A jury convicted the defendant of murder in the first degree based on a theory of deliberate premeditation. The defendant has appealed from the conviction, claiming that the
1. Background. We summarize the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. Commonwealth v. Fisher,
During the following weeks, the relationship deteriorated. The defendant and the victim argued frequently. She moved out of their home. Approximately one month prior to the murder, the defendant approached one of the victim’s friends and informed her that the victim had “better be willing to die for [the baby] because if anything happens to the baby, that’s what’s going to happen to her.” Shortly thereafter, the defendant held a knife to the victim’s neck and warned her that “one day something was going to happen to her if things continued the [way they were].” Nine days before she died, the victim, again fearing that the defendant would harm her, obtained a second protective order against him.
On the day of the murder, despite the no-contact order, the defendant paged the victim twice, both times entering the code “911,” followed by their former telephone number, effectively summoning her to their former residence. In response, the victim left her apartment with her older son,
The defendant testified to the following. In the bedroom, he asked the victim why she had obtained the protective order. She did not respond and they began to argue. She then approached the defendant with a fireplace poker “down by her side” and struck his head with her fist. The defendant did not sustain any injuries from the blow. He could not account for the presence of thе poker in the bedroom of a house that no longer had a fireplace. In response to the victim’s actions, he “instinctively” reached to the floor for a kitchen knife. Again, the defendant could not explain why a kitchen knife was on the bedroom floor. After he picked up the knife, they “had a struggle and she fell and [the defendant] fell on top of her” with the knife in his hand, although he could not remember what causеd him to fall. He attempted to break his fall with the hand holding the knife, and at this point, he went into what he referred to as “shock.”
2. Motions for a required finding of not guilty. The defendant
A defendant is entitled to a required finding of not guilty only when “the evidence is insufficient as a matter of law to sustain a conviction on the charge.” Mass. R. Crim. P. 25 (a),
a. Deliberate premeditation. The evidence was more than sufficient to support a finding that the murder was committed by the defendant with deliberate premeditatiоn. The jury heard evidence that “warranted a finding that the defendant’s resolve to kill the victim was the product of cool reflection . . . even if formed in a matter of seconds” (citations omitted). Commonwealth v. Andrews,
b. Malice aforethought. Equally sufficient was the evidence that the defendant acted with malice aforethought, which in the context of deliberately premeditated murder, means an intent to cause death. Model Jury Instructions on Homicide 8 (1999). Commonwealth v. Jiles,
3. Spontaneous utterance. The defendant claims that the judge erred in admitting certain portions of Cynthia Ravizee’s testimony. He filed a motion in limine to exclude the testimony as hearsay. After conducting a voir dire of Ravizee, the judge ruled that the testimony was admissible as a spontaneous utterance. Ravizee testified, over the defendant’s objection, that two weeks before the murder, just after a fight between the defendant and the victim, the victim told her that during the fight, the defendant held a knife to the victim’s neck and informed her that “one day something was going to happen to her if things continued the [way they were].”
Under the spontaneous utterance exception to the hearsay rule, “a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, сharacterize and explain the underlying event.” Commonwealth v. Crawford,
The question whether the judge properly admitted the victim’s statement turns on whether, during the time that elapsed between the time of the incident and the time at which she made the statement, the victim was capable of “reflecting sufficiently on the incident to contrive a false story.” Commonwealth v. Grant, supra at 81. We conclude that she was not. The evidence presented at a voir dire hearing warranted the conclusion that the victim made the statements to Ravizee while she was still under the influence of the exciting event, see Commonwealth v. Nunes,
The defendant argues that “the totality of the circumstances suggest deliberation, not spontaneity.” When she arrived at Ravizee’s approximately two hours after the event, she dressed the baby, and waited for Ravizee tо listen to her story. Thus, the defendant insists, when she finally made the statement, it was not spontaneous. We are unpersuaded by this argument. Ravizee’s testimony established that the victim uttered the spontaneous statement while in a highly agitated state, precipitated by a recent traumatic event, before the victim “had time to contrive or fabricate the remark, and thus it has sufficient indicia of reliability.” Commonwealth v. Zagranski,
4. Evidence of prior bad acts. The defendant argues that the judge erred in admitting Ravizee’s statement, discussed above, as well as Cheryl Kemp’s testimony that about three weeks prior to the killing, the defendant informed Kemp that the viсtim had “better be willing to die for [their baby], because if anything happens to the baby, that’s what’s going to happen to her,” as “prior bad acts” evidence. Although he objected to these statements at trial on hearsay grounds, he did not specifically challenge their admission as prior bad acts. See P.J. Liacos, Massachusetts Evidence § 3.8.3., at 85 (7th ed. 1999) (“When objecting, counsel should state the specific ground of the objection unless it is apparent from the context”).
