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Commonwealth v. Grassie

Supreme Judicial Court of Massachusetts, Plymouth

January 6, 2017

COMMONWEALTH
v.
BRYAN M. GRASSIE.

          Heard: September 6, 2016.

         Indictments found and returned in the Superior Court Department on September 21, 2012. The cases were tried before Frank M. Gaziano, J., and a renewed motion for a required finding of not guilty was considered by him.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Kenneth H. Anderson for the defendant.

          Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

          Argie K. Shapiro, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

          Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.

          BOTSFORD, J.

         The defendant appeals from his convictions of murder in the second degree and a related charge. He argues that, based on the evidence presented at trial and the prosecutor's closing argument, his murder conviction should be reversed or reduced to a conviction of manslaughter. We conclude that there was sufficient evidence to convict the defendant of murder in the second degree and that the prosecutor's closing argument was not improper. However, for the reasons discussed below, we do not decide whether the defendant is entitled to a reduced verdict.

         The defendant argues as well that this court should expand its holding in Commonwealth v. Walczak, 463 Mass. 808 (2012), to require that in all cases where the Commonwealth seeks to indict a person for murder, whether the person is a juvenile (as in Walczak) or an adult (as here), and there is substantial evidence of mitigating circumstances or defenses presented to the grand jury, the grand jury must be instructed on the elements of murder and the significance of mitigating circumstances and defenses. We conclude that this defendant is not entitled to relief based on the absence of any such instructions. However, we also believe it is important for the court to gain a better understanding of current grand jury instruction practices before deciding whether the holding of the Walczak case should be expanded in the future. Accordingly, we will appoint a committee to study and make recommendations about this question.[1]

         Background.

         1. Facts.

         The jury could have found the following. The fatal altercation occurred in the East Wareham section of Wareham outside a high school graduation party hosted by Dylan Burns. The gathering began on the afternoon of July 28, 2012, and extended into the early morning hours of July 29. The two victims, Brendan Mahoney and Brian Mahoney, [2] arrived at the party around 2 or 3 £.M. on July 28 and, like many of the partygoers, were drinking alcohol despite being underage. All told, a "half keg" and two thirty-packs of beer were consumed throughout the day and night. The defendant, Bryan Grassie, arrived at the party after midnight on July 29, appearing intoxicated and acting "confrontational" and "aggressive." The defendant had not been invited to the party, but he knew Burns, the host.

         Over the next few hours, the defendant repeatedly confronted others at the party, including the Mahoney brothers, and either discussed fighting or offered to fight them. For example, the defendant at one point told the brothers, "[I]f there's a problem right now, we can go outside and take care of it." During a confrontation, the brothers forced the defendant up against a wall and told him "no one there wanted to fight" and "to leave before he got hurt." Brendan then removed a cigarette from behind the defendant's ear and threw it in the defendant's face. Brian spoke with Burns and asked him to get the defendant "the fuck out of here before I [Brian], like, hit him or something." Eventually, Burns did intervene. However, the defendant and the Mahoney brothers continued to exchange words about the possibility of fighting at a nearby beach. As Burns was leading the defendant away from the brothers, Brian reached over Burns's shoulder and pushed the defendant's face away.

         Burns was able to coax the defendant outside, although the defendant remained confrontational. He told Burns, "My problem is with . . . the Mahoney [b]rothers, " and said, "[H]ave them come outside and . . .we'll solve it. We'll take care of it with them." Once outside, the defendant at first would not leave the front of the house, and yelled at the Mahoneys to come outside and fight him. When Brian came out, the defendant said, "[L]et's go down to the beach. We'll fight there, " and Brian said, "[A]lright, I'll see you in like [ten] minutes, " before going back inside. The defendant continued to yell about fighting. After some time outside, however, the defendant began to walk away from the party. He headed down Priscilla Avenue, in the direction of his home and also the beach; as he walked, he continued shouting insults back toward the party.

         The events at the heart of this case occurred shortly thereafter. The trial witnesses essentially agreed that after the defendant began walking away from the party, the Mahoney brothers pursued him down Priscilla Avenue, followed by several others from the party. One witness testified that the defendant was "walking backwards" -- that is, facing the party -- as he left. This witness described the defendant as "turned around" and "waiting" in a "fighting stance" or "in a ready position waiting to fight, " with his feet "shoulder width apart" and his hands out of his pockets as the brothers approached. The defendant and the brothers then engaged in physical combat in the shadows beyond a streetlight. A surveillance audio-video system mounted on the outside of a nearby home on Priscilla Avenue captured audio from the fight, as well as some video images from before and after.

