438 Mass. 766 | Mass. | 2003
A jury in the Superior Court convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty.
The background of the case is as follows. On the afternoon of August 24, 1994, Officer Thomas Guinta of the Fall River police department was in uniform delivering parking permits to residents on Middle Street for use during an upcoming event in the neighborhood. Jean Felix and her daughter, residents of a
Felix found Officer Guinta lying on the hallway floor outside of the defendant’s apartment. Officer Guinta was bleeding profusely and was gurgling. Felix asked the defendant to get some towels as she began chest compressions. The defendant placed a pillow under Officer Guinta’s head, then kicked him and said, “He’s only faking, anyway.”
Detective Leo Rebello arrived at the scene. As the detective approached the stairway, gun drawn, he saw the defendant step out onto the landing holding what turned out to be Officer Guinta’s handgun, and observed on the stairs a police radio with blood on it. On seeing Detective Rebello, the defendant stated, “You don’t need that, you don’t need that.” Detective Rebello followed the defendant into the building and observed Officer Guinta on the hallway floor. Detective Rebello pushed the defendant against the hallway wall, and the defendant dropped the handgun. In his right hand the defendant held a speed loader, a device that holds ammunition, and a Fall River police badge, which Detective Rebello had to pry out of his hand. Detective Rebello handcuffed the defendant, moved him back into his apartment, and seated him on a mattress on the floor. The defendant said, “[I] shouldn’t have, [I] shouldn’t have.”
Detective John DeMello entered the building after Detective Rebello. He saw the defendant drop the gun. Detectives Rebello and DeMello performed cardiopulmonary resuscitation on Officer Guinta. His eyes were open, he had a pulse, and he was
Other police officers arrived. Sergeant Albert Dupere heard the defendant state, “I don’t know who did it.” Officer Wayne Pope heard the defendant state, “I didn’t do it. Three guys did it. They ran.” The defendant told Officer Michael Malek that he “didn’t do it,” and that there were three black males who had ran out the back door. Officer Malek checked the apartment, but found no back door and no other suspects. The defendant seemed very nervous, but not excited, and he spoke in a low voice. While being transported to the police station, the defendant talked to himself in a low monotone.
At the police station, State Trooper Keith Blaney advised the defendant of his Miranda rights, and then interviewed him. The defendant was calm, and his answers were timely and articulate. After providing some information about his background, the defendant recounted his day’s activities. The defendant stated that he awoke from a nap to an altercation outside his apartment’s door. He heard several bangs, opened the door and saw Officer Guinta lying on his side, bleeding, on the hallway floor. The defendant asked Officer Guinta if he was alright. The officer replied that he was, and asked the defendant to get help. The defendant saw the officer’s police radio on the stairwell and tried to call on it. A police officer arrived, asked the defendant “if he was okay,” and then handcuffed him. The defendant denied having handled Officer Guinta’s service revolver or badge. The defendant stated that he was taking prescription medication. Toward the end of the interview, the defendant addressed Trooper Blaney as “Your Excellency.”
Forensic evidence linked the defendant to Officer Guinta’s shooting. Deoxyribonucleic acid (DNA) testing revealed that blood consistent with the defendant’s was found on Officer
While at Bridgewater State Hospital the defendant had numerous conversations with a kitchen worker, and gave two versions of the shooting. The defendant told him that the version he eventually would recount depended on whether he was “offered” a disposition of “justifiable homicide.” The defendant remarked that, because “no one saw him do it,” he could not be found guilty.
There was evidence concerning the defendant’s behavior before, and on the day of, Officer Guinta’s killing. The Commonwealth’s evidence described the defendant as a man who “hate[d] fucking cops”; who stated to Felix that the police would be sorry if they threw him off the basketball court again after curfew; who was able to conduct business with his landlord’s property management company and pay his rent; and who was able to drive his automobile and obey traffic laws. On the day of Officer Guinta’s killing, Felix “knew [the defendant] was a little bothered” that the police were giving him parking tickets. The defendant was also angry with a representative of the Fall River Gas Company who unsuccessfully attempted to collect an overdue bill.
The defendant did not testify. Through cross-examination of the Commonwealth’s witnesses, and through his own witnesses, the defendant’s trial counsel presented evidence supporting a defense that the defendant was not criminally responsible under the standards of Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967). The defendant was an educated man, who had
During her cross-examination, Felix stated that the defendant often exhibited “very strange” behavior. After speaking with the defendant for about ten minutes, Felix noticed that he would become delusional, stating that he was a Cherokee Indian or that he was going to five in the Taj Mahal and be a king. In a basketball court across from the apartment building, the defendant would play basketball by himself, without shoes, for “all hours of the night.” On the day of Officer Guinta’s killing, despite an outside temperature of eighty-five degrees, Felix discovered the defendant inside his apartment with the oven door open and the stove turned on high. On more than one occasion around the time of the killing, a representative from the landlord’s property management company tried to get help for the defendant, as did the defendant’s mother.
