434 Mass. 197 | Mass. | 2001
A jury convicted the defendant, David W. Rosado, of murder in the first degree on a theory of extreme atrocity or cruelty. In a separate trial, Kevin M. Babbitt also was convicted of murder in the first degree of the same victim.
I. Background.
The jury heard evidence substantially similar to that set forth in Commonwealth v. Babbitt, 430 Mass. 700, 702 (2000).
Some days later, the defendant, Babbitt, and another motel resident, Steven Richard, went to the victim’s room and saw him lying on his bed, naked with foam coming out of his mouth and white mucous on his lips. After rejecting a suggestion to seek medical attention for the victim, Babbitt — with the defendant and Richard present — put a pillow over the victim’s head and “leaned on it.” The defendant, Babbitt, and Richard then carried the victim’s body and deposited it in a shallow grave in the woods behind the motel. On March 1, 1995, the police recovered the victim’s body and a medical examiner concluded that the cause of death was blunt trauma to the head. Several witnesses reported hearing statements from the defendant regarding his participation in the beating, killing, and burial of the victim. In his defense, the defendant asserted that Babbitt’s suffocation of the victim constituted an intervening, unforeseeable event capable of breaking the chain of criminal culpability arising from the initial beating. Under this theory, the defendant acknowledged his participation in the beating and the burial, but denied any role in the actual murder.
To the extent it informs our assessment of the defendant’s claims, we briefly mention the joint venture theory proffered by the Commonwealth. The jury heard strong evidence to conclude that the defendant and Babbitt entered into a joint enterprise to murder the victim. The joint venture spanned from the initial beating to the burial and remained viable at all relevant times, including Babbitt’s suffocation of the victim. See Commonwealth v. Perry, 432 Mass. 214, 224 (2000) (facts supported submission to jury on theory that defendant engaged in ongoing joint venture over extended period of time).
The defendant claims that trial counsel’s failure to investigate the possibility of presenting expert testimony concerning the defendant’s intoxicated condition deprived him of an otherwise viable mental impairment defense, and contravened his constitutional right to effective counsel. Prior to trial, trial counsel learned of the defendant’s habitual intoxication and related history of aggressive behavior, but, according to the defendant, did not effectively incorporate such information into his defense. Although counsel hired a forensic expert, he admitted to the judge that, at the time of opening argument, he was “unclear” as to the substance of the expert’s findings.
Viewed “in fight of what a reasonably proficient trial lawyer
III. Jury Instructions.
The defendant claims the judge made several errors in his charge to the jury, some objected to and some not. Where the defendant did not object, we consider whether those portions created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Vinton, 432 Mass. 180, 188 (2000); Commonwealth v. Wright, 411 Mass. 678, 681 (1992). Where there was an objection raised, we determine whether there was an error, and, if so, whether it was prejudicial. Commonwealth v. Vinnie, 428 Mass. 161, 163 (1998).
a. Proximate cause of death instruction. As the judge noted, defense counsel presented “the most plausible defense available,” i.e., the victim survived the defendant’s beating but was suffocated by Babbitt.* ****
“The general rule is that the intervening conduct of a third party will relieve a defendant of culpability only if such an intervening response was not reasonably foreseeable.” Commonwealth v. Niemic, 427 Mass. 718, 727 (1998), quoting Commonwealth v. Askew, supra. After considering the events leading up to the defendant’s death — especially in light of the proffered joint venture theory
During his “cause of death” instruction, the judge twice referred to the import of the alleged joint venture. Given the viability of that theory, we need not speculate as to the jury’s findings regarding the actual cause of death. Whether by beating, asphyxiation, or burial, the jury heard sufficient evidence to support a finding that the defendant and Babbitt participated in a joint venture to kill the victim. At least one eyewitness identified them as the perpetrators of the attack. A few days after the beating, the defendant, Babbitt, and Richard returned to “check in” on the victim. The defendant took no action when Babbitt suffocated the victim with a pillow,
On this record, a reasonable jury could conclude that, from
b. Failure to instruct on voluntary manslaughter and mitigating circumstances. According to the defendant, evidence that the defendant’s actions were the product of reasonable provocation and “sudden transport of passion” triggered the need for a voluntary manslaughter instruction with respect to the mitigating circumstances that would negate malice. Over the defendant’s objection, the judge declined to give the requested instruction.
