A Superior Court jury convicted the defendant, Martin G. Guy, of murder in the first degree based on theories of deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel, the defendant appeals from his conviction, asserting several errors: (1) the judge erred in denying his motions for a required finding of not guilty; (2) his post-Miranda silence was used against him at trial; (3) the judge erred in instructing the jury on malice; (4) the written instructions that the judge gave the jury were incomplete and prejudicial; and (5) the prosecutor’s closing argument was improper. We find no merit to the defendant’s claims of error. Additionally, because there is no substantial likelihood of a miscarriage of justice, there is no basis to exercise our power under G. L. c. 278, § 33E, to order a new trial or reduce the verdict.
Facts. Based on the Commonwealth’s evidence, the jury could have found the following facts. At approximately 2 a.m. on September 20, 1999, Anthony Ferrara was leaving his residence at the Norwood Inn, a rooming house, with his girl friend, Luciana Souza. When they reached the first-floor foyer, they heard loud male voices. Immediately after Ferrara and Souza went through the inn’s main entrance, the victim, Christopher Payne, stumbled out the main door. The victim was moving quickly, but stumbling as if he were intoxicated. The victim stumbled into Ferrara, who grabbed onto the victim instinctively, trying to steady him by placing his right hand on the victim’s chest, which was wet, and wrapping his left hand around the victim’s body. The victim moved past Ferrara and
Immediately before the victim fell, the defendant emerged from the main door, armed with a machete-like knife. The defendant yelled, “Come back here, you son of a bitch.” He walked over to the fallen, motionless victim, knelt down on one knee, raised the knife over his shoulder with both hands, and stabbed the victim in the back three times. The defendant got up and walked to the rear of the building. He later drove away from the scene in his red Ford Probe automobile.
Ferrara attempted to stop the victim’s bleeding by using paper towels he retrieved from a nearby post office. Emergency medical personnel soon arrived, responding to the 911 call of Paul LaFleur, who observed the events outside from the window of his third-floor apartment at the rooming house. The paramedics continued to work on the victim until the advanced life support team arrived and transported him to a hospital, where he later died. An autopsy revealed that the victim had been stabbed eight times, and that he died from massive blood loss as a result of a three and one-quarter inch stab wound to his heart.
After leaving the Norwood Inn, the defendant drove to the nearby Norwood police station. He entered the station, held up his blood-covered hands, and stated that he had been stabbed. Lieutenant Richard Wall, the shift commander, took the defendant to an adjacent bathroom, asked him to wash the blood from his hands, and assessed the extent of the defendant’s injuries, which were a cut on his left index finger and a scratch on the right side of his neck.
Wall asked the defendant where the knife was, and the defendant said that it was in his car. The knife, with a piece of
After the police learned that the victim had been stabbed and seriously injured, the defendant was arrested on the charge of assault and battery by means of a dangerous weapon. When the victim died, the defendant was charged with murder.
The defendant was transported to Norwood Hospital, where he remained in police custody. There, he spoke with Nurse Rita Hinthome; Brian Gates and Chris King, security guards; and Officer Thomas Annino. The defendant told Hinthome that he was unsure how his finger was cut, but that it happened during an altercation.
Officer Annino was guarding the doorway to the treatment room when the defendant spoke. Annino, who did not hear the defendant, replied, “What?” The defendant stated, “It never should have happened.” The officer responded, “What?” The defendant explained that the victim knocked on the door to his apartment and, when the defendant opened it, the victim “came at [the defendant], swinging.” The defendant stated that he was cornered, backed up against a wall, and that he acted in self-defense. The defendant also told Annino that the victim had been harassing him for years and that he had spoken to the manager of the rooming house about it, but the manager “laughed in [his] face.”
Norwood police officers had been dispatched to the crime scene. Sergeant James Keady observed a heavy amount of blood in the parking lot. He followed a trail of blood from the parking lot into the rooming house, where he observed “a heavy concentration of blood” on the walls of the foyer and the first-
The hallway led to the defendant’s apartment, a small (approximately eight feet by eight feet) room, “packed with items.” Inside the apartment, the police observed nothing to indicate a disturbance. On the bed, the police found the opened box for the knife used by the defendant. The sheath to the knife and a broken piece of the knife handle lay next to the box. The police also observed that the top drawer of the defendant’s bureau was open. In that drawer, they found six knife boxes, four of which contained knives in their sheaths.
