Commonwealth v. Colton

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SJC-08772
COMMONWEALTH vs. NICHOLAS R. COLTON.
Middlesex. December 9, 2016. - May 4, 2017.
Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.
Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement, Sentence. Evidence, Admissions
and confessions, Voluntariness of statement, Joint
enterprise, Prior misconduct, Intoxication. Joint
Enterprise. Intoxication. Mental Impairment. Jury and
Jurors. Practice, Criminal, Capital case, Motion to
suppress, Admissions and confessions, Voluntariness of
statement, Instructions to jury, Jury and jurors,
Empanelment of jury, Argument by prosecutor, Sentence.
Indictment found and returned in the Superior Court
Department on September 10, 1998.
A pretrial motion to suppress evidence was heard by Charles
T. Spurlock, J., and the case was tried before Paul A. Chernoff,
J.
Michael J. Traft for the defendant.
Casey E. Silvia, Assistant District Attorney, for the
Commonwealth.
LENK, J. In December, 2000, the defendant was convicted of
murder in the first degree on theories of extreme atrocity or
2
cruelty and deliberate premeditation in the August, 1998,
stabbing death of his cousin, Robert McDonald. At the time of
the killing, the defendant was twenty-one years old. On appeal,
the defendant argues that a statement he made to police was not
voluntary and should not have been admitted at trial. He also
challenges certain evidentiary rulings, and he argues that there
were errors in the jury instructions and that the judge abused
his discretion in failing to dismiss several jurors for cause.
In addition, the defendant claims that the prosecutor's closing
argument was improper and that his mandatory sentence of life in
prison without the possibility of parole violates the United
States Constitution and the Massachusetts Declaration of Rights.
Finally, the defendant seeks extraordinary relief pursuant to
G. L. c. 278, § 33E.
Having carefully reviewed the entire record, we discern no
error warranting reversal, nor any reason to exercise our
authority under G. L. c. 278, § 33E, to reduce the verdict or
order a new trial. We therefore affirm the defendant's
conviction.
1. Background. a. Facts. We recite the facts the jury
could have found, reserving certain details for later
discussion.
3
i. Day of the stabbing. The victim and the defendant had
grown up together and had continued their friendship as adults.1
On the evening of August 15, 1998, the defendant and his friends
Mark Heymann and Kenneth Scott Cronin picked up the victim at
his cousin's house in Newton.2
The four then drove to a liquor store near Pettee Square in
Newton, where the defendant purchased a "30-pack" of Budweiser
beer and a two-liter bottle of Bacardi Limon. They joined a
larger group of people who were drinking beer at a nearby park.
Although the defendant remained fairly sober, the victim soon
became highly intoxicated. The defendant told several people
that he was angry with the victim and that he intended to beat
him up. One of those individuals responded that the defendant
"should be a man about it and wait till the next day and . . .
settle it one-on-one straight, [and] not do it while . . .
everybody's drunk." The defendant responded that he probably
would follow that advice.
1
Approximately three years earlier, the defendant and the
victim had gotten into a dispute because the defendant suspected
that the victim was involved with the defendant's girl friend,
but thereafter they seemed to have returned to their former
"good" friendship.
2
The victim was working in New Hampshire for the summer but
was in Newton visiting his cousin, Donna D'Angelo, for the
weekend. Her husband, Richard D'Angelo, who was also the
defendant's uncle, went outside to greet the defendant and his
friends as they pulled up. At that point, the defendant
appeared to be sober.
4
Later in the evening, the group of people at the park began
to disperse. At some point, Cronin left. Around 10:30 P.M.,
the defendant, the victim, and Heymann left in Heymann's
vehicle, a blue Oldsmobile Cutlass. The group arrived at around
11 P.M. at the defendant's mother's house in Newton, where the
defendant was then living and where he kept a collection of
knives.3 The three men thereafter headed to Minute Man National
Historical Park in Lincoln, approximately thirteen miles away.
At some point during the drive, Heymann pulled the vehicle over
into a parking lot. The defendant then attacked the victim with
a knife. Defensive wounds on the victim's hands and wrists
demonstrate that he attempted to fend off the attack.
Bloodstains on the tops of his feet and in the area surrounding
the vehicle suggest that he got out of the vehicle during the
attack. Ultimately, the victim was stabbed eighty-six times,
both inside and outside the vehicle, including at least once
after he died. The victim's body was then dragged across a
hiking trail in the park and left in the woods.
ii. The investigation. The next day, August 16, 1998, two
hikers walking on the trail found the body approximately twenty-
five feet from the trail, and contacted a park ranger, who
3
The defendant's next door neighbor saw Heymann's motor
vehicle pull up in front of her house and heard someone get out
and begin vomiting in the street. She attempted to call 911 but
in the time it took her to disconnect the Internet from her
telephone line, the vehicle pulled away.
