Commonwealth v. Bois , 476 Mass. 15 ( 2016 )

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SJC-10725
COMMONWEALTH vs. RYAN BOIS.
Norfolk. January 12, 2016. - November 10, 2016.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.1
Homicide. Rape. Armed Home Invasion. Felony-Murder Rule.
Insanity. Jury and Jurors. Practice, Criminal, Capital
case, Assistance of counsel, Jury and jurors, Conduct of
juror, Instructions to jury, Argument by prosecutor.
Indictments found and returned in the Superior Court
Department on August 30, 2007.
The cases were tried before Janet L. Sanders, J., and a
motion for a new trial, filed on October 12, 2012, was heard by
her.
Dennis Shedd for the defendant.
Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.
LENK, J. In 2009, a Superior Court jury convicted the
defendant of murder in the first degree on theories of extreme
atrocity or cruelty and felony-murder. The jury found that, on
1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
2
August 4, 2007, the defendant broke into his grandmother's house
and then raped and strangled his six-year-old cousin, who was
staying there for the night. The defendant was convicted also
of nine other charges, including home invasion while armed with
a dangerous weapon, G. L. c. 265, § 18C.2 At trial, the
defendant conceded that he had killed the victim, but argued
that he was not guilty by reason of insanity. On appeal from
his convictions and from the denial of his motion for a new
trial, the defendant asserts that (a) trial counsel was
ineffective for failing to present certain evidence relevant to
his insanity defense and to object to the jury charge on the
insanity defense; (b) the judge did not respond adequately to
reports that a juror slept through certain portions of the
trial; (c) the evidence was insufficient on an element of the
home invasion charge, and the judge incorrectly instructed the
jury on that element; (d) the instructions on felony-murder
impermissibly removed from the jury's consideration one of its
elements; and (e) the prosecutor's closing argument was
improper. The defendant asks also that, pursuant to G. L.
c. 278, § 33E, we reduce the murder conviction to murder in the
2
These included two counts of forcible rape of a child,
G. L. c. 265, § 22A, as well as one count each of kidnapping,
G. L. c. 265, § 26; larceny under $250, G. L. c. 266, § 30
(lesser included offense); larceny of a motor vehicle, G. L.
c. 266, § 28 (a); malicious destruction of property, G. L.
c. 266, § 127; reckless driving, G. L. c. 90, § 24 (2) (a); and
failure to stop for a police officer, G. L. c. 90, § 25.
3
second degree as more consonant with justice, because his
actions were the product of mental illness.
We affirm the conviction of murder in the first degree, and
decline to exercise our power under G. L. c. 278, § 33E, to
reduce the degree of guilt or to order a new trial. With
respect to the charge of home invasion, we agree with the
defendant that the evidence was insufficient, and that his
conviction must be reversed. We affirm the other convictions.
1. Background. a. Facts. We recite the facts the jury
could have found, reserving certain details for later
discussion. In 2007, when the defendant was twenty years old,
he did not have a permanent residence and stayed with various
friends and family members. At one point during the year, he
lived with his grandmother in Weymouth for approximately one
month. After moving out, he asked his grandmother for money to
pay his rent. She agreed, but insisted on driving the defendant
to meet his landlord and to obtain a receipt. When they
arrived, the grandmother handed the defendant the money, and he
ran off. Several weeks later, on the morning of August 4, 2007,
the defendant called his grandmother, asking if he could come to
her house. She refused.
At 2 or 3 P.M. that day, the defendant attended a cookout
at the home of his friend, Megan Phinney, staying there until
late in the evening. At "10 or 10:30" P.M., at the defendant's
4
request, one his friends drove him from the cookout to his
grandmother's house, approximately one mile away. The victim,
the defendant's six year old cousin, and her four year old
brother were staying with his grandmother that night.3 All three
had gone to sleep by the time the defendant arrived.
After being dropped off, the defendant climbed on top of
his grandmother's white Ford Explorer vehicle, which was parked
in the driveway in front of the house, below a front-facing
second-floor window. He used a "folding" knife with a three-
inch blade to cut a hole in the window screen, and entered.
Somewhere inside, he encountered the victim. He raped and
strangled her in a front bedroom, then wrapped her body in
bedding taken from that bedroom. He took cash from his
grandmother's purse, as well as her cellular telephone and the
keys to the Explorer. He left the house carrying the victim's
body, which he placed on the floor of the Explorer between the
front and rear seats, and drove off.
At 10:57 P.M., the defendant appeared on a surveillance
video recording entering a convenience store approximately one
mile from his grandmother's house. He left the store without
purchasing anything.
3
The children slept in a bedroom in the back of the house,
while the grandmother slept on a porch separated from the
bedroom by a sliding glass door.
5
Sometime after midnight, on August 5, 2007, the defendant
used his grandmother's cellular telephone to call one of his
acquaintances, Terrence Gandy. He told Gandy that he "had some
money to burn" and "wanted to get some drugs." He drove to
Gandy's house in the Dorchester section of Boston, bought
marijuana, and smoked it with Gandy. He told Gandy that the
Explorer he was driving "was stolen," and asked him, "If I ever
killed anybody, what would I do with the body to get rid of
it[?]" Gandy replied that he should "chop it up." The
defendant left after "fifteen to [twenty] minutes."
At approximately 1:15 A.M., a Weymouth police officer in
the canine unit stopped the Explorer for speeding. When the
officer approached the vehicle, however, it sped off, and the
officer pursued it. During the chase, both vehicles reached
speeds of one hundred miles per hour. The Explorer ultimately
crashed into a taxicab while attempting to turn at an
intersection. The defendant got out of the vehicle and ran
away. When the defendant disregarded the officer's warning to
stop, the officer released his police dog. The dog chased and
subdued the defendant. As the officer approached the defendant,
who was lying face down on the ground with his arms
outstretched, as instructed, the defendant turned to the officer
and started yelling, "Just shoot me in the face. Kill me now.
