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Commonwealth v. Alleyne

Supreme Judicial Court of Massachusetts, Middlesex

July 15, 2016


          Heard: March 11, 2016.

         Indictments found and returned in the Superior Court Department on October 21, 2010.

         The cases were tried before Thomas P. Billings, J.

          Chauncey B. Wood for the defendant.

          Casey E. Silvia, Assistant District Attorney, for the Commonwealth.

          William Trach & Laura Carey, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

          Paul 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, JJ.

          HINES, J.

         The defendant, Kyle Alleyne, was convicted by a jury of murder in the first degree on the theory of extreme atrocity or cruelty[1] 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.[2] 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.[3]


         We 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, 2009.

         The 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.

         Within 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.

         The 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.

         The 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.

         In the 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.[4] 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.

         The 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.

         On 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.

         At 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.

         Elinoff 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 apartment.[5]

         After 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.

         At 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.

         While 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.

         At the 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 again.

         On 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, ...

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