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Commonwealth v. Niemic

Supreme Judicial Court of Massachusetts, Bristol

November 19, 2019

COMMONWEALTH
v.
JONATHAN NIEMIC

          Heard: April 5, 2019.

          Indictment found and returned in the Superior Court Department on December 9, 2010. Following review by this court, 472 Mass. 665 (2015), the case was tried before Renee P. Dupuis, J.

          Theodore F. Riordan (Deborah Bates Riordan also present) for Jonathan E. Niemic.

          Tara L. Johnston, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Lowy, Budd, & Cypher, JJ.

          LENK, J.

         In 2012, the defendant was convicted of murder in the first degree on a theory of extreme atrocity or cruelty in the stabbing death of Michael Correia on October 20, 2010. Following the defendant's appeal from that conviction, we remanded the matter to the Superior Court, where the Commonwealth was given the option either of vacating the conviction and retrying the defendant on the murder indictment, or accepting a reduction of the verdict to manslaughter. See Commonwealth v. Niemic, 472 Mass. 665, 667, 679 (2015) (Niemic I) . The Commonwealth elected to pursue a new trial. At that trial, with a different judge presiding, another attorney for the defendant, and the same prosecutor, the jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.

         In this appeal, the defendant argues that a new trial is required because of four asserted errors at his second trial: a violation of the protection against double jeopardy in pursuing the theory of deliberate premeditation, where the jury at the first trial had not checked the "guilty" box on the verdict slip for that theory; erroneously admitted testimony of a rebuttal witness, which later was treated as substantive evidence by the Commonwealth; improperly introduced testimony by a substitute medical examiner as to facts in the autopsy report; and a number of improprieties in the prosecutor's closing argument, including an issue repeated from the defendant's first trial. The defendant also asks us to exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt or to order a new trial.

         We conclude that errors in the closing argument alone, both that are reprised from the first trial and those newly introduced, would require a new trial. To the extent that this may be a close question, that determination is buttressed by other issues that emerged on our review pursuant to G. L. c. 278, § 33E. Accordingly, the defendant's conviction of murder in the first degree shall be vacated and set aside. On remand, the Commonwealth shall once again be given the option either of accepting a reduction in the verdict to manslaughter, or of retrying the defendant.

         Should the Commonwealth again choose to pursue the latter path, we recognize the costs that a third trial would occasion, on the parties, the witnesses, the victim's family, and the court. We are nonetheless constrained to conclude that a new trial is necessary unless the Commonwealth decides to accept a reduced verdict. See Commonwealth v. Kater, 388 Mass. 519, 534 (1983), £3.C., 394 Mass. 531 (1985), 409 Mass. 433 (1991), 412 Mass. 800 (1992), and 432 Mass. 404 (2000).

         1. Background.

         We recite the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving certain details for later discussion. The victim was stabbed five times; any one of the wounds could have been fatal. The defendant testified at trial that he had stabbed the victim; the primary issue before the jury was whether he had done so in self-defense. The theory of defense was that the older, taller, and heavier victim initiated a fist fight, and then pulled out a knife; the defendant managed to wrench the knife from the victim and swung wildly to fend off the victim.

         a. Facts.

         In the summer of 2010, the defendant was twenty-two years old and living in a halfway house in New Bedford for individuals who were recovering from alcohol and drug abuse. He was dating Lisa Weaver, who lived at a different sober house in New Bedford. During his time at the halfway house, the defendant befriended his roommates, James Nason and Nathan Goodwin. The defendant also introduced Nason to his friend Kari Wright, and the two began dating.

         In August of 2010, the defendant left town for approximately two months. When he returned, he moved in with his grandmother in New Bedford. While he was away, the defendant wrote Weaver two love letters describing how "perfect" she was, and how he missed her and imagined them being together. At the same time, however, Weaver and the victim[1] appeared to have begun a romantic relationship; they were seen in public on a number of occasions flirting, holding hands, and kissing.

         The defendant returned to New Bedford in October 2010. A few days before the stabbing, Nason told the defendant about the relationship between Weaver and the victim. Nason also said that the victim had referred to the defendant as a "punk," and had bragged that the victim "could take any girl away from [the defendant]." The defendant told Nason that when they next met, he would punch the victim in the head.[2] A friend of Weaver, who was her roommate at the sober house, testified that, at some point a few days prior to the stabbing, the defendant had appeared at an alcoholics anonymous (AA) meeting looking for the victim.

