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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
Present:
The case was tried before Richard E. Welch, III, J.
Carlo A. Obligato, Committee for Public Counsel Services
(Christopher Skinner, Committee for Public Counsel Services, with him) for the
defendant.
Gregory I. Massing, Assistant District Attorney, for the Commonwealth.
SOSMAN, J.
The defendant was convicted of murder in the
first degree on the theory of extreme atrocity or cruelty in connection with
the
1. Facts. Viewed in the light most favorable to the Commonwealth, the evidence
was as follows. For approximately twelve years, the defendant and the victim
had lived together along with their three children and another child from the
victim's prior relationship with another man. On
Sometime in the spring of 1997, the victim
became an avid member of a newly formed church. Shortly thereafter, she became
romantically involved with another church member, one Willie Lester. The
defendant became aware of the victim's affair with Lester and was distraught at
the prospect that the victim might leave him. Approximately two weeks before
the killing, the defendant told the victim's aunt that he felt like killing
himself, the victim, Lester, and the children. On the night of
On his return home, the defendant discovered the victim and Lester in bed
together. The victim screamed at him, telling him that it was "over"
and that she wanted him to leave. He went to stay at a friend's house nearby.
The next day, the defendant confronted Lester, telling him to leave the victim
alone. The defendant grabbed Lester by the throat, knocked him down, and hit
him several times.
Although continuing her relationship with Lester, the victim let the defendant
return home within a few days. The defendant had one of their sons telephone
Lester and leave a message on Lester's answering machine to the effect that
Lester should leave his family alone. At church, the defendant again confronted
Lester. Lester told the defendant that he intended to marry the victim, but
assured the defendant that he was not trying to take the children away from
him. The defendant warned Lester to stay away from the victim.
On the evening of
The victim then left the house, taking the children to a nearby park. On her
return, she and the defendant began arguing. When the victim headed into the
bedroom, the defendant got a large knife from a drawer in the kitchen. He then
followed the victim into the bedroom, where he stabbed her repeatedly.
According to the medical examiner, there were nineteen stab wounds, including
several which punctured the victim's heart. Two stab wounds were inflicted
after the victim was already dead. There were also multiple wounds on the
victim's hands and arms, which the medical examiner characterized as defensive
wounds.
Immediately after the stabbing, the defendant
took a bottle of bleach from the kitchen, poured some into a cup, drank it, and
proceeded to vomit on the victim's back. He then telephoned a friend, one Gene
Chrystosom, who arrived within a few minutes. Chrystosom found the defendant
dazed and foaming at the mouth, his clothes stained with blood. The defendant
told Chrystosom that the victim had tried to make him drink bleach. Chrystosom
saw the victim lying on the bedroom floor, and asked the defendant what he had
done. The defendant replied, "She's dead." After advising the
defendant to contact the police, Chrystosom left the house.
The defendant telephoned the police emergency number, asking for an ambulance.
He told the dispatcher that his girl friend had stabbed herself. When ambulance
personnel and fire fighters arrived, the defendant told them differing versions
of what had happened. To one, the defendant said that the victim had given him
something to drink and that he had awoken on top of her. To another, he said
that the victim had made him drink bleach, "so [he] jumped on her
back." When police arrived, he told one of the officers that the victim
had given him something to drink, that he had thought it was water, but on
realizing it was bleach, he had beaten her and jumped up and down on her back.
The defendant was taken to the
At trial, the defendant testified that the
victim had attacked him with a knife and that he had killed her in
self-defense. He claimed that the victim, who weighed almost one hundred pounds
more than he did, had been physically abusive to him during their relationship.
The defendant testified that on
The defendant acknowledged that he had given different versions to the police
and to Chrystosom. In those statements, he had omitted any reference to the
victim having attacked him, because he did not "want to talk bad about
her." The defendant also presented testimony from a psychologist on the
subject of battered spouse syndrome. The psychologist testified about the
nature of abusive relationships and opined that abused men are particularly
prone to keep the abuse secret. She also explained that when abuse victims kill
the perpetrator of the abuse, they often suffer amnesia, confusion, and
feelings of guilt.
The case was presented to the jury on the theories of deliberate premeditation
and extreme atrocity or cruelty. The jury found the defendant guilty only on
the theory of extreme atrocity or cruelty.
2. Discussion. a. Evidence of the temporary abuse prevention order. Over the
defendant's objection, the judge allowed the prosecutor to introduce evidence
of the
There was no error. Evidence that a victim has obtained an abuse prevention
order against the defendant is admissible to demonstrate the existence of a
hostile relationship, as the relationship may be relevant to the defendant's
motive to kill.