5
notified police. Police made casts of tire tracks at the scene
and of footprints found near the victim. The following day,
shortly after a conversation with the victim's father, State
police Troopers Owen Boyle and David Burke went to the home of
the defendant's uncle, Richard D'Angelo, and, after one-half
hour of conversation with him, went to the defendant's mother's
house. They found Heymann sitting in the driver's seat of his
vehicle, parked in the driveway. One of the officers walked
over and spoke with Heymann, who remained in his vehicle.
When the defendant walked out of the house, Boyle asked him
about the victim's whereabouts shortly before his death. The
defendant said that he had last seen the victim on the night of
August 15, 1998, when he and two other friends had picked up the
victim on their way to Pettee Square to drink beer with a group
of friends. He said that, at some point, Heymann had driven the
victim to the Eliot Street Massachusetts Bay Transportation
Authority (MBTA) station so that the victim could go to Chelsea
to purchase "crack" cocaine from someone named "EJ."4 When the
trooper told the defendant that the victim had been found dead
in Lincoln, the defendant became "upset" and "emotional." He
took off his sunglasses, threw them to the ground, and sat down
on the front steps, "cradl[ing] his head in his hands" for some
4
Police later identified EJ and learned that he had been
incarcerated at that time.
6
time. When Boyle asked for more information, the defendant
stated that he was done talking to him and would not respond to
any additional questions. At that point, Boyle went to speak
with Heymann, whose account of the evening was essentially the
same as the defendant's. The defendant and Heymann also gave
their friend Cronin a similar account when he asked what had
taken place after the defendant, Heymann, and the victim left
the party.
Investigators also spoke with others who had been at the
party. One partygoer, Matthew Bosselman, said that, earlier on
the day of the killing, he had seen the defendant take an
aluminum bat from Heymann's vehicle and hide it by the railway
tracks near Pettee Square. Bosselman reported that the
defendant had said he was angry with the victim and intended to
beat him up. Police later discovered an aluminum baseball bat
in a shack near the railroad tracks, which Bosselman identified
at trial.
Police then went to Heymann's house to examine the tires on
his vehicle. When they arrived, they found the vehicle in the
driveway with a number of cleaning products on its roof. The
vehicle was impounded for analysis. There were numerous
bloodstains on the back seat; all of the blood matched that of
the victim. There was a fingerprint smeared in the victim's
blood near the switch on the interior dome light. The
7
fingerprint belonged to Heymann. The tire treads on the vehicle
matched tire imprints found near the hiking trail where the
victim had been dragged.
Soon thereafter, police learned that the defendant and a
man fitting Heymann's description had gone to a junkyard to
purchase parts from the interior of a vehicle similar to
Heymann's Oldsmobile Cutlass. They were unable to purchase the
parts, and were asked to leave because the vehicle they had been
examining, without permission, was in a restricted area of the
yard. After learning of the visit to the junkyard, police
decided to speak to the defendant. In an effort to locate him,
they spoke with D'Angelo, who arranged for the defendant to go
to Pettee Square, where Boyle and two other officers were
waiting. The defendant agreed to go to the Newton police
station for questioning, and was brought there in a police
cruiser. D'Angelo followed in his own vehicle. The officers
took the defendant to an interview room. Boyle observed that he
appeared to be steady on his feet, did not smell of alcohol, and
did not appear to be intoxicated.
Boyle read the defendant the Miranda rights from a
preprinted card. The defendant signed the card indicating that
he understood each of the rights and agreed to waive his rights
and speak to police. He repeated the account that he had given
two days earlier, stating that he had last seen the victim
8
walking to the Eliot Street MBTA station on his way to purchase
crack cocaine. Boyle then said that he "had some information
that led [him] to believe that [the defendant] was not
telling . . . the truth about what had happened" that night. He
told the defendant that he had reason to believe the defendant
had been in the area of Pettee Square with a baseball bat
earlier that day, and that the victim had been with the
defendant and Heymann later than they had suggested. Boyle also
said that the tire treads on Heymann's vehicle matched those
found near the location where the victim's body had been
discovered. At that point, the defendant asked if he could
speak with Boyle alone.
After the other officers left the room, the defendant asked
Boyle if he needed a lawyer. Boyle responded that he could not
decide for the defendant but added that, if the defendant
thought it would be helpful, he could consult with his uncle
D'Angelo, who was downstairs. The defendant assented. Boyle
brought D'Angelo to the interview room and left the two alone.
