The defendant was convicted by a jury of the deliberately premeditated murder of his wife. Represented by new counsel, he appeals from the judgment of conviction and the denial of his motion for a new trial in which he argued that his trial counsel had provided him with ineffective assistance. We conclude that there is no basis to order a new trial or to grant the defendant relief pursuant to G. L. c. 278, § 33E. Accordingly, we affirm the order denying the dеfendant’s motion for a new trial and the judgment of conviction.
The Commonwealth presented a strong case which warranted the jury’s concluding that the defendant shot and killed the victim after he had deliberately premeditated her murder. The defendant did not deny that he killed her. The contested issue at trial was whether the defendant did so intentionally, as the Commonwealth asserted, because he thought the victim was having an extramarital affаir, or whether, as the defendant claimed, he shot her accidentally. His contentions on appeal concern the introduction of what he argues was inadmissible evidence, alleged errors in the judge’s instructions to the jury, and alleged ineffective assistance by his trial counsel.
1. We discern no basis for reversal in the defendant’s arguments concerning the judge’s rulings on evidence.
(a) There was testimony that three or four days before thе killing, the defendant brought a briefcase to a neighbor’s house and asked the neighbor to hold it for him. The defendant told the neighbor that the briefcase contained personal papers that he
The prosecutor moved to introduce the briefcase and its contents in evidence.
The judge indicated that he would admit the evidence over an objection by the defendant’s trial counsel as to relevance. The judge, however, gave the defendant’s trial counsel the opportunity to examine the contents of the briefcase and object to any document or item in it. The defendant’s trial counsel declined the opportunity, stating, “I feel very sure there’s nothing [prejudicial] in there. I never had a question about that.”
The defendant now argues that the briefcase contained papers that were harmful to his case including, among other documents, a welfare applicаtion, information concerning past child support obligations, a copy of the divorce judgment from a prior marriage indicating that the divorce had been granted on the ground of cruel and abusive treatment, and information concerning a workers’ compensation claim.
We have examined the briefcase and the papers in it. The prosecutor’s general theory of relevance had merit, but the point
(b) The defendant’s trial counsel sought to introduce the testimony of two witnesses who wеre business partners of the man with whom the victim was supposedly having an extramarital affair. After hearing a brief offer of proof from the defendant’s trial counsel, the judge excluded it. The defendant argues that the testimony would have supported his own testimony that he believed that the victim was having an affair and explained why his relationship with the victim had begun to deteriorate. He claims that the exclusion of the evidence causеd prejudice.
The existence of an extramarital affair, by itself, would not excuse, justify, or mitigate the homicide. See Commonwealth v. Andrade,
(c) The defendant argues that the prosecutor engaged in improper cross-examination of his expert witness, a forensic psychologist. The expert testified that the defendant had a dependent personality and, at the time of the shooting, suffered from depression which had been building for months; that the defendant had “several other very significant stresses”; and that, while the defendant was not mentally ill, he had serious psychological problems which affected him when he accidentally shot the victim.
The prosecutor, in her cross-examination of the defendant’s expert, was met by objections from the defendant’s trial сounsel when she strayed over the boundaries of permissible cross-examination. By sustaining objections where appropriate, the judge kept the cross-examination within proper limits. The defendant’s expert himself corrected possible mischaracterizations of his testimony made by the prosecutor. The defendant has not shown that he was prejudiced by the prosecutor’s cross-examination.
(d) One witness testified that the defendant had once threatened him with a baseball bat, stating he would beat the witness’s head in because he suspected the witness “was trying to fuck his wife.” This prior bad act evidence was properly admitted, within the judge’s discretion, as relevant to show the defendant’s intent or his state of mind, and as some evidence tending to disprove that the killing was an accident. See Commonwealth v. Phinney,
We also reject the defendant’s argument that the prosecutor unfairly characterized the evidence in her closing argument. There was no objection to the argument by the defendant’s trial counsel. The prosecutor’s comments were based on the evidence, and, read in context, referred to the defendant’s state of mind rather than his general character. See Commonwealth v. Daggett,
(e) The killing occurred on August 31, 1993. The victim’s brother testified that an incident occurred during the summer of 1993, when he was called to the home of the man supposedly having an affair with the victim. The victim, the defendant, and her suspected male friend were present. According to the victim’s brother, the friend took him aside and said: “The reason [the victim] is here [at my home] is because she wants to leave [the defendant] and she doesn’t know how to tell him because she is afraid of him.” The friend also testified that the victim said, “I’m afraid,” when the defendant arrived and found them tоgether. The defendant’s trial counsel did not object to this testimony. The defendant now argues that the testimony was improper. See Commonwealth v. Cyr,
The testimony may have been properly admitted to rebut the defendant’s claim that the victim was at her male friend’s home on that day because she was pursuing her extramarital affair with him. See Commonwealth v. Magraw,
