440 Mass. 731 | Mass. | 2004
A jury in the Superior Court convicted the defendant of murder in the first degree by reason of deliberate premeditation. Represented by new counsel, the defendant now argues that a new trial is required because the judge (1) refused to pose a collective question to the venire as to whether they, or a family member, had ever been a victim of a violent crime, and (2) failed to instruct the jury, sua sponte, on the use of non-deadly force in self-defense. We reject these arguments. We also conclude that there is no basis to exercise our power pursuant to G. L. c. 278, § 33E, to order a new trial or reduce the defendant’s murder conviction to a lesser degree of guilt. Accordingly, we affirm the defendant’s conviction.
In the motel room, the defendant and Pitts talked, drank, engaged in consensual sexual intercourse, and fell asleep. Pitts awoke early the next morning and began drinking. The defendant wanted to have sex again, but Pitts refused and was able to calm the defendant when he became aggressive. Pitts fell back asleep and did not hear the defendant leave the room.
At approximately 1 or 1:30 p.m. on December 10, 2000, the defendant entered a liquor store, accompanied by the victim, David Bortnik. The defendant appeared to have been drinking but was not noticeably intoxicated. While the victim shopped, the defendant told the store clerk that he had paid for a motel room as a Christmas present for the victim. The defendant also stated that he was going to buy the victim “pretty much what he wanted” so that he (the victim) would not have to bother “rolling old people.” The defendant told the store clerk, however, that if the victim tried to rob him, he (the defendant) would kill him. The defendant and the victim both laughed, and the store clerk did not perceive the statement as a threat. The defendant purchased vodka and beer. As the two men left the liquor store, the defendant reminded the victim that he would kill him if he “went after” the defendant’s money. The victim just laughed.
The defendant and the victim returned to the motel and told the desk clerk that they had been locked out of the defendant’s room. The desk clerk, accompanied by the two men, knocked on the door to room 37 and, after Pitts opened the door, returned to the motel office. The defendant, the victim, and Pitts (who was a friend of the victim) began drinking. The defendant, who
As the afternoon wore on, interaction between the defendant and the victim became testy. The defendant eventually fell asleep. Pitts then reached into his pockets. She removed his wallet and then $115.
At approximately 7 p.m. that evening, the defendant appeared in the motel office. He told the desk clerk that he had received an emergency telephone call
In a statement to police, the defendant related the following version of events. According to the defendant, it was Pitts who
The Commonwealth proceeded against the defendant on theories of deliberate premeditation and extreme atrocity or cruelty (the latter theory was not selected by the jury on the verdict form). The medical examiner testified that the victim had died as a result of asphyxiation by ligature strangulation and testified that the ligature most likely was the wire coat hanger.
The defendant did not testify. Through cross-examination of the Commonwealth’s witnesses, and through witnesses of his
1. Pursuant to G. L. c. 234A, § 22, each member of the venire was required to complete and sign a confidential juror questionnaire that elicited information to be used by the judge and lawyers during empanelment of the jury. The questionnaire provided a space for each potential juror to “[djescribe briefly any involvement (past or present) as a party or a victim in a civil or criminal case by you or any member of your immediate family.” In the course of jury selection, the defendant’s trial counsel requested that the judge inquire of the venire whether they, or anyone in their family, had ever been the victim of a crime of violence. The judge noted that the identical question had already been posed to prospective jurors by the confidential juror questionnaire. The defendant’s trial counsel indicated that, in his experience, one or more jurors may have been a victim of a violent crime but, intentionally or inadvertently, neglected to include this information in the written responses to the questionnaire.
The defendant does not now claim, nor is there anything in the record to indicate, that the chosen jurors were less than fair and impartial. He argues only that the jury may have included members whose views were tainted by personal experiences with violent crime and that the judge’s refusal to pose the requested question denied him the opportunity to probe for potential bias.