The substance of the conversation that followed is disputed, but
it appears that, at some point, the Federal death penalty was
discussed. After about ten minutes, D'Angelo opened the door
and told Boyle that the defendant wanted to cooperate with
police. D'Angelo commented that the defendant was concerned
9
about the possibility of the Federal death penalty;5 Boyle told
the defendant that, as this was a State matter, the death
penalty could not be imposed.
The defendant then provided a different account of events
on the night of the victim's death.6 The defendant said that he,
Heymann, and the victim had driven around for a while after
leaving Pettee Square, with no particular destination in mind.
At some point, Heymann pulled over and left the vehicle to
relieve himself. While Heymann was away from the vehicle, the
defendant said that the victim attacked him with a knife, and
that he killed the victim in self-defense. He said that Heymann
had no involvement in the killing, but did not remember whether
he had assisted in moving the body. He remembered that he and
Heymann had disposed of their bloody clothing in a Dumpster near
Newton South High School, and he had thrown the knife in the
Charles River. When Boyle asked the defendant why he had been
seen in the area of Pettee Square with a baseball bat earlier
that day, the defendant responded, "I don't know, maybe I was
trying to be a tough guy, I don't know."
The defendant then agreed to have his statement audio
recorded. His recorded statement was similar in most respects,
5
Minute Man National Historical Park, where the victim's
body was found, is Federally owned land.
6
D'Angelo sat next to the defendant throughout both the
unrecorded and the recorded statements.
10
with a few exceptions. The defendant said that he could not
recall the baseball bat and that he had been very drunk and had
"kind of blacked out" after the victim pulled a knife on him.
The defendant also noted that he had drunk two alcoholic
beverages before speaking with police, and that he had taken a
Klonopin pill at approximately the same time. At that point,
Boyle asked the defendant whether he understood what Boyle was
saying and whether he was comfortable speaking with Boyle. The
defendant responded affirmatively. At the conclusion of the
interview, the defendant was arrested. He then led officers to
the bridge where he had disposed of the knife. The following
morning, a State police dive team retrieved a knife in a sheath
from the water beneath the bridge. The knife contained no
fingerprints.7 Police also recovered two knives from the
defendant's mother's house.
b. Trial proceedings. The defendant filed a motion in
limine to suppress his statement at the police station, arguing
that it had not been voluntary because of his unstable mental
condition and the coercive presence of his uncle, D'Angelo.
After an evidentiary hearing at which Boyle, D'Angelo, another
police officer, and a defense expert testified, a Superior Court
judge denied the motion. The judge found that the defendant's
7
The officer who conducted the fingerprint testing on the
knife testified at trial that the knife's submersion in water
could have dissolved any fingerprints on it.
11
"Miranda waiver was voluntary and that his statement[] to law
enforcement officials and to others [was] voluntary beyond a
reasonable doubt." The defendant sought reconsideration,
proffering testimony by a psychiatrist with new information on
his mental impairment. After an evidentiary hearing, a
different motion judge denied that motion.8
At trial, the defendant did not dispute that he had stabbed
the victim. Rather, the theory of the defense was that the
defendant had lacked the substantial capacity to conform his
behavior to the requirements of the law, and thus was not
criminally responsible for the killing. The defense also argued
that, at the time of the stabbing, the defendant had lacked the
capacity for premeditation. Two expert witnesses testified that
the defendant suffered from "intermittent explosive disorder,"
temporal lobe epilepsy, and a number of other mental conditions
that prevented him from conforming his behavior to the law. The
prosecution presented its own expert, who testified that the
defendant suffered from antisocial personality disorder, and
that he was criminally responsible for the killing. The jury
convicted the defendant of murder in the first degree on
8
In his decision, the judge stated that, after listening to
the audio recording of the interview, he determined that the
defendant sounded lucid, "alert and coherent." He also noted
that the "record is absent of any evidence of coercive behavior
of D'Angelo towards the defendant."
12
theories of extreme atrocity or cruelty and deliberate
premeditation.
2. Discussion. On appeal,9 the defendant argues that
(1) his motion to suppress should have been allowed; (2) the
judge improperly permitted the jury to consider the theory of
joint venture; (3) the judge erred in allowing admission of the
baseball bat found near Pettee Square and two knives found in
the defendant's mother's house; (4) the jury instructions on the
relationship between voluntary consumption of alcohol and other
intoxicants and criminal responsibility were erroneous; (5) four
jurors should have been struck for cause; (6) portions of the
prosecutor's closing argument were improper; (7) the mandatory
sentence of life without parole violates the defendant's right
against cruel and unusual punishment under the United States
Constitution and the Massachusetts Declaration of Rights; and
(8) this court should exercise its authority to grant relief
pursuant to G. L. c. 278, § 33E.
a. Motion to suppress. The defendant argues that the
statement he made to police after speaking with his uncle
D'Angelo, in which the defendant admitted that he killed the
victim, should have been suppressed. He contends that the
9
The record does not make clear why the defendant's direct
appeal has taken sixteen years to reach this court. As we have
noted previously, "a delay of this length can pose significant
difficulties." Commonwealth v. Celester, 473 Mass. 553, 560 n.8
(2016).