         On October 19, 2010, Weaver, Wright, and Nason picked up the defendant in a sport utility vehicle (SUV) belonging to Wright's mother. Weaver and the defendant embraced when they saw each other, and sat together in the rear seat. At some point, Wright heard the defendant angrily asking, with reference to an unknown topic, "Why didn't you tell me that?" The group spent the day at Wright's parents' house, where the relationship between Weaver and the defendant seemed affectionate, as usual. The group left so that Weaver could get back to the sober house before her 11 P.M. curfew. They planned to meet the following day to paint a property in Abington that belonged to Weaver's parents.

         On October 20, 2010, at approximately 3 P.M., the defendant, Weaver, Nason, and Wright arrived at the building in Abington, and painted until 6:30 P..M., when it got dark. They left intending to return to New Bedford. En route, Weaver realized that she did not have her house key. She then remembered that some of her housemates would be attending an AA meeting at a soup kitchen at New Bedford, which regularly took place from 7 P.M. until 8:30 P.M. on Wednesdays, and decided that she could later enter the sober house with them. The four thus headed to the soup kitchen. On the way, the defendant asked Nason to stop at the side of the road because he had to urinate, but Wright would not allow this, as neither she nor Nason had a valid driver's license, and she did not want Nason to be caught at the side of the road if any police officers passed by.

         Between seventy and one hundred twenty people attended the meeting that evening. The defendant, Weaver, Nason, and Wright reached the soup kitchen shortly before the usual break between 7:30 and 7:45 P.M., when many people would go outside to smoke. Nason parked approximately 200 yards from the front door. Wright remained in the vehicle, while the others headed to the soup kitchen. They encountered their former roommate Goodwin standing outside. Nason and the defendant chatted with Goodwin for approximately five minutes, and then went inside to use the restroom. Weaver also went into the building to use the restroom, and then joined the crowd outside.

         When the defendant and Nason returned to the vehicle, the break had begun and numerous meeting participants were heading outside. Nason pointed out to the defendant that the victim was at the meeting, and then returned to the SUV.

         At that point, approximately eighty people were outside, in a small, crowded area. The victim and Goodwin were standing approximately fifteen feet from the entrance to the soup kitchen, looking at something on a cellular telephone. The defendant went over to talk to Weaver, who was standing on the corner near a crosswalk approximately thirty feet away from the victim. Nason moved the SUV closer to the crosswalk, and stayed inside with the vehicle idling. The defendant gestured to the victim, indicating that he wanted to talk. The victim apparently held up a finger, in a "just a minute" gesture. The defendant gave Weaver "a quick goodbye kiss." She seemed "concerned" and appeared to try to "pull[] him back" from talking to the victim, and then the defendant and Weaver kissed again.[3] At some point, the defendant pulled the hood of his sweatshirt up. He crossed the street and opened the rear passenger door of the SUV as though he were about to get in, but then left the door slightly ajar and walked over to the victim.[4]

         The defendant said, "I've been hearing some things. I feel disrespected"; the victim asked what the defendant had heard. The defendant began punching the victim, aiming at his head, while the victim attempted to ward off the blows.[5] The defendant tried to hold the victim in a headlock, but the victim broke free. At some point, the victim lifted his arms up with his palms facing outward and said something to the effect of, "What? Are you going to use a knife?"[6] The defendant lunged at the victim four to five times. The victim ran into the soup kitchen. The defendant chased him into the building. About twenty seconds later, the defendant ran out of the building and into the SUV; the vehicle then was driven away.[7]

         Bystanders carried the victim, who was saying that he had been stabbed and that someone should telephone 911, upstairs to the meeting hall and tried to render first aid. His father was present. Emergency medical technicians (EMTs) arrived within a few minutes. The victim lost consciousness shortly thereafter. He was taken to a hospital by ambulance, where physicians attempted emergency surgery, but their efforts were unsuccessful and the victim was pronounced dead. He had suffered five stab wounds, any one of which could have been fatal. The two wounds on the left side of the chest had penetrated the heart, and a wound to the lower right side had perforated the liver. The fourth and fifth wounds were to the back and the lateral part of the chest. The victim was determined to have died within minutes of the stabbing.

