After entering the home of his former girl friend, the defendant struck her in the head with a car battery “charger pack” and fatally stabbed her new boy friend with a kitchen knife. The defendant was convicted of murder in the first degree on a theory of felony-murder, G. L. c. 265, § l.
The defendant’s appeals from his convictions and from the denial of his motion for a new trial have been consolidated before this court. On appeal, the defendant argues that his trial counsel was ineffective in several respects; the prosecutor’s closing argument was improper; and that his conviction of armed burglary was duplicative of his cоnviction of felony-murder. The defendant also seeks relief pursuant to G. L. c. 278, § 33E.
We affirm the convictions of felony-murder and assault and battery by means of a dangerous weapon. Because the armed burglary was the predicate felony for the defendant’s felony-murder conviction, it is duplicative and must be vacated. See Commonwealth v. Johnson,
Background. The jury could have found the following facts. The defendant and Amanda Poisson began dating in 2001. By early 2007, they, their three year old son, and Poisson’s nine
After their relationship ended, the defendant and Poisson remained in frequent contact, in part because they continued to share two automobiles, which they exchanged approximately every two days. The defendant first met Mejia in early April, 2007, at a birthday party for Poisson’s daughter, but Poisson did not tell the defendant that she and Mejia were dating. One week later, Poisson spent the night at the defendant’s apartment, where they engaged in sexual intercourse. The next morning, Poisson told the defendant “that [she] still wanted to go [her] separate way,” notwithstanding the events of the prior evening.
Several nights later, on April 19, the defendant spent the evening drinking and using cocaine with friends. Mejiа was visiting Poisson that night. At approximately 3:18 a.m. on April 20, the defendant telephoned Poisson, who pretended to have been sleeping. The defendant asked her if he could spend the night at her house. Poisson told the defendant to go home. The defendant told Poisson that “the only reason why [she] wouldn’t let him in the house is if somebody was there.” Poisson again told the defendant to go home, and hung up the telephone. The defendant called back immediately, and Poisson reiterated that he should go home. The defendant then said, “Did you forget that I have the keys to the house?”
As she was speaking with the defendant, Poisson was headed downstairs. She went to the living room window, looked out, and saw the defendant’s automobile parked outside. The defendant, who had been standing on the front porch, unlocked the front door, but was prevented from entering the house by the chain lock on the door. Thе defendant asked Poisson to come
After learning that Mejia was in the house, the defendant picked up the car battery charger pack that was on the front porch and used it to smash several window panes above the front door. When he told Poisson that he would break down the door if she did not open it, she opened the door. The defendant entered the house and struck Poisson in the head with the car battery charger pack, knocking her backward, and then struck her in the head a second time. The defendant tried to strike a third time, but Poisson blocked the defendant’s blow with her arms.
The defendant went up the stairs to the hallway on the second floor of the house, which led to four bedrooms. Poisson’s bedrоom was the same one that she had shared with the defendant when he lived there. DeChristoforo and the two children each occupied one of the other three bedrooms. The defendant found Mejia in Poisson’s bedroom and told him, “This is what I wanted to see. I wanted to see you here in my house, in my bedroom.” DeChristoforo heard the commotion and telephoned 911. The defendant went back downstairs and briefly left the house.
While the defendant wаs outside, Poisson staggered upstairs, dizzy and bleeding from her head. When she heard the defendant reenter the house, she hid in her daughter’s bedroom. The defendant again went upstairs. He told DeChristoforo that there was no need to telephone 911, and said that he wanted to take his son with him. The defendant took his son, left the house, put the boy in the automobile that Poisson had been using, which was parked in the driveway, and locked it.
Poisson heard the defendаnt leave the house, and joined her daughter, Mejia, and DeChristoforo in DeChristoforo’s bedroom. Poisson told DeChristoforo that she needed an ambulance, and DeChristoforo placed a second 911 telephone call. When Poisson heard the defendant coming back upstairs, she hid in DeChristoforo’s closet. This time, as the defendant ascended the
Through continuous pressure, the defendant managed to crack the door open just enough to permit his right arm, which was holding the knife, to reach into the bedroom. The defendant swung the knife at Mejia as Mejia continued to push against the door. At first, Mejia had DeChristoforo’s jacket wrapped around his arm for protection. As the defendant continued to swing the knife, Mеjia dropped the jacket. The defendant managed to push his upper body through the partially open door into the room. He looked at Mejia, swung the knife one last time, and pulled his arm out. Covered in blood, Mejia slid down against the bedroom wall and onto the floor.
