduced rebuttal testimony from two of its own experts. One
expert testified that the prescription drug Requip can heighten
the already addictive nature of pleasurable activities, creating
a "compulsive" need to engage in those activities, but that he
was aware of "no research that indicates that [Requip] causes
someone to lose control . . . in an aggressive or violent way."
That expert opined that the defendant was not acting
compulsively, could appreciate the consequences of his actions,
and had the ability to conform his conduct to the law. He also
testified that, in his opinion, the defendant was not suffering
from any psychotic delusions at the time of the shooting, and
that the defendant's prescription "medications did not have an
acute impact on his mental state on that date." If the
defendant had been experiencing significant side effects from
Requip, which he had been prescribed for three months, those
side effects "would have been observable over that period of
9
c. Defendant's trial motions. During the Commonwealth's
case-in-chief, the defendant moved for a mistrial on the basis
of juror misconduct. That motion was denied. The defendant's
motions for a directed verdict, made at the close of the
Commonwealth's case and renewed at the close of all of the
evidence, also were denied. The jury convicted the defendant on
all counts, and this appeal followed.
2. Discussion. a. Prior bad acts evidence. The
Commonwealth filed a motion in limine seeking to admit testimony
of a previous assault by the defendant on a fellow club member
at an athletic club to establish his motive and state of mind.
The proposed testimony was to the effect that, two days before
the shooting, the defendant struck the club member with a
baseball bat because he believed the individual owed him $700,
and consequently, the defendant had been prohibited from
returning to the club. The judge allowed the Commonwealth's
motion to admit this evidence, over the defendant's objection
that the evidence was impermissible evidence of prior bad acts;
the defendant renewed his objection prior to introduction of the
time and wouldn't have suddenly switched on in some way without
precedent." The Commonwealth's other expert testified that the
defendant's performance on standard tests did not exhibit
cognitive impairments linked to frontal lobe shrinkage. She
stated that any difficulties the defendant experienced had to do
with symptoms of "withdrawal from his daily chronic abuse of
multiple substances," and the stress of being in prison and
charged with a serious offense.
10
evidence at trial. On appeal, the defendant argues that the
judge abused her discretion by allowing the admission of the
prior bad act evidence, and that, even if it were deemed
probative, the evidence was unfairly prejudicial.
Although evidence of a defendant's prior bad acts is not
admissible to show a propensity to commit such acts, it may be
admissible if relevant for another purpose, "such as to show a
common scheme, pattern of operation, absence of accident or
mistake, identity, intent, motive, or state of mind." See
Commonwealth v. Howard, 469 Mass. 721, 738 (2014), quoting
Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986). When
the Commonwealth seeks to use prior bad act evidence for such a
permissible purpose, the evidence is admissible if its probative
value outweighs the risk of unfair prejudice. Commonwealth v.
Anestal, 463 Mass. 655, 665 (2012). Questions of admissibility,
probative value, and unfair prejudice are left to the sound
discretion of the trial judge, and will not be overturned absent
clear error. See Commonwealth v. Morgan, 460 Mass. 277, 289
(2011).
The evidence of the defendant's attack on his fellow club
member supported the Commonwealth's theory of the defendant's
motive and intent that, during the days preceding the shooting,
the defendant had been preoccupied with financial worries, which
intensified the day before the shooting, when he lost his job,
11
resulting in an escalation of his arguments with the victim
about the money he accused her of taking from him. See
Commonwealth v. Mendes, 441 Mass. 459, 464-467 (2004)
(defendant's drug use and need for money relevant to defendant's
motive for murder to gain inheritance). The defendant's son and
granddaughter both testified that, in the days before the
shooting, the defendant was increasingly worried about money,
and preoccupied with thoughts that others owed him money they
had stolen from him. The granddaughter testified that, during
the week before the shooting, the defendant was angry with the
victim, expressing his belief that she had stolen his money and
had spent it on lottery tickets, and stating that if his
suspicions were proved to be accurate, he would kill her. The
son testified that, in the days immediately preceding the
shooting, the defendant was angry at someone he knew from the
athletic club for stealing money from him. Thus, the evidence
that the defendant was preoccupied with concerns about money
supported his motive to kill the victim because he believed the
victim was taking and spending his money. This evidence also
provided context for the shooting. Without such context, "the
killing could have appeared to the jury as an essentially
inexplicable act of violence." Commonwealth v. Bradshaw, 385
Mass. 244, 269 (1982). See also Commonwealth v. Scott, 408
Mass. 811, 818-819 (1990).
