Argued September 5, 2014.
[As Modified on January 2, 2015]
Indictment found and returned in the Superior Court Department on February 8, 2008.
The case was tried before Barbara A. Dortch-Okara, J.
Robert F. Shaw, Jr., for the defendant.
Thomas M. Quinn, III, Assistant District Attorney ( Yul-mi Cho, Assistant District Attorney, with him) for the Commonwealth.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
[21 N.E.3d 131] Hines, J.
In January, 2012, a jury convicted the defendant, Timothy Cassidy, of murder in the first degree on the theory of extreme atrocity or cruelty. Represented by new counsel on appeal, the defendant argues [21 N.E.3d 132] that (1) the trial judge committed numerous evidentiary errors that undermined the defendant's right to present his defenses and deprived him of due process and fundamental fairness under the United States Constitution and the Massachusetts Declaration of Rights; (2) defense counsel misstated evidence during his closing argument; and (3) the judge improperly responded to a question posed by the jury. We affirm the defendant's conviction and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E.
1. The Commonwealth's case.
We recite the facts the jury could have found based on the Commonwealth's case,
see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), reserving certain details for our discussion of the specific issues raised. The defendant and the victim, James Madonna, were best friends. On Tuesday, November 20, 2007, between 7 and 7:30 p.m., the defendant went to the victim's house. The two had plans to play poker at a hotel located in an industrial park in Taunton. Instead of driving together, they drove separately. A fellow poker player saw them leaving the hotel together at approximately 8:15 p.m.
Telephone records confirmed that at 10:11 and 10:12 p.m., the defendant's wife telephoned him, asking him to bring home some medicine. He went to a nearby pharmacy at 10:21 p.m. and purchased the medication along with a package of cigarettes. He arrived home between 10:30 and 11 p.m. He did not enter the house immediately, but went to the garage where he remained for about twenty minutes.
The victim did not return home that evening. His wife, who was related to the defendant, repeatedly called the victim's cellular telephone, to no avail. She took their eldest son, James, out looking for the victim. James telephoned the defendant, who stated that the victim, after playing poker, said that he was going to meet a friend.
The next morning, the victim's wife telephoned the defendant, who told her that he had left the poker game early, but that the victim had stayed to continue playing. The defendant went to the victim's home and joined James in looking for the victim. The search was unsuccessful, and after filing a missing person's report at the Taunton police department, the two returned to the victim's house.
Shortly thereafter, the defendant suggested that they resume their search and look through " every single parking lot" in the industrial area near the hotel. After some searching, the defendant suggested that James drive to a parking lot in the area near a particular convenience store. James had to change direction to do so. As he drove into the parking lot in the back of the building, James recognized his father's automobile, which was running.
Thinking that his father was drunk and sleeping, James went over to the victim's automobile. There he discovered the victim who, though seated in the driver's seat, was " slumped over" onto a cooler in the passenger's side of the automobile. A significant amount of blood was on the inside window to the front passenger door, and on the cooler. The victim was unresponsive and his son telephoned 911. As [21 N.E.3d 133] he was doing so, the defendant went to the opposite side of the automobile and looked inside.
The victim had been shot once in the neck and four times in the back, left side of his head. The medical examiner testified that the victim's skull had been shattered, his brain " extremely fragmented," and that there was " a large amount of destruction." She could not determine the sequence of the gunshot wounds and opined that the victim could have remained conscious for minutes after suffering the gunshot wound to the neck. The gunshot wounds to the back of the victim's head, however, would have resulted in death within seconds. The victim died as result of gunshot wounds to his head and neck, with perforations to his skull and brain.
Police arrived at the parking lot shortly thereafter. The defendant was shaken and indicated that he suffered from heart problems. A police officer directed a firefighter to treat him, and the defendant was taken to a different area of the parking lot where an ambulance was parked.
By the driver's side of the victim's automobile, police recovered cigarette ash on the door and one cigarette butt on the ground. A second cigarette butt was found on the opposite side of the parking lot, in the vicinity of where the ambulance had been parked. The cigarette butts were sent for deoxyribonucleic acid (DNA) testing, which revealed that the DNA recovered from them matched the defendant's DNA.
Police also recovered five .40 caliber discharged shell casings manufactured by Federal, one from outside the victim's automobile and four from the inside. In addition, police found two spent projectiles and one spent metal jacket inside the automobile. Three .40 caliber spent projectiles were recovered from the victim
by the medical examiner. The Commonwealth's firearms identification expert opined that, based on his examination, all of the discharged cartridge casings recovered during the investigation and all of the spent projectiles and the spent metal jacket were fired from the same weapon.
There was evidence that the defendant was licensed to possess and owned a .40 caliber Star Modern Firestar semiautomatic pistol. He usually kept it in the top drawer of his bureau, but it was missing when his wife looked a day or two following the victim's murder. When police, pursuant to a warrant, searched the defendant's house on Friday, November 23, they found a fifty-round box of Smith and Wesson Federal .40 caliber ammunition; five rounds were missing from the box. They did not find the defendant's .40 caliber pistol. Police eventually recovered the defendant's pistol and submitted it for forensic testing. The Commonwealth's firearms [21 N.E.3d 134] identification expert opined that, based on his examination, all of the recovered .40 caliber discharged cartridge casings had been fired from the defendant's pistol. He was unable, however, to determine whether the recovered projectiles had been fired from the defendant's pistol.
The Commonwealth's evidence showed that, at the time of the victim's murder, the defendant was experiencing significant financial trouble. In connection with a franchise business the defendant had undertaken, he could not account for approximately $14,657 and had been given until November 21 either to pay back the money or to produce proof that deposits had been made. He did neither, and continued to make excuses.