Following the defendant’s arrest, he was evaluated at various times by at least six psychologists and one psychiatrist, all of whom testified that he was mentally ill. Two of the professionals, forensic psychologist Ronald S. Ebert and psychiatrist Martin Kelly, arrived at the opinion, for different reasons, that the defendant was not criminally responsible for killing Officer Guinta. Specifically, Dr. Kelly testified that the defendant’s schizophrenia resulted in the lack of capacity to conform his conduct to the requirements of the law, while Dr. Ebert testified that, because of schizophrenia, the defendant lacked the capacity to appreciate the wrongfulness of his conduct. The Commonwealth did not produce any expert witnesses to testify to the defendant’s mental illness or criminal responsibility.
“If the Commonwealth has proven to you beyond a reasonable doubt that the defendant had the specific intent to kill, then the defendant’s mental impairment, if any, does not excuse or justify his actions.”
Later, when instructing on murder in the first degree on the theory of extreme atrocity or cruelty, the judge stated:
“If the Commonwealth has proved beyond a reasonable doubt the defendant had this specific intent to kill or to grievously injure the victim and the defendant had the requisite knowledge of the circumstances in which he acted, the defendant’s mental impairment, if any, does not excuse or justify his actions.”
The defendant argues that these instructions “inform[ed] the jury that if they found malice then lack of criminal responsibility was no justification or excuse.” The defendant did not object to these instructions, so we review for a substantial likelihood of a miscarriage of justice. Commonwealth v. Richardson, 429 Mass. 182, 185 (1999). We find none.
Our duty is to look at “the charge as a whole to determine whether it fairly instructs the jury.” Id., quoting Commonwealth v. Raymond, 424 Mass. 382, 386 (1997). We have upheld nearly identical language to that challenged here. Commonwealth v. Meinholz, 420 Mass. 633, 637 (1995). Examining the charge in context, the judge correctly instructed the jury that they could consider the defendant’s mental impairment, if any, in determining the defendant’s capacity to form the specific intent to kill or to inflict grievous bodily harm. See Commonwealth v. Gould, 380 Mass. 672, 683, 685 (1980). The judge also correctly instructed the jury on criminal responsibility in accordance with the standards of Commonwealth v. McHoul, supra. In giving these instructions, the judge directed the jury that they were not to consider the issue of criminal responsibility, or “insanity,”
Next, the defendant asserts, and the Commonwealth concedes, that the judge gave an erroneous, nonexistent “diminished capacity manslaughter” instruction.
2. In support of his motion for a new trial, the defendant offered numerous exhibits, including a transcript of an attorney-client conference (made before the defendant rested) on the issue whether the defendant wished to testify at trial, affidavits from the defendant, an affidavit from the defendant’s mother,
(a) The defendant claims error in the judge’s failure to read to the jury the last sentence of the murder statute, G. L. c. 265, § 1: “The degree of murder shall be found by the jury.” Because the defendant’s trial counsel did not request such an instruction or object to the judge’s omission of this language, we review for a substantial likelihood of a miscarriage of justice. See Commonwealth v. Gaskins, 419 Mass. 809, 812 (1995); Commonwealth v. Reid, 384 Mass. 247, 258 (1981).
Although we have suggested that a proper charge on murder should comprise a full reading of the murder statute, Commonwealth v. Dickerson, 372 Mass. 783, 797-798 n.6 (1977), what the murder statute requires is that, where there is evidence of murder in the first degree, the judge must instruct on both murder in the first and second degrees. See Commonwealth v. Paulding, ante 1, 10 (2002); Commonwealth v. Doane, 428 Mass. 631, 633 (1999). See also Commonwealth v. Robinson, 382 Mass. 189, 196-197 (1981) (finding no risk of a miscarriage of justice stemming from judge’s failure to read last sentence of murder statute to jury). The judge fulfilled this requirement by instructing the jury first on murder in the first degree and then on murder in the second degree. In addition to
(b) In his submissions accompanying his motion for a new trial, the defendant essentially claimed that his trial counsel failed to honor his choice not to present a defense based on a lack of criminal responsibility, or an “insanity” defense. In reliance on those assertions, the defendant argues that the judge was constitutionally required to conduct a colloquy with him to confirm his “knowing, intelligent, and voluntary endorsement” of, or waiver of, an insanity defense. The defendant relies principally on Commonwealth v. Federici, 427 Mass. 740, 744-745 (1998), in which we held that a competent defendant may choose to forgo an insanity defense when he “has been fully advised beforehand of the consequences of his actions by both defense counsel and the judge” (footnote omitted). In that case, however, the defendant had made it clear both to the judge and to defense counsel that he did not want to raise an insanity defense. Id. at 745. Here, there was no such apparent conflict between the defendant and his trial counsel that was made clear to the judge. Thus follows the defendant’s argument that even an endorsement of an insanity defense requires a colloquy. We decline to extend our decision in Commonwealth v. Federici, supra, to impose such a requirement.
