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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. Johnson, 422
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
The cases were tried before Robert A. Barton, J.
Lawrence Rizman,
Marguerite T. Grant, Assistant District Attorney
(David P. Linsky, Assistant District Attorney, with
her), for Commonwealth.
Before LIACOS, C.J., and WILKINS, O'CONNOR, GREANEY,
& FRIED, JJ.
LIACOS, Chief Judge.
On
We recite
the evidence presented to the jury.
(FN2) Commonwealth v. Burke, 414
On January
27, 1992, Pamela returned from work to find the defendant upset about having to
leave the apartment. He told her that
her family was going to be sorry if she made him leave. Pamela went to her class and returned home [422 Mass. 422] around 8 P.M. The
defendant was there. Again, the
defendant began arguing with her. In the
course of the argument, he overturned the dining room table. He refused to allow her to speak privately on
the telephone with Kimberly's father, remaining on an extension line. Pamela called her own father, again with the
defendant on the extension, and her father said he would call the police.
Two
Medford police officers arrived at the house around 9:10 P.M. The defendant was watching television. He was calm and responded to the officers'
questions intelligently, but appeared to be under the influence of
alcohol. He told the officers he had had
two beers. He agreed to leave the house
on Friday but said he would return on Sunday.
When Pamela told him he could return on Sunday only to retrieve his
belongings and could not stay, the defendant lowered his head and said,
"Something bad is going to happen."
He then said to Pamela, "When the police leave, I'll take care of
this." The police then took the
defendant into protective custody. He
responded, "Fine. Just arrest
me." Although he smelled of
alcohol, the defendant was calm, engaged in conversation with the officers, and
responded appropriately to booking questions.
The police
assisted Pamela in obtaining an emergency protective order under G.L. c. 209A (1994 ed.).
She then returned to the apartment and put the defendant's belongings in
green plastic bags on the front porch as had been arranged with the
police. She put Kimberly and Nekeya to bed on the second floor, made sure all the doors
and windows were locked, turned out the lights on the front porch, and went to
bed on the third floor at 12:45 A.M.
At about
1:30 A.M., the police released the defendant from protective custody. He was sober, calm, and cooperative. Two officers drove him to 150 Arlington
Street to retrieve his belongings from the porch. The officers told the defendant not to return
to the house and watched as the defendant put the bags in the back seat of his
automobile. The officers followed the
defendant's automobile for about two miles until he was "on his way."
The
defendant "drove around" for about ten or twenty minutes, then went
to his sister's house where he stayed only a few minutes. He stated that he "wanted to talk to her
but she didn't want to hear it."
He left his sister's house and [422
Mass. 423] drove back to Medford,
feeling rejected by his former boss and by Pamela, and not wanting to go to
court the following morning to respond to the protective order. He parked his automobile on a different
street "so the police would not see it parked in front of Arlington
Street," and walked through two back yards to reach the back door of
Pamela's apartment, "so the neighbors would not see me." He kicked in the back door, concealed a gun
in the waist of his trousers, and went to the third‑floor bedroom. Pamela awoke to the sound of the back door
being kicked in and the defendant running up the stairs. She tried to use the telephone while she used
her body to close the bedroom door. The
defendant shot through the door. He
continued repeatedly to shoot Pamela from three or four feet away, saying,
"Die, bitch, die." He then
said, "Watch this," and put the gun to his head. Pamela looked away, and when she turned
again, he was gone.
*562
The defendant went to the second floor after leaving Pamela's
bedroom. The two girls were awake in the
same bed. The defendant shot at them,
wounding his daughter, Nekeya, and killing Pamela's
daughter, Kimberly, with a gunshot to the head.
He then tried to kill himself, but there were no bullets left in the
gun. (FN3) He left the house, got into his automobile,
and drove away. While driving, he looked
for more ammunition in order to kill himself.
He claimed he had difficulty because the traffic lights were all
green. He stated to police that he knew
he was shooting at his daughter, and that he shot at her because he did not
want her to be a burden to anyone. He
shot at Kimberly "because she was there."