13
statement was not voluntarily made, as his will was overborne
due to his limited emotional and intellectual capacity, along
with coercion by his uncle. In "reviewing a ruling on a motion
to suppress, we accept the judge's subsidiary findings of fact
absent clear error, 'but conduct an independent review of [the
judge's] ultimate findings and conclusions of law'" (citation
omitted). Commonwealth v. Libby, 472 Mass. 37, 40 (2015).
It is axiomatic "that a confession or an admission is
admissible in evidence only if it is made voluntarily."
Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011). A
statement is voluntary when it is "the product of a 'rational
intellect' and a 'free will,' and not induced by physical or
psychological coercion" (citation omitted). Id. at 207. The
appropriate inquiry concerns whether, "in light of the totality
of the circumstances surrounding the making of the statement,
the will of the defendant was overborne to the extent that the
statement was not the result of a free and voluntary act."
Commonwealth v. Selby, 420 Mass. 656, 663 (1995). Factors that
may be considered in assessing whether a defendant's will was
overborne include, inter alia, "promises or other inducements,
conduct of the defendant, the defendant's age, education,
intelligence and emotional stability . . . and the details of
the interrogation." Commonwealth v. Mandile, 397 Mass. 410, 413
(1986). The Commonwealth bears the burden of establishing
14
"beyond a reasonable doubt that the defendant's confession was
voluntary." Commonwealth v. Monroe, 472 Mass. 461, 468 (2015).
In this case, we discern no reason to disturb the findings
of the two motion judges who denied the defendant's motion to
suppress and denied reconsideration of that motion. The
defendant's assertion that he was emotionally and intellectually
incapable of voluntarily making his statement to police is not
supported by the evidence. Both judges determined, after
listening to the audio recording of the defendant's interview
with police, that he appeared to understand his circumstances
and that he sounded lucid and coherent. Nothing in the audio
recording of the defendant's interview suggests otherwise.10
During the interview, Boyle twice asked the defendant if he was
comfortable with the proceedings and could understand the
questions he was being asked. Both times, the defendant
answered affirmatively. He then provided an exculpatory
explanation of the killing, "indicating an awareness of the
consequences of waiving his rights and speaking to the police."
Commonwealth v. Beland, 436 Mass. 273, 281 (2002).
The defendant's contention that his uncle D'Angelo coerced
him into making the statement is similarly unavailing. To
10
Where a judge bases a legal conclusion on facts found in
a recording, we are in the same position as the judge in
reviewing that recording, and take an independent view of its
significance, without deference. See Commonwealth v. Clarke,
461 Mass. 336, 341 (2012), and cases cited.
15
begin, the defendant relies on a line of cases involving a
statutory right provided to juveniles to consult with an
interested adult before waiving their Miranda rights. See,
e.g., Commonwealth v. Smith, 471 Mass. 161, 162 (2015). We have
concluded that, in some circumstances, the presence of a so-
called "interested adult" may be psychologically coercive to the
extent that it affects the voluntariness of a juvenile's
statement. See Commonwealth v. Adams, 416 Mass. 55, 61 (1993).
It was undisputed that, for much of his life, the defendant's
uncle D'Angelo had served as a father figure. The concerns
regarding any coercive pressure from an interested adult,
however, are inapplicable to the defendant, who was twenty-one
years old at the time of his statement.
In addition, the record does not support the defendant's
contention that D'Angelo coerced him such that his statement to
police was involuntary. The defendant's argument in this regard
is based on his own affidavit, in which he said that D'Angelo
had pressured him to cooperate with police and tell them
everything he knew, and told him that he could face a Federal
death penalty if he did not. He stated in the affidavit that
D'Angelo had repeated the threat of the death penalty many times
while they were alone in the interview room, and also that
D'Angelo, who was sitting next to the defendant, "continually
prodded" him during the interview, and told the defendant that
16
he "needed to keep speaking and provide all the information
[that he] had about" the case. The transcript of the interview
does not reflect any statement by D'Angelo.11
Moreover, the defendant's account is inconsistent with
D'Angelo's testimony at the first suppression hearing. D'Angelo
testified that he did not coerce the defendant and, to the
contrary, suggested that the defendant might want a lawyer. The
first motion judge deemed D'Angelo's testimony credible. See
Tremblay, 460 Mass. at 205 ("[q]uestions of credibility" are
left to "motion judge who had the opportunity to observe the
witnesses"). In addition, both Boyle and D'Angelo testified at
the first evidentiary hearing that D'Angelo asked them about the
potential of the Federal death penalty in the presence of the
defendant, and that Boyle replied that it was not a possibility
in this case. The defendant did not dispute the account, where
any potentially coercive impact of the specter of the death
penalty had been ameliorated before the defendant made his
statement. Furthermore, when the defendant made his statement
to police, he showed no signs of intoxication, and answered the
officers' questions readily, while responding affirmatively when
asked whether he understood what he was saying.
