59 N.E.3d 1152
Mass.2016Background
- Victim: four‑year‑old boy died October 2003 from blunt‑force abdominal trauma (ruptured duodenum, transected pancreas); injuries inconsistent with a fall down stairs.
- Defendant was the mother's boyfriend and frequent caregiver; evidence showed repeated ridicule and some physical contact with the children.
- Defendant gave two recorded police interviews (Oct. 20 and 21, 2003); he alternately denied involvement, attributed injuries to a fall or to the twin, and made several inconsistent admissions; one statement (about throwing a toy shark) was suppressed as involuntary.
- Defendant convicted at first trial (2006); convictions reversed on other grounds and retried (2011), resulting in convictions for first‑degree murder (extreme atrocity/cruelty) and A&B with a dangerous weapon; sentence: life without parole plus concurrent term.
- On appeal defendant raised multiple claims: limits on cross‑examination of medical examiner, suppression rulings, mistrial requests after playback/ redaction errors, hearsay use in expert testimony, improper prosecutorial argument, double jeopardy dismissal, and refusal to give a Bowden instruction.
Issues
| Issue | Durand's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Limit on cross‑examining medical examiner about e‑mail/termination | E‑mail bore on bias/competence; Bullcoming requires probing reasons for removal | Judge allowed broad impeachment on competence; e‑mail too marginal/prejudicial | No abuse of discretion; cross‑examination limits proper; Bullcoming distinguishable (expert testified) |
| Motion to suppress statements (invocation of silence/counsel) | Statements should be suppressed because he invoked right to remain silent and to counsel | Statements were voluntary or invocations were ambiguous; no clear invocation after Miranda waiver | No error: not in custody (or, assuming custodial, invocations were ambiguous and did not clearly invoke rights) |
| Mistrial for playback/redaction errors in interview video | Repeated exposure to excluded/bad‑act material and a looped segment prejudiced jury | Errors were unintentional, each exposure was fleeting, judge gave curative instructions | Denial of mistrial not an abuse of discretion; instructions sufficient and prejudice de minimis |
| Hearsay in expert testimony (Dr. Goldberg) | Expert relied on studies she did not perform; testimony therefore inadmissible hearsay | Experts may rely on literature to form opinions but may not relate contents on direct unless opened on cross | No error: expert may base opinion on literature; failure to cross‑examine prevented any hearsay problem on direct |
| Prosecutor's closing argument referencing excluded statement | Prosecutor improperly referred to suppressed/involuntary statement to impeach defendant | The comment quoted the defendant denying throwing the shark (evidence from first interview); suppression applied to later admission | Statement was improper and undercut the spirit of suppression, but not prejudicial enough to warrant new trial |
| Motion to dismiss on double jeopardy grounds (prosecutorial bad faith) | Retrial should be barred because prior trial used substitute ME testimony later held to violate confrontation clause | First‑trial choices were not in bad faith; prior law differed; no intent to provoke mistrial | Denial affirmed: no prosecutorial misconduct rising to double‑jeopardy dismissal |
| Bowden instruction (police investigation adequacy) | Requested jury instruction on adequacy of investigation necessary to balance consciousness‑of‑guilt instruction | Inquiry into investigative adequacy is for jury; judge need not give Bowden instruction sua sponte | No error: judge declined but allowed defense to argue investigation inadequacy to jury |
Key Cases Cited
- Bullcoming v. New Mexico, 564 U.S. 647 (confrontation clause limits surrogate testimony when original analyst unavailable)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (right of confrontation includes opportunity to expose incompetence)
- Delaware v. Van Arsdall, 475 U.S. 673 (trial judges have latitude to limit cross‑examination for harassment/prejudice)
- Michigan v. Mosley, 423 U.S. 96 (invocations of right to silence must be scrupulously honored)
- Davis v. United States, 512 U.S. 452 (ambiguous or equivocal references to counsel do not require cessation of questioning)
- Oregon v. Kennedy, 456 U.S. 667 (double jeopardy bars retrial only when prosecutorial misconduct intended to provoke mistrial)
- Commonwealth v. Nardi, 452 Mass. 379 (substitute medical examiner testimony and confrontation rules in autopsy context)
- Commonwealth v. Durand, 457 Mass. 574 (prior appeal reversing earlier convictions)