6
You don't know what I did. Just kill me now. Shoot me in the
fucking face."
The officer turned around to signal other officers who had
arrived at the scene. When he turned his attention back to the
defendant, he saw that the defendant had tucked his hands
underneath his body. The defendant was holding a folding knife
with a three-inch blade, and was pleading with the officer "to
shoot him, kill him." The defendant eventually released the
knife and was arrested.4 He continued "ranting and raving" until
he was placed in a police cruiser.
After the defendant's arrest, officers conducted an
inventory search of the Explorer, which they intended to have
towed. They discovered the victim's body, naked from the waist
down, wrapped in the grandmother's bedding. Her shorts and
underwear were nearby. Police contacted the grandmother, who
was unaware that the defendant had been in her house, that her
Explorer had been stolen, or that the victim was missing.
During a search of the grandmother's house, police found that
the bedsheets were missing from the front bedroom. They also
found traces of blood and seminal fluid in that room, and bloody
pillows in the victim's bedroom.
4
Police recovered a knife and a small bag containing what
was later determined to be cocaine.
7
b. Trial proceedings. On August 30, 2007, the defendant
was indicted on charges of murder in the first degree and twelve
other offenses.5 At trial in March, 2009, the Commonwealth
proceeded on the murder charge on theories of deliberate
premeditation, extreme atrocity or cruelty, and felony-murder.
To establish that the defendant was criminally responsible for
his actions, the Commonwealth presented testimony regarding his
behavior on the day of the killing. The defendant's girl friend
testified that she spoke with him around noon that day, and
agreed that he did not "sound any different" than usual. A
friend who had been at the cookout recalled that the defendant
drank beer, played horseshoes, and agreed that he did not
"appear[] different . . . than what [his friends] had known him
to be like in the past."
The Commonwealth also presented expert testimony regarding
fingerprints, blood, and seminal fluid that were recovered from
the grandmother's house and the victim's body. One expert
testified that samples of deoxyribonucleic acid (DNA) recovered
from sperm cells on the victim's body matched the defendant's
5
The other indictments included two counts of forcible rape
of a child, and one count each of home invasion; kidnapping;
assault with a dangerous weapon, G. L. c. 265, § 15B (b);
possession of cocaine, G. L. c. 94C, § 34; larceny over $250;
larceny of a motor vehicle; malicious destruction of property;
reckless driving; operating a motor vehicle with a suspended
license, G. L. c. 90, § 23; and failure to stop for a police
officer.
8
DNA profile, and another testified that a palm print on the
front window matched that of the defendant.
The defendant conceded that he had raped and killed the
victim, but contended that he was not guilty by reason of
insanity. The defendant did not, however, offer expert
testimony regarding specific mental illnesses from which he
suffered, and did not present any medical or treatment records.
Nor did he offer an expert opinion that he lacked criminal
responsibility for his actions. Rather, he relied on testimony
concerning his behavior immediately following the killing, as
well the nature of the crime itself, to establish his mental
state.6 He also presented testimony from his grandmother, on
cross-examination, that he had been admitted to psychiatric
hospitals numerous times during his adolescence, that he had
been prescribed medications for psychiatric disorders, and that,
because of behavioral issues, he had been placed in the custody
of the Department of Youth Services (DYS).7
In addition, the defendant introduced expert testimony from
a forensic psychologist who had not examined him, concerning the
6
The defendant's acquaintance Terrence Gandy, for instance,
testified that the defendant "didn't seem like he was himself,"
that "he was a little more hyper" than usual, and that "he just
didn't seem like he was in his right mind." The arresting
officer testified that the defendant was "ranting and raving."
7
On direct examination by the Commonwealth, the grandmother
agreed that she never "bec[a]me aware of [the defendant] having
any type of a mental illness."
9
general standards used to evaluate a defendant for lack of
criminal responsibility, and the general characteristics of a
number of mental illnesses. The expert agreed that someone may
"be in the throes of mental illness and appear normal to lay
observers," and testified that a person "would be admitted to
[a] psychiatric facility only [if] someone . . . as part of the
admission . . . believed that they had symptoms of a mental
illness." The expert did not present any opinion regarding the
defendant's mental state or behavior.
The jury convicted the defendant of murder in the first
degree on theories of extreme atrocity or cruelty and felony-
murder,8 but not on the theory of deliberate premeditation.9
c. Motion for a new trial. In October, 2012, the
defendant filed a motion for a new trial pursuant to Mass. R.
Crim. P. 30, as appearing in 435 Mass. 1501 (2001). He argued,
among other things, that his trial counsel was ineffective for
failing to review and present to the jury records of psychiatric
8
The predicate felonies for the conviction of felony-murder
were rape of a child by force and home invasion.
9
The jury also convicted the defendant of eight of the
other offenses charged, including two counts of rape, home
invasion, kidnapping, larceny of a motor vehicle, malicious
destruction of property, reckless driving, failing to stop for a
police officer. In addition, he was convicted of the lesser
included offense of larceny under $250. The jury acquitted him
of possession of cocaine and operating a motor vehicle with a
suspended license. The judge entered a directed verdict on the
indictment charging assault by means of a dangerous weapon.
10
treatment he had received as an adolescent. Those records, he
maintained, indicated that the defendant had suffered sexual
abuse as a child, and that he had been diagnosed with several
mental illnesses. He argued also that trial counsel had failed
to present evidence of certain strange behavior he exhibited on
the day of the killing. After a nonevidentiary hearing, the
motion was denied by the Superior Court judge who had been the
trial judge.