         Meanwhile, the SUV, with Nason driving, headed toward the highway. The defendant noticed that he had blood on his hands. Wright also noticed the blood and that the defendant had a small black folding knife in his lap. The defendant told the others that he had been in a fight with the victim, he thought he had stabbed the victim, and he hoped the victim was "ok." The defendant wanted to go to his grandmother's house, but Wright told Nason to drop him off at a grocery store in Fairhaven. The defendant threw the knife out the window near the exit to the grocery store.

         When they reached the grocery store parking lot, the defendant cleaned the blood from his hands, with Wright's help, using one of her tank tops that had been in the back of the SUV. He discarded the tank top in the parking lot. The others headed to Wright's parents' house, and the defendant waited at the grocery store until his grandmother picked him up.

         At 8:30 P.M., the defendant and his grandmother went to the home of John Voisine, the stepfather of a close friend of the defendant's. The defendant borrowed some clothes from Voisine, and remained in his apartment for approximately four hours.[8] The defendant told Voisine he had been in a fight with the victim, that he was worried the victim might be dead, and that he had not intended to harm the victim, but had been acting in self-defense. The defendant left sometime before midnight.

         That evening, police interviewed multiple witnesses. They investigated the grocery store parking lot and discovered a discarded tank top covered with blood. In a grassy area near the highway, police found a small black folding knife, covered with red-brown stains. Around midnight, officers went to Voisine's apartment. The defendant was not in the apartment, but officers eventually found him under a set of exterior stairs and arrested him.[9]

         Deoxyribonucleic acid from the blood on the knife handle, the blade, and the tank top contained a mixture of two profiles, with the "major profile" matching the defendant's; the minor profile on the tank top did not match the victim's. The victim was a potential contributor to the minor profile on the knife handle and the blade. The major profile of the stains on the jeans that the defendant had been wearing, which were found at Voisine's house, matched the defendant's.

         The defendant called a number of witnesses, and also testified on his own behalf. Several defense witnesses testified that when the defendant initially confronted the victim, the victim threatened to stab the defendant.[10] The victim then punched the defendant on the side of his head, before reaching down and pulling out a knife. The defendant wrenched the knife away, while the victim continued to attack. The defendant ultimately was able to run to the SUV.

         b. Prior proceedings.

         In December 2010, the defendant was indicted on a charge of murder in the first degree, G. L. c. 265, § 1. After an eight-day trial in June 2012, a Superior Court jury found the defendant guilty of murder in the first degree on a theory of extreme atrocity or cruelty. In September 2015, after review of the defendant's direct appeal by this court, the matter was remanded to the Superior Court for entry of a reduced verdict of guilty of voluntary manslaughter or a new trial, as the Commonwealth preferred. See Niemic I, 472 Mass. at 667, 679.

         Prior to the defendant's second trial, he moved to preclude the Commonwealth from pursuing the theory of deliberate premeditation, and later filed a motion to dismiss the charge of murder in the first degree on that theory. Both motions were denied. After a ten-day trial in September 2016, tried by the same prosecutor[11] but with different defense counsel and before a different judge, a jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.

         2. Discussion.

         In this direct appeal, the defendant maintains that a new trial is required due to a violation of the protection against double jeopardy in pursuing the theory of deliberate premeditation after a purported acquittal. He also claims error in the introduction of impeachment testimony of a rebuttal witness, which was later treated as substantive evidence by the prosecutor; impermissible testimony by a substitute medical examiner; and a number of improprieties in the prosecutor's closing argument. We consider each issue in turn.

         a. Double jeopardy.

         At his first trial, the defendant was convicted of murder in the first degree on a theory of extreme atrocity or cruelty. The jury checked the guilty box on the verdict slip for this theory, the foreperson presented it as the theory underlying the conviction, and the jurors all agreed that they found the defendant guilty under that theory. See Niemic I, 472 Mass. at 666. On the verdict slip concerning murder on a theory of deliberate premeditation, the jury checked neither the "guilty" nor the "not guilty" box. The foreperson also made no reference to the theory of deliberate premeditation when responding to the session clerk in announcing the verdict. At the second trial, the defendant was convicted on both theories.

         The defendant now contends that the jury found him not guilty of murder on a theory of deliberate premeditation at his first trial, based on their failure to check that box. Therefore, he claims, it was a violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution to have retried him on that theory a second time.