“In deciding whether the judge should have charged on manslaughter, we assume the version of the facts most favorable to the defendant.” Commonwealth v. Maskell, 403 Mass. 111, 116 (1988), quoting Commonwealth v. Schnopps, 383 Mass. 178, 179 (1981), S.C., 390 Mass. 722 (1984). Here, a voluntary manslaughter instruction was not warranted because no reasonable jury could possibly find any of the mitigating factors justifying a reduction from murder to manslaughter. See Commonwealth v. Vinton, 432 Mass. 180, 189 (2000); Commonwealth v. Parker, 402 Mass. 333, 344 (1988), S.C., 412 Mass. 353 (1992), and 420 Mass. 242 (1995) (although defendant testified that victim struck defendant twice, “no
Prior to his intruding on the victim, the defendant banged on the wall and threatened, “shut up or we’re going to come over there and kill you.” Then, according to the defendant’s own testimony, he knocked on the victim’s door at approximately 1 a.m. After exchanging unpleasant words, the victim “slammed the door,” causing the defendant to drop his beer. In response, the defendant “threw [his] shoulder into the [victim’s] door and the door popped open.” Once the defendant intruded into his room, the victim “came at [the defendant] with his hands up” and “looked angry.” The defendant then proceeded to beat the victim in a brutal fashion by pushing and kicking the victim repeatedly until “he wasn’t fighting back no more.” The victim’s efforts to expel the defendant from his premises can hardly be deemed “reasonable provocation” for the inhumane beating that ensued. Cf. Commonwealth v. Berry, 431 Mass. 326, 335 (2000) (instruction warranted where victim “charged the defendant” and hit him with beer bottle). Moreover, to the extent the evidence presented a joint venture lasting over a period of four days, a case for reasonable provocation or “sudden combat” cannot be maintained.
Given this record, we are convinced that no view of the evidence “would warrant a reasonable doubt that something happened [i.e., provocation] which would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint, and that what happened actually did produce such a state of mind in the defendant.” Commonwealth v. Little, 431 Mass. 782, 785-786 (2000), quoting Commonwealth v. Berry, supra at 334. As a result, the judge was correct in refusing to give a voluntary manslaughter charge.
c. Failure to give Gould instruction. Several witnesses testified to the defendant’s intoxication on the night of the beating.
“In this Commonwealth, while intoxication is no excuse or mitigation of a crime committed, a defendant is entitled, upon request, to an instruction to the effect that if he were so far overcome by intoxicating substances as to be rendered incapable of. . . committing murder with extreme atrocity or cruelty, the jury must return a verdict of murder in the second degree, if they are satisfied beyond a reasonable doubt that all other elements of the crime are present.” Commonwealth v. Doucette, 391 Mass. 443, 455 (1984). See Commonwealth v. Shanahan, 422 Mass. 631, 632 (1996). Such instructions, “although required if requested, are not constitutionally based” (emphasis added). Commonwealth v. Barros, 425 Mass. 572, 578 (1997), quoting Commonwealth v. Doucette, supra at 455. The judge erred in omitting the requested charge.
