COMMONWEALTH vs. RYAN BOIS.
Supreme Judicial Court of Massachusetts
November 10, 2016
476 Mass. 15
Norfolk. January 12, 2016. Present: GANTS, C.J., SPINA, CORDY, DUFFLY, & LENK, JJ.1
A Superior Court judge properly denied the criminal defendant‘s motion for a new trial based on ineffective assistance of counsel, where counsel‘s decision not to introduce records regarding the defendant‘s history of treatment for mental illnesses appeared to have been strategic and was not manifestly unreasonable (i.e., although it would have been preferable for counsel personally to have reviewed the records, she did not fail to consider them or to investigate their contents), and where it was unlikely that the exclusion of the records resulted in any prejudice to the defendant [22-24]; where no prejudice to the defendant resulted from counsel‘s decision not to call a certain witness to testify [24-25]; and where there was no merit to the claim that counsel was ineffective in failing to object to the jury instructions on the insanity defense or on diminished capacity [25-27].
At a criminal trial, the judge did not err in determining that a report that a juror had been sleeping was not reliable and, therefore, that no further action was required. [27-28]
This court vacated the defendant‘s conviction of armed home invasion and remanded the matter for entry of judgment in favor of the defendant, where the evidence was insufficient to support a finding that the defendant‘s knife was dangerous per se or that it was dangerous as used. [28-30]
At a murder trial, no error arose in the instruction on felony-murder, where the judge instructed that the Commonwealth must prove that the defendant killed the victim in the course of committing a felony that was inherently dangerous to human life, and that, as a matter of law, the crime of home invasion with a dangerous weapon and rape of a child by force were such felonies. [30-31]
At a murder trial, challenged statements in the prosecutor‘s closing argument relied on reasonable inferences that could be drawn from the evidence; further, although the prosecutor improperly appealed to the jury‘s sympathy in a particularly troubling manner, the improper appeal did not require reversal of the defendant‘s convictions, where the judge instructed the jury,
This court declined to exercise its authority under
INDICTMENTS found and returned in the Superior Court Department on August 30, 2007.
The cases were tried before Janet L. Sanders, J., and a motion for a new trial, filed on October 12, 2012, was heard by her.
Dennis Shedd for the defendant.
Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.
LENK, J. In 2009, a Superior Court jury convicted the defendant of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder. The jury found that, on August 4, 2007, the defendant broke into his grandmother‘s house and then raped and strangled his six year old cousin, who was staying there for the night. The defendant was convicted also of nine other charges, including home invasion while armed with a dangerous weapon,
We affirm the conviction of murder in the first degree, and decline to exercise our power under
1. Background. a. Facts. We recite the facts the jury could have found, reserving certain details for later discussion. In 2007, when the defendant was twenty years old, he did not have a permanent residence and stayed with various friends and family members. At one point during the year, he lived with his grandmother in Weymouth for approximately one month. After moving out, he asked his grandmother for money to pay his rent. She agreed, but insisted on driving the defendant to meet his landlord and to obtain a receipt. When they arrived, the grandmother handed the defendant the money, and he ran off. Several weeks later, on the morning of August 4, 2007, the defendant called his grandmother, asking if he could come to her house. She refused.
At 2 or 3 P.M. that day, the defendant attended a cookout at the home of his friend, Megan Phinney, staying there until late in the evening. At “10 or 10:30” P.M., at the defendant‘s request, one of his friends drove him from the cookout to his grandmother‘s house, approximately one mile away. The victim, the defendant‘s six year old cousin, and her four year old brother were staying with his grandmother that night.3 All three had gone to sleep by the time the defendant arrived.
After being dropped off, the defendant climbed on top of his grandmother‘s white Ford Explorer vehicle, which was parked in the driveway in front of the house, below a front-facing second-floor window. He used a “folding” knife with a three-inch blade to cut a hole in the window screen, and entered. Somewhere
At 10:57 P.M., the defendant appeared on a surveillance video recording entering a convenience store approximately one mile from his grandmother‘s house. He left the store without purchasing anything.
