Supreme Judicial Court of Massachusetts, Middlesex
Heard: March 11, 2016.
found and returned in the Superior Court Department on
October 21, 2010.
cases were tried before Thomas P. Billings, J.
Chauncey B. Wood for the defendant.
E. Silvia, Assistant District Attorney, for the Commonwealth.
William Trach & Laura Carey, for Massachusetts
Association of Criminal Defense Lawyers, amicus curiae,
submitted a brief.
R. Rudof, Committee for Public Counsel Services, _& David
Lewis, for Committee for Public Counsel Services &
another, amici curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, & Hines,
defendant, Kyle Alleyne, was convicted by a jury of murder in
the first degree on the theory of extreme atrocity or
cruelty for the stabbing death of his wife,
Heather Alleyne, and of assault and battery of Josh Elinoff,
the father of the victim's newborn baby. On appeal, the
defendant challenges: (1) the judge's failure to conduct
a voir dire of an inattentive juror; (2) evidentiary rulings
allowing the admission of numerous autopsy photographs,
statements of the defendant, and the victim's purse; (3)
the judge's modification of jury instructions pursuant to
Commonwealth v. DiGiambattista,
442 Mass. 423, 447-448 (2004); and (4) the judge's
failure to alter the model instructions for extreme atrocity
or cruelty. We affirm the defendant's convictions, and we
discern no basis to exercise our authority pursuant to G. L.
c. 278, § 33E.
summarize the evidence as the jury could have found it,
reserving certain facts for later discussion. The victim met
the defendant, who was six years older than she was, when she
was thirteen or fourteen years of age. Insofar as relevant
here, the two had a dating relationship. After the victim
graduated from high school she and the defendant got married
in March, 2009. She gave birth to their daughter in June,
victim and her daughter moved back to her father's house
for a period between October and December, 2009. At that
time, the victim's brother and one of his friends,
Elinoff, also lived in the father's house. The victim
told Elinoff that her relationship with the defendant was
"over and she was getting a divorce, " and she and
Elinoff engaged in a sexual relationship that ended when the
victim moved back in with the defendant.
one month after returning to live with the defendant, the
victim learned that she was pregnant. She gave birth to a
baby girl on July 23, 2010. She and the defendant did not
name the baby.
defendant suspected that he might not be the father of the
baby and on July 2 6, he and the victim submitted to a
deoxyribonucleic acid (DNA) test to determine paternity. The
results, establishing that the defendant was not the father,
became available on August 1. On August 2, the victim called
Elinoff to inform him that she had given birth to a baby and
that he was the father. Elinoff, who had not spoken to the
victim since she left her father's house to resume living
with the defendant, responded that he would help in any way
that he could. After this conversation, however, the victim
sent him text messages stating that she and the defendant had
decided to give the baby up for adoption. Elinoff responded
that he would take the baby instead, and he arranged to meet
the victim the following day.
victim met Elinoff outside her apartment complex during the
evening hours of August 3, bringing with her the baby and
baby supplies. The two sat in Elinoff's vehicle for
approximately two hours. They agreed on a name for the baby.
Elinoff asked for a letter authorizing custody of the baby
until his name appeared on the birth certificate. The victim
went back to her apartment and came out with a document. At
one point, the defendant followed the victim out of the
apartment and "tried to attack" Elinoff by
"yelling, " and chasing and hitting his vehicle.
Elinoff telephoned 911 as he drove away with the baby but
hung up when the operator answered.
late evening hours of August 3 and early morning hours of
August 4, Elinoff corresponded with the victim and the
defendant verbally and through text messages from the
defendant's cellular telephone. The victim explained that
her telephone had been "smashed." On August 4,
Elinoff learned that he needed to have a "denial of
paternity" form signed by the victim and the defendant
in order to be able to file a birth certificate. He spoke to
the victim at approximately 5:30 P.M. and scheduled a meeting
to take place the next day to obtain notarized signatures
from the victim and defendant on the paternity form.
victim was last heard from on August 4, at approximately 10
P.M., when she telephoned her father's girl friend to try
to arrange a meeting the following day to visit her father,
who was hospitalized with a serious illness.