After the defendant had descended the stairs, DeChristoforo heard him shout, “Yeah, I did it. Yeah, I did it.” Still carrying the knife, the defendant encountered two police officers entering the house; they commanded that he stop and put down the knife. He tossed the knife onto the couch, next to a second knife that was lying there.
En route to the police station, the defendant asked one of the police officers, “What would you do if you found your girl with someone else in your home?” Answering his own question, the defendant said that he would do “whatever it took,” even if it put him away for “the longest time.” He also said that he “just cut him once a little bit.”
Medical evidence established that Mejia had suffered four
At trial, the defendant did not contest the evidence showing that he had assaulted and battered Poisson and killed Mejia. He introduced evidence to support his claim that he had been under the influence of alcohol and cocaine at the time of the events. He argued that the jury could consider this evidence in deciding whether the Commonwealth had met its burden of proving his state of mind beyond a reasonable doubt. The defendant argued also that he had stabbed Mejia while in the heat of passion after learning that Poisson was romantically involved with Mejia. In addition, the defendant maintained that he had a lawful right to enter Poisson’s home,
Discussion. 1. Ineffective assistance of counsel. “Where the claim of ineffective assistance is raised in a motion for a new trial that has been denied, and where the appeal from the denial of that motion is raised in conjunction with a direct appeal under G. L. c. 278, § 33E,” we review the claim of error to determine whether there exists a substantial likelihood of a miscarriage of justice. Commonwealth v. Morales,
The defendant argues that trial counsel was ineffective for failing to request a provocation instruction with respect to the felony-murder charge, for failing to argue that the killing of Mejia occurred after the armed burglary was complete, rather than during its commission, and for failing to request supplemental jury instructions clarifying that a killing must occur in the commission of, and not after, a felony in order to supрort a conviction of murder on a theory of felony-murder.
a. Provocation instruction. Trial counsel argued that the defendant killed Mejia while in the heat of passion after discovering that Mejia was romantically involved with Poisson. Because counsel agreed with the judge and the prosecutor that provocation resulting in the heat of passion does not reduce felony-murder to voluntary manslaughter, the judge instructed the jury that they could not consider provocation with regard to the charge of murder in the first degree on the theory of felony-murder.
There was no error. A killing is manslaughter, not murder, “if there is ‘provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.’ ” Commonwealth v. Vinton,
Notwithstanding this well-established principle, the defendant contends that provocation should mitigate felony-murder to manslaughter where the provocation preceded the intent to commit the predicate felony. In support of this argument, the defendant relies solely on People v. Williams,
b. Killing during the commission of armed burglary.
The Legislature has provided that a tilling constitutes felony-murder if the tilling occurs “in the commission or attempted commission of” a predicate felony. G. L. c. 265, § 1. We have interpreted this statutory language to mean that the tilling must occur “in connection with the felony and at substantially the same time and place.” Commonwealth v. Rolon, supra at 818 n.ll, quoting Model Jury Instruсtions on Homicide 16, 17-18 (1999). See Commonwealth v. Gordon,
Here, the defendant stabbed Mejia only minutes after entering Poisson’s house. The entire span of events took place over the course of less than nine minutes: the defendant first telephoned Poisson from in front of her house at 3:18 a.m., and the first paramedic arrived on the scene at 3:27 a.m., some time after police had arrived. After entering the house and hitting Poisson with the car battery charger pack, the defendant went directly upstairs to confront Mejia in Poisson’s bedroom. He told Mejia, “This is what I wanted to see. I wanted to see you here in my house, in my bedroom.” Almost immediately thereafter, he said, “If I had a fucking gun, I’d kill you all.” The defendant then armed himself with a kitchen knife and stabbed Mejia four times.