2. We next discuss the alleged errors in the judge’s instructions.
(a) The trial judge was the same judge who, in Commonwealth v. Kosilek,
(b) The only theory of murder in the first degree before the jury wаs deliberate premeditation. The judge correctly instructed on premeditation (except for the slip described above), and he defined malice by describing all three of its prongs without explicitly stating that only the first prong, specific intent to kill, is relevant to a charge of premeditated murder in the first degree. Because the jury found premeditation, the reference to the second and third prongs, of malice could nоt create a substantial likelihood of a miscarriage of justice. The judge had instructed that the jury had to find, beyond a reasonable doubt, that the defendant intended to kill the victim before they could find premeditation. See Commonwealth v. Nolan,
(c) The judge instructed the jury without objection that: “Any intentional killing of a human being without legal justification or excuse with no[] extenuating circumstances sufficient in law to reduce the crime to manslaughter is malicious within the meaning of malice aforethought.” The instruction was correct. See Commonwealth v. Adrey,
(d) The judge instructed the jury on murder in the first degree by reason of deliberate premeditation, murder in the second
The judge denied the defendant’s request to instruct the jury on voluntary manslaughter on the theоry that the victim had been shot when the defendant lost his self-control and acted in the heat of sudden passion. See Commonwealth v. Schnopps,
The defendant testified at the trial that the killing was accidental. He said it occurred when the victim had come home late, and they had argued in the master bedroom over her continuation of аn extramarital affair which she had promised to stop. The defendant said that he had retrieved his handgun and loaded it with two bullets. He testified that he was upset and unhappy and started waving the handgun around. At some point, he began to have a “spell” of the type he frequently had before. He said that, during the spell, he began “sliding down on the bureau,” the handgun went off, and the victim was shot by a single bullet.
The defendant told his ex-wife and the forensic psychologist who examined him and testified on his behalf that he did not intentionally shoot his wife and that the killing was an accident. He repeatedly denied being angry with the victim during their argument. He testified unequivocally, that, while he was upset, depressed, and crying, he was not angry with the victim when she confirmed his suspicions that she had not broken off her extramaritаl affair and stated that she was going to leave him.
Voluntary manslaughter is an unlawful killing which occurs in circumstances which negate the element of malice. See Commonwealth v. Acevedo,
3. The defendant’s motion for a new trial argued that he should be retried because his trial counsel provided him with ineffective assistance. The trial judge had retired from the bench by the time the mоtion was presented, and it was decided by another judge in the Superior Court. This judge evaluated the allegations in the motion and its supporting documents in light of the complete trial transcript and the motions and papers in the case and did not hold a hearing on the motion. He stated his reasons for denying the motion in a lengthy memorandum of decision. In that memorandum, he noted that the defendant’s trial counsel was “an experienced, skilled and energetic criminal defense attorney who regularly represents defendants in murder and other serious felony cases.” We have examined the defendant’s appellate argument concerning the motion under the standard governing claims of ineffective assistance of counsel in the case of a conviction of murder in the first degree. See Commonwealth v. Parker,
In his motion for a new trial, the defendant asserted that his trial counsel provided ineffective assistance because he did not file a motion to suppress. The defendant alleged that his statements to the police were obtained in violation of his Miranda rights and his right to counsel, and that they were involuntary. In his affidavit in support of the new trial motion, the defendant stated that he had exercised his right to remain silent and had requested an attorney and went on to state “[a]t no time did I knowingly, voluntarily, or intelligently waive any motion to suppress in this matter.”
The judge rejected the defendant’s assertions because the record reasonably demonstrated that the defendant and his trial counsel had discussed whether to file a motion to suppress, and they had made a strategic decision not to do so. The judge’s conclusion is supported by the defendant’s signed acknowledgment quoted above, and the indication from the record that the defendant and his trial counsel appear to have concluded that, while the defendant told the police he had shot the victim, his statements conveyed a considerable amount of information that
(b) The defendant’s remaining assertions of ineffective assistance were properly denied by the motion judge for the reasons stated in his memorandum of decision. They need not be separately discussed.
4. There is no reason to grant the defendant relief pursuant to G. L. c. 278, § 33E. There was ample evidence that thе defendant premeditated the killing. The defendant has not demonstrated that any mling made by the trial or motion judge could have had a significant impact on the fairness or justice of the result.
5. The order denying the defendant’s motion for a new trial is affirmed. The judgment of conviction is affirmed.
So ordered.
Notes
The handgun used to shoot the victim, which had been in the briefcase, was turned over to the police by the defendant on the night of the shooting.
In the absence of objection, the standard of review is whether the admission of this evidence created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Carmona,
The defendant also complains about a chalk which the prosecutor allegedly used during her cross-examination of the expert. The judge gave an instruction on the role of the chalks that had been used. The instruction would eliminate any possible prejudice.
The evidenсe showed that the handgun was probably two to three feet from the victim when it was fired, that the bullet entered the victim’s right side and damaged her liver, stomach, spleen, and diaphragm, and caused massive internal bleeding. There was medical testimony that it could have taken as long as one hour for the victim to die.
The expert also testified that the defendant’s rage was a “major factor” affecting his emotional state. He did not indicаte that the defendant’s rage resulted from anything the victim said on the night of the killing as opposed to the defendant’s long-term resentment over the victim’s conduct.
The motion to disclose stated that the defendant had not yet filed a motion to suppress and, “If the defendant waits until mid-trial to challenge the admissibility of his [statements], and if upon hearing the trial court allow[s] a motion to suppress, then jeopardy will have attached and the Commоnwealth will be foreclosed from filing an interlocutory appeal.”
We reject the defendant’s additional argument that the trial judge should have held an evidentiary hearing, sua sponte, before the statements were admitted to determine whether they were voluntary. The judge, despite the defendant’s written position on the issue, inquired of his trial counsel whether voluntariness was an issue. The defendant’s trial counsel said that it was not, and he declined the judge’s offer to give an instruction to the jury on voluntariness.