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Commonwealth v. Dowds

Supreme Judicial Court of Massachusetts, Essex

November 8, 2019


          Heard: December 7, 2018.

          Indictment found and returned in the Superior Court Department on June 9, 2006. The case was tried before Richard E. Welch, III, J.; a motion for a new trial, filed on October 6, 2014, was heard by him; and a motion for reconsideration, filed on June 30, 2017, was heard by Kenneth W. Salinger, J.

          David J. Nathanson (Eva G. Jellison also present) for the defendant.

          Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.

          GAZIANO, J.

         In May 2006, Keith Koster was killed while attempting to prevent the defendant from stealing Roster's sport utility vehicle (SUV). The incident was seen by a number of witnesses, and the defendant was arrested shortly after he crashed the SUV to which Roster had been clinging. Although the defendant suffers from long-standing brain injuries that affect his cognition and behavior, trial counsel took no steps to research or present any such evidence in the defendant's motion to suppress or at trial. A Superior Court jury found the defendant guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder predicated on unarmed robbery.[1]

         Represented by new counsel, the defendant filed a motion for a new trial; he argued ineffective assistance due to trial counsel's failure to consult an expert about the defendant's mental capacity. The motion was denied by the trial judge. A different judge subsequently denied the defendant's motion to reopen and reconsider the motion for a new trial.

         We discern no error in the decisions to deny the motion for a new trial and the motion to reopen and reconsider that motion. In the circumstances of the case, however, we conclude that, pursuant to our authority under G. L. c. 278, § 33E, the interests of justice require that the degree of guilt be reduced to murder in the second degree.

         1. Background.

         a. Facts.

         We recite the facts the jury could have found, reserving some details for later discussion.

         The victim, who was twenty years old, worked at a retail shop located on Route 114 in Danvers. On an evening in May 2006, the victim parked his SUV outside the shop, leaving the keys inside the vehicle. At approximately 7:30 £.M., the victim's coworker saw the defendant walking towards the area where the SUV was parked. Seeing the SUV being driven away, the shop's owner alerted the victim, who ran out to the SUV as it prepared to merge onto Route 114.

         The victim banged on the front passenger's side window and yelled for the defendant to stop. The victim then clung to the SUV's exterior as it pulled out of the parking lot and accelerated down Route 114. Witnesses observed the SUV "shaking" as it swerved back and forth, changed lanes, [2] and veered from side to side. The SUV struck a telephone pole approximately one-half mile from the shop, causing the vehicle to "fl[y] up in the air," spin into two vehicles parked at a nearby automobile dealership, and then collide with a light pole, where the SUV came to a stop.

         A collision analyst determined that the SUV had been traveling forty-nine miles per hour when it was spinning, and at a greater speed immediately prior. During the crash, the victim struck a telephone pole, was thrown into the air, and landed in the street. He incurred a fractured skull, two contusions on his brain, numerous broken bones, a torn liver, and severe wounds to his right leg and arm.

         The defendant got out of the SUV and stumbled away from the scene, passing behind a row of vehicles parked at the automobile dealership. A witness called the police, who arrived within minutes. Officers initially requested an aerial medical evacuation, then canceled it due to the victim's fatal injuries. Approximately fifteen to twenty minutes after the crash, officers apprehended the defendant in a parking lot near the scene.

         The defendant, who had scratches on his arm and a small amount of blood on his neck, told the officers that he did not need medical attention. An arresting officer informed the defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and the defendant indicated that he understood those rights. The defendant admitted that he stole the SUV because he wanted to drive it to his home in Lawrence. He also acknowledged that he had left the scene after the crash. Two witnesses identified the defendant as the man they had seen leaving the SUV.[3]

         Officers brought the defendant to the Danvers police station, where he again waived his Miranda rights, this time by signing a waiver form. Immediately before being questioned, the defendant was again read his Miranda rights, and signed another waiver form. When interviewed by Lieutenant Norman Zuk and Sergeant Carole Germano, the defendant stated that at approximately 11:30 A.M. that day, he had smoked "weed" and had consumed "a forty" ounce beer at an apartment in Beverly. At approximately 2 P_.M., he began to walk the roughly twenty miles from Beverly to his home in Lawrence. Along the way, in Danvers, the defendant encountered the victim's SUV. The defendant said that he chose to steal that particular vehicle because he had looked inside and seen the keys. Following questioning, the defendant said that, after getting into the SUV, he saw the victim at the passenger's side window. The defendant also observed the victim jump onto "the side of the vehicle," bang his fist on the closed window, and yell at the defendant to stop. The defendant said that he had wanted to remove the victim from the SUV "through any means necessary," so that the defendant could "have whatever [he] felt . . . was right for" him. The defendant explained that he swerved around other vehicles on the road in an attempt to shake the victim from the vehicle.

         The defendant mentioned that he had a history of seizures, but said that he had not experienced a seizure for approximately forty-five days. He also discussed Michelle Kitchen, a reentry case manager who had helped him to secure housing after he had completed serving a prison sentence approximately six weeks earlier.

         b. Prior proceedings.

         The defendant was indicted on charges of murder in the first degree, G. L. c. 265, § 1; unarmed robbery, G. L. c. 265, § 19; and larceny of a motor vehicle, G. L. c. 266, § 28. He filed a motion to suppress his statements on the ground that his Miranda waivers and subsequent statements had not been voluntary. The motion was denied. Following a seven-day trial, a Superior Court jury convicted the defendant of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder premised on unarmed robbery.

         After the defendant's direct appeal was entered in this court, we allowed his motion for psychiatric evaluation and remanded the case to the Superior Court. Based on evidence from a psychiatric evaluation obtained after trial, the defendant filed a motion for a new trial. The trial judge denied the motion after a two-day hearing. The defendant timely filed his notice of appeal. He later filed a motion to reopen and reconsider the motion for a new trial. A different judge denied that motion, and the defendant timely filed a notice of appeal. The defendant's direct appeal was consolidated with his appeal from the denials of his motions for a new trial and for reconsideration of that denial.

         2. Discussion.

         The defendant's primary claim asserts ineffective assistance based on trial counsel's failure to obtain evidence of the defendant's childhood brain injuries and counsel's failure to use such evidence to challenge the defendant's mental capacity to commit murder or to waive his Miranda rights and speak with officers voluntarily. The defendant also raises a number of other issues, including improprieties in jury voir dire and errors in jury instructions. We have reviewed the instructions given and discern no substantial likelihood of a miscarriage of justice. Nor do we discern any such likelihood in the defendant's cursory claim that the judge improperly conducted voir dire of the venire.[4]

         a. Ineffective ...

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