Beyond those mandated by G. L. c. 234, § 28,
The panel was sufficiently advised as to the nature of the case and the charge against the defendant. The judge explained in detail the importance of being aware of factors that could affect a juror’s impartiality, such as: pretrial publicity; a relationship with a prospective witness; the fact that the defendant had been indicted or held in custody; and the credibility of police officers as compared to lay witnesses. The judge carefully instructed prospective jurors to examine their consciences as to whether they were free from bias or prejudice. The judge then asked the group to respond by a show of hands if any prospective juror felt that he or she could not be impartial.*
2. The contested issue at trial was whether the defendant
A defendant is entitled to an instruction on the use of non-deadly force if any view of the evidence, regardless of the credibility, and resolving all reasonable inferences in favor of the defendant, would support a finding that nondeadly force was, in fact, used in self-defense. See Commonwealth v. Pike, supra. Here, the Commonwealth, through forensic evidence and testimony of the medical examiner, presented evidence that left no reasonable doubt that the victim died as a result of asphyxiation by ligature strangulation. The defendant presented no evidence to the contrary. Indeed, although he stated to police that he killed the victim by punching him in the neck, he subsequently appeared to concede that strangulation was the actual cause of death when he suggested to police that someone else may have entered the motel room after he had left. Significantly, even the defendant agreed that the latter was unlikely. We conclude that no view of the evidence would support a reasonable inference that the victim had died as a result of a punch to the neck. The jury were properly instructed on the issue of self-defense.
3. We have examined the record pursuant to our obligation under G. L. c. 278, § 33E. There is no basis on which to grant the defendant relief.
Judgment affirmed.
The encounter at the liquor store was recorded on videotape by the store’s security system. The videotape was shown to the jury.
Pitts testified under an agreement with the Commonwealth that allowed her to enter a plea of guilty to a charge of larceny in exchange for the Commonwealth’s promise to recommend a suspended sentence and probation in connection with that charge. The defendant’s trial counsel emphasized to the jury that Pitts’s testimony was one of three different versions of her activities recounted at various times by Pitts to police officers.
The medical examiner testified that the victim’s blood alcohol level was .35 per cent, over four times the legal limit to operate a motor vehicle.
The desk clerk testified that all telephone calls must go through the motel’s main switchboard and that no telephone calls had been received by the switchboard that afternoon.
On cross-examination, the medical examiner stated that it was possible that the victim had also received a blow to the neck, but steadfastly insisted the victim could only have died from strangulation.
We have not recounted other evidence presented by the defendant in connection with his contention that his alcoholism rendered him cognitively impaired at the time of the killing and, thus, incapable of premeditation. It is clear that the jury rejected the defendant’s intoxication defense, and no claim is raised on appeal with respect to that issue.
The record suggests that it was individual voir dire that was sought by the defendant’s trial counsel. He stated: “I find, however — we’ve done a lot of these individual voir dires, and we often find that even though it’s one of those three questions that they bring something up that they didn’t. . . .”
The first paragraph of G. L. c. 234, § 28, requires a judge, on request, to examine each prospective juror “to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein .... In a criminal case such examination shall include questions designed to learn whether such juror understands that a defendant is presumed innocent until proven guilty, that the commonwealth has the burden of proving guilty beyond a reasonable doubt, and that the defendant need not present evidence in his behalf.”
The second paragraph of § 28 provides that “if it appears that, as a result of the impact of considerations which may cause a decision or decisions to be made in whole or in part upon issues extraneous to the case, including, but not limited to, community attitudes, possible exposure to potentially prejudicial material or possible preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent, the court shall . . . examine the juror specifically with respect to such considerations . . . .”
We note that, although not required, it has long been common practice to do so on request. See, e.g., Commonwealth v. Sanchez, 423 Mass. 591, 593-594 (1996); Commonwealth v. Valentin, 420 Mass. 263, 268 n.5 (1995); Commonwealth v. Cassidy, 410 Mass. 174, 175 (1991); Commonwealth v. Pope, 392 Mass. 493, 505 n.15 (1984); Commonwealth v. Nickerson, 388 Mass. 246, 248 (1983); Commonwealth v. Core, 370 Mass. 369, 373 (1976).
We reject the defendant’s suggestion that the language or the legislative history of G. L. c. 234A, § 22, providing for a confidential juror questionnaire that elicits, among other things, information from the venire as to “present or past involvement as a party to civil or criminal litigation,” demonstrates an intention of the Legislature to require judges specifically to ask a similar question during voir dire. The controlling statute for purposes of the scope of voir dire is G. L. c. 234, § 28. As we have noted, the confidential jury questionnaire used in this case went further than the language of the statute by requiring prospective jurors to respond to the following question: “Describe briefly any involvement (past or present) as a party or a victim in a civil or criminal case by you or any member of your immediate family.”
At this point one prospective juror came forward and indicated that he could not be impartial because his daughter had recently been the victim of a larceny. The judge excused him.
We acknowledge appellate decisions from other jurisdictions, cited by the defendant, reversing convictions on the ground that the trial judge had denied
Even assuming that the defendant was entitled to an instruction on the use of nondeadly force in self-defense, we have no serious doubt that had the instruction been included, the result of the trial would have been the same. See Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).