Indeed, the defendant himself presented evidence of an allegedly long-standing
abusive relationship, with himself as the victim of that abuse. As part of that
defense evidence, he presented his version of the events immediately prior to
the victim's obtaining the abuse prevention order, again claiming that he --
not the victim -- was the one who had been physically abused on that occasion.
The fact that the victim had sought and obtained an abuse prevention order
against the defendant five months prior to the fatal stabbing was relevant to
both the Commonwealth's theory of the parties' deteriorating relationship and
to the defendant's claims about that relationship.
The defendant also argues that the temporary nature of the order here
distinguishes it from the abuse prevention orders admitted in evidence in other
cases. Cf. Commonwealth v. Sarourt Nom, supra; Commonwealth v. Martino, supra;
Commonwealth v. Gil, supra. The duration of the order does not affect its
relevance. The relevant fact is that the victim and the defendant were, for
whatever reason, sufficiently estranged that an order was sought. Whether the
order was renewed or not, it evidences the existence of some form of dispute,
tension, or hostility between the victim and the defendant at a point in time
very shortly prior to the victim's involvement with Lester and only five months
prior to the defendant's killing the victim.
The defendant finally argues that, even though the judge excluded the victim's
underlying affidavit on hearsay grounds, the mere fact that the order issued
would cause the jury to assume that some incident of serious violence must have
occurred for the court to issue such an order. We are unpersuaded that the
admission of the order had any such prejudicial effect. The limiting
instructions repeatedly given to the jury explained that the sole use they
could make of this evidence was for the purpose of assessing the relationship
between the parties, and not for any other purpose. The judge's further
explanation of the procedure by which a party may obtain such a temporary
order, the one-sided nature of the presentation that underlies such a temporary
order, the victim's failure to renew the order, and her ultimate recantation of
the underlying allegations, were more than adequate to dispel any notion that
the mere issuance of the temporary order meant there had been some grave
misconduct on the part of the defendant. Indeed, in context, the jury heard the
defendant's version of the events on the day in question, without knowing
anything of the victim's version, other than that she had completely recanted
her allegations shortly after having made them. In that posture, there was no
conceivable prejudice to the defendant.
b. Exclusion of portions of the defendant's statement. At trial, the
Commonwealth introduced the portion of the defendant's statement that
chronicled the events of the day the victim was stabbed. Invoking the doctrine
of verbal completeness, the defendant sought to introduce other portions of his
statement, specifically, those portions detailing how he found the victim and
Lester together in her car ten days earlier and how, on his return from the
hospital later that same morning, he had found the victim in bed with Lester.
The judge excluded the portions proffered by the defendant, ruling that the
doctrine of verbal completeness was not applicable. There was no error.
The defendant's statement, when offered by the defendant to prove the truth of
the statement's contents, is inadmissible hearsay.
In order to be admitted under the doctrine of verbal completeness, the
additional portions of the statement must be (1) on the same subject as the
admitted statement; (2) part of the same conversation as the admitted
statement; and (3) necessary to the understanding of the admitted statement.
Commonwealth v.
Here, the Commonwealth only introduced those portions of the defendant's
statement that dealt with the events of the day of the stabbing itself. The
obvious purpose in doing so was to illustrate the discrepancy between that
version of events (in which the defendant claimed that he had passed out after
drinking something and had awoken to find the victim dead) and the many other
versions he had given at the scene, all of which were different from the claim
of self-defense made by the defendant at trial. The portions that the defendant
wished to introduce, which pertained to events ten days earlier, were not
necessary to an understanding of the version of events the defendant had given
with respect to the day of the stabbing. There was nothing out of context or
misleading about the Commonwealth's selection of that portion of the defendant's
statement. The doctrine of verbal completeness was not applicable, and the
judge properly excluded the additional portions of the statement proffered by
the defense.[5]
The defendant also hypothesizes that the portions introduced by the Commonwealth,
which contained no mention of the victim's affair with Lester, would be
puzzling to the jury, who would "speculate at great length why the
defendant had not said anything at all to the police about the sexual affair
[the victim] was having with Lester." This ostensible concern about jury
speculation ignores the theory on which the defendant tried the case. The
defendant's position at trial was that he had stabbed the victim in
self-defense, that the stabbing had had nothing to do with the victim's ongoing
affair with Lester, and that his reluctance to tell anyone about the victim's
attack on him was the product of his long-standing history of being abused by
the victim. Ironically, a statement to the police in the immediate aftermath of
the stabbing that appeared to say nothing whatsoever about Lester would be
consistent with the defendant's trial strategy, whereas the statement's actual
recitation of the defendant's finding the victim with Lester ten days before
the stabbing would have been contrary to the defendant's theory at trial.