11
The quality of the audio recording, however, does not
allow us to discern the nature of various ambient background
noises during the interview.
17
In sum, we cannot conclude that the two motion judges, who
each conducted evidentiary hearings, and considered, separately,
the conduct of the defendant's interview with police and the
defendant's acknowledged mental conditions, abused their
discretion in denying the defendant's motion to suppress and his
request for reconsideration of that motion.
b. Instruction on joint venture. The defendant contends
that, given the insufficiency of the evidence as to a joint
venture between himself and Heymann,12 the trial judge erred in
instructing the jury on joint venture. As there was no
objection to the instruction, we review for a substantial
likelihood of a miscarriage of justice. Commonwealth v.
Randolph, 438 Mass. 290, 294 (2002). Because the evidence
supported the judge's instruction, we discern no error.
An instruction "is proper if it is supported by any
hypothesis of the evidence." Commonwealth v. Silanskas, 433
Mass. 678, 689 (2001). To establish a joint venture, the
Commonwealth must prove beyond a reasonable doubt that the
defendant "knowingly participated in the commission of the crime
charged, alone or with others, with the intent required for that
offense." Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).
12
Heymann was charged separately from the defendant, and
was not a codefendant in this trial. He eventually pleaded
guilty to manslaughter and received a sentence of not less than
nineteen nor more than twenty years of imprisonment.
18
Here, there was ample evidence to support the instruction on
joint venture.
Heymann drove the defendant and the victim, in his own
vehicle, thirteen miles to a secluded wooded area. Even
assuming that, as the defendant claimed, Heymann was not
involved in the stabbing, he was present at the scene as the
defendant stabbed the victim repeatedly; Heymann's fingerprint,
with the victim's blood on it, was on the vehicle's dome light.
After the victim was left by the two in the woods, Heymann drove
the defendant home. According to the defendant's own statement,
Heymann assisted in disposing of the bloody clothes and the
knife that had been used in the stabbing. In the days that
followed, Heymann and the defendant provided the same, false
account of what had taken place that night, including to one of
their joint acquaintances, Cronin. In addition, Heymann made
several efforts to conceal evidence of the crime, by attempting
to clean the blood from the interior of his vehicle, and by
going with the defendant to obtain replacement parts for those
that had been covered in the victim's blood. Given this
evidence, and the reasonable hypothesis that could be drawn from
it, the judge's instruction on joint venture was appropriate.
See Silanskas, 433 Mass. at 689.
c. Prior bad act evidence. The defendant claims error in
the admission of a baseball bat and two sheathed knives.
19
Bosselman testified that he had seen the defendant conceal a
baseball bat on the day of the victim's death, and the knives in
question were found by police in the defendant's mother's house,
where the defendant was living at the time. The defendant
argues that these objects were highly prejudicial evidence of
his prior bad acts.
It is axiomatic that "[e]vidence of prior misconduct is not
generally admissible to prove bad character or a propensity to
commit crimes." Commonwealth v. Libran, 405 Mass. 634, 640
(1989). Such evidence is admissible only if relevant for some
other purpose, such as to establish "knowledge, intent, motive,
[or] method, material to proof of the crime charged."
Commonwealth v. Imbruglia, 377 Mass. 682, 695 (1979), quoting
Commonwealth v. Murphy, 282 Mass. 593, 598 (1933). The
"prosecution [is] entitled to present as full a picture as
possible of the events surrounding the incident itself,"
Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007), as long as
the probative value of the evidence is not "outweighed by the
risk of unfair prejudice to the defendant." Commonwealth v.
Crayton, 470 Mass. 228, 249 (2014). The weighing of these
factors is left to the "sound discretion of the judge, whose
decision to admit such evidence will be upheld absent clear
error." Commonwealth v. Oberle, 476 Mass. 539, 550 (2017),
quoting Robidoux, supra.