12
In addition, the defendant had notified the Commonwealth
prior to trial that he intended to offer a defense of lack of
criminal responsibility, based on his pre-existing brain disease
and the prescription medications he had been taking in the weeks
before the shooting. The defendant's mental state in the days
before the shooting was relevant to whether his conduct was
intentional, and not the result of compulsive or illogical
thoughts brought on by brain disease that had been exacerbated
by his medications. See Commonwealth v. Anestal, supra at 655
(prior bad act evidence admissible to rebut defense). While
possibly harmful to the defendant, the judge did not abuse her
discretion in concluding that the evidence was more probative
than prejudicial, and was admissible to show the defendant's
motive and state of mind. See Commonwealth v. Howard, supra at
740 (in prosecution for murder in first degree of coworker,
admission of prior bad acts showing defendant's state of mind
toward another coworker "was arguably probative of [the
defendant's] state of mind and intent toward the victim").
Witnesses to the defendant's attack on the club member
testified that the defendant arrived at the club on his bicycle,
with a baseball bat. The defendant appeared calm and collected
and asked for the club member by name. He socialized with
approximately twenty patrons on the club's patio while he waited
for the individual. Responding to a question from one patron
13
about why he was carrying a baseball bat, the defendant replied,
"I'm an old man. I need to protect myself." When the person he
believed owed him money came outside, the defendant hit him with
the baseball bat and threatened him with further violence if he
did not pay the defendant what he owed. During the attack, the
defendant accidently knocked over a table with some drinks.
When he noticed the table was knocked over, he apologized to
those whose drinks he had spilled, and stated that the attack
did not involve them. The individual he had attacked testified
at trial that the defendant remembered the attack the following
day, and was still angry. The testimony was that the defendant
told him that he had been following his movements and knew his
routine, and then accurately related to him the events of the
previous day.
The jury could infer from this evidence that the attack was
planned in advance and was executed in a deliberate manner. The
evidence was relevant to the defendant's mental state, and was
offered to show that, in the days before the shooting, the
defendant "was not delusional but quite rational and well
oriented." Commonwealth v. Johnston, 467 Mass. 674, 686 (2014).
See Commonwealth v. Howard, supra, citing Commonwealth v.
Maimoni, 41 Mass. App. Ct. 321, 327-328 (1996) (prior bad acts
admissible as illustrative of defendant's mental state at time,
and "to rebut defendant's testimony"); Commonwealth v. Adams,
14
434 Mass. 805, 818 (2001) (evidence of defendant's deliberate
and rational actions after crime relevant to rebut defense of
delusional thinking).
The defendant argues that, even if relevant, the evidence
was nonetheless overly prejudicial because it was not
"necessary" to rebut his defense. We previously have considered
and rejected a similar argument. In Commonwealth v. Copney, 468
Mass. 405, 413 (2014), we stated "that the Commonwealth was not
required to show that it needed the prior bad act evidence to
prove its case, and . . . the judge was not obligated to
consider whether . . . there was some alternative means by which
the Commonwealth could prove its case." There was no abuse of
discretion in allowing the admission of the prior bad act
evidence.
b. Prosecutor's closing argument. The defendant maintains
that the prosecutor misused the prior bad act evidence in his
closing, arguing that the defendant was an angry person and
prone to act out of anger, and asserting also that, at the time
of his arrest, the defendant had been on his way to shoot the
club patron he had assaulted with a baseball bat. Because the
defendant objected to these portions of the prosecutor's closing
argument, we "review to determine whether the remark was
improper and, if so, whether it was harmless." Commonwealth v.
Sylvia, 456 Mass. 182, 193-194 (2010). We conclude that there
15
was no error.
"Remarks made during closing arguments are considered in
context of the whole argument, the evidence admitted at trial,
and the judge's instructions to the jury" (citation omitted).
Id. at 193. The prosecutor's reference to statements that the
defendant was "angry" at the time of the shooting was not an
impermissible reference to propensity evidence. The prosecutor
was not asking the jury to infer that, because the defendant was
an angry person and was on his way to kill a different
individual at the athletic club, the defendant must also have
been the person who killed the victim. Rather, the prosecutor
was drawing a distinction between deliberate actions fueled by
anger (the Commonwealth's theory of the case) and compulsive
acts fueled by "delusional beliefs" resulting from a mental
disease or defect (the defense). Thus, the prosecutor properly
sought to tie evidence of the defendant's anger to evidence of
his conscious and deliberate decisions which, the prosecutor
argued, were the result of that anger. The prosecutor argued,
"He decided to shoot her because he was angry at her. It was a
decision, not a delusion." "The defendant was angry, and it was
anger, not some sort of mental disease or defect or intoxicant,
that caused him to act the way that he did that day. It was
anger that caused him to make the decisions that he did." In
this context, the prosecutor's references were a permissible use
16
of the prior bad act evidence. See Commonwealth v. Carlson, 448
Mass. 501, 508-509 (2007) (prior bad act evidence related to
defendant's hostility admissible to show hostility generated
motive or intent for crime).