c. Impeachment by prior conviction. During cross-examination of Lester, defense
counsel was allowed to impeach Lester with prior convictions, specifically,
convictions of armed robbery, battery, and burglary in 1987 in the State of
Within the time limits prescribed by statute, "[t]he conviction of a
witness of a crime may be shown to affect his credibility . . . ." G. L.
c. 233, § 21. It is the fact of conviction, and the nature of the crime
committed, that can be considered on the issue of credibility, not the
sentence.[6] The sentence imposed does not logically add anything to an
assessment of the witness's credibility, e.g., if the witness was previously
convicted of perjury, it is the prior perjury that detracts from the witness's
credibility, and the nature or length of the sentence imposed would not make
that perjurer more or less worthy of belief.
3. G. L. c. 278, § 33E. We have reviewed the entire record, and we see no basis
for relief under G. L. c. 278, § 33E. The defendant argues that the verdict
should be reduced because the infidelity of his longtime girlfriend and mother
of his children constituted reasonable provocation that would reduce the crime
to voluntary manslaughter. However, the defendant's discovery of the victim's
affair occurred a few weeks before the killing. The defendant had ample
opportunity to "regain emotional control" after that discovery.
Commonwealth v. Andrade, 422
Finally, the defendant contends that he lacked the mental state necessary for a
finding of malice, pointing to the fact that he tried to kill himself moments
after the stabbing and to his history of mental difficulties.[8] Nothing
in the record suggests that the defendant was incapable of forming the
requisite intent for purposes of the element of malice. The defendant also
points to the fact that he was acquitted on the theory of deliberate
premeditation, and assumes that the jury's verdict on that theory was due to a
doubt about his specific intent to kill. The assumption is speculation,[9]
and, even if accurate, the theory on which the defendant was convicted -- extreme
atrocity or cruelty -- can be based on any of the three prongs of malice. We
see no reason to disturb the jury's determination that the defendant acted with
malice. Where the killing was committed by way of nineteen stab wounds,
including multiple fatal stabs to the heart and two wounds inflicted after the
victim was already dead, the jury also had ample basis on which to conclude
that the killing was committed with extreme atrocity or cruelty.
Judgment affirmed.
FOOTNOTES:
[1] The defendant acknowledged that his only injury
was scraped knees.
[2] Prior to trial, the defendant filed a motion to
suppress the various statements he had made, both at the scene and at the
station. The motion was denied. On appeal, the defendant makes no claim of
error with respect to the denial of that motion. We have reviewed the record,
and the motion judge's findings, pursuant to our obligation under G. L.
c. 278, § 33E, and we see no error.
[3] On cross-examination, the defendant testified
that the victim had dropped her knife before he stabbed her, and he
acknowledged that the victim's hands were up in a defensive posture when he
struck the first blow.
[4] He also redacted from the order a reference to
the defendant's involvement in another criminal case.
[5] The defendant himself later testified, and his
testimony included an account of the earlier confrontation with the victim and
Lester, his belief that the victim had tried to run him over with her car, and
his discovery of the victim and Lester together when he returned home later
that morning. As a result, the jury ultimately heard the defendant's version of
that entire incident.
[6] The statute does make the sentence germane to the
issue whether a prior felony conviction can be introduced at all, as the time
limitations vary depending on whether the felony conviction resulted in a State
prison sentence, as opposed to probation, a suspended sentence, or a jail
sentence. See G. L. c. 233, § 21. It is in that context that some of our cases
discussing G. L. c. 233, § 21, have referred to the "conviction" as
"a final judgment and sentence of the court." Commonwealth v. Hersey,
324
[7] In Commonwealth v. Kalhauser,
[8] The defendant was initially found not competent
to stand trial. After a period of treatment (including medication), the
defendant's condition improved significantly and he was then found competent.
The defendant does not challenge the finding of competency, and the updated
report on the defendant's competence supported the judge's finding.
[9] The jury could well have had a reasonable doubt
about deliberate premeditation itself. The defendant had denied making any
prior threats to kill the victim, and defense counsel's cross-examination of
the witnesses who claimed to have heard such threats illustrated that each
version had been exaggerated far beyond that given in more contemporaneous
statements to the police. On this evidence, the jury might well have concluded
that there was an intent to kill the victim, but that the killing was the
product of a sudden, spontaneous outburst, not the product of deliberate
premeditation.