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Commonwealth v. Montrond

Supreme Judicial Court of Massachusetts, Plymouth

May 17, 2017


          Heard: February 14, 2017.

         Indictments found and returned in the Superior Court Department on November 16, 2007. The cases were tried before Paul E. Troy, J.; a motion for a new trial, filed on July 12, 2012, and a motion for postconviction discovery, filed on May 2, 2013, were considered by him, and following remand by this court, the motion for a new trial was heard by Thomas F. McGuire, Jr., J.

          Leslie W. O'Brien for the defendant.

          Laurie Yeshulas, Assistant District Attorney, for the Commonwealth.

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

          LENK, J.

         The defendant appeals from his conviction of murder in the first degree[1] on a theory of deliberate premeditation in the shooting death of Carlita Chaney on August 16, 2007, and from the denial of his motion for a new trial. The defendant's consolidated appeal from his convictions and from the denial of his motion for a new trial first came before this court in November, 2014, when, following oral argument, we stayed the appeal and remanded the matter to the Superior Court to conduct an evidentiary hearing concerning the defendant's ineffective assistance of counsel claim and the location of certain telephone records. After that hearing, the defendant renewed his motion for a new trial, which the judge denied.

         On appeal, the defendant argues that his trial counsel was ineffective, and that his right of confrontation pursuant to the Sixth Amendment to the United States Constitution was violated by virtue of certain testimony from the Commonwealth's medical examiner. He also contends that both motion judges erroneously denied his motion for a new trial. Finally, the defendant asks that we exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt. We conclude that there was no error requiring reversal, and discern no reason to exercise our extraordinary power under G. L. c. 278, § 33E. Accordingly, we affirm the convictions.

         1. Background.

         a. Facts.

         Based on the evidence at trial, the jury could have found the following. The defendant and the victim had been involved in a romantic relationship and had two children together. They lived together in Brockton from 1997 until 2002, when they broke up. The victim then moved to Ohio with the children and had a child with someone else. In 2006, she and the three children moved to Spartanburg, South Carolina. Although her romantic relationship with the defendant had ended, the victim would bring the children to Brockton for one month every summer, and would stay with the defendant and his family.[2]

         In early October, 2006, the victim's younger sister, Kenyisha Chaney, [3] learned that the defendant was listed on the Internet Web site, MassMostWanted. She told this to the victim, who was then living in South Carolina; at that time, the defendant was staying at the victim's house. Shortly after Kenyisha informed her of the defendant's "wanted" status, the victim alerted the South Carolina police. The defendant was arrested at the victim's house and was returned to Massachusetts. Subsequently, he was released on bail.[4]

         In July, 2007, the victim returned to Brockton to stay with the defendant's family for one month. Although the victim did not spend the entire month at the defendant's parents' house, she was staying there on the night of August 15, 2007. That night, Kenyisha spoke with the victim by cellular telephone at approximately 11:30 P.M. Kenyisha testified at trial that she heard the defendant in the background telling the victim to get off the telephone and that the victim told her that the defendant had an "attitude" toward her and had called her a "snitch."[5]

         Around 1 A.M. on the morning of August 16, 2007, the defendant shot the victim in the head at close range as she reclined on the couch in the basement of the Montronds' home. According to the defendant's parents, who were awakened by the sound of the gunshot, they rushed downstairs and saw the defendant screaming and crying, "accident, accident." He appeared to be suicidal. Jose Montrond, the defendant's father, told Maria Montrond, [6] the defendant's mother, to retrieve the gun, which was on the floor, and put it upstairs. Maria picked up the gun and gave it to Jose, who put the gun in a plastic bag and placed it inside a kitchen cabinet. The Montronds testified that they did nothing further with the gun, which police found with the safety lock engaged. No one called 911.

         Shortly thereafter, Patricia Montrond, the defendant's sister, received a frantic telephone call from their brother, Maradona Montrond, telling her that "something bad happened" and that she should come to the Montronds' house immediately. She arrived to find the defendant crying, pounding his head, and yelling that the shooting was an accident. She called 911 and told the dispatcher:

"This is an emergency. My brother just told me he was playing with a gun. He thought the gun was on safety. He just killed his girl friend. He just killed his girl friend downstairs on the couch by mistake. A gun was -- he thought the gun was -- my brother thought the lock -- the gun was locked when he was playing with it. He killed his girl friend by mistake. My brother thought his gun was on lock, I guess. He was playing with it and pointing it at his girl friend. She's dead; she's dead on the couch."

         Brockton police Officer Jason Ford was one of the first responders. When he entered the house, he saw the defendant wearing a "soiled" t-shirt and staring at the ground with red, glassy eyes; the defendant looked as if he had been crying. Ford retrieved the gun from the cabinet where the defendant's parents had placed it, noted that the safety lock was on, and put it in the trunk of his cruiser. The defendant was arrested and read the Miranda rights.

         b. Trial and posttrial proceedings.

         At trial, the theory of the defense was that the shooting was accidental. In particular, trial counsel argued that the defendant thought that the safety lock was engaged when the firearm fired the fatal shot. The jury convicted the defendant of murder in the first degree and the firearms offenses.[7]

         In July, 2012, the defendant filed a motion for a new trial on grounds of ineffective assistance of counsel and a violation of his right to confrontation under the Sixth Amendment. The defendant argued that his trial counsel had provided ineffective assistance by failing (1) to present evidence that the defendant was intoxicated at the time of the shooting;[8] (2) to object to the admission of testimony regarding the defendant's name appearing on MassMostWanted; and (3) to seek to strike an answer by the Commonwealth's medical examiner that, in her opinion, the shooting was a homicide. The defendant's contention that he had been deprived of his right to confrontation was based on a statement by the medical examiner, who was permitted to testify, over trial counsel's objection, to the results of toxicology testing that she had not conducted.

         The first motion judge, who was also the trial judge, denied the motion for a new trial without an evidentiary hearing. The judge rejected the ineffective assistance claim involving evidence of the defendant's intoxication for three reasons: first, he did not credit the affidavits submitted by the defendant; second, he concluded that Ford's testimony was not sufficient to establish "an inference that [the defendant] was so debilitated by alcohol that his ability to form the requisite criminal intent was impaired"; and third, he determined that the evidence of intoxication could have undermined the defense of accident. The judge denied the ineffective assistance of counsel claim arising from trial counsel's failure to object to references to the defendant's name appearing on MassMostWanted both because the references were properly admissible to show the defendant's motive and because, even if they were admitted in error, there was no substantial likelihood of a miscarriage of justice. With respect to the ineffective assistance of counsel claim concerning the medical examiner's opinion that the killing was a homicide, the judge determined that trial counsel had mitigated the impact of the testimony by following up on the examiner's answer and ultimately causing her to recant her opinion.

         As to the medical examiner's testimony concerning the toxicology testing she had not performed, the judge concluded that there had been a violation of the defendant's rights under the confrontation clause, but that trial counsel had mitigated the erroneous admission of the medical examiner's testimony through an effective cross-examination and that the error did not contribute to the verdict. The judge also denied the defendant's motion for expanded discovery, which would have required the Commonwealth to provide any telephone records in its possession that indicated calls from Kenyisha's telephone to the victim on the night of the shootings.[9]

         c. First ...

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