At 2:50
A.M., the Medford police were ticketing a motor vehicle on Arlington Street
when they saw the defendant's yellow automobile drive slowly past them. The police turned the cruiser around to
pursue the defendant, but when they reached an intersection, they could not
locate his vehicle. Simultaneously, the
officers received a radio call from Medford police headquarters concerning the
shooting at 150 Arlington Street. The
police responded, and Nekeya answered the door,
covered in blood. The police saw
Kimberly on the sofabed, the upper part of her body
off the bed. She was dead. They then went to the third floor where they
saw Pamela Watkins, conscious but covered in blood. She told them that [422 Mass. 424] the
defendant had shot her and was probably going to his sister's house. (FN4)
At about 3
A.M., two Boston police officers arrested the defendant near his sister's
house. He had, in the waistband of his
trousers, a nine millimeter Stallard Arms semi‑automatic
handgun. He held ammunition in his
hand. He was sober, stable, and
cooperative. When the defendant saw
Lieutenant Robert Longo of the Medford police at the Boston police station at
around 4:15 A.M., he said to him, "[Lieutenant], can I talk to you? I think I screwed up." The officer responded that he would talk
with him later. The defendant was not
booked until 4:50 A.M., when the Medford, Boston, and State police were all
available. He was not questioned prior
to booking. He received Miranda
warnings, see Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and
was informed of his right to make a telephone call, see G.L.
c. 276, § 33A (1994 ed.). After booking,
at 5:30 A.M., the defendant agreed to talk with police. He voluntarily waived his Miranda rights and
gave the police a full statement, admitting that he shot Pamela, Kimberly, and Nekeya. He stated
that he bought the gun several months before the shooting to kill himself, that
he felt "hurt and rejected by everybody," that he felt
"mistreated and shamed" by his boss, and that "the shots [he]
fired tonight should have been for them because of the way they treated [him]
in the past."
[1][2][3][4]
1. At the close of the evidence, the
defendant requested and was denied a jury instruction regarding lack of
criminal responsibility. (FN5) Such an instruction must be given if
requested and supported by the evidence. Commonwealth v. Laliberty,
373 Mass. 238, 244, 366 N.E.2d 736 (1977). Expert testimony is not required to raise the
issue, (FN6) but rather it may be raised by "the admission of any evidence
which, if believed, might create a reasonable doubt concerning the defendant's
criminal responsibility at the time of the killings." Id. at 246‑247, 366
N.E.2d 736. Lack of criminal
responsibility in this Commonwealth requires the existence of [422 Mass. 425] a mental disease or defect, which causes a defendant's lack of
substantial capacity either to appreciate the wrongfulness of his or her
conduct, or to conform his or her conduct to *563 the requirements of the law.
Commonwealth v. McHoul, 352 Mass. 544, 546‑547,
226 N.E.2d 556 (1967). Where there is
evidence to raise the issue, the Commonwealth bears the burden to prove the defendant's
criminal responsibility beyond a reasonable doubt. Id. at 548, 226 N.E.2d 556.
[5] The
judge properly refused to instruct the jury on the issue of criminal
responsibility. Nevertheless, the
defendant points to the following evidence to support his contention that he
lacked criminal responsibility at the time of the crime. Pamela Watkins testified that her prior
relationship with the defendant was not marked by violence and that on the day
of the killing he appeared to be a different person from the one she had
known. (FN7) Also, the defendant argues that his behavior [422 Mass. 426] was an illogical response to the issuance of a protective order,
especially since he should have realized he would be the primary suspect in the
crimes. Finally, the defendant claims,
the evidence showed he was suicidal and had engaged in a "bizarre,
illogical, and crazy" pattern of behavior.
This evidence, the defendant claims, raised the issue of criminal responsibility.
[6][7]
None of these facts, if believed by the jury, alone or in combination with the
others, implicates a lack of criminal responsibility at the time of the
crimes. There is no evidence that the
defendant suffered from a prior mental illness or was hospitalized. See
Commonwealth v. LaPlante, 416 Mass. 433, 443 n.
13, 622 N.E.2d 1357 (1993), and cases cited.