         The following is apparent from the audio-video recording. Footsteps walking can be heard, and a very shadowy figure (identified by several witnesses as the defendant) can vaguely be made out, moving down the road away from the party.[3] Over the first twenty seconds of the recording, the defendant can be heard saying, "Follow me, let's go ... . Follow me, you little pussies. I'll wait there, dude. I'll wait there for you. You guys are fucking bitches, you guys won't come. You fucking pussies. I'll fight you guys like one-on-one. Not even one-on-one. Two-on-one, three-on-one, you fucking little pussies." Over the next three seconds, the defendant says nothing further as he continues to walk down Priscilla Avenue and his shadowy figure moves out of the camera's view. As it does so, the sound of running footsteps becomes audible. Although the video recording does not reveal any visual image of a person or persons, the witnesses at trial essentially agreed that the Mahoney brothers were the first partygoers to run down Priscilla Avenue after the defendant, followed by Burns, James Waitz, and Matthew Ingargiola. Within three seconds of the sound of running footsteps, a series of thuds or crashes is heard, along with additional running footsteps. Approximately ten seconds elapse between the first crash and the sound of someone's voice saying, "He's got a knife, " followed immediately by a scream. Six seconds later, someone says, "Call the ambulance." About five seconds after that, a video image shows Brendan limping quickly away from the fight, back toward the site of the party, accompanied by Brian and two others running beside him, identified at trial as Burns and Waitz.

         Each Mahoney brother had been stabbed several times. Brendan suffered five stab wounds and one incised wound. One of the stab wounds was to the abdomen, identified by the medical examiner as the only wound that could have caused his death. The remaining wounds were to Brendan's legs or buttocks. Following surgical intervention, Brendan died on July 31, 2012. Brian suffered two stab wounds to his abdomen and side, and others to the buttocks; the injuries required surgical repair.

         Although the weapon used in the stabbings was not recovered, there was testimony that the defendant had exhibited a folding knife, in a nonthreatening manner, to one person at Burns's party and to a different person at an earlier party held the same night. The Commonwealth introduced in evidence two knives that were described by those two individuals as looking similar to the knife the defendant had shown to them. Each of the model knives has a blade approximately three and one-half inches long and a handle approximately four and one-half inches long. The model knives can be opened with one hand by pressing certain areas of the handle.

         2. Procedural history.

         A Plymouth County grand jury indicted the defendant for murder in the first degree (Brendan), armed assault with intent to murder (Brian), and assault and battery by means of a dangerous weapon (Brian). The defendant moved to dismiss the indictments because the Commonwealth had failed to instruct the grand jury on the elements of murder in the first degree, murder in the second degree, and voluntary manslaughter, and on mitigating circumstances and defenses. The motion was denied. The defendant sought review before a single justice in this court pursuant to G. L. c. 211, § 3. The single justice denied relief.

         The defendant thereafter was tried before a jury. At the close of the Commonwealth's case and at the close of all the evidence, the defendant moved for a required finding of not guilty insofar as the indictments alleged murder (in both degrees) and armed assault with intent to murder. The trial judge denied the motions. With respect to the murder indictment, the judge instructed the jury on murder in the first degree (on the theories of deliberate premeditation and extreme atrocity or cruelty); murder in the second degree; voluntary manslaughter; self-defense; and the mitigating circumstances of (1) heat of passion on reasonable provocation, (2) heat of passion induced by sudden combat, and (3) the use of excessive force in self-defense. The jury found the defendant guilty of murder in the second degree and assault and battery by means of a dangerous weapon; the defendant was found not guilty of armed assault with intent to murder and the lesser included offense of armed assault with intent to kill.

         Following the verdicts, the defendant renewed his motion under Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), for a required finding of not guilty on the charge of murder. In the alternative, he moved under the same rule for a reduction in the verdict of murder in the second degree to manslaughter, or for a new trial. The trial judge denied all three aspects of the motion. The defendant appealed from his convictions to the Appeals Court, and we transferred the case to this court on our own motion.

         Discussion.

         1. Motion for a required ...


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