         This court repeatedly has declined to accept a jury's failure to mark one of the theories of a charge as an acquittal on that theory. See Commonwealth v. Carlino, 449 Mass. 71, 78-79 (2007), and cases cited; Commonwealth v. Nardone, 406 Mass. 123, 132-134 (1989); Commonwealth v. Preston, 393 Mass. 318, 320, 325 n.8 (1984). Courts in other jurisdictions also have determined that retrial is not barred in such circumstances. See United States v. Ham, 58 F.3d 78, 84-86 (4th Cir.), cert, denied, 516 U.S. 986 (1995); Beebe v. Nelson, 37 F.Supp.2d 1304, 1307-1308 (D. Kan. 1999); State v. Pexa, 574 N.W.2d 344, 347 (Iowa 1998). We see no reason to disturb our well-established precedent in this case.

         The defendant argues further that because silence was interpreted as "no" with respect to the absence of a response to a question to the venire during empanelment (when no members of the venire raised their hands in response to some of the judge's questions), silence likewise must be interpreted as "no" in the context of unmarked boxes on the verdict slip. We do not agree.

         There is no indication that the jury were aware that silence on a particular theory would be deemed an acquittal. Rather, they were told that they had to be unanimous in deciding whether the defendant was guilty or not guilty, and that the foreperson was "simply to put an X or a check mark next to the appropriate verdict and then sign it certifying that it's unanimous." They were instructed further that, if they found the defendant guilty, they had to be unanimous as to which of the "two types of murder in the first degree [they found].... [I]t can be one, or the other, or both."

         We cannot ascertain by the jury's silence on the theory of deliberate premeditation whether they actually reached a unanimous decision to acquit the defendant on that theory. By contrast, we do know definitively that the first jury were unanimous in their conviction on a theory of extreme atrocity or cruelty at the first trial. Thus, retrial on the theory of deliberate premeditation was not error.

         b. Rebuttal testimony.

         Toward the end of trial, after the defendant had rested his case, the Commonwealth recalled Wright as a rebuttal witness.[12] Over the defendant's objection, she testified that, as the defendant approached the victim, Nason said "[the defendant] wants to sucker Mikey [(the victim)]. Sucker punch Mikey." While the testimony was admitted for the limited purpose of impeaching Nason's credibility, neither party requested a limiting instruction.[13]

         The defendant now challenges the admission of Wright's testimony as reversible error on the ground that it was irrelevant and impermissible hearsay.[14] Because the statements concerned the core issue at trial of the defendant's intent in approaching the victim -- in the defendant's words, "the most important issue in the case" -- the defendant maintains that their improper admission constituted prejudicial error. We do not agree.

         There was no error in the introduction of Wright's rebuttal testimony that the defendant wanted to "sucker punch" the victim in order to impeach Nason's testimony. The testimony had the potential to undermine Nason's credibility in the eyes of the jury, given Nason's testimony on cross-examination that he did not recall telling Wright the defendant had wanted to sucker punch the victim, and, indeed, believed that the defendant approached the victim simply to talk. See Commonwealth v. Pina, 430 Mass. 66, 76 (1999), overruled on another ground by Commonwealth v. Colon, 482 Mass. 162 (2019). Testimony reporting a prior out-of-court statement that "tend[s] to contradict [the declarant's] testimony . . . [is] admissible" for purposes of impeachment.[15] Id., quoting Commonwealth v. Cataldo, 326 Mass. 373, 377 (1950). See Mass. G. Evid. § 613(a)(2), (3) & note (2019). "Although there is discretion involved in determining whether to admit or exclude evidence offered for impeachment, when the impeaching evidence is directly related to testimony on a central issue in the case, there is no discretion to exclude it." Mass. G. Evid. § 613(a)(4) note, citing Commonwealth v. McGowan, 400 Mass. 385, 390-391 (1987) .

         The rebuttal testimony was particularly important here for two reasons. First, as the defendant argues, it concerned the seminal issue in the case: the defendant's intent at the time he approached the victim. Secondly, the evidence of that intent rested in large part on the jury's view of the witnesses' credibility, in a case in which almost all the witnesses described the events in significantly different ways, many had known the victim, the defendant, or both, and many were vulnerable to impeachment. Both Wright, the Commonwealth's primary witness, [16] and Nason, who testified for the defense, had been friends of the defendant. Both ...


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