A jury convicted the defendant of murder in the first degree and burglary with actual assault, for which he received concurrent life sentences.
The jury could have found the following facts. On December 26, 1987, the defendant hosted a small gathering of his friends at the Saugus apartment that he shared with his father and sister. The defendant’s father had gone out for the evening. Along with several of his friends, the defendant was drinking beer. In addition, the defendant was smoking marihuana and was ingesting both Xanax and mescaline. The party lasted for several hours until approximately 11 p.m. when the defendant and his friends left the apartment. Soon thereafter, the defendant’s father returned to the apartment. When the defendant returned alone at midnight, he proceeded to argue with his father regarding the defendant’s
The defendant then walked across the street from his own apartment to the victim’s home. The victim was an eighty-seven year old widow who lived alone. The defendant had the intention of breaking into the victim’s home in order to steal some items and money. The defendant gained entry into the victim’s home by breaking a window at the rear of the house. The defendant first went into the kitchen where he ate a piece of pie, drank some vodka, and ripped a telephone from the wall. The defendant also smoked several filtered Camel brand cigarettes, discarding the cigarette butts and matches on the floor. He then climbed the stairs to the second floor and entered the victim’s bedroom. Seeing, the victim lying in her bed, he began to stab her with a butcher knife. The defendant stabbed the victim eight times in her head, chest, abdomen, upper arms, and hands. During the course of the attack, the defendant perforated the victim’s bedspread, blanket, top sheet, and nightgown. After he had finished stabbing the victim, the defendant smoked another cigarette and extinguished it on the victim’s forehead.
The defendant then gathered several items from the vietim’s home. Among other things, the defendant stole a small television set, a pair of binoculars, an alarm clock, and two bottles of prescription drugs. The defendant secreted these items to a wooded area across the street from the victim’s house. The defendant then returned home.
When he arrived at his apartment at approximately 2 a.m. on December 27, the defendant and his father resumed arguing. The defendant’s father summoned the Saugus police department and requested that they take his son into protective custody. After several minutes’ discussion between several Saugus police officers and the defendant’s father, the defendant voluntarily agreed to spend the night at the police statian. At the time the defendant arrived at the police station, the police officers were unaware that the victim had been
Subsequently, in 1988, a judge of the juvenile session of the Lynn Division of the District Court Department conducted a transfer hearing pursuant to G. L. c. 119, § 61 (1988 ed.). After the hearing, the judge dismissed the juvenile complaint. Criminal complaints were issued against the defendant charging: (1) murder, and (2) breaking and entering with the intent to commit a felony. An Essex County grand jury subsequently indicted the defendant for murder in the first degree and actual assault committed in the course of burglary. A judge in the Superior Court denied the defendant’s motion to dismiss based on alleged errors in the transfer hearing.
1. Propriety of the transfer. The defendant argues that the evidence presented at the transfer hearing did not support the District Court judge’s conclusion that the defendant presented a significant danger to the public and was not amenable to rehabilitation as a juvenile. The defendant claims that transfer of his case was improper under the standards of G. L. c. 119, § 61, and our case law. There was no error.
General Laws c. 119, § 61, sets forth the requirements governing a transfer hearing. At the hearing, the judge must
“We have stated that ‘[a] judge who makes the two written findings required by G. L. c. 119, § 61, must also make subsidiary findings indicating the basis for his conclusions concerning the two statutorily required findings. A Juvenile v. Commonwealth,
In the present case, the judge made extensive findings of fact following a hearing. In addition, the judge thoroughly considered each statutory factor listed in G. L. c. 119, § 61. Finally, each of the judge’s findings and conclusions has a basis in the record. We conclude, therefore, that the judge adhered to the guidelines set forth in our cases and satisfied the statutory requirements necessary for a transfer. The defendant argues, however, that there were serious deficiencies in the judge’s subsidiary findings which constituted a faulty step in the process of transfer. See id.