4. Discussion. On appeal, the defendant contends that
(a) trial counsel was ineffective in her presentation of the
insanity defense, (b) the judge did not respond adequately to
reports of a sleeping juror, (c) there was insufficient evidence
on the home invasion charge and the jury were incorrectly
instructed on that issue, (d) the judge's instruction removed an
element of the felony-murder charge from the jury's
consideration, and (e) the prosecutor made certain inappropriate
remarks during closing argument. He claims also that we should
reduce the degree of guilt pursuant to our authority under G. L.
c. 278, § 33E.
a. Claim of ineffective assistance of counsel. As he did
in his motion for a new trial, the defendant argues that
counsel's investigation and presentation of his insanity defense
was constitutionally deficient. He claimed, in particular, that
"counsel failed to adequately investigate [his] history of
11
treatment for mental illnesses"; "failed to present evidence of
his unusual behavior shortly before the . . . crime"; and
"failed to object to erroneous instructions on the mental health
defense[]."
"Because the defendant has been convicted of murder in the
first degree, we consider [his] contention of ineffectiveness of
counsel to determine whether there exists a substantial
likelihood of a miscarriage of justice . . . , which is more
favorable to a defendant than the constitutional standard for
determining whether there has been ineffective assistance.
Thus, we consider whether there was error during the course of
the trial, and, if so, whether the error was 'likely to have
influenced the jury's conclusion'" (citation omitted).
Commonwealth v. Williams, 453 Mass. 203, 204-205 (2009). "Under
this more favorable standard of review, we consider a
defendant's claim even if the action by trial counsel does not
'constitute conduct falling "measurably below" that of an
"ordinary fallible lawyer."' . . . A strategic decision by an
attorney, however, amounts to ineffective assistance 'only if it
was manifestly unreasonable when made'" (citations omitted).
Commonwealth v. Pena, 455 Mass. 1, 22 (2009).
i. Treatment records. The defendant maintains that
defense counsel erred in failing to read, or to introduce at
trial, treatment records from his psychiatric hospitalizations
12
and from his commitments to DYS facilities. These records
indicate that the defendant suffered sexual abuse as a child,
and that, during his adolescence, he was diagnosed with several
mental illnesses, including agitated depression, bipolar
disorder, and posttraumatic stress disorder. The records span a
period of twelve years, from 1992, when the defendant was five
years old, to 2004, shortly before his eighteenth birthday. The
defendant contends that, had evidence of these specific
diagnoses been presented to the jury, the insanity defense might
have been successful.
In an affidavit submitted in conjunction with the
defendant's motion, trial counsel explained that she was aware
of the treatment records, and had seen them mentioned in the
defendant's competency evaluation prepared by a forensic
psychologist at Bridgewater State Hospital. She stated further
that, although she herself did not review the records, she had
obtained funds to hire an expert psychologist to review the
documents. Having reviewed the records, and having asked a
colleague to do the same, the expert informed counsel that he
was unable to offer an opinion that, at the time of the offense,
the defendant had not been criminally responsible. Counsel
averred that she therefore decided not to present expert
testimony on the basis of the defendant's medical records. She
did not, however, explain why she chose not to introduce the
13
treatment records themselves, unaccompanied by expert testimony.
See Commonwealth v. Dung Van Tran, 463 Mass. 8, 20 (2012)
("defendant with prior history of mental disorders and treatment
'may offer evidence of the same through medical records with or
without expert witnesses'" [citation omitted]).
While unexplained in the affidavit, counsel's decision not
to introduce the records appears to have been strategic. See
Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015) (where
ineffective assistance claim is based on tactical or strategic
decision by counsel, defendant may show counsel was ineffective
only if decision was "manifestly unreasonable" when made). At a
pretrial hearing, counsel argued successfully, against the
Commonwealth's opposition, that the Commonwealth was not
entitled to review the defendant's mental health records,
because she was neither presenting them at trial nor seeking to
introduce expert testimony based on their content. Moreover,
during voir dire of the venire, she asked each prospective
juror, "If there is no evidence presented regarding
hospitalization or a diagnosis, would you still be able to keep
an open mind about an insanity defense?" It therefore seems
that, after due consideration, counsel deliberately decided not
to present documentary evidence of the defendant's mental
illnesses. "[S]trategic choices made after thorough
investigation of [the] law and facts . . . are virtually
14
unchallengeable." Commonwealth v. McMahon, 443 Mass. 409, 425
(2005), quoting Strickland v. Washington, 466 U.S. 668, 690
(1984).
The defendant contends, however, that without having read
the records herself, counsel could not have conducted a
"thorough investigation," Commonwealth v. McMahon, supra, and
was not in a position to make the strategic decision to keep the
records from the jury's consideration. See Commonwealth v.
Baker, 440 Mass. 519, 529 (2003) ("Until [counsel]
commenced . . . an investigation, he simply had no way of making
a reasonable tactical judgment").
We do not agree. Although it would have been preferable
for counsel personally to review the treatment records, she did
not fail to consider them, or to make an investigation of their
contents. Indeed, she reviewed the competency report prepared
by the forensic psychologist at Bridgewater, which summarized
most of the relevant records, and which described the
defendant's treatment history and diagnoses. Contrast
Commonwealth v. Lang, 473 Mass. 1, 11 (2015) (Hines, J.,
concurring) ("defendant's trial counsel did not review the
defendant's psychiatric history"). Counsel also retained two
experts, both of whom reviewed the records and opined that they
did not support the conclusion that the defendant lacked
criminal responsibility at the time of the crime. Contrast
15
Commonwealth v. Alvarez, 433 Mass. 93, 101 (2000) ("Counsel's
failure to review or provide to the defense expert [relevant]
medical records . . . fell measurably below that of an ordinary
fallible lawyer" [emphasis supplied]). In light of counsel's
knowledge of the substance of the records, and given that the
experts she retained could not endorse an insanity defense after
reading them, counsel's investigation was sufficient to allow
her to make the strategic decision not to present the records to
the jury. This decision was not "manifestly unreasonable."
Moreover, it is unlikely that the exclusion of the records
resulted in any prejudice to the defendant. See Commonwealth v.