Suicidal ideation, absent more, is an insufficient basis for a finding
of lack of criminal responsibility. Commonwealth v. McInerney,
373 Mass. 136, 152, 365 N.E.2d 815 (1977).
Cf. Commonwealth v. Mills, 400
Mass. 626, 630‑631, 511 N.E.2d 572 (1987) (suicidal attitude, combined
with failure to remember stabbing the victim, telling arresting officer to
shoot him, and walking into on‑coming traffic sufficient to warrant jury
charge). The bizarre or inexplicable
nature of a crime alone does not provide a foundation for an insanity defense.
Commonwealth v. LaPlante, supra at 443‑444,
622 N.E.2d 1357. (FN8)
Commonwealth v. Mattson, 377 Mass. 638, 644, 387 N.E.2d 546
(1979). The record reveals that the
defendant was calm *564
and lucid both before and after the crimes. He understood and responded appropriately to
the officers' questions at the house prior to being placed in protective
custody, during protective custody, while being taken to the apartment to
retrieve his belongings [422 Mass.
427] shortly before the crimes, and
when arrested. That he understood the
wrongfulness of his actions is demonstrated by the fact that he parked his
vehicle around the corner so it would not be seen by police. He entered through the back of the house so
as not to be seen by neighbors. He
stated that he shot at his daughter because he did not want her to be a burden
to anyone, and shot Kimberly Watkins "because she was there." He fully recalled the details of the crime
and made a complete and coherent statement to the police. Contrast
Commonwealth v. Mills, supra at 630, 511 N.E.2d 572 (defendant had no
memory of stabbing victim); Commonwealth v. Laliberty,
373 Mass. 238, 246, 366 N.E.2d 736 (1977) (defendant did not remember crime and
felt like he was "floating" and "hallucinating"). There is simply no evidence of lack of
criminal responsibility in this case.
There was no error in the judge's ruling.
2. The
defendant contends that the judge's instruction on malice unconstitutionally
diluted the standard of proof required for a conviction of murder in the first
degree. (FN9) We do not agree.
[8] Malice
as an element of murder may be proved by evidence establishing any one of three
facts beyond a reasonable doubt: The
defendant, acting without justification or legal excuse, must (1) intend to
kill the victim, (2) intend to cause grievous bodily harm, (FN10) or (3) act
such that in the circumstances known to the defendant, a reasonably prudent
person would know [422 Mass. 428] that, according to common experience,
there is a plain and strong likelihood that death will follow the contemplated
act.
Commonwealth v. Grey, 399 Mass. 469, 470 n. 1, 505 N.E.2d 171
(1987).
[9] The
judge began his charge with the proper instruction on the three prongs of
malice as outlined in Commonwealth v.
Grey, supra. In addition to the
standard, approved Grey charge,
however, the judge instructed that "[i]f the
circumstances attending [the] killing disclose that the death follows from a
purposeful, selfish, wrongful motive as distinguished from the frailty of human
nature, then there can be malice aforethought." We have since cautioned against the use of
this language. See Commonwealth v. Torres, 420 Mass. 479, 487, 651 N.E.2d 360 (1995);
Commonwealth v. Eagles, 419 Mass. 825, 836, 648 N.E.2d 410
(1995). In Commonwealth v. Eagles, supra, we acknowledged that the above
language might lead a jury to believe that a selfish, wrongful mood might be
enough to show malice. Rather, we
stated, malice should be defined "by reference to the three prongs
described in Commonwealth v. Grey, supra,
with such additional explanation as may be appropriate to the understanding of
those concepts." Id.
We conclude here, nonetheless, that in the context of the judge's entire
charge, the above‑quoted language did not create reversible error.
*565. [10] In determining the propriety
of a jury instruction on appeal, (FN11) we consider the instruction "in
the context in which it was delivered, in order that we might determine its
probable effect on the jury's understanding of their function" (citations
omitted).
