A jury сonvicted the defendant, Michael Lodge, of murder in the first degree on the ground of deliberate premeditation.
The jury could have found the following facts. The body of the victim was discovered at approximately 9 p.m. on January 25, 1995, in the apartment she shared with the defendant and his sixteen year old son, Michael, in the Dorchester section of
The victim and the defendant had lived at the apartment for approximately three years and had been together for thirteen or fourteen years. In the year prior to the murder, the relationship between the victim and the defendant had become troubled. The victim’s brother testified that he had observed “discord” in the relationship. Approximately four to six weeks before the murder the victim inquired of Officer Vincent Stevens of the Boston police department, a long-time family friend, regarding the process for obtaining a protective order agаinst the defendant. Approximately two weeks before the murder, the victim telephoned her brother because she was having an argument with the defendant. Her brother came to the apartment and found the victim crying. On January 13, 1995, the defendant asked the victim’s brother how to obtain a gun permit and later that day told the victim’s brother, “I’ve been having to watch my back lately.” He then motioned toward his side as if to indicate that he had a gun.
On the night of the murder, Renee Covan, a resident of the neighborhood, saw the defendant crouched in a chair on her porch. Despite the fact that it was January, the defendant was wearing a pair of jeans, but no shirt or shoes. He asked Covan to find оut where his son was and to telephone his sister. He then asked for a shirt and a pair of sneakers and left her property after receiving them. The defendant and his son knocked on the door of Raymond Finder’s house sometime that evening.
The defendant told his brother-in-law that earlier in the evening somebody rang his doorbell, he opened the door, “they” entered his apartment, and a struggle ensued. The defendant also said that during the struggle a gun went off and that he ran from the apartment, jumped over a fence, and cut
After reporting his version of events to the police, the defendant, his sister, his brother-in-law, and two police officers returned to the defendant’s apartment. When the group arrived at the apartment, the defendant approached the locked outer door with a set of keys, but was unable to open the door using the keys. Ultimately, he kicked in the door. The officers followed the defendant as he went downstairs tо his apartment. The defendant entered and went toward the kitchen and then directly to the victim’s body which was slumped against a wall and covered with clothing.
Soon after the discovery of the victim, the defendant began having trouble breathing and was taken to a hospital by ambulance. At the hospital, Officer David Perez questioned the defendant. The defendant repeated the same version of events he had told his brother-in-law except that he claimed that he was in bed when four black men came to the door and that the victim answered the door. He also stated that during the flight from the apartment he lost consciousness for a period of time.
Shortly after the recovery of the body, the police searched the apartment pursuant to a search warrant. The furniture in the apartment was not disturbed, and although the apartment was cluttered, there was no sign of a struggle. Among the items recovered from the crime scene by the police were a bullet shell casing, a two-by-four piece of lumber that could have come from a bracket on the inside of the apartment’s front door, a broken key found lying on the ground outside the door, wire from the apartment’s security alarm, a Samurai sword and sheath, and bloodstains from the stairs and the wall and from under the victim’s fingernails. The two-by-four piece of lumber was stained with blood type O, the victim’s blood type. The other bloodstains were identified as human blood but there was not enough for grouping tests.
During the search of the apartment, Detective Paul B amide recovered a .38 caliber semiautomatic pistol, which was missing a single bullet, from the kitchen wall space behind the refrigerator. The area was loosely covered with insulation and under the insulation was a circuit breaker box framed into the wall. There was a slight gap between the circuit breaker box and the wall creating a hole. Detective Bamide peered into the hole and saw a hanger attached to the top of the circuit breaker box door.
At 1:10 a.m. on January 27, 1995, after his release from the hospital, the defendant voluntarily provided a formal statement to the Boston police department that was consistent with the statement he provided to Officer Perez at the hospital. In his statement, the defendant added that he had had a good relationship with the victim, that the victim may have known the intruders, and that he recently received a $100,000 settlement from the city of Boston.
1. Motions for a required finding. The defendant contests the judge’s denial of his motions for a required finding of not guilty filed at the close of the Commonwealth’s case and again at the close of all the evidence. He claims that there was insufficient evidence to establish that he was the murderer and that the murder was committed with deliberate premeditation. We disagree.