20
We discern no error in the admission of the baseball bat,
which was introduced not as evidence of the defendant's bad
character, but to establish the defendant's state of mind and
his intent to harm the victim. Based on the location where the
bat was found,13 Bosselman's testimony that the defendant had
concealed it, along with testimony from a number of witnesses
concerning the defendant's anger and his stated intent to "beat"
the victim, the jury could have inferred that the defendant had
a plan to harm the victim on the night of his death. That the
defendant ultimately stabbed the victim rather than hitting him
with the bat does not diminish its relevance in this regard.
Moreover, the jury could have inferred from the act of
hiding the baseball bat that the defendant did not, as his
expert witnesses testified, simply "snap" and assault the victim
but, rather, had planned in advance to harm him. See
Commonwealth v. Philbrook, 475 Mass. 20, 27-28 (2016). The
probative value of the baseball bat to the Commonwealth's case
outweighed any potential prejudice to the defendant. See id.Without the admission of the baseball bat and its corroboration
of Bosselman's testimony, "the killing could have appeared to
the jury as an essentially inexplicable act of violence." See
Commonwealth v. Bradshaw, 385 Mass. 244, 269 (1982).
13
The police found the bat hidden near train tracks close
to where the gathering had taken place in Pettee Square.
21
The knives recovered from the defendant's mother's house
were admissible as weapons potentially used to stab the victim.
Although the defendant told police that the knife found in the
Charles River was the weapon used in the stabbing, it contained
no fingerprints, and thus was not necessarily the murder weapon.
The Commonwealth's medical examiner testified at trial that, due
to the "variable" nature of the wounds, the precise length and
width of the blade used to kill the victim could not be
determined.14 There was also evidence that the defendant
returned home after the killing and thereby had an opportunity
to store the murder weapon there. Accordingly, the knives
properly were admitted not as bad act propensity evidence, but
were properly admitted as the means by which the defendant may
have stabbed the victim. See Commonwealth v. Ashman, 430 Mass.
736, 743-744 (2000) ("Evidence that a defendant possessed a
weapon that could have been used to commit a crime is relevant
to prove that the defendant had the means of committing the
crime"); Commonwealth v. James, 424 Mass. 770, 779-780 (1997)
(knives found at defendants' residences relevant to show they
had means of committing murders, even without direct proof that
those particular knives were used in commission of offense).
14
One of the knives was larger than the other, and both
were sheathed.
22
Moreover, the knives were relevant to the Commonwealth's
theory of deliberate premeditation. Cronin testified at trial
that he had not seen the defendant carrying a knife at the
gathering in Pettee Square. He also testified that the
defendant had a collection of knives at his house. The
Commonwealth presented evidence at trial, largely through the
testimony of the defendant's neighbor, that the defendant
returned home briefly after the gathering in Pettee Square and
before taking the victim to Minute Man National Historical Park.
Based on this evidence, the Commonwealth argued that the
defendant had returned to his mother's house to retrieve a
knife. The knives were relevant to corroborate Cronin's
testimony concerning the existence of the defendant's knife
collection and to support the Commonwealth's suggested inference
that the defendant returned to his home after the gathering in
Pettee Square in order to get a knife he planned to use on the
victim.
In sum, there was no abuse of discretion in the decision to
allow the admission of the baseball bat and the knives.
d. Instruction on criminal responsibility. The defendant
argues that the instruction concerning the relationship between
the voluntary consumption of drugs or alcohol and the question
of criminal responsibility did not conform to the instructions
provided in Commonwealth v. Berry, 457 Mass. 602, 617–618 & n.9
23
(2010), S.C., 466 Mass. 763 (2014), and revised in Commonwealth
v. DiPadova, 460 Mass. 424, 439 (2011) (Appendix), and thereby
created a substantial risk of a miscarriage of justice.15 In
particular, the defendant argues that the judge's instruction in
this case was flawed insofar as it could have caused the jury to
discount the defendant's mental incapacity defense solely
because he had consumed alcohol and drugs on the night of the
15
The judge instructed:
"The issue has been raised that the defendant may not
have been criminally responsible for his alleged actions
due to use of drugs or alcohol, or at least in part.
Voluntary intoxication with drugs or alcohol is not by
itself a mental disease or defect that will support a
verdict of not guilty by reason of insanity. The normal
consequences of drug and alcohol addiction are not a basis
for relieving a defendant of criminal responsibility.
However, there may be situations where a defendant who is
addicted to drugs or alcohol might have the defense of lack
of criminal responsibility available to him. You may
consider whether the defendant had a mental disease or
defect apart from his drug or alcohol addiction such that
he lacked substantial capacity at the time of his crime to
conform his conduct to the requirements of law. In
addition, you may consider whether the defendant's
voluntary consumption of drugs or alcohol activated a
latent mental disease or defect apart from the addiction
itself. If as a result of the activation of that latent
mental disease or defect the defendant lost the substantial
capacity to understand the wrongfulness of his conduct or
to conform his conduct to the requirements of the law, the
defendant would lack criminal responsibility. However, if
the defendant knew or subjectively had reason to know under
the circumstances that his use of drugs or alcohol would
activate the mental disease or defect, he may not rely on
that disease or defect to assert a lack of criminal
responsibility."