Williams, 453 Mass. at 204-205. As the judge noted in her
decision on the defendant's motion for a new trial, although the
records contained sympathetic information, such as the
defendant's history of abuse and mental illness, and while they
would have prevented the prosecutor from arguing that the
defendant's hospitalizations were not the result of a
diagnosable disease, they also contained information that would
have painted the defendant in a negative light. For example,
the records indicated that the defendant had a criminal record10
and was a member of a gang, and stated also that he "attempt[ed]
10
They indicate, for instance, that the defendant was
adjudicated delinquent for, among other things, committing
assault by means of a dangerous weapon and malicious destruction
of property over $250.
16
to manipulate situations by avoiding responsibility for his
behavior" and "display[ed] little remorse for his [violent]
actions."11
In addition, the records contained information that might
have undercut the insanity defense. The most recent of the
records, from three years before the crime, indicated that the
defendant was "doing well," that he was employed and had a girl
friend, and that he "recently discontinued his medication
[(impliedly with medical approval)]."12 Had these records been
presented to the jury, the prosecutor likely would have used
them to support the argument that the defendant was capable of
rational, calculated thought, and that the killing was the
result of such thought, rather than of mental illness.
In sum, counsel's decision not to introduce the defendant's
treatment records was not manifestly unreasonable, and did not
result in prejudice to the defendant.
11
Counsel was aware from the competency evaluation that the
records described the defendant's history of delinquent and
criminal behavior, and contained other potentially damaging
information.
12
The defendant contends that some of these details, if not
relevant to his diagnosis and treatment, could have been
redacted. See Commonwealth v. Irene, 462 Mass. 600, 616, cert.
denied, 133 S. Ct. 487 (2012) (medical records admissible as
business records only to extent they are "germane to the
defendant's treatment or medical history"). On their face,
however, the records suggest that many of these details were, in
fact, relevant to the defendant's psychiatric treatment --
focused, as it was, on his behavioral issues -- and thus
unlikely to have been subject to redaction.
17
ii. Defendant's behavior earlier on day of killing. In
August, 2007, a State trooper interviewed Cynthia Phinney, the
mother of the defendant's friend who had hosted the cookout that
the defendant attended on the day of the killing. Phinney
reported seeing the defendant at the cookout, and told the
trooper that he was "in a funny mood . . . he was sad." She
added that
"at one point [the defendant] took a shower in the
house. . . . [A]fter [he] took a shower, he remained in her
laundry room for about ten minutes. . . . [S]he walked into
the laundry room and found [him] just standing there
naked."
The defendant contends that trial counsel was ineffective for
not calling Phinney to testify about this incident, as it would
have suggested that the defendant exhibited "behavior . . .
consistent with that of a person suffering from bipolar
disorder."13
The record does not indicate whether counsel considered
calling Phinney. We are persuaded, however, that, overall,
Phinney's testimony was not "likely to have influenced the
jury's conclusion" [citation omitted]. See Commonwealth v.
Williams, 453 Mass. at 206. Before describing the defendant's
mood and behavior, Phinney told the trooper that the defendant
"showed up with a thirty-pack of beer," that he became
13
The defendant's expert described to the jury the expected
symptoms of bipolar disorder.
18
"trashed . . . and [that he] needed to sober up." Thus, it is
likely that the jury would have attributed his mood to
consumption of alcohol, rather than as a symptom of mental
illness. In addition, Phinney testified before the grand jury
that, earlier that afternoon, the defendant "was fine. He's
always happy-go-lucky, always singing, dancing, and always just
a happy kid." Had Phinney testified, such statements could have
undermined any testimony that the defendant was "sad" or in a
"funny mood." Given the potentially harmful impact of Phinney's
statements on the defendant's insanity defense, no prejudice to
him resulted from counsel's decision not to call her to testify.
iii. Jury instructions. The defendant argues that counsel
was ineffective for failing to object to two specific jury
instructions.
A. Instruction on insanity. In instructing the jury on
the insanity defense, the judge stated:
"To summarize then, if the Commonwealth fails to prove
beyond a reasonable doubt that the defendant possessed the
substantial capacity to appreciate the criminality or
wrongfulness of his conduct, and also that the defendant
possessed a substantial capacity to conform his conduct to
the requirements of the law, you must return a verdict of
not guilty by reason of insanity" (emphasis supplied).
The defendant contends that this instruction was erroneous,
because it implies, in his view, that a verdict of not guilty by
reason of insanity was required only if the Commonwealth failed
to prove both that the defendant "possessed the substantial
19
capacity to appreciate the wrongfulness of his conduct," and
that he "possessed a substantial capacity to conform his conduct
to the requirements of the law." If, however, the Commonwealth
were able to prove only one of these two prongs, the defendant
argues, this instruction implied incorrectly that the jury
should return a guilty verdict. As the defendant asserts, the
Commonwealth must prove both a defendant's ability to understand
the wrongfulness of his conduct and his capacity to conform his
conduct to the law; failure to prove either prong requires a
verdict of not guilty by reason of insanity. See Model Jury
Instructions on Homicide 51-52 (1999).
Trial counsel did not object to the instruction as given.
The defendant claims that counsel's failure to object
constituted ineffective assistance. This claim is unavailing.
While the language at issue might, in isolation, be understood
in the manner the defendant suggests, a more natural
interpretation is that a verdict of not guilty by reason of
insanity was required if the Commonwealth failed to prove either
one of the prongs, by failing to show both that "the defendant
possessed the substantial capacity to appreciate the criminality
or wrongfulness of his conduct, and that the defendant possessed
a substantial capacity to conform his conduct to the
requirements of the law." We are persuaded that the jury
understood the instruction in this way, since, as the defendant
20
concedes, the judge explained the standard correctly, clearly,
and without ambiguity earlier in her instructions.14 See
Commonwealth v. Young, 461 Mass. 198, 207 (2012) ("When
reviewing jury instructions, '[w]e evaluate the instruction as a
whole, looking for the interpretation a reasonable juror would
place on the judge's words.' . . . We do not consider bits and
pieces of the instruction in isolation" [citations omitted]).