The defendant also challenges the prosecutor's statement in
closing that the defendant "decided to reload the firearm and
decided to go the route that headed towards the club and decided
to stop at a liquor store that's en route with that, and we know
that those are decisions as opposed to delusions because he told
the police that's why he was going there because he was going to
shoot [the club member he attacked with a bat]." The prosecutor
was not thereby asking the jury to infer that the defendant must
have planned to shoot his former wife because he also might have
planned a future assault on someone else. Rather, the
prosecutor was rebutting the defense that the defendant was not
acting intentionally or rationally when he shot the victim. The
prosecutor pointed to evidence that the defendant had made a
series of "deliberate" and conscious decisions immediately after
the shooting, and argued that this supported a conclusion that
the defendant's thoughts and actions at the time of the murder
were not delusional or involuntary. See generally Commonwealth
v. Mendes, 441 Mass. 459, 466 (2004); Commonwealth v. Simpson,
434 Mass. 570, 578-579 (2001) (statement made immediately after
killing, that defendant would shoot police officer if he had
17
bullet, admissible to prove defendant's aggressive and
threatening behavior to rebut state of mind defense for the
killing).
c. Juror misconduct. i. Motion for a mistrial. On the
seventh day of trial, juror no. 12 sent a note to the judge
stating that, during a break in the proceedings the previous
day, she had overheard a discussion between some jurors that
sounded as though they were discussing "issues related to the
case," and she was "unsure if what they were discussing was
allowed." The judge conducted a voir dire of juror no. 12, and
determined that the overheard conversation was between jurors
nos. 2, 6, and 9. The discussion related primarily to each of
the jurors' feelings about defense counsel and the defendant's
demeanor, but also had involved off-color jokes about the
defendant's actions during his arrest, and speculation about why
a crime that took place in 2007 had not been tried until 2013.
The judge thereafter conducted individual voir dire, during
which one juror said that she thought that juror no. 6 appeared
to have made up his mind about the case, based on his comment
that there was no need for further witnesses and it was clear
what had happened. The judge dismissed juror no. 6. Following
extensive voir dire of the remaining jurors, the judge concluded
that they had not been tainted by juror no. 6's comments and
remained impartial, and that any exposure to the comments "was
18
relatively de minimis . . . [and] did not infect any of the
other jurors in any way that is prejudicial to any party."
During deliberations, after the judge had renewed her
instruction to the jury not to speak with anyone connected to
the case, or about the case, the court reporter told the judge
that while she and juror no. 9 had been in a court house
elevator, juror no. 9 had apologized to her for a comment in
which he said that the court reporter's mask made her look like
"Darth Vader"; the comment had come to light during the judge's
voir dire of the jurors. The judge denied the defendant's
requested that juror no. 9 be dismissed.
Article 12 of the Massachusetts Declaration of Rights and
the Sixth Amendment to the United States Constitution guarantee
a criminal defendant the right to a trial before an impartial
jury. Commonwealth v. Seabrooks, 433 Mass. 439, 442 (2001).
Prohibiting premature jury deliberations, and extraneous
influences on jurors, safeguards a defendant's right to trial
before an impartial jury. See Tanner v. United States, 483 U.S.
107, 126-127 (1987); United States v. Jadlowe, 628 F.3d 1, 15
(1st Cir. 2010), cert. denied, 563 U.S. 926 (2011).
Nonetheless, "not all premature jury discussion about a case
will compromise a defendant's fair trial rights." United States
v. Jadlowe, supra at 18. See Commonwealth v. Smith, 461 Mass.
438, 443 n.10 (2012) (jurors' comments that they were bored by
19
one of Commonwealth's witnesses did not reflect impermissible
deliberation on substance of case). A judge's "determination of
a juror's impartiality 'is essentially one of credibility, and
therefore largely one of demeanor' . . . . In such
circumstances, we give a trial judge's determination of
impartiality great deference." Commonwealth v. Alicea, 464
Mass. 837, 849 (2013), quoting Commonwealth v. Ferguson, 425
Mass. 349, 352-353 (1997).