A. The defendant’s behavioral history. The defendant claims that the evidence did not support the judge’s finding that he had an aggressive, antisocial, and delinquent behavioral history. We disagree. One psychiatrist testified that the defendant had exhibited “a relatively [ingrained] pattern of behavior” and that he had “chronic behavior pattern” with “poor social functioning”; and “truancy, substance abuse and
B. The defendant’s treatment history. The defendant argues that the evidence did not support the judge’s findings that “all past treatment and rehabilitation have been a failure.” We disagree. In late 1985 and early 1986, the defendant had been hospitalized with a diagnosis of conduct disorder, drug abuse, and attention deficit disorder. In addition, the defendant had transferred to an alternative education school in 1986 because of his poor performance in the Saugus public school system.
Counsel for the defendant also complains that the judge could have granted the defendant an extension on his commitment to a secure juvenile facility beyond his eighteenth birthday. Nevertheless, “[t]he transfer statute only requires the judge ‘to focus on the minor’s potential for successful treatment before the age of majority within existing juvenile facilities.’ A Juvenile, [370 Mass.] at 283 (emphasis supplied). See Two Juveniles, supra at 742; Commonwealth v. Hill,
2. Suppression of the cigarettes and the matches. The defendant argues next that the motion judge erred in denying
In support of his motion to suppress the cigarettes and the matches as evidence, the defendant claims first that the police officer “searched” the defendant and “seized” the items from his person in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. We disagree.
If a person surrenders an item voluntarily, “a ‘search’ or ‘seizure’ within the purview of the Fourth Amendment... is not involved.” Commonwealth v. Aguiar,
The motion judge determined that the defendant had submitted himself voluntarily to the police. In addition, the mo
In support of his motion to suppress the cigarettes and the matches as evidence, the defendant claims next that the police officers had conducted an illegal search of the cigarette package and the matches that had been left on a counter in the police station. We disagree.
The defendant was not entitled to the suppression of the items, despite the lack of a warrant, unless he could demonstrate that the police officers had conducted a “search” of the cigarettes and the matches in the constitutional sense. See Commonwealth v. Pina,
In the present case, the defendant failed to establish that he had manifested a subjective expectation of privacy in the cigarettes and the matches.
We agree, therefore, with the motion judge’s finding that the defendant failed to establish that he had manifested a subjective expectation of privacy in the cigarettes and the matches and that he failed to demonstrate a reasonable expectation of privacy in the items.
3. Photographs of the victim and display of victim’s bed-clothing. The defendant argues next that the judge erred not only by admitting in evidence the victim’s bloodstained nightgown and one photograph of the victim’s naked body,
A. Admissibility of the photograph. “The admissibility of photographic evidence is left to the discretion of the trial judge, and we will overturn the judge’s decision only where a defendant is able to bear the heavy burden of demonstrating an abuse of that discretion.” Commonwealth v. Gallagher,
B. Admission of nightgown and display of bedclothing. In Commonwealth v. Zagranski, supra, we decided that a trial judge did not abuse his discretion in admitting in evidence the victim’s bloodstained clothing where the clothing was only marginally relevant. In the present case, the Commonwealth displayed the victim’s bedclothing and introduced in evidence the victim’s nightgown to show that each item had a single knife cut in a blood-stained area. We think that the items were relevant to the issue whether the murder was committed with extreme atrocity or cruelty or with deliberate premeditation. See Commonwealth v. Ramos, supra at 406-407; Commonwealth v. Repoza, supra at 128. We conclude, therefore, that the judge did not abuse his discretion by admitting the nightgown in evidence or by permitting the Commonwealth to display the bedclothing. In the future, however, trial judges must take care to avoid exposing the jury unnecessarily to inflammatory material that might inflame the jurors’ emotions and possibly deprive the defendant of an impartial jury.