Sometime after midnight, on August 5, 2007, the defendant used his grandmother‘s cellular telephone to call one of his acquaintances, Terrence Gandy. He told Gandy that he “had some money to burn” and “wanted to get some drugs.” He drove to Gandy‘s house in the Dorchester section of Boston, bought marijuana, and smoked it with Gandy. He told Gandy that the Explorer he was driving “was stolen,” and asked Gandy, “If I ever killed anybody, what would I do with the body to get rid of it[?]” Gandy replied that he should “chop it up.” The defendant left after “fifteen to [twenty] minutes.”
At approximately 1:15 A.M., a Weymouth police officer in the canine unit stopped the Explorer for speeding. When the officer approached the vehicle, however, it sped off, and the officer pursued it. During the chase, both vehicles reached speeds of one hundred miles per hour. The Explorer ultimately crashed into a taxicab while attempting to turn at an intersection. The defendant got out of the vehicle and ran away. When the defendant disregarded the officer‘s warning to stop, the officer released his police dog. The dog chased and subdued the defendant. As the officer approached the defendant, who was lying face down on the ground with his arms outstretched, as instructed, the defendant turned to the officer and started yelling, “Just shoot me in the face. Kill me now. You don‘t know what I did. Just kill me now. Shoot me in the fucking face.”
The officer turned around to signal other officers who had arrived at the scene. When he turned his attention back to the defendant, he saw that the defendant had tucked his hands underneath his body. The defendant was holding a folding knife with a three-inch blade, and was pleading with the officer “to shoot him, kill him.” The defendant eventually released the knife
After the defendant‘s arrest, officers conducted an inventory search of the Explorer, which they intended to have towed. They discovered the victim‘s body, naked from the waist down, wrapped in the grandmother‘s bedding. Her shorts and underwear were nearby. Police contacted the grandmother, who was unaware that the defendant had been in her house, that her Explorer had been stolen, or that the victim was missing. During a search of the grandmother‘s house, police found that the bedsheets were missing from the front bedroom. They also found traces of blood and seminal fluid in that room, and bloody pillows in the victim‘s bedroom.
b. Trial proceedings. On August 30, 2007, the defendant was indicted on charges of murder in the first degree and twelve other offenses.5 At trial in March, 2009, the Commonwealth proceeded on the murder charge on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder. To establish that the defendant was criminally responsible for his actions, the Commonwealth presented testimony regarding his behavior on the day of the killing. The defendant‘s girl friend testified that she spoke with him around noon that day, and agreed that he did not “sound any different” from usual. A friend who had been at the cookout recalled that the defendant drank beer, played horseshoes, and agreed that he did not “appear[] different . . . [from] what [his friends] had known him to be like in the past.”
The Commonwealth also presented expert testimony regarding fingerprints, blood, and seminal fluid that were recovered from the grandmother‘s house and the victim‘s body. One expert testified that samples of deoxyribonucleic acid (DNA) recovered from sperm cells on the victim‘s body matched the defendant‘s DNA profile, and another testified that a palm print on the front window matched that of the defendant.
The defendant conceded that he had raped and killed the victim, but contended that he was not guilty by reason of insanity.
In addition, the defendant introduced expert testimony from a forensic psychologist who had not examined him, concerning the general standards used to evaluate a defendant for lack of criminal responsibility, and the general characteristics of a number of mental illnesses. The expert agreed that someone may “be in the throes of mental illness and appear normal to lay observers,” and testified that a person “would be admitted to [a] psychiatric facility only [if] someone . . . as part of the admission . . . believed that they had symptoms of a mental illness.” The expert did not present any opinion regarding the defendant‘s mental state or behavior.