B. Instruction on diminished capacity. The judge
instructed the jury that they could convict the defendant of
murder in the first degree on a theory of extreme atrocity or
cruelty if they found that the defendant had so-called "third-
prong malice," i.e., "intent to do an act which, in the
circumstances known to the defendant, a reasonable person would
have known created a plain and strong likelihood that death
would follow." The defendant argues that the judge erred in not
instructing the jury that, in determining whether the defendant
had such an intent, "they should consider the extent of the
defendant's knowledge of the circumstances at the time of the
killing and, in that regard, they should consider the evidence
of his mental impairment." See Commonwealth v. Delaney, 418
14
For example, the judge stated that a "person is not
criminally responsible for his conduct if he suffers from a
mental disease or defect, and as a result of that mental disease
or defect lacks a substantial capacity either to appreciate the
criminality of wrongfulness of his conduct or to conform his
conduct to the requirements of the law" (emphasis supplied).
21
Mass. 658, 663-64 (1994). The defendant maintains also that
counsel was ineffective for failing to object to the absence of
this language. The instructions as a whole, however, do not
support this claim. Shortly after giving the now-challenged
instruction, the judge explicitly told the jury that they must
consider the defendant's mental state in determining the extent
of the defendant's knowledge.15
b. Report of sleeping juror. Before the jury charge, a
juror reported that another juror had been sleeping during
closing arguments. The judge conducted a hearing on what should
be done in response to the juror's assertion. Defense counsel
stated, "I think we [should] leave it alone. I didn't notice
it, and I think we were both looking at the jurors during our
closing argument." She added, "I'm more concerned about [the
reporting] juror than I am the juror who may have been falling
asleep. It sounds like that juror has an agenda of some type."
The prosecutor also said that he had not noticed the juror had
15
The judge instructed:
"In determining whether the Commonwealth has proved
this third meaning of malice, you must consider the
defendant's actual knowledge of the circumstances at the
time that he acted.
"Again, in determining whether the Commonwealth has
proved that the defendant had the intent required to
constitute malice in any one of these ways, you may
consider any evidence regarding the defendant's mental
condition at the time of the alleged events."
22
been sleeping, and suggested that no action was required in
response to the report.
The following day, a juror who had been designated as an
alternate16 sent the judge a note stating that he had observed
the same juror "f[a]ll asleep during trial on several occasion's
[sic]." Defense counsel responded,
"I just wanted to say that I watched this particular
juror yesterday during Your Honor's very lengthy . . .
charge . . . because it was brought to our attention that
this particular juror had been falling asleep. . . . What
I noted is that she occasionally closed her eyes, but would
move her hands and turn her head and open her eyes. I was
confident yesterday in observing her during Your Honor's
charge that she was not sleeping."
As requested, the judge took no further action. The defendant
now argues that the judge erred in taking no action, and should,
at a minimum, have conducted a voir dire of the juror in
question. See Commonwealth v. Dyous, 79 Mass. App. Ct. 508,
512-514 (2011) (judgment reversed because of sleeping juror
although defendant's trial attorney urged judge to take no
action).
The defendant's argument is not persuasive. "[N]ot every
complaint regarding juror attentiveness requires a voir
dire. . . . Rather, if a judge receives a complaint or other
information suggesting that a juror was asleep or otherwise
16
It is not clear if the juror making this report was the
same one who had reported suspicions of a sleeping juror the
previous day.
23
inattentive, the judge must first determine whether that
information is 'reliable.' . . . In making this determination,
the judge must consider the nature and source of the information
presented, as well as any relevant facts that the judge has
observed from the bench. . . . The burden is on the defendant
to show that the judge's response to information about a
sleeping juror was 'arbitrary or unreasonable'" (quotations and
citations omitted). Commonwealth v. McGhee, 470 Mass. 638, 644
(2015).
Here, the defendant has not met this burden. On both
occasions, the judge immediately conducted a hearing on the
juror's report. At those hearings, both defense counsel and the
prosecutor stated that they had not noticed that the juror was
asleep, and defense counsel provided specific information to
explain both the basis of the report (the juror had closed her
eyes) and why there was ultimately no cause for concern (the
juror was actually awake). In light of this, there was no error
in the judge's decision that the report of a sleeping juror was
not "reliable," id., and that no further action was required.
c. Armed home invasion. In instructing the jury on the
elements of home invasion, the judge stated that the
Commonwealth must prove "that the defendant at the time of the
entry was armed with a dangerous weapon[.]" See G. L. c. 265,
§ 18C. She then instructed that, as a matter of law, "[k]nives
24
are inherently dangerous." The defendant contends that this was
error, and that the jury should have been instructed to
determine whether the knife he had in his possession was
dangerous as used. He contends also that, even if a correct
instruction were given, there was insufficient evidence that the
knife was dangerous as used, and that a directed verdict on this
charge should have entered. We agree.
Conviction under the home invasion statute requires the
Commonwealth to prove the defendant entered the dwelling "while
armed with a dangerous weapon" and "use[d] force or threaten[ed]
the imminent use of force upon any person within such
dwelling[.]" See G. L. c. 265, § 18C. The "phrase 'dangerous
weapon' has a defined meaning under the common law that is
routinely applied to those statutory crimes that have a
dangerous weapon element." Commonwealth v. Wynton W., 459 Mass.
745, 749 (2011). See Commonwealth v. Mattei, 455 Mass. 840, 846
n.12 (2010) (applying common-law definition of dangerous weapon
to home invasion statute). Under this common-law definition, a
determination whether a weapon is "dangerous" is based on a
distinction between weapons that are dangerous per se and those
that are dangerous as used. See Commonwealth v. Appleby, 380
Mass. 296, 303 (1980). A weapon is "dangerous per se" if it is
an "instrumentality designed and constructed to produce death or
great bodily harm" and "for the purpose of bodily assault or
25
defense." Weapons of this type include "firearms, daggers,
stilettos and brass knuckles" but not "pocket knives, razors,
hammers, wrenches and cutting tools" [quotations and citations
omitted]. Id.
