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Commonwealth v. Griffin

Supreme Judicial Court of Massachusetts, Bristol

November 4, 2016


          Heard: April 8, 2016.

         Indictments found and returned in the Superior Court Department on September 28, 2009.

         The cases were tried before E. Susan Garsh, J.

          Neil L. Fishman for the defendant.

          Yul-mi Cho, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ. [1]

          GANTS, C.J.

         In the late evening or early morning of July 23 and 24, 2009, the defendant broke into the house where his six year old daughter lived with the defendant's former girl friend and slit his daughter's throat, causing her death. A Superior Court jury convicted the defendant of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, in violation of G. L. c. 265, § 1, and of home invasion, in violation of G. L. c. 265, § 18C.[2] At trial, the defendant did not contest that he had killed the victim, but pursued a defense that he was not criminally responsible at the time of the killing.

         The defendant presents four claims on appeal. First, he contends that the evidence at trial was insufficient as a matter of law to permit a rational jury to find beyond a reasonable doubt that he was criminally responsible at the time of the killing. Second, he claims that his trial counsel provided ineffective assistance of counsel by admitting in his opening statement that the defendant's conduct was "not psychotic." Third, he contends that the prosecutors made improper remarks during their opening statement and closing argument. Fourth, he argues that the judge's instruction regarding the consequences of a verdict of not guilty by reason of lack of criminal responsibility created a substantial likelihood of a miscarriage of justice. We affirm the defendant's convictions, and having reviewed the entire record of the case pursuant to our duty under G. L. c. 278, § 33E, we find no reason to exercise our authority to order a new trial or to reduce the verdict of murder in the first degree.


         Because the defendant challenges the sufficiency of the evidence, we recount the evidence in the light most favorable to the Commonwealth. In July, 2003, Deborah Mons gave birth to the victim; the defendant was the victim's biological father. The defendant and Mons had begun to date in 2002, and in July or August of that year the defendant moved into Mons's home, where she lived with her three sons from previous relationships. From 2003 to the spring of 2006, the defendant continued to live with Mons in her house for "most of the time, " but their relationship was turbulent. In January, 2003, after the defendant made a trip to Florida and visited with an ex-wife, Mons told the defendant that he could not be in a relationship with both her and his ex-wife. When Mons gave the defendant this ultimatum, the defendant appeared depressed and asked to be taken to the hospital. He was treated at the hospital for three to five days, and did not live at Mons's house from February to July of 2003.

         In 2006, Mons broke off the relationship because it "just wasn't working out, " and she asked the defendant to move out. However, between 2006 and 2009, Mons and the defendant occasionally dated, albeit "[n]othing on a regular basis, " and the defendant would occasionally stay at Mons's house when he needed a place to stay. Each time the defendant moved back into the house, he would stay until Mons told him that he needed to leave.

         In January, 2008, the victim, then four, made "a sexually inappropriate statement" that appeared to implicate one of Mons's sons, who was thirteen at the time. As a result of that statement, the son was sent to a hospital for a psychiatric evaluation and was later placed in a residential treatment facility.

         In the spring of 2009, Mons began a relationship with a man named Anthony, [3] who lived in North Carolina. In June, Mons spent a week in North Carolina with him. At this time, Mons told the defendant that she was planning to move to North Carolina and take the victim with her, but before she could move she needed to arrange for her son to be placed in a treatment facility in North Carolina, which she anticipated would take at least another year.

         The defendant began staying at Mons's house again early in June, 2009. While he was living there, the defendant learned that Mons was in a sexual relationship with both him and Anthony. Thereafter, the defendant logged on to a social networking account used by Mons, read exchanges between her and Anthony, and deleted her social networking profile. Around the same time, the defendant told Mons that he would "go to the facility [her son] was at and take [the son] out and then take himself out" in order to make her move to North Carolina easier. Because of that statement, Mons asked the defendant to move out of her home, which he did on July 9.

         Mons said the defendant was not "happy" about having to move out, and did not know where he was going to stay. On July 10, Mons returned a missed telephone call from the defendant and heard his outgoing voicemail message, in which he said that he "had lost his battle with mental illness and was no longer available." A few hours after hearing that message, the defendant arrived at Mons's house to retrieve some belongings. Mons called the police and spoke to the defendant when the police arrived. The defendant stated that he was "just upset" and "did not really mean what he had said in the voicemail." He agreed to be voluntarily taken by the police to a hospital for a psychiatric evaluation. The hospital determined that he was not suicidal and released him the following day.

         After his release, on July 11, the defendant asked a friend, Robert Fisher, if the defendant could stay in a camper that Fisher had on his property. Fisher and his wife allowed the defendant to stay in the camper for two weeks. During the next twelve days, the defendant lived in the camper and assisted with the care of Fisher's father, who lived with Fisher and had Alzheimer's disease. Fisher did not notice anything unusual about the defendant's behavior during this period.