Commonwealth v. Adrey, 397 Mass. 751, 753‑754,
493 N.E.2d 875 (1986). The judge clearly
and properly laid out the Grey charge. He repeatedly stressed that the Commonwealth
carried the burden to prove beyond a reasonable doubt each element of the
crimes charged. Further, the judge
instructed that the jury could consider the effect of intoxication or mental
impairment on the defendant's ability to form a specific intent to kill. The jury were properly instructed on [422 Mass. 429] the three prongs of malice.
In the context of the over‑all charge, the extraneous language,
although disapproved, did not constitute reversible error.
3. The
defendant claims it was error for the judge to deny his motion to suppress a
statement that he made after his arrest but before he was booked and advised of
his right to make a telephone call pursuant to G.L.
c. 276, § 33A. The defendant's booking
was delayed until the arresting officers, the Medford police, and the State
police were all present almost two hours after the defendant was arrested. During that time, the defendant remained
handcuffed to a wall and was not questioned.
When he saw Lieutenant Longo, the defendant asked him,
"[Lieutenant], can I talk to you?
I think I screwed up."
[11][12]
Unfavorable evidence gained as a result of an intentional deprivation of a
defendant's right to make a telephone call pursuant to G.L.
c. 276, § 33A, should be suppressed. Commonwealth v. Jones, 362 Mass. 497, 502‑503,
287 N.E.2d 599 (1972). That statute
provides that "[t]he police official in charge of the station ... shall
permit the use of the telephone, at the expense of the arrested person, for the
purpose of allowing the arrested person to communicate with his family or
friends, or to arrange for release on bail, or to engage the services of an
attorney." The police are to
inform the arrested person of the right "forthwith upon his arrival"
at the station, and "such use shall be permitted within one hour
thereafter." G.L.
c. 276, § 33A. Suppressing evidence
obtained as a result of an intentional violation of the statute is intended to
make the legislation effective in the absence of an express penalty for a
violation. We have not extended the
policy to unintentional deprivations by the police. Commonwealth v. Parker, 402
Mass. 333, 341, 522 N.E.2d 924 (1988), S.C., 412 Mass. 353, 589 N.E.2d 306
(1992), and 420 Mass. 242 (1995). Commonwealth v. Bradshaw, 385 Mass. 244,
266, 431 N.E.2d 880 (1982). The delay
here was not designed to gain inculpatory information
but to allow the officers involved to be present at booking. The defendant was not questioned during that
time but simply made to wait for the officers' arrival. The judge found, after hearing, that there
was no intentional delay. His finding is
warranted by the evidence. The judge did
not err in refusing to suppress the defendant's statement.
4. The
defendant did not ask this court for relief pursuant [422 Mass. 430] to G.L. c. 278, § 33E.
Nonetheless, we have reviewed the entire record, and conclude that the
interests of justice do not require a reduction in the murder verdict or a new
trial.
Judgments affirmed.
(FN1.) The grand jury also returned three
indictments charging armed assault in a dwelling, one indictment charging
possession of a firearm, one indictment charging possession of ammunition, and
one charging violation of a protective order.
The Commonwealth chose not to proceed to trial on these indictments, and
on November 12, 1992, they were nolled prossed. On two
other indictments for assault and battery by means of a dangerous weapon, the
jury found the defendant guilty. With
the defendant's consent, these convictions were placed on file. Hence, they are not before us on this appeal.
(FN2.)
The defendant did not testify and presented no witnesses in his defense.
(FN3.)
A ballistician testified at trial that four cartridge casings were recovered on
the third floor and four cartridge casings on the second floor.
(FN4.)
Pamela was hospitalized for over three months recovering from gunshot wounds.
(FN5.)
The judge properly instructed the jury they could consider any mental
impairment when determining whether the defendant deliberately premeditated or
was able to form the specific intent to kill with malice. See
Commonwealth v. Grey, 399 Mass. 469, 470‑472, 505 N.E.2d 171 (1987).
(FN6.)
The defense called no witnesses.
Although the judge approved the appropriation of funds for psychiatric
experts, there is no evidence in the record whether any psychiatric
examinations took place.
(FN7.)
The colloquy between Pamela and defense counsel was as follows:
DEFENSE
COUNSEL: "In the early morning
hours of January 28th, when you saw [the defendant] in your room, did it appear
to you at that point he was crazy?"