The jury convicted the defendant of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder,8 but not on the theory of deliberate premeditation.
c. Motion for a new trial. In October, 2012, the defendant filed
2. Discussion. On appeal, the defendant contends that (a) trial counsel was ineffective in her presentation of the insanity defense, (b) the judge did not respond adequately to reports of a sleeping juror, (c) there was insufficient evidence on the home invasion charge and the jury were incorrectly instructed on that issue, (d) the judge‘s instruction removed an element of the felony-murder charge from the jury‘s consideration, and (e) the prosecutor made certain inappropriate remarks during closing argument. He claims also that we should reduce the degree of guilt pursuant to our authority under
a. Claim of ineffective assistance of counsel. As he did in his motion for a new trial, the defendant argues that counsel‘s investigation and presentation of his insanity defense was constitutionally deficient. He claimed, in particular, that “counsel failed to adequately investigate [his] history of treatment for mental illnesses“; “failed to present evidence of his unusual behavior shortly before the . . . crime“; and “failed to object to erroneous instructions on the mental health defense[ ].”
“Because the defendant has been convicted of murder in the first degree, we consider [his] contention of ineffectiveness of counsel to determine whether there exists a substantial likelihood of a miscarriage of justice . . . , which is more favorable to a defendant than the constitutional standard for determining whether there has been ineffective assistance. Thus, we consider whether there was error during the course of the trial, and, if so, whether the error was ‘likely to have influenced the jury‘s conclusion’ ” (citation omitted). Commonwealth v. Williams, 453 Mass. 203, 204-205 (2009). “Under this more favorable standard of review, we consider a defendant‘s claim even if the action by trial counsel does not ‘constitute conduct falling “measurably below” that of an “ordinary fallible lawyer.“’ . . . A strategic
i. Treatment records. The defendant maintains that defense counsel erred in failing to read, or to introduce at trial, treatment records from his psychiatric hospitalizations and from his commitments to DYS facilities. These records indicate that the defendant suffered sexual abuse as a child, and that, during his adolescence, he was diagnosed with several mental illnesses, including agitated depression, bipolar disorder, and posttraumatic stress disorder. The records span a period of twelve years, from 1992, when the defendant was five years old, to 2004, shortly before his eighteenth birthday. The defendant contends that, had evidence of these specific diagnoses been presented to the jury, the insanity defense might have been successful.
In an affidavit submitted in conjunction with the defendant‘s motion, trial counsel explained that she was aware of the treatment records, and had seen them mentioned in the defendant‘s competency evaluation prepared by a forensic psychologist at Bridgewater State Hospital (Bridgewater). She stated further that, although she herself did not review the records, she had obtained funds to hire an expert psychologist to review the documents. Having reviewed the records, and having asked a colleague to do the same, the expert informed counsel that he was unable to offer an opinion that, at the time of the offense, the defendant had not been criminally responsible. Counsel averred that she therefore decided not to present expert testimony on the basis of the defendant‘s medical records. She did not, however, explain why she chose not to introduce the treatment records themselves, unaccompanied by expert testimony. See Commonwealth v. Dung Van Tran, 463 Mass. 8, 20 (2012) (“defendant with prior history of mental disorders and treatment ‘may offer evidence of the same through medical records with or without expert witnesses’ ” [citation omitted]).
While unexplained in the affidavit, counsel‘s decision not to introduce the records appears to have been strategic. See Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015) (where ineffective assistance claim is based on tactical or strategic decision by counsel, defendant may show counsel was ineffective only if decision was “manifestly unreasonable” when made). At a pretrial hearing, counsel argued successfully, against the Commonwealth‘s opposition, that the Commonwealth was not entitled
The defendant contends, however, that without having read the records herself, counsel could not have conducted a “thorough investigation,” McMahon, supra, and was not in a position to make the strategic decision to keep the records from the jury‘s consideration. See Commonwealth v. Baker, 440 Mass. 519, 529 (2003) (“Until [counsel] commenced . . . an investigation, he simply had no way of making a reasonable tactical judgment“).
