Heard: January 11, 2019.
found and returned in the Superior Court Department on
November 21, 2013.
cases were tried before Robert J. Kane, J.
Jeffrey L. Baler for the defendant.
L. Johnston, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Cypher, & Kafker,
October 15, 2013, sixty-nine year old Joyce Howland was found
dead in her home. After a seven-day trial, a Superior Court
jury convicted the defendant of armed robbery and murder in
the first degree in her death, on theories of extreme
atrocity or cruelty and felony-murder. At trial, the
Commonwealth argued that the defendant had robbed the victim
of her jewelry, slit her throat, and sold the jewelry to
obtain money for drugs. The jury heard testimony from the
defendant's coworker, over the defendant's objection,
that the defendant previously had said that if he were to
break into a house that the two had seen, he would find it
necessary to kill its occupants. During deliberation, the
jury requested a magnifying glass, without stating the
purpose for which they intended to use it.
appeal, the defendant argues that the trial judge erred in
providing the jury with a magnifying glass during
deliberation, as a violation of the defendant's rights to
due process and confrontation. The defendant argues also that
the jury instruction on circumstantial evidence and
inferences unconstitutionally "diminished the
Commonwealth's burden of proof," and violated his
due process rights. In addition, the defendant contends that
his statements to his coworker should not have been admitted,
and that the introduction of those statements requires a new
trial. He also asks that we exercise our authority under G.
L. c. 278, § 33E, to reduce the verdict of murder in the
first degree or to order a new trial. For the reasons that
follow, we affirm the convictions and decline to grant relief
under G. L. c. 278, § 33E.
recite facts that the jury could have found, viewed in the
light most favorable to the Commonwealth. See
Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979). We reserve some facts for later
victim lived alone, and she suffered from lower back
problems. At the time of her death in October 2013, she
weighed under one hundred pounds. At some point in 2013, the
victim contracted with a home maintenance and repair
contractor to insulate her attic. In October 2013, that
contractor hired a separate building and supply company to
complete the job. The defendant worked for the company that
the victim hired to insulate her attic. He had been hired one
to two weeks before the job was completed, after an
acquaintance who worked for the company, Paulo Dias,
introduced the defendant to the insulation department
Events of Friday, October 11, 2013.
morning of Friday, October 11, 2013, the defendant, Dias, and
their supervisor arrived at the victim's house to begin
the installation. The supervisor left soon thereafter,
leaving Diasand the defendant alone with the victim,
who was sitting on the couch. Dias and the defendant brought
bags of insulation into the attic through a small opening in
a closet located in the victim's bedroom.
the course of several hours, as the two men were working,
Dias noticed several pieces of jewelry on a bureau in the
victim's bedroom, including a herringbone chain necklace,
another chain necklace, and some rings. The defendant and
Dias discussed the jewelry and noted that it could be worth
some money. They talked about possibly taking the jewelry,
but decided against doing so, because they would be paid that
day. The defendant explained nonetheless that if he were to
attempt to take the jewelry, he would leave his tools behind
and come back later; would knock on the door and be let in
because he had forgotten his tools; and would hit the jewelry
owner over the head and kill her.
addition to noticing the jewelry, Dias noted that the victim
had prescription pills in her bathroom. Dias and the
defendant determined that the pills were painkillers, and
each consumed some. Neither Dias nor the defendant used any
other drugs that day; Dias testified that the pills helped to
ease his backache.
completed the installation at approximately noon. Dias did
not have a driver's license, so the defendant drove him
back to the building company where they worked, in a maroon
company truck with white lettering. The defendant received his
paycheck and cashed it that afternoon.