On the record here, the evidence was insufficient for a
determination that the defendant's knife was dangerous per se.
The knife that the defendant had in his possession when he was
arrested was a three and one-half inch "folding" knife that was
on his person, but was not in his hand, when he was apprehended.
See id. ("pocket knives" are not dangerous per se). Such a
determination cannot be made absent "information regarding the
design, purpose, and construction of the knife." See
Commonwealth v. Wynton W., 459 Mass. at 755. The judge noted in
her decision on the defendant's motion for a new trial that the
requisite determination could not be made on this record. Thus,
the jury should have been instructed not that the knife was
inherently dangerous, but that they must determine whether it
was dangerous as used.17 See Commonwealth v. Delaney, 442 Mass.
604, 615 (2004) (because "[a] pocket knife of the type the
defendant described is not a dangerous weapon per se, as it is
not 'designed for the purpose of bodily assault or defense'"
17
The judge, however, declined to disturb the home invasion
conviction, concluding that there was sufficient evidence that
the knife was dangerous as used, such that a correct instruction
would not have led to a different result.
26
[citation omitted], judge should have instructed jury to
determine whether knife was dangerous as used and not that it
was dangerous per se); Commonwealth v. Appleby, 380 Mass. at 303
(pocket knives not classified as dangerous per se).
Such an instruction, however, would not have obviated the
need to vacate the defendant's conviction of this charge, as the
evidence was also insufficient to support a finding that the
defendant's knife, which he had in his possession when he
entered his grandmother's house, was dangerous as used. The
evidence suggests only that the defendant used the knife to gain
entry to the house; there is no indication that he used it
thereafter. There was no evidence or argument that the victim
was stabbed, or that any item inside the house was cut or
slashed. In addition, while displaying the knife in a
threatening manner might have rendered it dangerous as used, the
Commonwealth adduced no evidence that such a display occurred.18
See Commonwealth v. Mattei, 455 Mass at 846 n.12 (whether weapon
is dangerous as used in home invasion depends on its "apparent
ability to inflict harm" and "whether the victim reasonably so
perceived it" [citation omitted]). Accordingly, the defendant's
conviction of armed home invasion must be vacated and set aside,
18
The argument that the defendant may have used the knife
to threaten the victim is speculative and not supported by any
evidence introduced at trial.
27
and, on remand, a directed verdict in favor of the defendant
must be entered.19
d. Instruction on felony-murder. The defendant claims
also that the judge's instruction on felony-murder impermissibly
removed from the jury's consideration the critical factual issue
whether the intent to commit the predicate felony exhibited a
"conscious disregard" for human life. "[T]he felony-murder rule
is based on the theory that the intent to commit the felony is
equivalent to the malice aforethought required for murder." See
Commonwealth v. Matchett, 386 Mass. 492, 507 (1982).
Accordingly, "[f]or this theory to be tenable the nature of the
felony must be such that an intent to commit that crime exhibits
a conscious disregard for human life" [citation omitted] Id.
In instructing the jury on felony-murder, the judge said
that the Commonwealth must prove that the defendant killed the
victim in the course of committing a felony "inherently
dangerous to human life." She then instructed that, "as a
matter of law, the crime of home invasion with a dangerous
weapon and rape of a child by force are felonies which are
inherently dangerous to human life."
19
While armed home invasion was one of the predicate
felonies on which the conviction of felony-murder was based, we
need not reverse the felony-murder conviction, as the jury also
found that the defendant committed a second predicate felony,
viz., rape of a child by force. See note 23, infra.
28
Contrary to the defendant's argument, this instruction was
in accordance with well-established case law. See Commonwealth
v. Wadlington, 467 Mass. 192, 208 (2014) (judge did not relieve
prosecution from its burden of proving "conscious disregard"
element of offense of felony-murder" because "[i]t is not the
province of the jury to determine whether a felony is inherently
dangerous" [citation omitted]); Commonwealth v. Scott, 428 Mass.
362, 364 (1998) (whether felony is inherently dangerous is "a
matter of law" to be decided by judge; where felony is
inherently dangerous, "[t]here is no need to show a 'conscious
disregard for human life because the risk is implicit in the
intent required for the felony'" [citation omitted]). See also
Commonwealth v. Matchett, 386 Mass. at 505 n.15 ("common law
felonies of arson, rape, burglary, and robbery" are "inherently
dangerous"). We decline the defendant's invitation to revisit
this issue.
e. Closing argument. i. Whether inferences were
permissible. In his closing, the prosecutor argued that the
defendant was not mentally ill, and that his actions reflected
calculated thinking by a "criminal mind." The prosecutor noted,
in particular, that the defendant had broken into his
grandmother's house with the intention of stealing her money and
her vehicle, and that he had been spotted by the victim. The
defendant then killed the victim to prevent her from revealing
29
his presence, removed her body and clothing to conceal what had
happened, and went immediately to the convenience store to
establish an alibi. Once he had been caught by the canine
officer, the prosecutor asserted, the defendant contemplated
killing the police dog with his knife and, when that effort was
unsuccessful, feigned insanity. The prosecutor maintained also
that the defendant's hospitalizations were the result, not of
mental illness, but of "acting out" or "a substance abuse
problem." The prosecutor suggested that the defendant had
concocted the insanity defense because he knew that the evidence
against him was strong, and that he had no other viable defense.
The defendant objected to these factual assertions as lacking
support in the evidence. His objections were overruled. The
defendant raises the same arguments on appeal.
