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Commonwealth v. Bois

Supreme Judicial Court of Massachusetts, Norfolk

November 10, 2016


          Heard: January 12, 2016.

         Indictments found and returned in the Superior Court Department on August 30, 2007.

         The cases were tried before Janet L. Sanders, J., and a motion for a new trial, filed on October 12, 2012, was heard by her.

          Dennis Shedd for the defendant.

          Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ. [1]

          LENK, J.

         In 2009, a Superior Court jury convicted the defendant of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder. The jury found that, on August 4, 2007, the defendant broke into his grandmother's house and then raped and strangled his six-year-old cousin, who was staying there for the night. The defendant was convicted also of nine other charges, including home invasion while armed with a dangerous weapon, G. L. c. 265, § 18C.[2] At trial, the defendant conceded that he had killed the victim, but argued that he was not guilty by reason of insanity. On appeal from his convictions and from the denial of his motion for a new trial, the defendant asserts that (a) trial counsel was ineffective for failing to present certain evidence relevant to his insanity defense and to object to the jury charge on the insanity defense; (b) the judge did not respond adequately to reports that a juror slept through certain portions of the trial; (c) the evidence was insufficient on an element of the home invasion charge, and the judge incorrectly instructed the jury on that element; (d) the instructions on felony-murder impermissibly removed from the jury's consideration one of its elements; and (e) the prosecutor's closing argument was improper. The defendant asks also that, pursuant to G. L. c. 278, § 33E, we reduce the murder conviction to murder in the second degree as more consonant with justice, because his actions were the product of mental illness.

         We affirm the conviction of murder in the first degree, and decline to exercise our power under G. L. c. 278, § 33E, to reduce the degree of guilt or to order a new trial. With respect to the charge of home invasion, we agree with the defendant that the evidence was insufficient, and that his conviction must be reversed. We affirm the other convictions.

         1. Background.

         a. Facts.

         We recite the facts the jury could have found, reserving certain details for later discussion. In 2007, when the defendant was twenty years old, he did not have a permanent residence and stayed with various friends and family members. At one point during the year, he lived with his grandmother in Weymouth for approximately one month. After moving out, he asked his grandmother for money to pay his rent. She agreed, but insisted on driving the defendant to meet his landlord and to obtain a receipt. When they arrived, the grandmother handed the defendant the money, and he ran off. Several weeks later, on the morning of August 4, 2007, the defendant called his grandmother, asking if he could come to her house. She refused.

         At 2 or 3 P.M. that day, the defendant attended a cookout at the home of his friend, Megan Phinney, staying there until late in the evening. At "10 or 10:30" P.M., at the defendant's request, one his friends drove him from the cookout to his grandmother's house, approximately one mile away. The victim, the defendant's six year old cousin, and her four year old brother were staying with his grandmother that night.[3] All three had gone to sleep by the time the defendant arrived.

         After being dropped off, the defendant climbed on top of his grandmother's white Ford Explorer vehicle, which was parked in the driveway in front of the house, below a front-facing second-floor window. He used a "folding" knife with a three-inch blade to cut a hole in the window screen, and entered. Somewhere inside, he encountered the victim. He raped and strangled her in a front bedroom, then wrapped her body in bedding taken from that bedroom. He took cash from his grandmother's purse, as well as her cellular telephone and the keys to the Explorer. He left the house carrying the victim's body, which he placed on the floor of the Explorer between the front and rear seats, and drove off.

         At 10:57 P..M., the defendant appeared on a surveillance video recording entering a convenience store approximately one mile from his grandmother's house. He left the store without purchasing anything.

         Sometime after midnight, on August 5, 2007, the defendant used his grandmother's cellular telephone to call one of his acquaintances, Terrence Gandy. He told Gandy that he "had some money to burn" and "wanted to get some drugs." He drove to Gandy's house in the Dorchester section of Boston, bought marijuana, and smoked it with Gandy. He told Gandy that the Explorer he was driving "was stolen, " and asked him, "If I ever killed anybody, what would I do with the body to get rid of it[?]" Gandy replied that he should "chop it up." The defendant left after "fifteen to [twenty] minutes."