In particular, the defendant claims that such evidence was more prejudicial than probative. As previously discussed, Ravizee’s testimony was properly admitted as a spontaneous utterance. Kemp’s statement was admissible, if for no other reason, as an admission of a party opponent. See P.J. Liacos, Massachusetts Evidence, supra at § 8.8.1, at 496 (“Any extrajudicial statement by a party may be admitted in evidence against that party by an opponent, and will not be excluded on the ground it constitutes hearsay”); Commonwealth v. Lewin
Here, the testimony of both witnesses was directly relevant to the defendant’s intent or motive to kill the victim. See Commonwealth v. Squailia,
The determination whether the prejudicial effect of this evidence outweighed its probative value is well within the sound discretion of the judge, Commonwealth v. Snell, supra, and one that we shall not disturb “unless, in our judgment, it is palpably wrong.” Commonwealth v. Fordham, supra at 22. See Commonwealth v. Gunter, 427 Mass. 259, 262-263 (1998). There was no such error in this case. Both of the hostile and threatening statements “depict[ed] the existence of a hostile relationship
Although the defendant did not request a limiting instruсtion at the time the evidence was admitted, the judge, in her charge to the jury, gave a clear and explicit instruction on the limited use of prior bad acts evidence. Commonwealth v. Ferguson,
5. Testimony of the victim’s son. In the context of his request for relief under G. L. c. 278, § 33E, the defendant argues that the prosecutor called the victim’s son in a “calculated” attempt “designed” to generate sympathy improperly. He further claims that, even if the evidence presented by such testimony was relevant, its probative value was substantially outweighed by its prejudicial effect. The defendant had filed a pretrial motion in limine to exclude the testimony, and then renewed his objection to the testimony’s admission after a voir dire of the witness. Consequently, although he essentially argues that the admission of this testimony amounted to а substantial likelihood of a
We conclude that the evidence was properly admitted. Initially, we note that no evidence of “calculated impropriety” on the part of the prosecution in calling the victim’s son to testify has been shown. “There is no basis to сonclude that the Commonwealth called the witness improperly.” Commonwealth v. Andrews,
Moreover, in murder cases, “there is no error where a member of the victim’s family likely to elicit sympathy testifies as to some relevant issue, even a relatively peripheral one and even where another witness could have given the same information without evoking the same level of sympathy from the jury.” Commonwealth v. Santiago,
6. Section 33E review. Having reviewed the record as a whole, we discern no reasons to exercise our authority under G. L. c. 278, § 33E, to order a new trial or reduce the degree of guilt.
Judgment affirmed.
Notes
The defendant is not his father.
The defendant presented no medical evidence at trial that he actually went into shock. At trial, he defined “shock” as being unaware of his surroundings and what had taken place.
Specifically, he did not initially realize that the victim had been stabbed, or that she exhibited any symptoms of the injury, such as blood loss or an inability to breathe.
For the same reasons, the defendant’s claim that the denials of his motions for a required finding of not guilty violated his due process rights under the Fourteenth Amendment to the United States Constitution is without merit. See Commonwealth v. Latimore,
In addition to challenging the judge’s denial of the motion for the required finding of not guilty, the defendant also contends that the judged abused her discretion in denying the defendant’s motion for a new trial or to reduce the verdict pursuant to Mass. R. Crim. P. 25 (b) (2),
Unlike some of these cases, the victim and the defendant were not married. Given the facts, this is a distinction without a difference.
In addition, the defendant asserts that the statements were more prejudicial than probative because they were “conditional,” and because there was no evidence of malice or deliberate premeditation other than these threats. Given the other evidence of malice and deliberate premeditation discussed supra, we see no merit to this contention.