The defendant testified at trial. He stated that at approximately 2 a.m. on September 20, 1999, he was awakened from his sleep by four knocks on the door. After he unlocked the door, the door was pushed in and someone hit him in the chest. The blow knocked the wind out of the defendant, and he stumbled back. The defendant testified that he then was struck on the side of his head by the handle of a knife.
The defendant further testified that he blocked the knife blow with his hand, had the knife held to his neck, and was threatened with death many times. The defendant grabbed his attacker’s hand and pushed him back against the door. The struggle moved into the hallway. At some point, the defendant recognized his attacker as another resident of the rooming house.
The defendant testified that, eventually, he gained control of the knife and swung it at the victim as hard as he could, making contact. The defendant then lost control of the knife and struggled to regain it. At one point, the victim had his hands around the defendant’s throat. Just before the victim went outside, he told the defendant, “I’m going to fucking shoot
Discussion.
1. Denial of motions for required finding of not guilty. At the close of the Commonwealth’s evidence and at the conclusion of the evidence, the defendant moved for a required finding of not guilty, arguing that the evidence was insufficient to support a charge of murder in the first degree. The judge denied both motions. On appeal, the defendant argues that the judge erroneously denied his motions because there was insufficient evidence of deliberate premeditation, malice, and extreme atrocity or cruelty.
In reviewing the denial of a motion for a required finding of not guilty, we consider the evidence, together with permissible inferences from that evidence, in the light most favorable to the Commonwealth, Commonwealth v. Latimore,
a. Deliberate premeditation. A defendant deliberately premeditates when he forms a plan to kill after deliberation and reflection, but the law does not require a particular length of time to show deliberate premeditation. Commonwealth v. Coren,
Obtaining and using a weapon at close range and the pursuit of a wounded victim, among other factors, permit an inference of premeditation. See Commonwealth v. Johnson,
b. Malice. Where, as here, the defendant has presented some evidence raising the possibility of mitigation, the Commonwealth must prove, and the jury must find, the absence of mitigation beyond a reasonable doubt. Commonwealth v. McLaughlin,
The Commonwealth’s physical evidence, namely the evidence of the knife and the box from which it came, permitted an inference that the defendant had some time to select his weapon and formulate the requisite malice. In addition, the evidence that the defendant’s apartment had been undisturbed contradicted the defendant’s account of a struggle.
2. The defendant’s post-Miranda statements. The defendant argues that his post-Miranda silence was used against him several times at trial in violation of Doyle v. Ohio,
a. Prosecutor’s opening statement. In his opening statement, the prosecutor said the following to the jury regarding the defendant’s postarrest conversation with Officer Annino:
“Never in that conversation, you’ll hear, did the defendant say anything that occurred out in the hallway [on the morning of the stabbing], nothing about anything that occurred in the parking lot. Later he’ll tell [the booking] officer that he was hit on the side of the head. And that will be the sum of every complaint this defendant will issue.”
The defendant’s trial counsel did not object; the appellate counsel now argues that the statement was a Doyle violation.
The prosecutor’s remarks were proper. By talking to the officers on his own volition, the defendant waived his Miranda rights (and he does not argue to the contrary). What the defendant thereafter chose to say or not say to each officer on the subject could properly be commented on by the prosecutor to expose inconsistencies. Commonwealth v. Snell,
b. Trial testimony. Contrary to the defendant’s contention, the prosecutor properly introduced evidence of the defendant’s statements to the booking officer, Sergeant Keady. Keady testified that, in response to a routine booking question concerning whether he had any injuries, the defendant stated only that he had been hit on the side of the head.