August 5, Elinoff drove to the victim's apartment complex
at the arranged time. He did not know which apartment unit
was the victim's so he called the defendant's
cellular telephone and waited outside for about thirty
minutes before leaving. That evening and the next day, the
defendant telephoned two relatives to whom he had not spoken
for at least one year. One was an aunt who lived in Florida.
He told her that he was going to take a bus with his daughter
to visit her.
around noon on August 6, Elinoff went back to the apartment
complex, where a group of children pointed him to the correct
apartment. He "hammered on the [apartment] door"
for five to ten minutes before the defendant answered and
came out into the hallway, shutting the door behind him. The
defendant stated that he had not heard from the victim for a
few days, but he would sign his portion of the paternity form
if Elinoff came back in a few hours. The victim's mother
also came by the apartment that afternoon, looking for the
victim. The defendant opened the door "a crack, "
just "enough for his face to get through to talk to
[her], " and said that the victim "took off, "
probably to see Elinoff or her grandmother.
returned to the apartment at approximately 3 P.M. The
defendant met him outside, and explained that he did not have
a car seat for his daughter so he would leave her in the
apartment. The two drove to a nearby bank to secure the
services of a notary public for the paternity form. The
defendant accused Elinoff of "ruining his family"
and, in the bank's parking lot, read a letter written by
the victim to the baby that contained derogatory statements
about Elinoff. The defendant punched Elinoff in the face,
knocking out two of his teeth, and then he ran away. Elinoff
telephoned 911 at 3:43 P.M. When the police arrived, Elinoff
reported what had happened and told them that the defendant
had left his young daughter alone at the
leaving the bank parking lot, the defendant went to a local
restaurant. A taxicab picked him up there at approximately 4
P.M. and drove him to three stores before dropping him off at
his apartment. During those stops, the defendant purchased
bleach, trash bags, gloves, disinfectant wipes, packing tape,
a clothesline, a mattress pad, a sleeping bag, a lighter,
fuel, and a car seat. He made a reservation with the taxicab
for that evening, and at approximately 7:30 P.M., the taxicab
driver drove the defendant and his daughter to an area where
there were two adjacent local hotels.
approximately 8:40 P..M. that evening, two Framingham police
officers went to a local hotel for a well-being check on a
child after being alerted by the hotel clerk that an
intoxicated man checked into the hotel with a young child.
The officers went to the defendant's hotel room and spoke
to the defendant, who was clumsy and had an alcohol odor but
was able to converse with and understand the officers.
conducting a check on the child, the officers found a
woman's purse inside of a grocery bag containing a
half-empty bottle of liquor. The purse contained two
identification cards with the victim's photograph and
name. The defendant explained that the purse belonged to his
daughter's mother, that she had recently given birth to
another child that was not his, and that she no longer wanted
anything to do with this daughter. The defendant stated that
the daughter's mother was not home because she was
"out whoring around" and stated that he and the
daughter had been homeless for approximately four weeks. The
officers called the Department of Child and Family Services,
and the defendant's mother and grandmother were called to
the hotel to assist with the child. The defendant's
mother took the defendant's child home with her, and the
defendant left with his grandmother.
defendant's request, his grandmother dropped him off at a
train station. On August 8, he telephoned his aunt from
Atlanta, Georgia, and requested money. She asked him to
contact her later that evening, but she did not hear from him
August 9, at approximately 4:30 P.M., the victim's mother
went to the victim's apartment because of her concern
that no one had heard from the victim since August 4. When
there was no answer at the door, she called the police and
requested a well-being check. The police gained entry to the
apartment, where there was an odor consistent with a
decomposing body. In the corner of the second bedroom, ...