4. Propriety of submitting case to jury on theory of felony-murder. In light of our holding in Commonwealth v. Claudio,
5. Jury instructions on specific unanimity regarding theory of culpability. The defendant argues that the judge violated both his Federal and State due process rights and equal protection rights by denying his motion to instruct the jury that they must agree unanimously on one or more theories of
We have stated that “[i]t is beyond dispute that the jury verdict in a criminal trial . . . must be unanimous.” Commonwealth v. Hebert,
There was no reversible error here, and we need not decide whether there is a constitutional requirement of unanimity, because it is clear in this case that the jury were unanimous
We conclude that, hereafter, as a matter of common law, when requested, a judge should give an instruction to the jury that they must agree unanimously on the theory of culpability where the defendant has been charged with murder in the first degree.
7. Duplicative convictions. The judge imposed concurrent sentences on the defendant for the first degree murder conviction and the burglary with actual assault conviction. On appeal, the defendant has not challenged these sentences as duplicative. Nevertheless, we have stated that “whenever the possibility exists that a jury might have reached a verdict of murder ... on the basis of a felony-murder theory, a consecutive sentence may not be imposed for the underlying felony.” Commonwealth v. Wilson,
In the present case, the jury convicted the defendant of both first degree murder and burglary with actual assault. As a result, we have concluded that the jury agreed unanimously that the defendant was guilty of first degree murder on a theory of felony-murder. Based on this conclusion, however, it is clear that the conviction on the underlying felony of burglary with actual assault is duplicative. See Commonwealth v. Wilson, supra. We vacate, therefore, both the conviction and concurrent sentence on the underlying felony of burglary with actual assault. See Commonwealth v. Jones, supra. Nevertheless, we affirm the conviction on the charge of murder in the first degree. See Commonwealth v. Crocker, supra.
8. G. L. c. 278, § 33E. Although the trial was not error free, particularly in the judge’s refusal to instruct the jury that they must agree unanimously on the theory of culpability in order to convict the defendant of first degree murder, we conclude that the conviction on the charge of first degree murder should be affirmed. See Commonwealth v Graves,
Accordingly, we vacate the judgment of conviction of burglary with actual assault and the sentence imposed thereon. The judgment of conviction of murder in the first degree is affirmed.
So ordered.
Notes
The murder indictment stated that the defendant “being armed with a dangerous weapon, did assault and beat [the victim] with intent to murder her and by such assault and beating did kill and murder [the victim].” The burglary indictment stated that the defendant “did break and enter the dwelling house of [the victim] in the nighttime with intent to commit a felony . . . and did make an actual assault on said [victim].”
The defendant then filed a motion to suppress a statement that he had made to the police. A judge in the Superior Court granted the defendant’s motion. On the Commonwealth’s application for interlocutory appeal, we reversed. Commonwealth v. Berry,
Since 1988, the Legislature has amended this section, lowering the Commonwealth’s burden of proof for transfer in cases in which a juvenile is charged with murder or another crime involving violence to a person. St. 1990, c. 267, § 3. St. 1991, c. 448, § 6. In a transfer case in which the juvenile is charged with murder, the Commonwealth’s burden of proof is by a preponderance of the evidence as distinguished from clear and convincing evidence which applies in other cases. See Commonwealth v. Clifford C.,
We have stated that “[t]here is no specific requirement that a judge weigh these factors in a certain manner or achieve some predesigned balance. Any factor which bears on the protection of the public and the amenability of the child to treatment as a juvenile may be considered.” Ward v. Commonwealth, supra at 438, quoting A Juvenile v. Commonwealth,
Witnesses testified that the defendant had been suspended from school for fighting with another student during lunch break and that the defendant had instigated a physical altercation by “pushing and shoving the other student.” In addition, the defendant had been suspended on several occasions for arriving at school under the influence of narcotics. The defendant also had been suspended from school for shoplifting while on a school field trip.
The defendant had transferred to the North Shore Community School in Danvers, which is a school for “behaviorally disoriented students.”