We do not agree. Although it would have been preferable for counsel personally to review the treatment records, she did not fail to consider them, or to make an investigation of their contents. Indeed, she reviewed the competency report prepared by the forensic psychologist at Bridgewater, which summarized most of the relevant records, and which described the defendant‘s treatment history and diagnoses. Contrast Commonwealth v. Lang, 473 Mass. 1, 11 (2015) (Hines, J., concurring) (“defendant‘s trial counsel did not review the defendant‘s psychiatric history“). Counsel also retained two experts, both of whom reviewed the records and opined that they did not support the conclusion that the defendant lacked criminal responsibility at the time of the crime. Contrast Commonwealth v. Alvarez, 433 Mass. 93, 101 (2000) (“Counsel‘s failure to review or provide to the defense expert [relevant] medical records . . . fell measurably below that of an ordinary fallible lawyer” [emphasis supplied]). In light of counsel‘s knowledge of the substance of the records, and given that the experts she retained could not endorse an insanity defense after reading them, counsel‘s investigation was sufficient to allow her to make the strategic decision not to present the records to the jury. This decision was not “manifestly unreasonable.”
Moreover, it is unlikely that the exclusion of the records resulted in any prejudice to the defendant. See Williams, 453
In addition, the records contained information that might have undercut the insanity defense. The most recent of the records, from three years before the crime, indicated that the defendant was “doing well,” that he was employed and had a girl friend, and that he “recently discontinued his medication [(impliedly with medical approval)].”12 Had these records been presented to the jury, the prosecutor likely would have used them to support the argument that the defendant was capable of rational, calculated thought, and that the killing was the result of such thought, rather than of mental illness.
In sum, counsel‘s decision not to introduce the defendant‘s treatment records was not manifestly unreasonable, and did not result in prejudice to the defendant.
ii. Defendant‘s behavior earlier on day of killing. In August, 2007, a State police trooper interviewed Cynthia Phinney, the mother of the defendant‘s friend who had hosted the cookout that the defendant attended on the day of the killing. Phinney reported
“at one point [the defendant] took a shower in the house. . . . [A]fter [he] took a shower, he remained in her laundry room for about ten minutes. . . . [S]he walked into the laundry room and found [him] just standing there naked.”
The defendant contends that trial counsel was ineffective for not calling Phinney to testify about this incident, as it would have suggested that the defendant exhibited “behavior . . . consistent with that of a person suffering from bipolar disorder.”13
The record does not indicate whether counsel considered calling Phinney. We are persuaded, however, that, overall, Phinney‘s testimony was not “likely to have influenced the jury‘s conclusion” (citation omitted). See Williams, 453 Mass. at 206. Before describing the defendant‘s mood and behavior, Phinney told the trooper that the defendant “showed up with a thirty-pack of beer,” that he became “trashed . . . and [that he] needed to sober up.” Thus, it is likely that the jury would have attributed his mood to consumption of alcohol, rather than as a symptom of mental illness. In addition, Phinney testified before the grand jury that, earlier that afternoon, the defendant “was fine. He‘s always happy-go-lucky, always singing, dancing, and always just a happy kid.” Had Phinney testified, such statements could have undermined any testimony that the defendant was “sad” or in a “funny mood.” Given the potentially harmful impact of Phinney‘s statements on the defendant‘s insanity defense, no prejudice to him resulted from counsel‘s decision not to call her to testify.
iii. Jury instructions. The defendant argues that counsel was ineffective for failing to object to two specific jury instructions.
A. Instruction on insanity. In instructing the jury on the insanity defense, the judge stated:
“To summarize then, if the Commonwealth fails to prove beyond a reasonable doubt that the defendant possessed the substantial capacity to appreciate the criminality or wrongfulness of his conduct, and also that the defendant possessed a substantial capacity to conform his conduct to the requirements of the law, you must return a verdict of not guilty by reason of insanity” (emphasis supplied).
Trial counsel did not object to the instruction as given. The defendant claims that counsel‘s failure to object constituted ineffective assistance. This claim is unavailing. While the language at issue might, in isolation, be understood in the manner the defendant suggests, a more natural interpretation is that a verdict of not guilty by reason of insanity was required if the Commonwealth failed to prove either one of the prongs, by failing to show both that “the defendant possessed the substantial capacity to appreciate the criminality or wrongfulness of his conduct, and that the defendant possessed a substantial capacity to conform his conduct to the requirements of the law.” We are persuaded that the jury understood the instruction in this way, since, as the defendant concedes, the judge explained the standard correctly, clearly, and without ambiguity earlier in her instructions.14 See Commonwealth v. Young, 461 Mass. 198, 207 (2012) (“When reviewing jury instructions, ‘[w]e evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge‘s words.’ . . . We do not consider bits and pieces of the instruction in isolation” [citations omitted]).