The defendant next argues that Doyle problems “emerge[d] full-blown during [his] cross-examination.” The problems arose, he claims, when the prosecutor inquired into conversations the defendant engaged in after he was arrested. At the hospital, in police custody, he spoke with a nurse, a security guard, and a
The line of questioning was proper. The prohibition of Doyle applies only to police interrogations. Doyle v. Ohio,
For the same reasons, there was nothing improper in the prosecutor’s calling the defendant’s sister as a rebuttal witness to show that, while making some statements to her about the stabbing, the defendant did not provide certain details to which he testified at trial. Although the defendant made statements to his sister while he was incarcerated, there was no custodial interrogation. See Doyle v. Ohio, supra at 619.
c. Prosecutor’s closing argument. Finally, the prosecutor’s comments in his closing argument concerning what details of the stabbing the defendant did not relay to certain witnesses
3. Jury instructions. The defendant next argues that the judge’s instruction to the jury, given twice, that an inference of malice may be drawn from the use of a dangerous weapon was “badly misplaced in the first instance,” permitting an improper inference of first prong malice (specific intent to cause death) from the use of a dangerous weapon. Because the defendant did not object to that instruction, we review the instructions to determine whether there is a substantial likelihood that a miscarriage of justice has occurred. Commonwealth v. Ruddock,
The jury are permitted to infer malice from the use of a dangerous weapon. See Commonwealth v. Benjamin, supra, and cases cited (that malice may be inferred from intentional use of dangerous weapon is settled law). See also Commonwealth v. Obershaw,
4. Written instructions to the jury. Over the objection of defense counsel, the judge provided the jury with a written outline of the elements of the various crimes encompassed by the murder indictment: murder in the first degree based on deliberate premeditation and extreme atrocity or cruelty; murder in the second degree; and voluntary manslaughter, including voluntary manslaughter caused by excessive use of force in self-defense. The defendant maintains that these instructions were incomplete and prejudicial because they omitted important concepts of law that were favorable to the defense, such as the law of self-defense and the mitigating factors of provocation and sudden combat. The defendant claims that, because he objected at trial, the judge erred in providing the jury with the outline, as both parties must agree before any portion of the judge’s instruction is provided in writing to a jury. See Commonwealth v. Dilone,
A judge may provide the jury with an accurate statement of the elements of a crime in a summary form, in writing, without the parties’ consent. Commonwealth v. DiBenedetto,
Because the judge instructed the jury in accordance with Commonwealth v. DiBenedetto, supra, i.e., that they must find each element of the crime beyond a reasonable doubt, there was no abuse of discretion. There is no requirement that a judge provide an outline of the defendant’s defenses. Id. See Commonwealth v. Larkin,
5. Propriety of the prosecutor’s closing argument. The defendant argues that the prosecutor’s closing argument was improper because it misstated several important points of evidence and that the prosecutor improperly vouched for the Commonwealth’s witnesses. Because the defendant did not object to the portions of the prosecutor’s closing argument he now challenges, the court must review whether any such errors created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Maynard,
a. Misstating evidence. Prosecutors must limit the scope of their closing arguments to facts in evidence and the fair inferences that may be drawn therefrom. Commonwealth v. Stote,
1. The Commonwealth concedes that the prosecutor’s statement that the defendant testified that, after the stabbing, he had returned to his room to make a telephone call, was erroneous. The Commonwealth contends that, despite the error, no substantial likelihood of a miscarriage occurred because the remark, in the form of a rhetorical question, came from an inference supported by the evidence, namely the testimony of three witnesses that, after the stabbing, the defendant walked back toward the rooming house’s main entrance (i.e., in the direction of his room).
2. The prosecutor’s comments suggesting that the defendant had been wearing a baseball cap when he stabbed the victim were founded on the evidence presented at trial and, thus, not improper. Commonwealth v. Duguay,
The prosecutor stated: “That baseball cap. Did he go through this whole life and death battle with a baseball cap on his head? Was he rolling around on the carpets with a baseball cap on his head? Or did he just pull into the police station and put it on so he’d look his best when he went in?” The prosecutor’s remark suggested a permissible, although not particularly strong, inference from evidence that challenged the defendant’s claim of a life and death struggle before the stabbing. See Commonwealth v. Duguay, supra; Commonwealth v. Raymond, supra (evidence, while not compelling, was “sufficient to justify the prosecutor’s argument”).
3. The defendant next contends that the prosecutor erred when he argued the possibility that words were exchanged through the open window in the defendant’s room.
4. During the trial, the prosecutor impeached the defendant’s sister with her grand jury testimony that the defendant had told her that the altercation was “all fists.” In his closing argument, however, the prosecutor stated: “He [the defendant] told the grand jury [the altercation] was all fists.” The Commonwealth concedes that this assertion was improper. This mistaken assertion, the defendant argues, if believed by the jury, would have “affirmative[ly] impeach[ed]” the defendant’s trial testimony about the knife and would have amounted to an admission by the defendant that he had lied to the grand jury. Because the defendant’s credibility was central to his defense of provocation and mitigation, the error, the defendant claims, requires a new trial.
