Supreme Judicial Court of Massachusetts, Plymouth
Heard: February 14, 2017.
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,
W. O'Brien for the defendant.
Yeshulas, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Hines, Lowy, & Budd, JJ.
defendant appeals from his conviction of murder in the first
degree 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.
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.
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
early October, 2006, the victim's younger sister,
Kenyisha Chaney,  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.
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
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,
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.
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."
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.
Trial and posttrial proceedings.
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
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; (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.
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.
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.