Heard: November 9, 2018.
found and returned in the Superior Court Department on
September 29, 2008.
cases were tried before Frank M. Gaziano, J.
Stephen Paul Maidman for the defendant.
Julianne Campbell, Assistant District Attorney, for the
Present: Gants, C.J., Lowy, Budd, & Cypher, JJ.
29, 2008, John Marshall (victim) was stabbed to death in a
parking lot in the Roxbury section of Boston. A grand jury
returned indictments charging the defendant, David Copeland,
with murder in the first degree and armed robbery. At trial,
the defendant conceded that he stabbed the victim, but argued
that he suffered from posttraumatic stress disorder (PTSD) at
the time of the killing, that the killing was a spontaneous
event, and that he did not rob the victim. A Superior Court
jury convicted the defendant of felony-murder in the first
degree and armed robbery. On appeal from his convictions, the
defendant challenges (1) the Commonwealth's opening
statement; (2) the sufficiency of the evidence on the
offenses of felony-murder and deliberately premeditated
murder; (3) the judge's refusal to instruct the jury on
felony-murder in the second degree; (4) the
Commonwealth's closing argument; and (5) defense
counsel's ineffective performance. He also requests that
we exercise our power under G. L. c. 278, § 33E, to
order a new trial or reduce the verdict to voluntary
manslaughter. Because we find neither reversible error nor a
reason to exercise our authority under § 33E, we affirm
recite the evidence presented during the Commonwealth's
case-in-chief, in the light most favorable to the
Commonwealth. Commonwealth v.
Veiovis, 477 Mass. 472, 474 (2017). See
Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979). On July 28 and 29, 2008, the
defendant and two women were smoking "crack"
cocaine at an apartment on Regent Street. They ran out of
cocaine multiple times, and on each occasion someone left the
apartment and got more. But eventually, on the second day,
both the cocaine and the money ran out. The defendant then
asked one of the women if he could use her cellular
telephone, saying that he was going to meet somebody. The
defendant left the apartment wearing a white T-shirt.
same day, a witness telephoned the police after she saw two
men fighting in the parking lot next to her apartment
building on Dale Street. She saw a man in a white shirt
apparently punching the victim, who was wearing a black
shirt. The victim was "[j]ust standing there"
leaning against his vehicle. The man in the white shirt
eventually walked out of the parking lot toward Regent
Street, leaving the victim lying on the ground. The witness
then saw blood on the ground of the parking lot.
time, a police officer who was in the area saw the defendant
walking away from Dale Street on Regent Street. The defendant
was sweating, bleeding, and shirtless; he was holding a white
T-shirt in his hands. The officer asked the defendant if he
needed help, and the defendant "shrugged [the officer]
off and kept walking." After receiving a radio call
about a stabbing in a Dale Street parking lot, the officer
put out a description of the defendant and said the defendant
might be in a nearby building. Officers began to canvass the
defendant returned to the Regent Street apartment sweaty and
with blood on him. He first told one of the women at the
apartment that he had fallen, but then said that "he got
someone" and that he "took care of business."
The women told the defendant that police were gathering
outside. After hearing this, the defendant handed one of the
women cocaine, marijuana, and money, all of which had blood
on them. He also told the other woman that she did not need
to open the door. He went into the kitchen, saying that he
was trying to get to the back door, but he was still inside
when a police officer entered the apartment.
the defendant's arrest, police found blood containing the
victim's deoxyribonucleic acid (DNA) on the
defendant's ear. The defendant initially told a detective
that he had not left the Regent Street apartment building on
the day of the killing. But when the detective told the
defendant that he had evidence to the contrary, the defendant
acknowledged that he had left once to buy alcohol.
police and paramedics found the victim lying on his back
between two parked vehicles in the Dale Street parking lot,
covered in blood. He was wearing a dark shirt, either navy
blue or black. The victim was a crack cocaine dealer, and he
also used marijuana. According to his girlfriend, who had
previously seen drugs in the victim's vehicle, he had
been selling drugs on July 29.
victim died at the hospital from an eight inch stab wound to
the heart. He had other wounds on his body, including wounds
on his hands consistent with attempts to block a knife. There
were components of marijuana in his blood.
the victim's vehicle, which was at the crime scene,
police found crack cocaine and a hat with the defendant's
DNA on it. When police searched the Regent Street apartment,
they found a knife wrapped in a white T-shirt. The medical
examiner testified that the knife could have caused the
injury that killed the victim. Blood on the knife matched the
victim's DNA. Police officers also examined video footage
captured on July 29 by ...