Heard: January 12, 2016.
found and returned in the Superior Court Department on August
cases were tried before Janet L. Sanders, J., and a motion
for a new trial, filed on October 12, 2012, was heard by her.
Shedd for the defendant.
A. Cusick, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
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. 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.
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.
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
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. All three had gone to sleep by the
time the defendant arrived.
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.
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
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]
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."
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. He continued
"ranting and raving" until he was placed in a
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.
August 30, 2007, the defendant was indicted on charges of
murder in the first degree and twelve other
offenses. 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."
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.
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. 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).
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.
jury convicted the defendant of murder in the first degree on
theories of extreme atrocity or cruelty and felonymurder,
but not on the theory of deliberate
Motion for a new trial.
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
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.
Claim of ineffective assistance of counsel.
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."
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).
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.
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]).
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) .
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, ...