The misstatement by the prosecutor constituted error and we must now decide if the error was prejudicial. See Commonwealth v. Wilson,
b. Improper vouching. Improper vouching occurs if “an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.” Commonwealth v. Wilson, supra at 352. The defendant claims that the prosecutor improperly
Where the credibility of a witness is at issue, “it is certainly proper for counsel to argue from the evidence why a witness should be believed.” Commonwealth v. Raymond, supra at 391, quoting Commonwealth v. Thomas,
Because the defendant raised the issue of credibility of the three eyewitnesses’ testimony, it was not improper for the prosecutor to comment on the consistency of their accounts; he did not vouch for their credibility. Commonwealth v. Chavis,
6. Review under G. L. c. 278, § 33E. We have reviewed the entire record on both the law and the facts pursuant to our obligation under G. L. c. 278, § 33E, and conclude that the defendant is not entitled to relief of any kind. The defendant’s conviction is supported by overwhelming evidence. The interests of justice do not require either a new trial or the entry of a verdict of a lesser degree of guilt.
Judgment affirmed.
Notes
In addition, the standard police form detailing the defendant’s injuries contained a notation that he had been hit on the side of the head. A photograph of the defendant revealed that he also had an abrasion on the left side of the chin.
The defendant did not indicate that he had suffered any other injuries.
The defendant also stated that the victim had been harassing him for about one year preceding the incident. When asked why he had not complained to the management, the defendant explained that he thought “[tjhey’d probably laugh at [him].”
We shall discuss the remaining facts as they pertain to the specific issues raised.
The defendant attempts to dismiss the Commonwealth’s proof of premeditation as “meager circumstantial evidence.” The argument is without merit. This court has long held that circumstantial evidence “may be a thoroughly satisfactory basis for conviction of the highest crimes.” Commonwealth v. Chipman,
There was also evidence that the defendant pursued the victim down a hallway, stabbing him five times.
As the defendant’s brief concedes, the sole evidence of mitigation came from the defendant’s own testimony. The jury, as the finders of fact, were free to reject the defendant’s version of events in its entirety. Commonwealth v. Parker,
Because we conclude that there was sufficient evidence of deliberate premeditation for the jury to find the defendant guilty of murder in the first degree, we need not address the issue whether there was sufficient evidence of extreme atrocity or cruelty.
Keady recorded the defendant’s reply on a standard booking sheet. The form also contained a line to explain the injuries. Keady stated that he wrote, “Hit on side of head,” and nothing else on that line.
Keady was first asked if the defendant ever told him that a knife had been held to his throat. The defense counsel objected, and after a sidebar conference, the prosecutor withdrew the question. The prosecutor then asked whether the form contained any other information. The defendant did not object to that question, but now claims it was improper.
Even if Keady’s question were not a routine booking question, the defendant still cannot demonstrate a substantial likelihood of a miscarriage of justice. See Commonwealth v. Thompson,
The defendant claims that, in violation of Doyle v. Ohio,
The judge instructed the jury: “As a general rule you are permitted to infer that a person who intentionally uses a dangerous weapon on another
In his closing, the prosecutor argued to the jury that the transfer stain on the door to the defendant’s room was made when he returned to his apartment after stabbing the victim. Based on the testimony of the eyewitnesses, the prosecutor drew the inference that the defendant returned to his room before leaving the rooming house and placed the stain on the door at that time.
The fact that no objection was made at trial lends further support to the inference that the prosecutor’s misstatement was “not so egregious and prejudicial as [the defendant] now claims.” Commonwealth v. Maynard,
There was some contrary evidence as well. One of the eyewitnesses, Anthony Ferrara, when asked whether the man he saw stabbing the victim had a hat on, responded, “I would say no, because I described him as short, fat, and balding, I think.” Another eyewitness, Paul LaFleur, when asked whether the defendant had a hat on at the time of the stabbing, first answered, “No, he did not,” but revised his answer almost immediately and stated that he could not remember.
The prosecutor stated: “That window’s open.” He later added: “Ladies and gentlemen, whatever transpired through that open window, into the hallways at 32 Guild Street that early morning, left this [defendant pissed off.”