In the spring of 1987, the defendant was a resident at ARC The Terraces in Pennsylvania for seven weeks. The defendant received extensive drug and alcohol counselling.
Counsel for the defendant claims that the defendant’s behavior improved markedly while he was in the custody of the Department of Youth Services, indicating that the defendant was amenable to rehabilitation. The judge, however, was entitled to discount the defendant’s favorable conduct in the secured facility of the Department of Youth Services and rely more heavily on the evidence of the defendant’s past antisocial behav
Even if we were to decide that the defendant had manifested a subjective expectation of privacy, which we do not, we conclude that such an expectation would not have been reasonable in the circumstances. We consider several factors when analyzing the reasonableness of an individual’s expectation of privacy. Commonwealth v. Montanez,
Having taken the listed factors into account, we conclude that the evidence at the suppression hearing, viewed as favorably as possible for the defendant, indicates that any expectation of privacy that the he may have had in the matches and the cigarette package was unreasonable. The defendant had remained at the police station into the late morning despite the fact that he had been free to leave at any time. In addition, the defendant had allowed the cigarettes and matches to remain on a counter in a public area of the police station. Society, therefore, would not recognize the defendant’s privacy interest in the items as objectively reasonable. As a result, the defendant did not sustain his burden of proof as a matter of law.
The motion judge concluded that “the defendant has failed to meet his burden of demonstrating that he had any reasonable expectation of privacy, either subjective or objective, in the cigarettes and matches which had been left on the counter at the station.” As a result, the motion judge concluded that “the defendant has failed to meet the burden established under both the Fourth Amendment and Massachusetts law, which requires a defendant to first meet the threshold question of whether a search, in the Article XIV or Fourth Amendment sense, has occurred at all.”
The defendant claims also that the photographs were not relevant because the medical examiner already had testified concerning the extent of the victim’s wounds. We have stated, however, that “[i]t is not a valid objection to admissibility that the medical examiner had already testified in detail as to the wound and other conditions shown by the photographs.” Commonwealth v. Ramos,
We note the distinction between an instruction requiring specific unanimity among the jurors on the underlying factual issues where alternate episodes could support a finding of guilty and unanimity among the jurors on the theory of culpability where a single offense contains several different theories of culpability. See Schad v. Arizona,
While instructing the jury on the.three distinct theories of first degree murder, the judge stated that “so long as you as an individual juror are convinced beyond a reasonable doubt of any one of these alternative theories of murder in the first degree, you are warranted in supporting such a verdict.” Trial counsel properly preserved the issue of juror unanimity for appellate review by complying with the third sentence of Mass. R. Crim. P. 24 (b),
In Commonwealth v. Devlin,
In Schad v. Arizona, supra at 644-645, the Supreme Court of the United States considered the constitutionality of an Arizona criminal statute that defined first degree murder as a single crime with alternative theories of culpability: premeditated murder or felony-murder. Instead of focusing on the issue of juror unanimity, the plurality of the Court in Schad framed the issue as to whether it was permissible under the due process clause for Arizona to define first degree murder as either premeditated murder or felony-murder. Id. Nevertheless, the result of the plurality decision in Schad is that the due process clause does not require juror unanimity on the theory of culpability. Id.
Because we affirm the defendant’s conviction on the theory of felony-murder, we decline to address the defendant’s claim that the judge erred in his charge to the jury on extreme atrocity or cruelty.
We note that several courts already have concluded that jurors must agree unanimously on the theory of culpability where the offense charged contains more than one theory. See, e.g., United States v. Correa-Ventura,
The defendant argues that the judge’s instruction, that, “[i]f the Commonwealth has proved such premeditation beyond a reasonable doubt, the fact that the defendant was to some degree impaired by alcohol or drugs would not excuse his actions,” could have caused the jury to conclude that if the Commonwealth had proved premeditation beyond a reasonable doubt, then mental condition could not be considered.