The armed burglary and the stabbing of Mejia were part of a single transaction consisting of an unbroken sequence of events precipitated by the defendant’s learning that Mejia was spending the night with Poisson. The two were causally related in that, “were [it] not for the underlying felony, it is probable that [Mejia] would not have been. . . stabbed.” Commonwealth v. Gordon, supra at 851. See also Commonwealth v. Ortiz, supra. Because there was ample evidence that the defendant killed Mejia in the commission of the armed burglary, trial counsel was not ineffective for failing to make an argument that had a “minimal chance of success.” See Commonwealth v. Conceicao,
c. Jury instructions on felony-murder. The judge instructed the jury that, in order to convict the defendant of felony-murder, they had to find that “the killing of Mr. Mejia occurred during the commission of the armed burglary.” The judge explained further that “the killing [must have] occurred in connection with the armed burglary and at substantially the same time and place.” The defendant faults counsel for failing to object to these instructions or otherwise seek additional instructions for clarification.
The instructions given by the judge were those set forth in
2. Prosecutor’s closing argument. In his closing argument, the prosecutor asked the jurors to hold the car battery charger pack used by the defendant to strike Pоisson. He urged them to “try to picture in your mind’s eye being struck in the head, a person being struck in the head with that object. Imagine what it was like for her to receive those blows.” The defendant argues, and the Commonwealth concedes, that this statement was improper. See Commonwealth v. Bizanowicz,
The defendant did not object to these statements at trial. We therefore review to determine if the error created a substantial likelihood of a miscarriage of justice. Commonwealth v. Wright,
3. Duplicative convictions. The defendant argues, and the Commonwealth concedes, that the defendant’s conviction for armed burglary is duplicative of his conviction for felony-murder, since armed burglary was the predicate felony for the felony-murder charge. “When a murder conviction is based on a felony-murder theory, the underlying felony, whatever it may be, is always a lesser included offense and the conviction for that felony, in addition to the conviction of murder, is duplicative.” Commonwealth v. Rasmusen,
4. Review under G. L. c. 278, § 33E. After careful review of the entire record, we conclude that there is no basis to reduce the murder conviction to a lesser degree of guilt or to order a new trial.
Conclusion. The denial of the defendant’s motion for a new trial is affirmed. The conviction of murder in the first degree and the conviction of assault and battery by means of a dangerous weapon are affirmed. The judgment of conviction of armed burglary is reversed, the verdict is set aside, and that indictment is remanded tо the Superior Court for entry of a judgment of dismissal.
So ordered.
Notes
The predicate felony was armed burglary, G. L. c. 266, § 14, an offense punishable by life imprisonment. See G. L. c. 265, § 1 (“Murder committed ... in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree”).
The jury did not find the defendant guilty of murder in the first degree on the theories of deliberate premeditation or extreme atrocity or cruelty.
When the defendant and Poisson exchanged automobiles, they also exchanged sets of keys; each key ring also held a key to the house.
Poisson had hung the keys to that automobile on a hook in the kitchen. The jury could have inferred that the defendant was familiar with this practice from when he lived with Poisson in the same house.
At some point before the defendant came upstairs with the knife, DeChristoforo heard the defendant in the hallway saying, “If I had a fucking gun, I’d kill you all.”
A knife bloсk that held knives was found in the kitchen; the two knives on the couch appeared to belong to that knife set.
Mejia was transported by ambulance to a hospital; he died shortly thereafter.
The defendant argued in closing that he and Poisson had not unequivocally ended their relationship; in support of this claim, he pointed to evidence that he continued to pay rent and a portion of the utility bills, and that he had a key to the house.
The judge did give a provocation instruction in connection with his instructions on murder in the first degree on a theory of deliberate premeditation, murder in the first degree on a theory of extreme atrocity or cruelty, and murder in the second degree. In addition, the judge instructed on voluntary manslaughter and involuntary manslaughter.
The alleged felonious conduct must, however, constitute “sufficient danger to human life” in order to replace the malice еlement required for murder and to support a felony-murder conviction. Commonwealth v. Matchett,
At trial the defendant argued that he could not be convicted of armed burglary because, on the night of the killing, he had a right of occupation of Poisson’s house. See Commonwealth v. Robbins,
Although the defendant did not otherwise challenge the sufficiency of the
The Model Jury Instructions on Homicide released in March, 2013, are substantially the same in this respect. See Model Jury Instructions on Homicide 54-55 (2013).