B. Instruction on diminished capacity. The judge instructed the jury that they could convict the defendant of murder in the first
b. Report of sleeping juror. Before the jury charge, a juror reported that another juror had been sleeping during closing arguments. The judge conducted a hearing on what should be done in response to the juror‘s assertion. Defense counsel stated, “I think we [should] leave it alone. I didn‘t notice it, and I think we were both looking at the jurors during our closing argument.” She added, “I‘m more concerned about [the reporting] juror than I am the juror who may have been falling asleep. It sounds like that juror has an agenda of some type.” The prosecutor also said that he had not noticed the juror had been sleeping, and suggested that no action was required in response to the report.
The following day, a juror who had been designated as an alternate16 sent the judge a note stating that he had observed the same juror “f[a]ll asleep during trial on several occasion‘s [sic].” Defense counsel responded,
“I just wanted to say that I watched this particular juror yesterday during Your Honor‘s very lengthy . . . charge . . . because it was brought to our attention that this particular juror had been falling asleep. . . . What I noted is that she occasionally closed her eyes, but would move her hands and turn her head and open her eyes. I was confident yesterday in observing her during Your Honor‘s charge that she was not sleeping.”
As requested, the judge took no further action. The defendant now argues that the judge erred in taking no action, and should, at a minimum, have conducted a voir dire of the juror in question. See Commonwealth v. Dyous, 79 Mass. App. Ct. 508, 512-514 (2011) (judgment reversed because of sleeping juror although defendant‘s trial attorney urged judge to take no action).
The defendant‘s argument is not persuasive. “[N]ot every complaint regarding juror attentiveness requires a voir dire. . . . Rather, if a judge receives a complaint or other information suggesting that a juror was asleep or otherwise inattentive, the judge must first determine whether that information is ‘reliable.’ . . . In making this determination, the judge must consider the nature and source of the information presented, as well as any relevant facts that the judge has observed from the bench. . . . The burden is on the defendant to show that the judge‘s response to information about a sleeping juror was ‘arbitrary or unreasonable’ ” (quotations and citations omitted). Commonwealth v. McGhee, 470 Mass. 638, 644 (2015).
Here, the defendant has not met this burden. On both occasions, the judge immediately conducted a hearing on the juror‘s report. At those hearings, both defense counsel and the prosecutor stated that they had not noticed that the juror was asleep, and defense counsel provided specific information to explain both the basis of the report (the juror had closed her eyes) and why there was ultimately no cause for concern (the juror was actually awake). In light of this, there was no error in the judge‘s decision that the report of a sleeping juror was not “reliable,” id., and that no further action was required.