         At approximately 1:15 A.M., a Weymouth police officer in the canine unit stopped the Explorer for speeding. When the officer approached the vehicle, however, it sped off, and the officer pursued it. During the chase, both vehicles reached speeds of one hundred miles per hour. The Explorer ultimately crashed into a taxicab while attempting to turn at an intersection. The defendant got out of the vehicle and ran away. When the defendant disregarded the officer's warning to stop, the officer released his police dog. The dog chased and subdued the defendant. As the officer approached the defendant, who was lying face down on the ground with his arms outstretched, as instructed, the defendant turned to the officer and started yelling, "Just shoot me in the face. Kill me now. You don't know what I did. Just kill me now. Shoot me in the fucking face."

         The officer turned around to signal other officers who had arrived at the scene. When he turned his attention back to the defendant, he saw that the defendant had tucked his hands underneath his body. The defendant was holding a folding knife with a three-inch blade, and was pleading with the officer "to shoot him, kill him." The defendant eventually released the knife and was arrested.[4] He continued "ranting and raving" until he was placed in a police cruiser.

         After the defendant's arrest, officers conducted an inventory search of the Explorer, which they intended to have towed. They discovered the victim's body, naked from the waist down, wrapped in the grandmother's bedding. Her shorts and underwear were nearby. Police contacted the grandmother, who was unaware that the defendant had been in her house, that her Explorer had been stolen, or that the victim was missing. During a search of the grandmother's house, police found that the bedsheets were missing from the front bedroom. They also found traces of blood and seminal fluid in that room, and bloody pillows in the victim's bedroom.

         b. Trial proceedings.

         On August 30, 2007, the defendant was indicted on charges of murder in the first degree and twelve other offenses.[5] At trial in March, 2009, the Commonwealth proceeded on the murder charge on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder. To establish that the defendant was criminally responsible for his actions, the Commonwealth presented testimony regarding his behavior on the day of the killing. The defendant's girl friend testified that she spoke with him around noon that day, and agreed that he did not "sound any different" than usual. A friend who had been at the cookout recalled that the defendant drank beer, played horseshoes, and agreed that he did not "appear[] different . . . than what [his friends] had known him to be like in the past."

         The Commonwealth also presented expert testimony regarding fingerprints, blood, and seminal fluid that were recovered from the grandmother's house and the victim's body. One expert testified that samples of deoxyribonucleic acid (DNA) recovered from sperm cells on the victim's body matched the defendant's DNA profile, and another testified that a palm print on the front window matched that of the defendant.

         The defendant conceded that he had raped and killed the victim, but contended that he was not guilty by reason of insanity. The defendant did not, however, offer expert testimony regarding specific mental illnesses from which he suffered, and did not present any medical or treatment records. Nor did he offer an expert opinion that he lacked criminal responsibility for his actions. Rather, he relied on testimony concerning his behavior immediately following the killing, as well the nature of the crime itself, to establish his mental state.[6] He also presented testimony from his grandmother, on cross-examination, that he had been admitted to psychiatric hospitals numerous times during his adolescence, that he had been prescribed medications for psychiatric disorders, and that, because of behavioral issues, he had been placed in the custody of the Department of Youth Services (DYS).[7]

         In addition, the defendant introduced expert testimony from a forensic psychologist who had not examined him, concerning the general standards used to evaluate a defendant for lack of criminal responsibility, and the general characteristics of a number of mental illnesses. The expert agreed that someone may "be in the throes of mental illness and appear normal to lay observers, " and testified that a person "would be admitted to [a] psychiatric facility only [if] someone ... as part of the admission . . . believed that they had symptoms of a mental illness." The expert did not present any opinion regarding the defendant's mental state or behavior.

         The jury convicted the defendant of murder in the first degree on theories of extreme atrocity or cruelty and felonymurder, [8] but not on the theory of deliberate premeditation.[9]

         c. Motion for a new trial.

         In October, 2012, the defendant filed a motion for a new trial pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). He argued, among other things, that his trial counsel was ineffective for failing to review and present to the jury records of psychiatric treatment he had received as an adolescent. Those records, he maintained, indicated that the defendant had suffered sexual abuse as a child, and that he had been diagnosed with several mental illnesses. He argued also that trial counsel had failed to present evidence of certain strange behavior he exhibited on the day of the killing. After a nonevidentiary hearing, the motion was denied by the Superior Court judge who had been the trial judge.

