103 N.E.3d 716
Mass.2018Background
- On Aug. 24, 2013, Peter DeConinck and long-time friend Ronald Russo got into an alcohol- and drug-influenced dispute inside a trailer; both armed themselves with kitchen knives and Russo sustained 69 stab wounds and died. DeConinck sustained a single stab wound to his right leg.
- DeConinck was indicted for homicide and tried in Superior Court; the jury convicted him of first-degree murder on a theory of extreme atrocity or cruelty.
- The only percipient eyewitness, John Fay, gave a recorded statement to police soon after the incident and later testified before the grand jury; Fay died before trial. The defense introduced Fay’s grand jury testimony but the trial judge excluded the audio-video police recording as hearsay.
- Defense theory: self-defense or, alternatively, that excessive use of force, sudden combat, or heat of passion would reduce the offense to voluntary manslaughter. Defense sought admission of Fay’s recorded statement under the narrow constitutional hearsay exception from Commonwealth v. Drayton and also sought to introduce other so-called Adjutant evidence of Russo’s prior violent acts.
- Additional issues on appeal: (1) exclusion of Fay’s recorded statement and other Adjutant evidence; (2) whether the trial judge should have sua sponte considered recusal because she previously found defense counsel in contempt in an unrelated case; (3) whether a supplemental jury instruction on excessive force foreclosed manslaughter. The SJC affirmed the conviction and denied relief under G. L. c. 278, § 33E.
Issues
| Issue | Commonwealth's Argument | DeConinck's Argument | Held |
|---|---|---|---|
| Admissibility of Fay’s post-incident recorded police statement (Drayton exception) | Statement was hearsay and not critical; grand jury testimony covered the same material | Recording bore indicia of reliability, was contemporaneous and critical to self-defense; Drayton exception should apply | Recording excluded was not covered by Drayton: not critical and lacked persuasive trustworthiness; no error in exclusion |
| Admission of Adjutant evidence (prior violent acts & police report) | Some prior acts too remote or not probative; police report is hearsay and Clemente controls | Prior acts and Fay recording show Russo was initial aggressor and thus relevant under Adjutant | Trial court admitted one 2009 admission but properly excluded the police report and other incidents; no abuse of discretion |
| Sua sponte recusal because judge previously found defense counsel in contempt | No bias shown; previous contempt arose from courtroom conduct and is not extrajudicial | Prior contempt demonstrates bias against defense counsel and required recusal | No recusal required: prior judicial ruling/criticisms do not show extrajudicial bias or make fair judgment impossible |
| Supplemental jury instruction on excessive force and possible manslaughter | Instruction was a correct, broader explanation; did not eliminate manslaughter option | Judge’s answer obscured or foreclosed lesser manslaughter verdict; should have said “no” to murder if excessive force found | Supplemental instruction, read with full charge, accurately stated law and preserved voluntary manslaughter option |
Key Cases Cited
- Commonwealth v. Drayton, 473 Mass. 23 (narrow constitutional hearsay exception where evidence is critical and reliably trustworthy)
- Commonwealth v. Adjutant, 443 Mass. 649 (Adjutant evidence of victim's prior violent acts admissible in self-defense cases)
- Chambers v. Mississippi, 410 U.S. 284 (constitutional limits on hearsay rules where reliability and necessity require admission)
- Liteky v. United States, 510 U.S. 540 (judicial rulings ordinarily not basis for bias recusal absent extrajudicial source or deep-seated antagonism)
- Commonwealth v. Clemente, 452 Mass. 295 (police reports detailing incidents of violence are inadmissible hearsay)
- Commonwealth v. Glacken, 451 Mass. 163 (excessive use of force in self-defense bars full self-defense but may reduce murder to manslaughter)
- Commonwealth v. Tavares, 471 Mass. 430 (discussing jury instruction clarity on self-defense/excessive force)