In reviewing a denial of a motion for a required finding, we determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore,
The evidence indicated that the relationship between the defendant and the victim had deteriorated and that the defendant had shown interest in, and perhaps hаd acquired, a gun shortly
As to еvidence of premeditation, the defendant had ensured that his sixteen year old son, who had been home from school ill on the day of the murder, was not home at the time of the shooting. There were no signs of a struggle in the apartment. Indeed, the apartment was quite small and cluttered; yet nothing within was amiss. Further, the gun had been fired from a position against the victim’s clothing. The jury could reasonably have concluded that this evidence showed beyond a reasonable doubt that the defendant committed the murder with deliberate premeditation. See Commonwealth v. Williams,
A witness may not give an opinion regarding the culpability of the defendant. See Commonwealth v. Hesketh,
We must now determine whether this error was prejudicial. See Commonwealth v. Flebotte,
We recognize that the improper opinion testimony was that of the lead investigator. We are convinced, however, that, stripping the improper testimony from the other evidence, “the judgment was not substantially swayed by the error.” Id. The defendant’s defense was that four unknown intruders killed the victim. There was overwhelming crediblе evidence to the contrary. The defendant testified that he (and only he) was with the victim when the intruders entered their home. There was no evidence of a struggle. A gun was found at the scene hidden in a location that an intruder could not have known existed. That gun killed the victim. All this evidence contradicted the defendant’s claim that intruders killed the victim, and the jury surely had to choose from two conflicting stories.
The defendant claims in addition that Detective B amide was improperly permitted to give expert opinion tеstimony regard
3. Relationship between the defendant and the victim. The defendant maintains that the judge erred by permitting a friend of the family to testify to a conversation he had with the victim approximately four to six weeks prior to the murder. The defendant objected to this testimony at trial. The victim told the
Statements of past violence or misconduct for the purpose of showing the “hostile relationship between the defendant and the victim” are generally not admissible. Commonwealth v. Seabrooks,
The statements here do not fall within that exception and should not have been admitted. The statements are indicative of the victim’s state of mind that the relationship had deteriorated but there was no other evidence that the defendant was aware of that state of mind. Thus, the fundamental prerequisite for admissibility of testimony of the victim’s state of mind was lacking and this hearsay testimony should not have been admitted. The error was insubstantial in light of the strong evidence of the defendant’s guilt; it did not prejudice the defendant and does not constitute a basis for a new trial. See Commonwealth v. Arce,
4. Closing argument. The defendant challenges several statements in the prosecutor’s closing argument. The prosecutor told the jury that the victim “was entitled to a right, too. She was entitled to the right to live and this man took it.” A “right to live” argument was determined to be inappropriate in Com
The defendant contends that two remarks by the prosecutor infringed on his right to silence under art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth Amendment to the United States Constitution. There was evidence that the defendant had been provided with sneakers and a sweatshirt after he ran from his apartment. These items were not admitted in evidence at trial. The prosecutor asked in
Later, the prosecutor also asked in the same vein: “What does the defendant tell you?” This rhetorical question, although a poor choice of words, was not error in context. The inquiry preceded a summary of the defendant’s account to the police and a critique of it. Accordingly, it was not a comment on the defendant’s election not to testify. See Commonwealth v. Sherick,
The defendant argues that the prosecutor implied personal knowledgе about the evidence. The prosecutor said: “We know about the restraining order against him.” The judge wisely
The defendant urges that the prosecutor’s statement, “There’s no registry of palm prints,” implies special knowledge by the prosecutor. However, the defendant has taken this statement out of context. The entire statement on the subject was as follows: “My brother has given you some little bits of information .... [Defense counsel] talks about a registry of palm prints. There’s no registry of palm рrints. There was never any evidence of that. Maybe fingerprints you could find some, but no palm print registry.” This appears to be a statement that there had been no evidence of any such registry. Indeed, the judge who heard the argument interpreted it as such. Nevertheless, the judge took the extra precaution of repeating to the jury that it was their memory of the evidence that controls and that if anything mentioned by the attorneys differed from their memory, they should not rely on the memory of the attorneys. There was no error. Although there were several errors in the prosecutor’s closing, when his argument is viewed in its entirety, with the curative jury instructions, these errors do not entitle the defendаnt to a new trial. Cf. Commonwealth v. Kozec, 399 Mass. 514, 516-525 (1987).
5. Motion to suppress. The defendant argues on appeal that the judge erred in denying his motion to suppress all physical evidence found at the scene (i.e., the gun) because the area searched (the space behind the refrigerator) was not within the scope of the warrant.
The warrant issued for a search of the “basement apartment and entryway thereto, contained within a [two] and one half story freestanding duplex house.” Items for which the police were authorized to search were evidence of a crime, “including handguns, ammunition thereto, expended bullets and casings.” The police located the murder weapon in a space behind the refrigerator. The defendant argues that this area behind the refrigerator was a common space and not within the curtilage of his apartment and that his motion to suppress should have been allowed on that ground.
