The defendant was convicted of deliberately premeditated murder. On appeal he asserts error in (1) the judge’s refusal to instruct the jury that they could consider evidence of voluntary intoxication on the question of his capacity to pre
1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues. At approximately 4 p.m. on Junе 19, 2006, a group of about one-half dozen people was gathered in a park near Faneuil Hall in Boston. The defendant was among them. The victim was sitting on a nearby bench. Suddenly, witnesses heard yelling and observed people fleeing the area — except the defendant and the victim. The defendant walked behind the bench where the victim was sitting, pulled him оver the back of the bench, and threw him to the ground. Prior to that, the victim, who was unarmed, had neither struck the defendant nor made any threatening gesture toward him. The defendant yelled at the victim, who was on his back, telling him to “turn over” and “don’t you ever, ever fuck with me again.” The defendant then thrust a knife into the victim’s back and fled the scene, leaving the knife in the victim. The victim wаs taken from the scene by ambulance to a nearby hospital where he died from the knife wound.
The defendant went to a homeless shelter where he was staying and changed his clothes. He returned to the park about
At about 8 p.m. on June 19, the defendant was taken to an interview room where a detective asked if he would agree to be interviewed. The defendant told the detective that he first wanted to speak to his sister, who is a lawyer. The detective complied and escorted the defendant back to the holding cell. When they arrived at the cell, the defendant changed his mind and said he wanted to talk to the detective at that time without first talking to his sister. After waiving the Miranda rights but declining to have the interview recorded, the defendant told the detective he had purchased a pint of vodka and a bottle of “Ruby Red,” which he shared with his girl friend. After drinking for about forty-five minutes, he went out to buy more vodka. The defendant said he then went to look for his girl friend at the park, although the reason for doing so was not clear to the detective. The defendant said he was arrested shortly after he arrived at the park. The interview was terminated after approximately seventeen minutes because the defendant would not respond to further questions asked by the detective. Instead, he talked about his desire to become a preacher after seeing his father bury his brother and quoted the Bible. The detective terminated the interview not because of аny apparent condition that rendered the defendant incapable of answering questions, but because he would not answer questions.
The defendant presented the testimony of a vice-president of the shelter, with whom he had met for twenty to thirty minutes about two hours before the stabbing. The witness testified that he thought the defendant’s eyes were “glassy” and that the defendant listed to one side while walking. However, the defendant did not stumble or fall, and he repeatedly stood up and sat down without difficulty. The defendant also answered questions and otherwise spoke in an appropriate and coherent manner. Witnesses who observed the defendant at the time of the stabbing, when he went to the shelter minutes later to changе his
2. Voluntary intoxication. The defendant argues that because there was evidence that he was “impaired to any degree by the consumption of alcohol,” Commonwealth v. Herbert,
Here, the judge correctly denied the defendant’s rеquest to instruct the jury on voluntary intoxication. A jury instruction on voluntary intoxication is required only where there is evidence of “debilitating intoxication” that could support a reasonable doubt as to the defendant’s ability to form the requisite criminal intent. See Commonwealth v. Brown,
3. Voluntary manslaughter. The defendant asserts error in the
a. Reasonable provocation. A defendant is entitled to an instruction on voluntary manslaughter based on reasonable provocation if, viewing the evidence in the light most favorable to him, “there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Andrade,
b. Sudden combat. Before a defendant is entitled to an instruction on voluntary manslaughter based on sudden combat, there must be evidence that would warrant a reasonable doubt that the victim presented a threat оf serious harm to the defendant by attacking him or striking a blow against him. See Commonwealth v. Espada,
4. New trial motion. The defendant filed a motion for a new trial in which he claimed his Sixth Amendment right to a public trial was violated by closure of the court room during the jury selection process. See Presley v. Georgia,
On September 6, 2007, the first day of jury selection, the proceedings аdjourned before the 1 p.m. luncheon break, and the court stood in recess until the next day of trial, September 10. On the afternoon of September 6, the defendant and trial counsel were allowed to use the court room as a private conference room, to the exclusion of everyone else except court officers who were charged with the custody of the defendant. Jury selection resumed on September 10 and was concluded before the 1 p.m. luncheon break. The court stood in recess until the next day.