The defendant, without his wife's knowledge, borrowed money from the victim and his wife. In late October, 2007, the victim and his wife pressed the defendant to repay $30,000 on a loan of
$25,000 that they had made to the defendant. The victim's wife threatened the defendant that she would inform his wife about the loan if he did not pay them back by Monday, November 19 (the day before the victim's murder).
The defendant, through the help of Kevin Hayes, who was the brother of the victim's wife, had borrowed $40,000 from a " loan shark in Brockton" (loan shark) in September or October, 2007. In exchange for this loan, the defendant agreed to pay $10,000 in interest, and signed over a motorcycle and granted as collateral a mortgage on a parcel of land in Maine that he owned with his wife. The defendant, without telling his wife, also had borrowed large sums of money from her uncle. The defendant further kept his wife uninformed about running up charges on their credit card, withdrawing money from an equity line of credit, and cashing a tax refund check made payable to them jointly without obtaining her signature. At one point, in September or October of 2007, the defendant's wife asked him to move out of their home due to his financial dealings.
The defendant spoke with police following the murder. On November 21, 2007, he spoke twice with State Trooper Michael Cherven and Taunton police Officer Honorato M. Santos. In the first interview, which started about 3:15 p.m. and was recorded, the defendant told them that he did not know why anyone would want the victim dead. The defendant said he had left the hotel at 9:30 p.m. He told police that after leaving the hotel, he went to a specific store and purchased a package of cigarettes. The defendant informed the officers that he went to a pharmacy thereafter to purchase some medication for his wife. The defendant acknowledged to the officers that he owned a number of firearms and indicated specifically what he owned, but made no mention of his .40 caliber pistol.
[21 N.E.3d 135] The following day, November 22, near midnight, the defendant returned to the police station, claiming that earlier Hayes had taken a shotgun from his truck and " racked" it toward his direction. Trooper Cherven offered the defendant police protection, but he declined. Trooper Cherven asked the defendant if he thought Hayes had killed the victim. The defendant replied that he did not.
The defendant agreed to speak with police again, and the interview was recorded. Because the police had obtained additional information about the defendant's whereabouts after leaving the hotel with the victim, Trooper Cherven informed the defendant that they could not see the defendant on the surveillance videotape from the store at which he had claimed to purchase cigarettes. The defendant insisted that he had been there. When asked about receiving a loan from the victim, the defendant admitted to having borrowed money from the victim, but stated that the loan amount was $10,000. When Trooper Cherven confronted him with checks concerning the $25,000 loan, the defendant expressed shock and insisted the he had only borrowed $10,000 from the victim. The defendant told police that the victim owed him money. The defendant left around 2:30 a.m. on November 23. He agreed to return later for further questioning.
The defendant did not return. Instead, he stole a blank check from his wife's uncle, wrote himself a check for $4,000, cashed it, and fled. He was arrested in Georgia in December after vanishing from his family with no word of his whereabouts. When he was arrested, he had altered his appearance and was using a fictitious name and address. When apprehended, the defendant said, " Fuck. Okay. You got me -- you got me."
After his arrest, the defendant was detained pending trial. While he was awaiting trial, the defendant on several occasions attempted to fabricate evidence relative to the murder, including an attempt to plant the murder weapon on Hayes. See note 6, supra.
2. The defendant's case.
The defendant testified. According to him, the victim
had been delivering cocaine for a motorcycle gang called the " Outlaws." About
one and one-half years before the victim was killed, the victim had a package
delivered to one of the defendant's stores. The defendant opened the package and
discovered five packages of cocaine. He told the victim he wanted nothing to do
with it and left it behind one of his stores. The defendant stated that the
package went missing, and gang members contacted him and the victim to let them
know that they were going to be held responsible for the loss of the drugs and
would have to reimburse the gang $150,000. The gang members threatened to kill
their families if they did not pay.
To repay the gang, the defendant testified that he took money from his stores and obtained, with the help of Hayes, a loan from the loan shark for $35,000. The money from the loan was to be
used for a drug transaction that was to involve the defendant, the victim, and Hayes. According to the defendant, Hayes set up the deal. It occurred after the poker game on November 20, 2007, in the parking lot where the victim was found. The defendant testified that he watched from the " far corner" of the parking lot. He testified to the following. The defendant saw Hayes leave his automobile and go over to the victim, who was standing outside of his automobile. Hayes reached into the victim's automobile and grabbed something out of the front seat, and then walked away. The victim entered his automobile. After [21 N.E.3d 136] a couple of minutes, a truck pulled into the parking lot. Hayes went over to the driver's side of the truck and exchanged " bags" with the driver. Hayes returned to his automobile and tossed the bag inside. Hayes then returned to the victim. The two appeared to be talking, and then Hayes shot the victim five times. Hayes went over to the defendant, pointed the gun at him, told him to leave, and threatened him and his family if he " opened his mouth."
The defendant testified that he did not tell anyone that Hayes had killed the victim because he was " scared" based on Hayes's threat to him. The defendant said that on November 22, from a distance, Hayes had " racked" a shotgun at him and stated he had more guns in his possession; on the morning of the next day, he received a telephone call from Hayes; after this call, the defendant decided to leave town because he was in fear of his life and the lives of the members of his family. The defendant admitted that, before he left, he stole $4,000 from his wife's uncle and altered his appearance. He left a note to police inside his automobile that he abandoned during his flight encouraging police to " keep looking for" the victim's killer.
The defendant also testified that the victim had full access to his home at any time. The defendant last saw his .40 caliber pistol with the victim, who ...