If the defendant’s сomplaint is that the area searched was a common area, the defendant lacks standing under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights to raise the issue in regard to the murder conviction. Possession of a firearm is not an essential element of deliberately premeditated murder. Commonwealth v. Montanez,
6. Ineffective assistance of counsel. Pursuant to the guidelines of Commonwealth v. Moffett,
The defendant also claims that counsel did not seek to obtain funds to conduct tests of blood, specifically the blood on the two-by-four. Such investigation, he argues, would have identified the true perpetrator and exonerated the defendant. The police chemist testified that there were bloodstains at either end of the piece of wood. The stain that could be tested was consistent with the victim’s blood and not the defendant’s. No
7. Defendant’s pro se brief. The defendant, in a supplemental pro se brief, raises a number of issues that have been addressed in earlier parts of this opinion. We further note that the evidence was sufficient to convict the defendant of constructive possession of the firearm. His brother-in-law as well as the victim’s brother testified that the defendant lived in the apartment in which the gun was found. As to his arguments regarding ineffective assistance of counsel regarding the “secretor” issue and the composition of the jury, nothing in the record supports either claim.
8. Relief pursuant to G. L. c. 278, § 33E. We have considered the entire record pursuant to our obligation under G. L. c. 278, § 33E. There is no reason to exercise our authority to reduce the jury’s murder verdict or to order a new trial. The defendant is entitled to a fair trial, not a perfect one. Commonwealth v. Graves,
Judgments affirmed.
Notes
The defendant was also convicted of unlawful possession of a firearm. This conviction is addressed in the defendant’s pro se brief, see Parts 5 and 7, infra.
Neither Covan nor Finder was able to state with certainty the exact time they encountered the defendant.
Defense counsel repeatedly objected to this testimony and moved to strike as well. His objections were overruled and his motions denied.
Half thе defendant’s entire cross-examination of Barnicle was devoted to the detective’s allegedly unjustified pursuit of this defendant and the claimed ineptitude of the police investigation. Questions on this subject comprised approximately twenty-four pages of cross-examination.
There was also other strong evidence that the defendant knew that the victim was dead before her body was discovered. For example, there was testimony that the defendant knew the location of the body. The body had been covered, suggesting that intruders did not shoot the victim in haste.
Contrary to the defendant’s contention, the judge did not err in failing to give a Bowden instruction. See Commonwealth v. Bowden,
The defendant also objected to the detective’s testimony that blood can be transferred to the wall from bloody hands or clothing. As the defense counsel stated during a sidebar conference, the subject of the transfer of blood from one’s hands to objects touched is not a subject requiring expert testimony. In any event, the director of the Boston police crime laboratory had also testified previously to the fact that blood is transferred from one’s body to objeсts touched.
As noted in Commonwealth v. Seabrooks,
“[T]here was reference to [the victim’s] right to live. Obviously, in any situation when someone dies, it constitutes a tragedy, but in deciding the facts of this case, the jury cannot be governed by emotion. The jury has to carefully and impartially consider all the evidence in the case and determine whether or not the Commonwealth has met its burden of proof; that is, to show beyond a reasonable doubt that the defendant is guilty of the crimes with respect to which he is chargеd, and the jury cannot be governed by emotion for the deceased.
“Now that the attorneys have finished with all their evidence and their closing arguments, it is my responsibility to explain the law that the jury is to apply to the facts which you find. It is the responsibility of the jury to decide what the facts are in this case and to apply the law as stated by me. You are to perform your duties without bias, prejudice, or sympathy as to any party.”
The quoted portion of the closing argument is also troublesome because it suggests that the defendant could not answer an inquiry from his attorney. In fact, the defendant did not testify. The argument further assumes that there was evidence that the defendant “g[o]t rid” of the sneakers. There was no such evidence. The defendant did not object to the argument on these grounds and does not make such contention on appeal. We have considered these statements pursuant to our obligation under G. L. c. 278, § 33E. The judge instructed the jury twice to rely on their own memories of the evidence rather than the attorneys’ memories. He also specifically instructed the jurors at the start of the trial that nothing the assistant district attorney said constituted evidence. Given these instructions and those quoted in the text, there was no substantial likelihood of a miscarriage of justice. See Commonwealth v. Wright,
The motion was heard just before the start of the trial.
The motion to suppress lists six grounds, five of which clearly do not address the issue. One ground is that the actions of the police “unlawfully exceeded the bounds of permissible inquiry.” There is no “inquiry” involved in the application for or execution of a search warrant. Arguably, the defendant could be alleging that the police exceeded the scope of the search warrant. However, the memorandum of law submitted with the motion does not address the issue whether the search exceeded the scope of the warrant and the defendant waived oral argument on his motion. Thus, this proposition was never brought to the judge’s attention.
Further, the defendant has no constitutionally protected expectation of
Indeed, it appears that the defendant himself, by utilizing this area in the wall space, had extended the curtilage of the apartment by enlarging the area he occupied.