Events of Monday and Tuesday, October 14 and 15,
Monday, October 14, 2013, a holiday, Dias and the defendant
worked on an insulation job for a different customer. When
the supervisor drove the defendant to the worksite that
morning, the defendant asked him for twenty dollars even
though the supervisor had paid the defendant on Friday.
the course of that morning, when Dias and the defendant were
standing outside the house where they were working, they saw
the next door neighbors outside with a young child. Dias
testified, over defense counsel's objection, that
"the next-door neighbors were out there with their kid,
little baby, about two, three years old that I could see, and
it came up that if -- he was like, if I broke into this
house, I'd have to kill everybody, and I was -- even the
baby. And I was like, why would you have to kill the baby
for? . . . Why would you have to kill the baby if he
couldn't even identify you, if you did something like
that, you know?"
and the defendant completed the insulation job around noon or
1 P.M., and the supervisor brought them back to the office in
the company truck. The supervisor asked the defendant if he
would pick up insulation at a warehouse that afternoon. The
defendant agreed that he would get the insulation and put it
away, lock the truck and the shed, and telephone the
supervisor when he was finished. The defendant took the
maroon truck, and he dropped Dias off at home on his way to
the warehouse. The supervisor received a telephone call from
the defendant at 3:22 P.M., during which the defendant told
the supervisor that he had locked up around 2 P.M. Dias
watched his children at home that afternoon until 4 or 5 P.M.
before 2 P.M. that day, the victim spoke with a longtime
friend on the telephone; the victim said that she planned to
join the friend at a trivia event that evening. The victim
spoke with someone else by telephone at approximately 2 P.M.
When the victim did not appear for the trivia event that
evening, her friend telephoned but got no answer. The next
morning, Tuesday, the friend drove to the victim's house.
She found the front door unlocked, went inside, and
discovered the victim lying on the floor of her bedroom. She
ran outside and telephoned 911.
arrived at approximately 11:15 A.M. One of the first
responders saw a half-eaten meal on a coffee table. There was
also a cigarette that looked like it had burned out. The
victim was lying on her left side with a pool of blood
surrounding her head. A paramedic determined that the victim
had died prior to the first responders' arrival. When the
victim was rolled over, a large incision was visible across
the front of her neck. The victim's blood was found on a
candle box in her bedroom and on multiple plates in the
kitchen sink. A black knife in the sink tested positive for
the presence of blood, but no confirmatory test determined
whether the blood was human.
autopsy revealed that the cut across the victim's neck
was seven and one-half inches long, on average one inch deep,
and comprised at least two distinct cuts. The victim's
veins and arteries were severed below the jaw. She also had
numerous other cuts, scrapes, and bruises on her arms, face,
neck, and torso. Blunt force trauma to one of her vertebrae
was consistent with her head having been yanked backward, and
superficial scrapes on her chin were consistent with
defensive wounds. A forensic pathologist testified that from
the beginning of the infliction of the major wound to her
neck, the victim would have been conscious for ten seconds or
video footage introduced at trial showed a maroon truck with
white lettering, identified as the maroon company truck,
traveling east on Route 6 on October 14, 2013, at
approximately 2:16 P.M. The truck was carrying white bundles
in the back that looked like insulation. What seemed to be
the same truck appeared on surveillance video footage
traveling in the opposite direction nineteen minutes later,
at 2:35 P.M. In a recorded interview on Tuesday evening,
October 15, 2013, the defendant told police that he had gone
to the victim's house on Monday afternoon to retrieve a
tape measure that he had left behind. He said that he was at
the victim's house for a maximum of five
minutes. Trial testimony established that if
someone were driving the maroon truck seen on the
surveillance footage at 2:16 P.M. to the victim's house,
and if the driver only stayed at the victim's house for a
maximum of five minutes before returning, the truck should
have been visible on the surveillance video no more than nine
minutes after 2:16 P.M.
video footage from a nearby restaurant showed an individual
wearing light-colored pants appear to toss something into an
alleyway at approximately 2:45 P.M. on October 14,
2013. A few days after this video footage was
recorded, after hearing conversations among his staff about
some type of incident in the area, the restaurant manager
retrieved and watched the footage. He then went into the
alley, found a prescription bottle label bearing the
victim's name, and gave it to police.
on the afternoon of October 14, 2013, an individual known as
"Mojo" contacted Jonathan Chicoine, and asked
Chicoine to bring the defendant to a pawn shop because the
defendant had something he "wanted to get rid of."
Because Chicoine did not have government identification
documents, and because such documents are necessary in order
to sell something at a pawn shop, Chicoine enlisted the help
of a female friend, who did have appropriate identification
documents. Chicoine, this friend, and another female friend
picked up the defendant at a restaurant using Mojo's
automobile, a white four-door sedan. When the ...