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Commonwealth v. Dunn

Supreme Judicial Court of Massachusetts, Norfolk

October 12, 2017


          Heard: May 5, 2017.

         Indictments found and returned in the Superior Court Department on January 15, 2008.

         The cases were tried before Kenneth J. Fishman, J.

          Alan Jay Black for the defendant.

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

          Present: Gants, C.J., Lenk, Hines, Gaziano, & Cypher, JJ.[1]

          GANTS, C.J.

         On November 2, 2007, the defendant struck Robert Moore multiple times with a baseball bat in the basement of Moore's home, killing him, and then attacked his daughter-in-law, Nancy Moore, with the baseball bat and a shod foot when she went downstairs to look for him, nearly killing her. A Superior Court jury convicted the defendant of murder in the first degree on the theory of extreme atrocity or cruelty for his killing of Robert, [2] and of various indictments for his brutal attack of Nancy, including armed assault with the intent to murder.[3] The issue at trial was not whether the defendant committed these acts; his attorney admitted that he did so in his opening statement. The issue was whether the Commonwealth proved beyond a reasonable doubt that he was criminally responsible for his actions.

         The defendant presents five claims on appeal: (1) that the trial judge abused his discretion in denying a motion for a mistrial after the Commonwealth's expert witness commented on the credibility of the defendant or the defendant's expert witness; (2) that the conviction of armed assault with the intent to murder should be reduced to assault with the intent to murder because that is how the verdict slip characterized the indictment; (3) that the judge's instruction to the jury describing what would happen if the jury found the defendant not guilty by reason of lack of criminal responsibility created a substantial likelihood of a miscarriage of justice; (4) that the absence of a jury instruction regarding the effects of drugs on the defendant's criminal responsibility created a substantial likelihood of a miscarriage of justice; and (5) that we should exercise our authority under G. L. c. 278, § 33E, to grant the defendant a new trial or reduce his conviction of murder in the first degree to murder in the second degree or manslaughter because the verdict was not consonant with justice. We affirm the defendant's convictions and conclude that the defendant is not entitled to relief under G. L. c. 278, § 33E.


         Because the defendant contends that the murder verdict was not consonant with justice, we describe the evidence at trial in some detail, focusing on the evidence regarding the defendant's criminal responsibility.

         1. Evidence of the crime.

         The defendant worked as a foreman at a small irrigation company that installs landscape irrigation systems for homes and small commercial properties. As foreman, his job was to design the irrigation system to be installed at the customer's property and to install it. On the morning of the events at issue, the defendant was the foreman for the installation of an irrigation system at Robert's home in Needham. The defendant arrived early to design the installation and later was joined by a fellow employee, Steven Erickson, who assisted the defendant with the installation, which involved laying the piping for the system and installing heads, valves, a control clock, and a timer. When Erickson arrived, driving the company's truck, the defendant was planting fluorescent flags in the backyard to "stake out" the irrigation system. Erickson testified that there was nothing unusual about his conversation with the defendant that morning. When the defendant and Erickson took a break, Robert came to the back yard to bring them cookies and milk. Moore's grandson, James, was also there, painting the side of the house.

         Around mid-morning, Michael White, the coowner of the irrigation company, came to the site to check on the progress of the installation. The defendant and Erickson had completed about eighty per cent of the job by the time White arrived. White testified that the defendant "appeared fine" and was not acting bizarrely or unusually. White also said that Robert was joking with the men about how he should have just painted his lawn green. White did not stay long and left sometime between 11 and 11:30 A.M.

         One of the final remaining tasks was the installation of the irrigation system's control clock and timer inside the home. Erickson usually installed the device, but on this occasion the defendant wanted to perform the job. Robert opened the bulkhead door to the cellar so that the defendant could enter the home and install the control clock and timer. The installation usually took around fifteen minutes, but Erickson noted that it seemed to be taking the defendant "quite a while" to install the control clock, so he knocked on the bulkhead door. The defendant answered but did not open the door.

         At 11:23 A.M., Robert telephoned his son from his home number in the kitchen and asked for the name of the "head guy" of the irrigation company. Robert's son had recommended the company to his father, but he could not recall the name of the owner when speaking with his father that morning. A person speaking from the kitchen on the first floor could be heard by a person in the basement, but there was no evidence confirming that the defendant heard what Robert had said in this telephone call. A digital forensics State police officer testified that between 11:30 and 11:45 A.M., Robert's computer was used to perform search inquiries for different irrigation and lawn care Web sites.[4]

         At around noon, Erickson asked James to open the bulkhead door to see why the defendant was taking so long to install the control clock and timer. James jogged through the house and into the cellar, where he passed the defendant, unlocked the bulkhead door, and continued outside; James did not see any blood in the cellar. The defendant followed James outside. James described the defendant as "kind of irritated or agitated" after he came out of the cellar. The defendant twice walked directly under the ladder James was working on, and asked, "Where is the old man?" James replied that he did not know.

         Erickson said the defendant "looked normal" when he emerged from the cellar, but that he was "definitely sweating" and was "shoving rubber gloves down his pants"; the installation of the control clock and timer did not require the wearing of gloves. Erickson asked the defendant what he wanted for lunch, and Erickson left to travel to Dedham to purchase lunch.

         Nancy, James's mother, arrived at the home at around 12:30 P.M. She asked James whether he had seen his grandfather, and he said, "No." Nancy looked through the home and noticed that the basement door was open. She walked down the stairs to the cellar and saw the defendant, who asked her if he could use the bathroom. When she turned to go back up the stairs to show him one, the defendant grabbed her with an arm around her neck and started punching her continuously in the head. Nancy "tried to fight" and remembered "twisting around and just trying to fight, and . . . yelling." The last thing she remembered before losing consciousness was seeing the defendant "stomping on [her] face."

         James finished painting, put away his supplies, and went into the home to wash up. While he was washing his hands, he heard a moaning sound coming from the basement. When he reached the bottom of the stairs, he saw his mother lying face down, near a "bloody baseball bat, " with so much blood in her hair and face that he did not recognize her. He then saw his grandfather on the floor in the utility room of the basement, with a large open gash in his skull, lying in a pool of blood; a mop was in the pool of blood. James, fearing for his life, grabbed the baseball bat, ran out of the house, and asked two women walking on the street to "call 911." The defendant was standing in front of the house and asked James, "What do you want to call 911 for? We didn't do nothing." The defendant "took off" as James tried to speak to the two women who were telephoning 911. One of the two women described the defendant's appearance as "very, very red and sweaty"; the other testified that the defendant looked "really dazed and confused." Both of the women said that, after the defendant looked toward them, he ran away from the house, and they did not see him again.

         The State police canine unit responded to the emergency call at approximately 1 P.M., and quickly launched a search of the surrounding area. At approximately 3:45 P.M., while searching through a marshy area near Route 128 and the commuter railroad, a State trooper came upon the defendant, who was "[lying] in a depression in the ground" and had "pulled vegetation over himself so that he was partially obscured from view." The defendant stood up as the trooper approached and, ignoring the trooper's commands, began to struggle with the canine, who had bitten him on the arm. The defendant soon surrendered and was placed under arrest.

         As the defendant was being transported to the police station, helicopters hovered above, and the defendant asked, "Is this all over the news?" A different officer testified that he overheard the defendant telling his wife on the telephone at the police station, "I'm in a heap of trouble here. This is important."

         At the police station, the defendant waived his Miranda rights and agreed to speak with the police in a video-recorded interview. He told the police that he "just blacked out, " and had no recollection ...

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