The judge did not err in concluding, inferentially, that the defendant’s submissions made in connection with his motion for a new trial did not raise a substantial issue requiring an evidentiary hearing. There was sufficient evidence, particularly the
(c) Relying on an affidavit in which the defendant states that he wanted to testify to “his actual innocence,” but was precluded from doing so by his trial counsel, and on other documents to that effect, the defendant argues that the record does not support a finding that he made a knowing, intelligent, and voluntary decision not to testify. We disagree.
A defendant has the right to testify on his own behalf, and a “strict standard” applies to the waiver of that right. Commonwealth v. Waters, 399 Mass. 708, 716 (1987), and cases cited. The record of the attorney-client conference between the defendant and his trial counsel, made before the defense rested, demonstrates that the defendant’s trial counsel repeatedly informed the defendant that the ultimate decision on whether to testify belonged to him. The judge likely credited this evidence. While the defendant’s trial counsel, for. various reasons that he explained on the record to the defendant, advised the defendant not to testify, he at all times emphasized that, ultimately, the decision was the defendant’s. The defendant, although wavering, and never rendering a final decision on the record, expressed his understanding that the decision to testify at trial was “completely” his to make. The defendant’s uncertainty as to whether he would testify reflects that his attorney had not foreclosed the defendant from making this critical decision, and that the defendant possessed a “sufficient awareness of the
(d) The judge correctly denied the motion for a new trial on the ground that the record allegedly did not support an intelligent and voluntary decision by the defendant to be medicated at trial. The defendant’s argument is predicated on “[djefense counsel’s admitted failure to offer the defendant the opportunity to appear unmedicated during trial . . . .” There is no such admission in the record. Rather, in an affidavit, the defendant’s trial counsel stated that he did not “specifically recall discussing the matter with [the defendant],” but that he had “numerous conversations with Dr. Ronald Ebert [a defense expert witness] as to his opinion on the issue of [the defendant’s] appearing unmedicated.” The defendant made no showing that he was medicated against his will or that he even asked to stop taking medication. In one of his affidavits, the defendant states that he is “not crazy,” yet he made no showing how appearing in a medicated state would have undermined his competency to stand trial, limited his ability to present a defense, or otherwise been relevant. Cf. Commonwealth v. Louraine, 390 Mass. 28, 37-38 (1983) (not every defendant treated for mental illness is entitled to be observed by the jury in an unmedicated state, and “in some cases, the defendant’s demeanor in an unmedicated condition will not be relevant”).
3. The evidence that the defendant, with Officer Guinta’s own gun, shot six times at Officer Guinta, inflicting three gunshot wounds, two from behind, and then later kicked Officer Guinta in the head while Felix was giving him chest compressions, amply supports the jury’s finding of extreme atrocity or cruelty. Although the Commonwealth presented no expert testimony on the issue of the defendant’s mental illness or criminal responsibility, there is no requirement to do so. Commonwealth v. Monico, 396 Mass. 793, 798 (1986) (the issue of insanity “may arise from the facts of the case, through the Com
4. The defendant’s judgment of conviction and the order denying his motion for a new trial are affirmed.
So ordered.
The Commonwealth had proceeded on theories of both deliberate premeditation and extreme atrocity or cruelty.
The defendant called Jean Felix “Jen” because he thought she was “Jen” whom he supposedly knew from Boston.
The instruction was as follows:
“Now, there is another possible basis for a verdict of manslaughter. If you should determine that the defendant killed the deceased without justification or excuse because of a mental condition and the defendant could not form the specific intent necessary for you to find that he acted with malice aforethought, you may find him guilty of manslaughter so long as you also find his mental condition did not rise to the level of insanity. Of course, should you find his mental condition did indeed rise to the level of insanity, you must find him not guilty of the crime of manslaughter as well as all of the other crimes of murder in the first degree, murder in the second degree, through either of the first degree murder theories.”
In his affidavit, the defendant’s trial counsel stated: “At no time did I ‘fail to honor’ the defendant’s decision not to offer an insanity defense. In fact, [the defendant] provided legal research and case law on the issue of the presentation of the insanity defense. He likewise cooperated on several occasions with the experts who testified at trial when they were performing their evaluations as to criminal responsibility and competency.”