Unlike Commonwealth v. McDermott, supra at 456-459 (omitting requested instruction, over defendant’s objection, war
d. Instructing on murder in the second degree before murder in the first degree. The judge offered “the definition of second degree murder” before defining first degree murder because “[i]t is easiest to understand if I define second degree murder first.” The defendant’s argument that the inversion was error is answered by Commonwealth v. Raymond, supra at 387, where the judge addressed murder in the second degree first, but “did not direct the jury to make a decision on second degree murder before considering murder in the first degree, which was the critical error” in Commonwealth v. Sama, 411 Mass. 293, 299-300 (1991) (error where judge repeatedly instructed jury to consider first whether defendant was guilty of murder in second degree and then decide whether evidence supported a finding that would increase verdict to murder in the first degree). Similarly, in this case, “we see no possibility that a reasonable juror could have misunderstood the instructions simply because
e. Instructions on inferences. The judge instructed that “[t]he jury may draw reasonable conclusions from the evidence as long as any conclusions or inferences that you draw are solidly based on the evidence and the jury’s calm reasoning applied to the evidence. You may not guess at something, but you may apply your reasoning powers to draw reasonable and fair conclusions from the evidence as long as it is solidly based on the evidence and based on the jury’s fair reasoning.” The defendant objected, stating, “There was no definition or instruction on what ‘solidly based’ is. There were no examples . . . given what is a reasonable and what is an unreasonable inference.” Although the judge did not “define” the term “inference,” his instructions adequately conveyed the nature of the inference-drawing process, i.e., applying one’s “reasoning powers to draw reasonable and fair conclusions from the evidence as long as it is solidly based on the evidence and based on the jury’s fair reasoning.” See S.B. Hrones & W.P. Homans, Jr., Massachusetts Jury Instructions — Criminal No. 2-2 & comment (2d ed. 1999). See Commonwealth v. Shea, 398 Mass. 264, 270 n.3 (1986). To the extent that inferences were essential to proving any element of the crime, the judge instructed the jury to “determine whether the fact [or facts] has been proven beyond a reasonable doubt.” See Commonwealth v. Niziolek, 380 Mass. 513, 522 (1980). Moreover, the judge’s decision to forgo approved illustrations such as shoe prints in the snow, see Commonwealth v. Webster, 5 Cush. 295, 312 (1850), or mail through the mail slot, see Commonwealth v. Talkowski, 33 Mass. App. Ct. 720, 722 (1992), does not constitute grounds for reversal.
f. Instruction on unlawful act manslaughter. As part of his unlawful act manslaughter charge, the judge stated that “this type of manslaughter . . . requires an assault and battery not amounting to a felony where the defendant knew or should have known from the circumstances that the assault and battery endangered human life.” The defendant did not object at trial, but now contends that the judge erred by making “the non-felonious character of the battery an element of the crime of battery involuntary manslaughter.” Based on the evidence, a reasonable jury could find the elements of battery manslaughter, i.e., whether in the circumstances known by the defendant, a reasonable person would have recognized that the battery endangered human life. Our most recent jurisprudence in this matter confirms — either explicitly, Commonwealth v. Williams, 428 Mass. 383, 390 (1998), or implicitly, Commonwealth v. Cruz, 430 Mass. 182, 186 (1999) — that the underlying battery or “unlawful” act must “not amount[] to a felony.” Accordingly, the judge’s instruction on the matter was not error.
We reject the defendant’s remaining claims of error. The jury were properly instructed regarding both joint venture, see Commonwealth v. Semedo, 422 Mass. 716, 723 (1996) (knowledge of joint venturer’s possession of weapon not necessary in extreme atrocity or cruelty cases); Commonwealth v. Springer, 49 Mass. App. Ct. 469, 483 (2000), quoting Commonwealth v. Colon-Cruz, 408 Mass. 533, 555 n.13 (1990), and the Cunneen factors. See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). See also Commonwealth v. Niemic, 427 Mass. 718, 723 (1998) (upholding substantially equivalent Cunneen instruction).
IV. Conclusion.
Pursuant to our duties under G. L. c. 278, § 33E, we have reviewed the entire record. We find nothing that compels us to exercise our discretion to disturb the jury’s verdict, either by
So ordered.
Commonwealth v. Babbitt, 430 Mass. 700 (2000).
We consider the defendant’s direct appeal as well as the denial of his motion for a new trial and his amended motion for funds.