THE
WITNESS: "No."
DEFENSE
COUNSEL: "Did it appear to you that
he had snapped?"
THE
WITNESS: "No."
DEFENSE
COUNSEL: "He just seemed the normal
[the defendant] to you?"
THE
WITNESS: "Very angry."
DEFENSE
COUNSEL: "Just an angry version of
[the defendant]?"
THE
WITNESS: "Very angry. Very angry.
Mad."
DEFENSE
COUNSEL: "Well, mad like foaming at
the mouth mad?"
THE
WITNESS: "No."
DEFENSE
COUNSEL: "Just angry?"
THE
WITNESS: "Yes."
DEFENSE
COUNSEL: "Well, isn't it fair to
say that the [the defendant] that you knew, lived with, had a relationship
with, shared your home with, prior to the early morning hours of January 28th
of 1992 could not have done what he did?" ...
THE
WITNESS: "I don't know."
DEFENSE
COUNSEL: "Well, didn't it appear to
you that he just snapped? Didn't he
appear to be a completely and totally different person than the person you
knew?"
THE
WITNESS: "It appeared."
DEFENSE
COUNSEL: "It did appear?"
THE
WITNESS: "Yes."
*565_
(FN8.) Commonwealth v. LaPlante, 416 Mass. 433, 622 N.E.2d 1357 (1993), was
decided one year after the defendant's trial.
The proposition for which it stands, i.e., that the bizarre nature of a
crime is not, in itself, a sufficient basis for charging a jury on lack of
criminal responsibility, is not a new development in our law. Although we suggested in past cases that the
facts of a crime themselves may "create an inference of mental disease or
defect," Commonwealth v. Laliberty, 373 Mass. 238, 245, 366 N.E.2d 736 (1977),
quoting Blaisdell
v. Commonwealth, 372 Mass. 753, 765, 364 N.E.2d 191 (1977), we noted two
years later, well before the defendant's trial, that we were unaware of "any
case where the inexplicableness of a crime alone raises a jury issue of
insanity." Commonwealth v. Mattson, 377 Mass. 638,
644, 387 N.E.2d 546 (1979). Again, in
1990, we stated "[t]hat the crimes were heinous would not alone support a
conclusion that they were the product of an insane mind."
Commonwealth v. Freeman, 407 Mass. 279, 286, 552 N.E.2d 553
(1990). Further, the manner in which the
defendant committed the crimes is not so bizarre as to, in itself, suggest
insanity.
(FN9.) The judge instructed the jury that
"[m]alice aforethought includes any unexcused
specific intent to kill or unexcused specific intent to do grievous bodily
harm, or unexcused intent to do an act creating a plain and strong likelihood
that death will follow. If in the circumstances
known to the defendant a reasonably prudent person would have known that
according to common experience there was a plain and strong likelihood that
death would follow the contemplated act, malice may be inferred without any
actual intent to kill or do grievous bodily harm. Malice aforethought refers to a frame of mind
which includes not only anger, hatred and revenge, but also every other
unlawful and unjustifiable motive. It is
an intent to inflict grievous bodily injury or harm without legal
justification. Whether a killing is
actually committed with malice aforethought is determined from the nature and
the quality of the act which attends the killing. If the circumstances attending a killing
disclose that death flows from a purposeful, selfish, wrongful motive, as
distinguished from the frailty of human nature, then there can be malice
aforethought...."
(FN10.) The defendant argues, for the first
time on appeal and in a footnote in his brief, that "the charge 'It is an
intent to inflict grievous bodily injury
or harm' is at best ambiguous" (emphasis added). Such an assertion does not rise to the level
of appellate argument and we do not address it here.
(FN11.) The defendant, at sidebar following
the charge, stated to the judge, "I think that when malice is defined now‑‑the
reality is malice is one of three things:
Intent to kill, intent to do grievous injury, and the circumstances
known to the defendant, a strong and plain likelihood. And so the part of the charge that expands
malice‑‑this is my view of it‑‑it expands malice beyond
those three elements, I object."
The defendant properly preserved his appellate rights.