24
victim's death, and had some recognition that doing so could
impact his behavior.
Although Berry and DiPadova were decided a decade after the
defendant's trial, "he is entitled to the benefit of changes in
decisional law that are announced after trial and pending his
direct review." Commonwealth v. Johnston, 467 Mass. 674, 704
(2014). Because there was no objection to the instruction at
trial, we review to determine if the instruction created a
substantial likelihood of a miscarriage of justice. Id.Although the language of the judge's instruction did not
precisely match the wording of the model instructions
subsequently set out in Berry and DiPadova, there is no merit to
the defendant's contention that such a difference was meaningful
to the jury's finding. The concern animating our decisions in
Berry and DiPadova was that a jury might conclude
"erroneously . . . that even if the defendant's mental illness
by itself caused him to lack substantial capacity, 'because [he]
had consumed [drugs] that contributed to [his] incapacity, that
would render the lack of criminal responsibility defense moot.'"
DiPadova, 460 Mass. at 436, quoting Berry, 457 Mass. at 418.
The instruction given here, however, raises no such cause for
concern.
The judge instructed that the jury should "consider whether
the defendant had a mental disease or defect apart from his drug
25
or alcohol addiction such that he lacked substantial capacity at
the time of his crime to conform his conduct to the requirements
of law." This language mirrors our model instructions in Berry
and DiPadova. Compare DiPadova, 460 Mass. at 439 ("where a
defendant . . . has a mental disease or defect that itself
causes him to lack the substantial capacity . . . , he is not
criminally responsible for his conduct regardless of whether he
uses or does not use alcohol or drugs"). The judge's
instruction did not provide any leeway for the jury to find both
that the defendant was criminally responsible because of his
alcohol and drug consumption and that his mental defect or
disease alone caused him to lack substantial capacity to conform
his conduct to legal requirements. We note in this regard that
none of the evidence presented at trial suggested that the
defendant knew or should have known that the consumption of
alcohol or drugs would aggravate his preexisting mental
condition. The evidence before the jury was to the contrary,
instead suggesting that the defendant used these substances in
an attempt to treat his multiple mental difficulties.16
e. Jury empanelment. The defendant contends that the
judge erred in not striking four jurors for cause. One
potential juror had impending travel plans, another initially
16
One of the defense experts testified that the defendant
used "drugs and alcohol" to "medicate himself."
26
noted an ambivalence toward a defense of a lack of criminal
responsibility, and two had family connections to law
enforcement officers.
The first juror said during voir dire on November 28, 2000,
that he had airplane tickets for December 14, 2000. The judge
empanelled the juror after telling him that the trial likely
would conclude by the time of the flight. That forecast proved
wrong and, when trial had not concluded by December 14, the
deliberating juror was excused and replaced with an alternate.
"Although judges must exercise caution in discharging a
deliberating juror, . . . the judge has discretion to decide
whether a juror is unable to perform his or her functions, . . .
and whether good cause, personal to the juror, exists for
dismissal" (citations omitted). Commonwealth v. Sanders, 451
Mass. 290, 306 (2008). Although it is doubtless better practice
to avoid empanelling jurors with travel plans that are very
close to the anticipated end of the trial, see id. at 307 n.16,
we cannot say on this record that the judge abused his
discretion by empanelling and later discharging the juror due to
the juror's impending flight. See id. at 306-307 (judge did not
abuse her discretion by discharging juror who had nonrefundable
airplane tickets).
The defendant also challenges the judge's decision to
empanel the alternate juror. The alternate juror initially
27
responded during voir dire that he had a "hard time with [the]
concept of" the "defense of a lack of criminal responsibility."
The judge then explained the operative law further and asked
whether the juror "could be fair both to the defendant and the
Government in this case." The juror responded, "Yes, I think
so." Although trial counsel did not object to the empanelment
of the juror on these grounds, the defendant argues on appeal
that the juror's response was ambiguous and that the judge
should have explored the juror's concerns further before
deciding whether to empanel him.
As a general principle, it is an abuse of discretion to
empanel a juror who will not state unequivocally that he or she
will be impartial. See Commonwealth v. Long, 419 Mass. 798, 804
(1995) (trial judge abused discretion in empanelling juror who
could not unequivocally state that he would be impartial);
Commonwealth v. Somers, 44 Mass. App. Ct. 920, 921-922 (1998)
(same). Because the juror's subsequent response here fairly
could be viewed as unequivocal, and the judge apparently
credited it as such, we discern no abuse of discretion in the
empaneling of the juror. Contrast Long, supra (juror's response
to question concerning whether he could be fair to defendant
that, "I would really hope that I could be," not unequivocal).