c. Armed home invasion. In instructing the jury on the elements of home invasion, the judge stated that the Commonwealth must prove “that the defendant at the time of the entry was armed with a dangerous weapon[.]” See
Conviction under the home invasion statute requires the Commonwealth to prove the defendant entered the dwelling “while armed with a dangerous weapon” and “use[d] force or threaten[ed] the imminent use of force upon any person within such dwelling[.]” See
On the record here, the evidence was insufficient for a determination that the defendant‘s knife was dangerous per se. The knife that the defendant had in his possession when he was arrested was a three and one-half inch “folding” knife that was on his person, but was not in his hand, when he was apprehended. See id. (“pocket knives” are not dangerous per se). Such a determination cannot be made absent “information regarding the design, purpose, and construction of the knife.” See Wynton W., 459 Mass. at 755. The judge noted in her decision on the defendant‘s motion for a new trial that the requisite determination could not be made on this record. Thus, the jury should have been instructed not that the knife was inherently dangerous, but that
Such an instruction, however, would not have obviated the need to vacate the defendant‘s conviction of this charge, as the evidence was also insufficient to support a finding that the defendant‘s knife, which he had in his possession when he entered his grandmother‘s house, was dangerous as used. The evidence suggests only that the defendant used the knife to gain entry to the house; there is no indication that he used it thereafter. There was no evidence or argument that the victim was stabbed, or that any item inside the house was cut or slashed. In addition, while displaying the knife in a threatening manner might have rendered it dangerous as used, the Commonwealth adduced no evidence that such a display occurred.18 See Mattei, 455 Mass at 846 n.12 (whether weapon is dangerous as used in home invasion depends on its “apparent ability to inflict harm” and “whether the victim reasonably so perceived it” [citation omitted]). Accordingly, the defendant‘s conviction of armed home invasion must be vacated and set aside, and, on remand, a directed verdict in favor of the defendant must be entered.19
d. Instruction on felony-murder. The defendant claims also that the judge‘s instruction on felony-murder impermissibly removed from the jury‘s consideration the critical factual issue whether the intent to commit the predicate felony exhibited a “conscious disregard” for human life. “[T]he felony-murder rule is based on the theory that the intent to commit the felony is equivalent to the malice aforethought required for murder.” See Commonwealth v. Matchett, 386 Mass. 492, 507 (1982). Accordingly, “[f]or this
In instructing the jury on felony-murder, the judge said that the Commonwealth must prove that the defendant killed the victim in the course of committing a felony “inherently dangerous to human life.” She then instructed that, “as a matter of law, the crime of home invasion with a dangerous weapon and rape of a child by force are felonies which are inherently dangerous to human life.”
Contrary to the defendant‘s argument, this instruction was in accordance with well-established case law. See Commonwealth v. Wadlington, 467 Mass. 192, 208 (2014) (judge did not relieve prosecution from its burden of proving “conscious disregard” element of offense of felony-murder” because “[i]t is not the province of the jury to determine whether a felony is inherently dangerous” [citation omitted]); Commonwealth v. Scott, 428 Mass. 362, 364 (1998) (whether felony is inherently dangerous is “a matter of law” to be decided by judge; where felony is inherently dangerous, “[t]here is no need to show a ‘conscious disregard for human life because the risk is implicit in the intent required for the felony‘” [citation omitted]). See also Matchett, 386 Mass. at 505 n.15 (“common law felonies of arson, rape, burglary, and robbery” are “inherently dangerous“). We decline the defendant‘s invitation to revisit this issue.
e. Closing argument. i. Whether inferences were permissible. In his closing, the prosecutor argued that the defendant was not mentally ill, and that his actions reflected calculated thinking by a “criminal mind.” The prosecutor noted, in particular, that the defendant had broken into his grandmother‘s house with the intention of stealing her money and her vehicle, and that he had been spotted by the victim. The defendant then killed the victim to prevent her from revealing his presence, removed her body and clothing to conceal what had happened, and went immediately to the convenience store to establish an alibi. Once he had been caught by the canine officer, the prosecutor asserted, the defendant contemplated killing the police dog with his knife and, when that effort was unsuccessful, feigned insanity. The prosecutor maintained also that the defendant‘s hospitalizations were the result, not of mental illness, but of “acting out” or “a substance abuse problem.” The prosecutor suggested that the defendant had concocted the insanity defense because he knew that the evidence
“A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence. . . . Nonetheless, a prosecutor may argue zealously in support of inferences favorable to the Commonwealth‘s case that reasonably may be drawn from the evidence” (quotation and citations omitted). Commonwealth v. Carriere, 470 Mass. 1, 22 (2014). In determining whether impermissible statements in a prosecutor‘s closing argument require reversal, “we consider (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury‘s conclusions.” Commonwealth v. Kater, 432 Mass. 404, 422-23 (2000), quoting Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).
Here, the challenged arguments were based largely on such reasonable inferences. The assertion that the defendant broke into his grandmother‘s home intending to steal her money and her vehicle is supported by evidence that the defendant entered the house by climbing on his grandmother‘s Explorer, and then cutting through a window screen on a second-floor window, at night and while the occupants were sleeping, and that he actually stole these items, which were found in his possession after the motor vehicle chase. See Commonwealth v. Maia, 429 Mass. 585, 587-588 (1999) (“intent to steal may be inferred where a person enters a building by force at night“).