The judge did not ask or direct anyone to leave the court room during jury selection, nor did any court staff person or court officer. No one was denied entry to the court room during jury selection. There was no sign on any court room door that prohibited entry during jury selection, and the door through which the public entered the court room was not locked. The court room was and remained open to the public when the court was in session for jury selection. No court room closure occurred at any time during jury selection.
The defendant’s sister who claimed to have been excluded from the jury selection process on September 10 was a postal service employee at the time. Her employment records indicate that she worked from 5:13 a.m. until 2 p.m. on September 6, 2007, and from 5:03 a.m. until 2:05 p.m. on September 10, 2007. On both days, if she walked to the court house, she would have аrrived at about 2:30 p.m. However, on each of those days, the court recessed the trial no later than 1 p.m. Consequently, she could not have been excluded from jury selection.
The defendant’s other sister, a practicing attorney, had provided some assistance to the defense as early as July 7, 2006. On September 6 and 10, 2007, she was involved in matters for clients in courts outside Suffolk County and was unable to attend the defendant’s trial. The defendant’s trial counsel would have objected to any closure of the court room at any time, as
“[T]he burden is on the defendant to demonstrate that the public was excluded from his trial.” Commonwealth v. Cohen (No. 1), supra at 107-108, quoting Commonwealth v. Williams,
The defendant’s strongest claim that the judge’s findings arе clearly erroneous is a parenthetical statement by the court reporter at the end of the transcript for the proceedings on September 10, 2007, to the effect that “[cjourt recessed at 4:04 p.m.” According to the transcript for that day, the judge greeted each potential juror during individual voir dire by saying “good morning.” The transcript was only ninety-nine pages long (a very small volume) and, on page eighty-six, indicated an “[ijndiscemible” statement by the judge at “1:40:49” p.m., after the jury selection process had concluded and before what was to have been the luncheon break. The judge then engaged counsel in a discussion about scheduling that consumed two and one-half pages of transcript. He exрressed his frustration that the afternoon session that day could not include his precharge to the jury and opening statements of counsel because opening statements apparently already had been scheduled to take place the next day. This was followed by dismissal of potential jurors who remained in the court room, instructions to the selеcted jurors as to what they could expect by way of a trial schedule, and cautionary instructions about remaining fair, impartial, and self-quarantined from outside sources of information — all of which comprised about eight pages of the transcript. Another brief conversation with counsel took place that comprised the final two pages of the transcript. It makes no sense that these few, brief events, from the end of the jury selection process to the recess, would have lasted two hours and twenty-four minutes, ending at 4:04 p.m. The judge’s finding that jury selection concluded before the luncheon recess is supported by the record and is not clearly erroneous.
Finally, after remand, the defendant filed a motion for post-conviction discovery. The judge took no action on the motion other than to recommend that defense counsel communicate with the general counsel of the Administrative Office of the Trial Court. Defense counsel corresponded with the general counsel and received a statement from the chief court officer as to practices concerning court room closure during empanelment. Thе statement was not helpful to the defendant. The defendant otherwise did not establish “a prima facie case for relief.” Mass. R. Crim. P. 30 (c) (4), as appearing in
5. Relief under G. L. c. 278, § 33E. We have reviewed the entire record and discern no basis for reducing the degree of guilt or ordering a new trial.
Judgment affirmed.
Order denying motion for a new trial affirmed.
Notes
Thе defendant’s direct appeal was entered in this court on March 24, 2009; on September 7, 2010, the court granted a stay of his appeal to allow the defendant to file a motion for a new trial. The motion judge, who was also the trial judge, denied the motion without a hearing. The defendant’s appeals from his conviction and the denial of his new trial motion were then consolidated. Following oral argument, on December 22, 2011, the court remanded the case “for the purpose of obtaining findings regarding the defendant’s Sixth Amendment claims.” The trial judge’s findings of fact were subsequently filed in this court on June 22, 2012.
Although the defendant relies on testimony of the detective who interviewed him about four hours after the stabbing that at the end of the intеrview the defendant’s answers were “nonresponsive,” the detective made clear that by