The defendant contends also that the judge erred in
empanelling two jurors who had family connections -- uncles, a
28
brother, and a cousin -- to law enforcement. The judge credited
their representations that such connections would not affect
their ability to be impartial. That a juror has family members
who work in law enforcement does not, without more, mean that
the juror is incapable of being impartial. See Commonwealth v.
Ascolillo, 405 Mass. 456, 460-461 (1989), and cases cited.
Given that the defendant points to no other basis for potential
bias, the judge's decision to empanel these jurors was not an
abuse of discretion.
f. Prosecutor's closing argument. The defendant contends
that the prosecutor's closing argument was improper because she
referred to an incident described in the defendant's medical
records, which had been introduced by the defendant, to argue
that the defendant was criminally responsible for the killing.
In her closing, the prosecutor described the defendant's assault
of a staff member at a mental health facility where he had
resided as a juvenile. She emphasized that the defendant had
said after the assault that he would have been sorry if the
assault had happened to someone else, but that the particular
staff member "deserved it." Such conduct, the prosecutor
argued, demonstrated that the defendant was "able and capable of
holding a grudge and acting out in revenge," which supported the
Commonwealth's theory that the defendant killed the victim in
revenge for an earlier dalliance with the defendant's girl
29
friend rather than due to a mental disease or defect. The
defendant maintains that the remarks impermissibly used evidence
from his medical records substantively, and that the account of
the incident constituted inadmissible hearsay. Because there
was no objection at trial, we review for a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Johnston, 467 Mass. at 704.
Although medical records are admissible substantively only
if they bear certain indicia of reliability, see Commonwealth v.
Wall, 469 Mass. 652, 667 (2014), the prosecutor did not use
facts in the medical records as substantive evidence in her
closing. Rather, she used details of the incident in the
medical record, introduced by the defendant, to refute the
opinion offered by the defendant's expert that the incident
demonstrated the defendant's lack of criminal responsibility.
See Commonwealth v. Dunn, 407 Mass. 798, 809 (1990)
(prosecutor's use of defendant's statements to his doctor in
refutation of defense witness's opinion did not constitute
attempt to turn those statements into substantive evidence).
Moreover, any potential prejudice to the defendant was mitigated
by a comprehensive limiting instruction, given before the
prosecutor's closing, that the jury were to consider any
reference to the defendant's statements to a mental health
assessor only with respect to the mental health assessor's
30
evaluation of the defendant's criminal responsibility. See
Commonwealth v. Donahue, 430 Mass. 710, 717-718 (2000) (judge's
limiting instruction concerning defendant's statements to
psychiatrist cured any potential prejudice).
g. Constitutionality of sentence. The defendant argues
that, given his mental instability at the time of the offense,
sentencing him to life imprisonment without the possibility of
parole constitutes cruel and unusual punishment under the Eighth
Amendment to the United States Constitution and art. 26 of the
Massachusetts Declaration of Rights. The gravamen of the
defendant's argument is that the same principles underlying the
United States Supreme Court's decision in Miller v. Alabama, 567
U.S. 460, 470 (2012) ("mandatory life-without-parole sentences
for juveniles violate the Eighth Amendment"), and this court's
decision in Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 655, 670-674 (2013), S.C., 471 Mass. 12 (2015)
(holding that imposing sentence of life imprisonment without
possibility of parole on juveniles violates art. 26), suggest
that the defendant's sentence was unconstitutional.
The analysis in Miller and Diatchenko was limited to
juveniles, and relied on the fact that juveniles, due to their
general immaturity, impulsiveness, and impressionable nature,
are "constitutionally different from adults for purposes of
sentencing." Miller, 567 U.S. at 471. Diatchenko, 466 Mass.
31at 660, 663. This principle is inapplicable to the defendant,
who was twenty-one years old at the time of the offense. We
decline the defendant's invitation to extend our holding in
Diatchenko in this manner.
h. Relief pursuant to G. L. c. 278, § 33E. Having
carefully reviewed the entire record, we discern no reason to
exercise our power under G. L. c. 278, § 33E, to set aside the
verdict or to reduce the degree of guilt. Notwithstanding the
defendant's acknowledged history of troubled behaviors as a
child and as a teenager, the weight of the evidence supports the
defendant's conviction of murder in the first degree on theories
of extreme atrocity or cruelty and deliberate premeditation.
Judgment affirmed.