The argument that the defendant was discovered by the victim, somewhere in the house, is supported, in part, by reasonable inferences that could be drawn from the evidence. Although she slept in a room adjacent to the victim‘s and separated from it only by a sliding glass door, the grandmother was not aware, until hours later, that the defendant had been in the house, or that the victim was missing. Both the victim‘s bedroom and the room where the grandmother was sleeping were at the back of the house, while the defendant broke in through a front window, and committed the rape in a front bedroom. Based on this, the jury reasonably might have inferred that the defendant encountered
In any event, “the line separating speculation and inference is often a fine one,” and we “recognize that closing argument is identified as argument,” and that the jury understand from the judge‘s instructions that closing arguments are not evidence. See Commonwealth v. Bresilla, 470 Mass. 422, 437-438 (2015), quoting Kozec, 399 Mass. at 516. Moreover, any impermissible inference in the prosecutor‘s suggestion as to the defendant‘s motive for the killing could not have resulted in prejudice to the defendant. The defendant‘s motive was a collateral issue that the Commonwealth was not required to prove. See Kozec, supra at 518 (distinguishing “collateral” errors in prosecutor‘s closing argument that did not go to “the heart of the case“).
The jury also reasonably could have inferred that the defendant‘s actions after the killing were a conscious attempt to cover his tracks, demonstrating rational thought rather than insanity. That the defendant removed the victim‘s body and clothing from the house could be viewed as an attempt to delay discovery of the crime. Similarly, the defendant‘s visit to the convenience store, where he walked around but did not buy anything—despite having just stolen cash from his grandmother—might suggest that he went to the store for some purpose other than to shop, and that this purpose was to establish an alibi. Such an inference could have been bolstered by the defendant‘s question to Gandy, a few hours later, about how he might dispose of a body. The high-speed police chase and the defendant‘s flight on foot further support the inference, suggested by the prosecutor, that the defendant was trying at all costs to avoid capture and punishment. In addition, the jury could have inferred that, when the defendant reached for his knife after the officer turned his back, the defendant intended to attack the police dog. The evidence also supported an inference that, when the defendant realized escape was not possible, he began “ranting and raving” to establish an insanity defense. See Commonwealth v. McColl, 375 Mass. 316, 323 (1978) (prosecutor allowed to argue “that the defendant was dissembling in his claim of insanity“).
Finally, based on the grandmother‘s testimony, the jury reasonably could have adopted the prosecutor‘s suggestion that the
ii. Appeals to juror sympathy. In his closing, the prosecutor asked the jury to recall that “one of the greatest fears of little kids are monsters that come out in the night.” He said that, on the “night of August 4th, 2007, a monster came in the night. A monster came into the life of [the victim], and the monster looked like [the defendant].” The prosecutor repeated this comment, almost verbatim, five times. At the end of his closing, the prosecutor was crying. The defendant objected to the display of emotion, and to the refrain regarding monsters, as impermissible “appeal[s] to the sympathy of the jurors.” The judge overruled the objection.