As the defendant suggests, the comments made by jurors nos.
2, 6, and 9 related to their feelings about "the strength of
evidence or his or her opinion of the defendant's guilt" and not
to "extraneous matter[s]." Commonwealth v. Guisti, 434 Mass.
245, 251-252 (2001), S.C., 449 Mass. 1018 (2007). The comments
also hinted at extraneous information regarding the personal
experiences of some jurors that potentially could have
influenced their deliberations, such as one juror's experience
as a fire fighter. Under either view of the comments, we give
deference to the judge's conclusion, arrived at following
extensive individual voir dire, that the remaining jurors had
not been influenced by the comments and continued to be
impartial. See Commonwealth v. Maldonado, 429 Mass. 502, 506-
507 (1999) (no abuse of discretion when, after learning of
extraneous influence on jury discovered during trial, judge
removed offending juror but found that rest of jury remained
20
impartial and gave curative instruction). See, e.g.,
Commonwealth v. Ferguson, supra at 353-354; Commonwealth v.
Kamara, 422 Mass. 614, 616 (1996); Commonwealth v. Urena, 417
Mass. 692, 700 (1994) (no prejudice to defendant from juror's
question of witness, made during trial, where record did not
disclose improper influence on remaining jurors).
Jurors "inevitably formulate impressions as they hear
evidence. This is natural and cannot be prevented. . . . The
question is whether jurors can suspend final judgment and keep
their minds open to other evidence that they hear."
Commonwealth v. Guisti, supra at 254. During voir dire, each
juror asserted a belief that the joking tone and content of the
comments was not intended to violate the judge's instruction not
to talk about the case, and that the comments had only a
tangential relationship to the case. No juror believed the
comments were intended to, or did, influence his or her views
regarding the evidence presented. Each testified that he or she
continued to have an open mind, and would not consider the
extraneous comments before or during deliberation. The judge
gave a pointed curative instruction that the jury were to
disregard any extraneous information that they had heard, and
should not discuss the case before deliberations began. Given
these curative efforts after dismissal of juror no. 6, there was
no abuse of discretion in the denial of the defendant's motions
21
for a mistrial with regard to the juror comments during trial or
juror no. 9's comment during deliberations.
ii. Motion for a juror to be made an alternate. Prior to
deliberations, the defendant requested that the judge make juror
no. 9 a nonrandom selection as an alternate because the
defendant believed, on the basis of the juror's prior comments,
that the juror already had made up his mind against the
defendant. We reject, as without basis in the law, the
defendant's argument that the judge should have designated juror
no. 9 as an alternate. Having concluded that the juror remained
impartial, and finding no evidence to overcome the presumption
that jurors follow the instructions they are given, see
Commonwealth v. Watkins, 425 Mass. 830, 840 (1997), the judge
had no basis upon which to take the irregular step of
designating juror no. 9 a nonrandom selection as an alternate.13
See Commonwealth v. The Ngoc Tran, 471 Mass. 179, 189-191 (2015)
(analyzing nonrandom selection of alternate juror as irregular).
d. Review under G. L. c. 278, § 33E. While conceding that
the evidence was sufficient to support his conviction, the
defendant maintains that the weight of the evidence supports a
13
The judge concluded that juror no. 9's comment to the
court reporter did not violate the judge's instructions because
"while it was inappropriate for him to initiate conversation,"
the comment to the court reporter "could have been easily
perceived by [juror no. 9] as outside the realm of my
instructions because his conversation with the court reporter
had nothing whatsoever to do with the case."
22
verdict of manslaughter or murder in the second degree, and
urges us to reduce the verdict pursuant to our authority under
G. L. c. 278, § 33E. We may reduce a verdict to a lesser degree
of guilt if we are satisfied "that the verdict was against the
law or the weight of the evidence . . . or for any other reason
that justice may require." G. L. c. 278, § 33E.
The defendant argues that a lesser degree of guilt is
appropriate here because the evidence at trial established that
the killing resulted from a "compulsive act and a delusional
thought." The defendant contends that the evidence supports a
conclusion that, at the time of the killing, he suffered from a
brain disease that resulted in cognitive and emotional
impairments that were exacerbated by prescription medications
that affected his impulse control and caused paranoid thinking.
He argues that this combination of factors caused him to engage
in the "compulsive act" of killing the victim, and also to
suffer from the "delusional belief" (her stealing money) that
provided the motive for her killing.
We have carefully reviewed the record, and decline to
reduce the verdict pursuant to our authority under G. L. c. 278,
§ 33E.
Judgments affirmed.