         4. Discussion.

         On appeal, the defendant contends that (a) trial counsel was ineffective in her presentation of the insanity defense, (b) the judge did not respond adequately to reports of a sleeping juror, (c) there was insufficient evidence on the home invasion charge and the jury were incorrectly instructed on that issue, (d) the judge's instruction removed an element of the felony-murder charge from the jury's consideration, and (e) the prosecutor made certain inappropriate remarks during closing argument. He claims also that we should reduce the degree of guilt pursuant to our authority under G. L. c. 278, § 33E.

         a. Claim of ineffective assistance of counsel.

         As he did in his motion for a new trial, the defendant argues that counsel's investigation and presentation of his insanity defense was constitutionally deficient. He claimed, in particular, that "counsel failed to adequately investigate [his] history of treatment for mental illnesses"; "failed to present evidence of his unusual behavior shortly before the . . . crime"; and "failed to object to erroneous instructions on the mental health defense[]."

         "Because the defendant has been convicted of murder in the first degree, we consider [his] contention of ineffectiveness of counsel to determine whether there exists a substantial likelihood of a miscarriage of justice . . ., which is more favorable to a defendant than the constitutional standard for determining whether there has been ineffective assistance. Thus, we consider whether there was error during the course of the trial, and, if so, whether the error was 'likely to have influenced the jury's conclusion'" (citation omitted). Commonwealth v. Williams, 453 Mass. 203, 204-205 (2009). "Under this more favorable standard of review, we consider a defendant's claim even if the action by trial counsel does not 'constitute conduct falling "measurably below" that of an "ordinary fallible lawyer."' ... A strategic decision by an attorney, however, amounts to ineffective assistance 'only if it was manifestly unreasonable when made'" (citations omitted). Commonwealth v. Pena, 455 Mass. 1, 22 (2009).

         i. Treatment records.

         The defendant maintains that defense counsel erred in failing to read, or to introduce at trial, treatment records from his psychiatric hospitalizations and from his commitments to DYS facilities. These records indicate that the defendant suffered sexual abuse as a child, and that, during his adolescence, he was diagnosed with several mental illnesses, including agitated depression, bipolar disorder, and posttraumatic stress disorder. The records span a period of twelve years, from 1992, when the defendant was five years old, to 2004, shortly before his eighteenth birthday. The defendant contends that, had evidence of these specific diagnoses been presented to the jury, the insanity defense might have been successful.

         In an affidavit submitted in conjunction with the defendant's motion, trial counsel explained that she was aware of the treatment records, and had seen them mentioned in the defendant's competency evaluation prepared by a forensic psychologist at Bridgewater State Hospital. She stated further that, although she herself did not review the records, she had obtained funds to hire an expert psychologist to review the documents. Having reviewed the records, and having asked a colleague to do the same, the expert informed counsel that he was unable to offer an opinion that, at the time of the offense, the defendant had not been criminally responsible. Counsel averred that she therefore decided not to present expert testimony on the basis of the defendant's medical records. She did not, however, explain why she chose not to introduce the treatment records themselves, unaccompanied by expert testimony. See Commonwealth v. Dung Van Tran, 463 Mass. 8, 20 (2012) ("defendant with prior history of mental disorders and treatment 'may offer evidence of the same through medical records with or without expert witnesses'" [citation omitted]).

         While unexplained in the affidavit, counsel's decision not to introduce the records appears to have been strategic. See Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015) (where ineffective assistance claim is based on tactical or strategic decision by counsel, defendant may show counsel was ineffective only if decision was "manifestly unreasonable" when made). At a pretrial hearing, counsel argued successfully, against the Commonwealth's opposition, that the Commonwealth was not entitled to review the defendant's mental health records, because she was neither presenting them at trial nor seeking to introduce expert testimony based on their content. Moreover, during voir dire of the venire, she asked each prospective juror, "If there is no evidence presented regarding hospitalization or a diagnosis, would you still be able to keep an open mind about an insanity defense?" It therefore seems that, after due consideration, counsel deliberately decided not to present documentary evidence of the defendant's mental illnesses. "[S]trategic choices made after thorough investigation of [the] law and facts . . . are virtually unchallengeable." Commonwealth v. McMahon, 443 Mass. 409, 425 (2005), quoting Strickland v. Washington, 466 U.S. 668, 690 (1984) .

         The defendant contends, however, that without having read the records herself, counsel could not have conducted a "thorough investigation, " Commonwealthv.McMahon, supra, and was not in a position to make the strategic decision to keep the records from the jury's consideration. See Commonwealthv.Baker, 440 Mass. 519, 529 (2003) ("Until [counsel] commenced ... an investigation, ...

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