"A prosecutor must limit comment in closing statement to
the evidence and fair inferences that can be drawn from the
evidence. . . . Nonetheless, a prosecutor may argue zealously
in support of inferences favorable to the Commonwealth's case
that reasonably may be drawn from the evidence" [quotation and
citations omitted]. Commonwealth v. Carriere, 470 Mass. 1, 22
(2014). In determining whether impermissible statements in a
prosecutor's closing argument require reversal, "we consider (1)
whether the defendant seasonably objected; (2) whether the error
was limited to collateral issues or went to the heart of the
30
case; (3) what specific or general instructions the judge gave
the jury which may have mitigated the mistake; and (4) whether
the error, in the circumstances, possibly made a difference in
the jury's conclusions." Commonwealth v. Kater, 432 Mass. 404,
422-23 (2000), quoting Commonwealth v. Kozec, 399 Mass. 514, 518
(1987).
Here, the challenged arguments were based largely on such
reasonable inferences. The assertion that the defendant broke
into his grandmother's home intending to steal her money and her
vehicle is supported by evidence that the defendant entered the
house by climbing on his grandmother's Explorer, and then
cutting through a window screen on a second-floor window, at
night and while the occupants were sleeping, and that he
actually stole these items, which were found in his possession
after the motor vehicle chase. See Commonwealth v. Maia, 429
Mass. 585, 587-588 (1999) ("intent to steal may be inferred
where a person enters a building by force at night").
The argument that the defendant was discovered by the
victim, somewhere in the house, is supported, in part, by
reasonable inferences that could be drawn from the evidence.
Although she slept in a room adjacent to the victim's and
separated from it only by a sliding glass door, the grandmother
was not aware, until hours later, that the defendant had been in
the house, or that the victim was missing. Both the victim's
31
bedroom and the room where the grandmother was sleeping were at
the back of the house, while the defendant broke in through a
front window, and committed the rape in a front bedroom. Based
on this, the jury reasonably might have inferred that the
defendant encountered the victim not in her bedroom, but
elsewhere in the house.20
In any event, "the line separating speculation and
inference is often a fine one," and we "recognize that closing
argument is identified as argument," and that the jury
understand from the judge's instructions that closing arguments
are not evidence. See Commonwealth v. Bresilla, 470 Mass. 422,
437-438 (2015), quoting Commonwealth v. Kozec, 399 Mass. at 516.
Moreover, any impermissible inference in the prosecutor's
suggestion as to the defendant's motive for the killing could
not have resulted in prejudice to the defendant. The
defendant's motive was a collateral issue that the Commonwealth
was not required to prove. See Commonwealth v. Kozec, supra
at 518 (distinguishing "collateral" errors in prosecutor's
closing argument that did not go to "the heart of the case").
The jury also reasonably could have inferred that the
defendant's actions after the killing were a conscious attempt
to cover his tracks, demonstrating rational thought rather than
20
There was also evidence, however, that bloody pillows
were found in the victim's bedroom. There was no evidence whose
blood it was.
32
insanity. That the defendant removed the victim's body and
clothing from the house could be viewed as an attempt to delay
discovery of the crime. Similarly, the defendant's visit to the
convenience store, where he walked around but did not buy
anything -- despite having just stolen cash from his
grandmother -- might suggest that he went to the store for some
purpose other than to shop, and that this purpose was to
establish an alibi. Such an inference could have been bolstered
by the defendant's question to Gandy, a few hours later, about
how he might dispose of a body. The high-speed police chase and
the defendant's flight on foot further support the inference,
suggested by the prosecutor, that the defendant was trying at
all costs to avoid capture and punishment. In addition, the
jury could have inferred that, when the defendant reached for
his knife after the officer turned his back, the defendant
intended to attack the police dog. The evidence also supported
an inference that, when the defendant realized escape was not
possible, he began "ranting and raving" to establish an insanity
defense. See Commonwealth v. McColl, 375 Mass. 316, 323 (1978)
(prosecutor allowed to argue "that the defendant was dissembling
in his claim of insanity").
Finally, based on the grandmother's testimony, the jury
reasonably could have adopted the prosecutor's suggestion that
the defendant's psychiatric hospitalizations were related to
33
substance abuse rather than another mental illness. Several
witnesses testified that the defendant used marijuana or had
possessed cocaine. Thus, the prosecutor's argument "seems to
have been based properly on reasonable inferences that could
have been drawn from the evidence." Commonwealth v. Carriere,
470 Mass. at 22.
ii. Appeals to juror sympathy. In his closing, the
prosecutor asked the jury to recall that "one of the greatest
fears of little kids are monsters that come out in the night."
He said that, on the "night of August 4th, 2007, a monster came
in the night. A monster came into the life of [the victim], and
the monster looked like [the defendant]." The prosecutor
repeated this comment, almost verbatim, five times. At the end
of his closing, the prosecutor was crying. The defendant
objected to the display of emotion, and to the refrain regarding
monsters, as impermissible "appeal[s] to the sympathy of the
jurors." The judge overruled the objection.
Prosecutorial "appeals to sympathy . . . obscure the
clarity with which the jury would look at the evidence and
encourage the jury to find guilt even if the evidence does not
reach the level of proof beyond a reasonable doubt."
Commonwealth v. Santiago, 425 Mass. 491, 501 (1997), S.C., 427
Mass 298 and 428 Mass. 39 (1998). Here, the prosecutor's
display of emotion, and his characterization of the defendant as
34
a monster, were "unprofessional," "wholly inappropriate[,] and
should not have occurred." Commonwealth v. Rosario, 430 Mass.
505, 515 (1999) (prosecutor "called the defendant a 'monster'").
Coming from a prosecutor who twice previously has been rebuked
by this court -- and reversed -- for similar types of
inappropriate argument, the remarks are particularly troubling.