         On July 23, the defendant called Mons's house at 7:30 P..M. to speak to the victim, as he did many nights. Mons told him that the victim was already in bed and that, if he wanted to talk to the victim over the weekend, he should call Mons's cellular telephone as she was taking the victim on a trip to Washington, D.C., or North Carolina that weekend. The defendant was upset and told Mons that she could not "take [the victim] away from [him] like that." He told Mons that the victim was not safe whenever he was not around to speak with the victim and that the last time the defendant left the house the victim was "molested" by Mons's son. At 8 P.M., Fisher spoke to the defendant on the telephone, and the defendant told Fisher he was going to the library to return a video and asked if Fisher needed anything. Fisher did not notice anything unusual about the defendant's behavior.

         At 11 P..M., the defendant packed various items into a backpack, including rope, duct tape, a first-aid kit, a flashlight, scissors, two utility tools, and a knife in a sheath. It was raining, and the defendant put on a poncho to walk the twenty minutes to Mons's house. He did not take his Jeep vehicle because it was loud and might wake someone. Arriving at the house, the defendant cut the telephone lines on the exterior of the house. He entered the house by sliding open the screen on a window above a bulkhead and then climbing in through the window. Once inside the house, he took off his boots and went down to the basement of the house where he took off his wet clothes and turned off the electricity to the house at the circuit board. He also cut the telephone line inside the house.

         The defendant then went to the victim's bedroom where he sat with her before eventually carrying her to the basement. After sitting with the victim for some time, the defendant placed a hand over the victim's mouth and cut her throat three times, each time deep enough to reach the victim's spinal column. The defendant then wiped his hands with a towel and used disinfecting wipes from the kitchen to clean the light switch in the basement and further clean his hands. The defendant then repacked his belongings into his backpack and left the house through the window by which he had entered.

         At 3:45 A.M., Fisher received a call from the defendant's telephone, and when he answered he only heard someone gasping for breath and gagging. Thinking the defendant might have hurt himself, Fisher went to the camper to check on the defendant. He found the camper empty but discovered a note addressed to him that purported to be the defendant's last will and testament and stated the defendant's intent to leave all of his property to Fisher. Concerned, Fisher's wife called the police. Thereafter, Fisher's wife found another note in the camper, this one addressed, "To whom it may concern." In the note, the defendant wrote, in relevant part: "I am sorry for what sins I have committed. Sending [the victim] to heaven was the only way I could think of to protect her. I dont want any of my children to grow up suffer with mental illness the way I have. [The victim] is the only one I can still save. . . Please notify my family of my passing."

         At 4:10 A.M., Officer Joshua Ellender of the Mansfield police department arrived at Fisher's house, spoke to Fisher briefly, and then left to look for the defendant. Officer Ellender found the defendant one-quarter mile from Fisher's house, walking in the direction of the house. Ellender asked the defendant if he was all right and questioned why he was walking in the rain. The defendant answered that he was all right and that he had gone to a pharmacy to fill a prescription and was on his way home. Ellender offered to drive the defendant home, and the defendant accepted. Ellender asked the defendant a few questions in the police cruiser, and the defendant responded in a "very timid high-pitched voice." When they arrived at Fisher's house, Fisher told Ellender about the second note, and the officer asked the defendant if he had hurt anyone. The defendant responded that he had and told Ellender and Fisher that he had killed his daughter. Ellender then handcuffed the defendant and, after the defendant stated that the knife was in his backpack, the officer took the backpack from him. While sitting in the back of the police cruiser, the defendant said that he deserved to die and began hitting his head against the partition in the cruiser, but stopped when Ellender asked him to; the defendant later asked Ellender to shoot him.

         Police responded to Mons's house, where they awoke Mons and discovered the victim's body in the basement under a blanket.

         Willa Griffin, the defendant's mother, testified that, at some point after the defendant began dating Mons, the defendant had told her in a telephone call that he had "found a doctor that could draw up the papers" for him to obtain Social Security disability benefits and that he was going to apply to get the benefits. The defendant again telephoned his mother in early or mid-July 2009, and asked if she thought the victim "would be better off in heaven." His mother responded that everyone would be better off in heaven, but that only God could make that choice. Later, on the evening of July 22, 2009, the defendant again telephoned his mother and asked to come home to live with her in Florida because he could not stay any longer in the place where he was currently living. She told him that he could come home and agreed to pay for the rental truck he would need to transport his belongings. On July 23, the defendant telephoned his mother between 6 P.M. and 7 P.M. and told her that he was going to postpone coming to Florida until the beginning of August because he needed his Social Security money to pay for gasoline and because he thought he might have "permanent housing" by Saturday.[4] He ended the call by saying, "And no matter what happens, know I love you." After the killing of the victim, the defendant spoke again with his mother ...

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