The major difference between the two trials lies in Rosado’s decision to testify in his own defense. His version of the events leading up to the victim’s death are discussed in the context of his claims of error. During the course of his testimony he acknowledged that he participated in the beating, was present during Babbitt’s suffocation of the victim, and assisted in the burial of the victim’s body, but denied killing the victim.
As late as the fifth day of trial, defense counsel admitted, “There’s a question as to whether I’m going to have [the expert testify] or not, but it’s going to be resolved tonight . . . if I have to stay up half the night trying to get ahold [sic] of him.” When the defense rested, the judge asked whether the decision not to call the expert was based on “unavailability” or “for tactical purposes.” Counsel responded, “I’m not calling [the expert], because I have full knowledge of what his testimony would be had he testified.”
The trial judge rejected a similar argument as part of the defendant’s motion for a new trial. In concluding that trial counsel “was not incompetent or ineffective by pursuing [cause of death] strategy without also seeking out a psychologist to testify about the defendant’s intoxication and mental state,”
Conversely, the defendant’s ability to recall detail tends to disprove an opinion that he suffered from mental impairment at any pertinent time. See Commonwealth v. Harris, 387 Mass. 758, 761-763 (1982).
Relatedly, the defendant challenges the judge’s denial of his motion for funds, pursuant to G. L. c. 261, § 27C, to retain the assistance of a clinical psychologist. “Section 27C does not authorize a judge to allow costs in connection with the presentation of a new trial motion based on a claim of ineffective assistance of counsel.” Commonwealth v. Carter, 429 Mass. 266, 270
The medical examiner listed “blunt head trauma” as the cause of death, but could not rule out asphyxiation. The jury also heard testimony that the victim’s body emitted “a noise that sounded like air” when dropped into the shallow grave. This evidence suggests that the victim may have survived the attempted suffocation and was buried alive.
“Cause of death. I’ve used that term. Let me tell you what that means in the law. For the defendant to be guilty of any form of murder or manslaughter, the defendant’s conduct, either individually or while participating in a joint venture, must have caused the death of [the victim]. Cause means conduct which, by the natural and continuous sequence of events, caused the death and without which the death would not have occurred.
“Under the law, the defendant’s conduct need not have been the only cause of death. It is not necessary that it be the sole cause of death. If the defendant, either individually or in a joint enterprise, beats a man to a point where his life is in jeopardy and death follows as a consequence of this beating, the defendant’s conduct caused his death in the law, even if other causes cooperated in producing the death. So, as I said, it need not be the sole cause.”
The joint venture dimension of this case distinguishes it from those relied on by the defendant. See, e.g., State v. Munoz, 233 Conn. 106, 114-127 (1995) (where defendant claimed unidentified third party inflicted fatal blows, failure to instruct on intervening cause warranted reversal).
There was testimony that, immediately prior to the beating, the defendant unsuccessfully attempted to suffocate the victim.
The defendant’s contention that the jury could have believed that the victim had a history of mental illness-paranoia also lacks merit. In seven volumes of transcript, only a solitary reference to the victim’s mental history appears and thus such evidence is insufficient to warrant the requested charge.
The jury interrupted their deliberation to ask for “another explanation of the factors that contribute to a finding of ‘by extreme atrocity or cruelty.’ ” After the judge’s restating the initial instruction, the defendant renewed his objection as to the omission of any intoxication language.
Notwithstanding this conclusion, we reiterate our recommendation in Commonwealth v. Sama, 411 Mass. 293, 300 (1991), that a “jury should not be instructed to find murder in the second degree and then proceed to inquire whether the defendant is guilty of murder in the first degree. A jury should be instructed first to decide whether the defendant is guilty of murder and, if so, then to decide whether the defendant is guilty of murder in the first degree.”
The defendant suggests that the inferences instruction raises a particular concern regarding one juror who expressed an inability to understand “fancy words.” From the outset, the judge encouraged the juror to raise his hand if he had trouble understanding any terms. There is no evidence that the instruction confused this, or any other, juror.