See Commonwealth v. Lewis, 465 Mass. 119, 128, 133 (2013) (where
same prosecutor "unjustifiably demeaned the defense, the
defendant, and defense counsel in his closing argument," court
concluded that "prosecutor's argument was highly improper");
Commonwealth v. Williams, 450 Mass. 894, 902-907 (2008) (same
prosecutor improperly vouched for witness and "improperly urged
the jury to do something beyond impartial fact finding"). See
also Matter of Nelson, 25 Mass. Att'y Discipline Rep. 413, 413-
414 (2009) (public reprimand of prosecutor for argument in
Commonwealth v. Williams, supra).21
That being said, whether the argument requires reversal
depends not only on whether it was improper, which it plainly
was, but "whether the improper statements made by the prosecutor
21
We observed in Commonwealth v. Williams, 450 Mass. 894,
906 n.10 (2008), and reiterate here, that the prosecutor was "an
experienced member of the district attorney's staff. To say
that he knew or certainly should have known better than to offer
the wholly improper argument is a gross understatement." Here,
the "judge should have interrupted the prosecutor when he began"
making such inappropriate remarks, and should have provided a
"curative instruction." See id.
35
'constituted prejudicial error.'" See Commonwealth v. Santiago,
425 Mass. at 500, quoting Commonwealth v. Daggett, 416 Mass.
347, 352 n.5 (1993). As the defendant notes, a timely objection
was lodged, and the argument "went to the heart of the case."
See Commonwealth v. Kater, 432 Mass. at 422. The assertion that
the defendant was a "monster" was, in context, an attempt to
convince the jury that the defendant was not mentally ill but,
rather, a calculating killer. Nevertheless, we are persuaded
that reversal is not required in the circumstances here.
First, the judge instructed the jury, both before and after
the closing arguments, that such arguments "are not evidence."
She also gave the standard instruction that the jury should "not
be swayed by prejudice, by bias, by sympathy or anger," and
should not "be influenced by any personal likes or dislikes that
[they] have come to feel toward any party." See id. (we examine
"what specific or general instructions the judge gave the jury
which may have mitigated the mistake"). See also Commonwealth
v. Camacho, 472 Mass. 587, 609 (2015) ("Although none of the
errors was addressed specifically, the judge instructed the jury
that closing arguments are not evidence and that the jury were
not to be swayed by emotion, sentiment, sympathy, or
prejudice").
Second, given the gruesome nature of the crime, it is
unlikely that the prosecutor's argument had an inflammatory
36
effect on the jury beyond that which naturally would result from
the evidence presented. See Commonwealth v. Kater, 432 Mass. at
423 ("a certain level of emotion on the part of the jurors could
be expected from this type of trial"). In addition, it is clear
that the jury did not blindly accept the prosecutor's arguments,
as they rejected the Commonwealth's theory that the defendant
had committed the killing with deliberate premeditation,
acquitted him of drug possession and driving without a valid
license, and convicted him of a lesser included offense on the
larceny charge. These "verdicts show that the jury were able to
distinguish wheat from chaff. We ordinarily assume that jurors
are reasonably sophisticated and capable of sorting out
hyperbole and speculation. . . . The verdicts bear out this
assumption."22 Commonwealth v. McLaughlin, 431 Mass. 506, 510-
512 (2000) (reversal not required although prosecutor "erred
egregiously," where defendant claimed lack of criminal
responsibility, by telling jury "to ignore the question of
[defendant's] mental condition").
f. Review under G. L. c. 278, § 33E. We address two
additional issues in conjunction with our review under G. L.
c. 278, § 33E.
22
The jury also sent a note to the judge asking whether
"each charge [is] to be considered independent of other charges
regarding the defendant's sanity." This suggests that, the
prosecutor's inflammatory remarks notwithstanding, the jury
properly considered the defendant's insanity defense.
37
i. Request for reduction of verdict to murder in the
second degree. Analogizing the facts of this case to those in
Commonwealth v. Colleran, 452 Mass. 417, 422, 430-434 (2008),
the defendant asks us to reduce his conviction to murder in the
second degree. In that case, we reduced the degree of guilt to
murder in the second degree where, suffering from psychotic
depression, the defendant strangled her child, because her
"conduct, although culpable, was very much driven by her mental
condition." Id. at 434. The evidence that the killing was
"driven by [the defendant's] mental condition" in that case,
however, was strong. See id. The defendant there presented
unrebutted expert testimony that she "lacked substantial
capacity to conform her conduct to the requirements of the law
due to a serious mental illness." See id. at 422. Here, by
contrast, there was no expert testimony that the defendant's
actions were the product of a mental illness, and the
Commonwealth's evidence that the defendant did not lack criminal
responsibility was strong.
In this case, we discern no reason to exercise our power
under G. L. c. 278, § 33E, to modify the jury's verdict.
ii. Lack of statistical context for DNA evidence. We note
one other point not raised by the defendant. The Commonwealth
presented testimony from a laboratory technician that DNA
samples recovered from sperm on the victim's body "matched the
38
DNA profile from [the defendant] and his paternal relatives."
Such testimony should not have been admitted "without
accompanying testimony explaining the statistical relevance of
those . . . results." See Commonwealth v. Mattei, 455 Mass. at
846. This error did not give rise, however, to a substantial
likelihood of a miscarriage of justice, as the factual
proposition for which the evidence was admitted -- that the
defendant raped the victim -- was undisputed. Moreover, the
technician's testimony was cumulative of other evidence that the
victim was raped by the defendant. See Commonwealth v. Linton,
456 Mass. 534, 560 (2010) ("Considering the limited probative
value of the DNA evidence when considered in the context of the
evidence as a whole, we are satisfied that admission of
the . . . evidence without qualifying statistical measures . . .
did not result in a substantial likelihood of a miscarriage of
justice").
3. Conclusion. The conviction of home invasion is vacated
and set aside, and a required finding of not guilty shall be
entered on that charge. The convictions of murder in the first
degree, and of the remaining charges, are affirmed.23
So ordered.
23
Because the defendant was convicted of murder on theories
of felony–murder and extreme atrocity or cruelty, the judgment
on the indictment charging aggravated rape is not duplicative.
See Commonwealth v. Bizanowicz, 459 Mass. 400, 421 (2011),
citing Commonwealth v. Felder, 455 Mass. 359, 370–371 (2009).