Prosecutorial “appeals to sympathy . . . obscure the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt.” Commonwealth v. Santiago, 425 Mass. 491, 501 (1997), S.C., 427 Mass. 298 and 428 Mass. 39 (1998). Here, the prosecutor‘s display of emotion, and his characterization of the defendant as a monster, were “unprofessional,” “wholly inappropriate[,] and should not have occurred.” Commonwealth v. Rosario, 430 Mass. 505, 515 (1999) (prosecutor “called the defendant a ‘monster’ “). Coming from a prosecutor who twice previously has been rebuked by this court—and reversed—for similar types of inappropriate argument, the remarks are particularly troubling. See Commonwealth v. Lewis, 465 Mass. 119, 128, 133 (2013) (where same prosecutor “unjustifiably demeaned the defense, the defendant, and defense counsel in his closing argument,” court concluded that “prosecutor‘s argument was highly improper“); Commonwealth v. Williams, 450 Mass. 894, 902-907 (2008) (same prosecutor improperly vouched for witness and “improperly urged the jury to do something beyond impartial fact finding“). See also Matter of Nelson, 25 Mass. Att‘y Discipline Rep. 413, 413-414 (2009) (public reprimand of prosecutor for argument in Williams, supra).21
First, the judge instructed the jury, both before and after the closing arguments, that such arguments “are not evidence.” She also gave the standard instruction that the jury should “not be swayed by prejudice, by bias, by sympathy or anger,” and should not “be influenced by any personal likes or dislikes that [they] have come to feel toward any party.” See id. (we examine “what specific or general instructions the judge gave the jury which may have mitigated the mistake“). See also Commonwealth v. Camacho, 472 Mass. 587, 609 (2015) (“Although none of the errors was addressed specifically, the judge instructed the jury that closing arguments are not evidence and that the jury were not to be swayed by emotion, sentiment, sympathy, or prejudice“).
Second, given the gruesome nature of the crime, it is unlikely that the prosecutor‘s argument had an inflammatory effect on the jury beyond that which naturally would result from the evidence presented. See Kater, 432 Mass. at 423 (“a certain level of emotion on the part of the jurors could be expected from this type of trial“). In addition, it is clear that the jury did not blindly accept the prosecutor‘s arguments, as they rejected the Commonwealth‘s theory that the defendant had committed the killing with deliberate premeditation, acquitted him of drug possession and driving without a valid license, and convicted him of a lesser included offense on the larceny charge. These “verdicts show that the jury were able to distinguish wheat from chaff. We ordinarily assume that jurors are reasonably sophisticated and capable of sorting out hyperbole and speculation. . . . The verdicts bear out this assump-
the district attorney‘s staff. To say that he knew or certainly should have known better than to offer the wholly improper argument is a gross understatement.” Here, the “judge should have interrupted the prosecutor when he began” making such inappropriate remarks, and should have provided a “curative instruction.” See id.
f. Review under
i. Request for reduction of verdict to murder in the second degree. Analogizing the facts of this case to those in Commonwealth v. Colleran, 452 Mass. 417, 422, 430-434 (2008), the defendant asks us to reduce his conviction to murder in the second degree. In that case, we reduced the degree of guilt to murder in the second degree where, suffering from psychotic depression, the defendant strangled her child, because her “conduct, although culpable, was very much driven by her mental condition.” Id. at 434. The evidence that the killing was “driven by [the defendant‘s] mental condition” in that case, however, was strong. See id. The defendant there presented unrebutted expert testimony that she “lacked substantial capacity to conform her conduct to the requirements of the law due to a serious mental illness.” See id. at 422. Here, by contrast, there was no expert testimony that the defendant‘s actions were the product of a mental illness, and the Commonwealth‘s evidence that the defendant did not lack criminal responsibility was strong.
In this case, we discern no reason to exercise our power under
ii. Lack of statistical context for DNA evidence. We note one other point not raised by the defendant. The Commonwealth presented testimony from a laboratory technician that DNA samples recovered from sperm on the victim‘s body “matched the DNA profile from [the defendant] and his paternal relatives.” Such testimony should not have been admitted “without accompanying testimony explaining the statistical relevance of those . . . results.” See Mattei, 455 Mass. at 846. This error did not give rise, however, to a substantial likelihood of a miscarriage of justice, as the factual proposition for which the evidence was admitted—that the defendant raped the victim—was undisputed. Moreover, the technician‘s testimony was cumu-
3. Conclusion. The conviction of home invasion is vacated and set aside, and a required finding of not guilty shall be entered on that charge. The convictions of murder in the first degree, and of the remaining charges, are affirmed.23
So ordered.
Notes
“In determining whether the Commonwealth has proved this third meaning of malice, you must consider the defendant‘s actual knowledge of the circumstances at the time that he acted.
“Again, in determining whether the Commonwealth has proved that the defendant had the intent required to constitute malice in any one of these ways, you may consider any evidence regarding the defendant‘s mental condition at the time of the alleged events.”