Commonwealth v. Bell , 473 Mass. 131 ( 2015 )

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SJC-11444
COMMONWEALTH vs. LASTARANDRE BELL.
Hampden. December 5, 2014. - November 9, 2015.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
Homicide. Evidence, Admissions and confessions, Inflammatory
evidence, Intoxication, Photograph, Relevancy and
materiality, Voluntariness of statement. Constitutional
Law, Admissions and confessions, Voluntariness of
statement, Waiver of constitutional rights. Practice,
Criminal, Capital case, Motion to suppress, Admissions and
confessions, Voluntariness of statement, Waiver, Argument
by counsel, Instructions to jury. Waiver.
Indictments found and returned in the Superior Court
Department on February 13, 2007.
Following review by this court, 460 Mass. 294 (2011), a
pretrial motion to suppress evidence was heard by John S.
Ferrara, J., and the case was retried before him on an
indictment charging murder in the first degree.
Leslie W. O'Brien for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
DUFFLY, J. The defendant was indicted on charges of murder
in the first degree, armed home invasion, arson of a dwelling
2
house, and violations of an abuse prevention order in the
January 29, 2007 death of Julie Ann Nieves,1 who died as a result
of complications arising from second and third degree burns over
ninety per cent of her body that she sustained on January 7,
2007.
In April, 2008, a Superior Court jury convicted the
defendant of murder in the first degree on a theory of felony-
murder,2 armed home invasion, arson, and violations of an abuse
prevention order. The defendant's appeal from the denial of his
motion for a new trial was consolidated with his direct appeal.
Because the trial judge failed to instruct the jury on second-
degree felony-murder with arson as the predicate felony, and
1
The defendant also was indicted on two charges of assault
by means of a dangerous weapon against Julie Ann Nieves and
Tiffany Cruz, respectively, G. L. c. 265, § 15B (b); one charge
of assault and battery by means of a dangerous weapon against
Julissa Cruz, G. L. c. 265, § 15A (b); and one charge of assault
and battery by means of a dangerous weapon against Larry Key,
G. L. c. 265, § 15A (b). During the defendant's first trial,
the Commonwealth indicated that it would file, and later did
file, a nolle prosequi on the two charges of assault by means of
a dangerous weapon; the trial judge allowed the defendant's
motion for entry of a required finding of not guilty on the
charge of assault and battery by means of a dangerous weapon
against Julissa Cruz; and the jury acquitted the defendant of
the charge of assault and battery by means of a dangerous weapon
against Larry Key.
2
At that trial, the Commonwealth proceeded on all three
theories of murder. The jury did not find the defendant guilty
on the theories of premeditation and extreme atrocity or
cruelty. In our decision allowing a new trial, we determined
that the defendant could be retried on all three theories. See
Commonwealth v. Bell, 460 Mass. 294, 309-310 (2011).
3
because we concluded that the arson conviction merged with the
murder conviction, we vacated the murder conviction and remanded
the matter to the Superior Court either for entry of a verdict
of guilty of felony-murder in the second degree, or for a new
trial. See Commonwealth v. Bell, 460 Mass. 294, 295 (2011). We
affirmed the other convictions. Id. At his second trial in
December, 2012, before a different judge, a Superior Court jury
found the defendant guilty of murder in the first degree on
theories of premeditation, extreme atrocity or cruelty, and
felony-murder. The defendant's appeal from that conviction is
now before us.
That the defendant was in some way responsible for the
flames which engulfed the victim was not an issue at trial; the
central issue at trial was whether the burning was intentional
or accidental. The Commonwealth maintained that the defendant
deliberately doused the victim with gasoline and set her on
fire; the defendant claimed that he had a cigarette in his mouth
when the victim threw gasoline on him, the cigarette ignited the
gasoline, and the fire jumped from him onto the victim's
nightgown.3 In this appeal, the defendant challenges the
3
The defendant testified at his first trial that the victim
threw gasoline on him, his burning cigarette fell and ignited
the gasoline, and the flames spread from his clothes to the
victim's; the defendant did not testify at his second trial, and
counsel did not pursue this theory of defense. The defendant's
prior recorded testimony, however, was read into the record by
4
introduction in evidence of his statements that, inter alia, he
started the fire but did not intend that anyone get hurt. The
defendant argues that these statements, made to police
approximately one-half hour after the fire, immediately before
and during his arrest, were not voluntarily made, and their
admission in evidence following the denial of his motion to
suppress requires a new trial. The defendant argues also that a
new trial is required because the introduction of graphic
photographs of the victim while she was being treated in the
hospital unfairly inflamed the jury, and the judge's decision to
strike part of defense counsel's closing argument deprived the
defendant of the effective assistance of counsel.
We affirm the convictions, and discern no reason to grant a
new trial or to exercise our authority to provide relief
pursuant to G. L. c. 278, § 33E.
Background. We summarize the facts the jury could have
found, reserving certain facts for later discussion.
1. Commonwealth's case. In the fall of 2006, the
defendant had been dating Jessica Nieves4 for about one year. He
lived with Jessica; her brother, Daniel; her mother, Julie Ann;
the Commonwealth.
4
Because Julie Ann Nieves and her children, Jessica and
Daniel Nieves, share the same surname, we refer to them by their
first names. For the same reason, we refer to Caroline Cruz and
her daughters Tiffany and Julissa Cruz by their first names.
5
and other of their relatives in the borough of the Bronx in New
York City. In October, 2006, the defendant moved with Jessica
and her family from New York to Springfield. They moved into an
apartment on Warner Street where Julie Ann's sister, Caroline
Cruz, lived with her daughters, Tiffany and Julissa, and
Tiffany's boy friend, Larry Key.
At the beginning of November, 2006, Jessica and Caroline
obtained restraining orders against the defendant, in part based
on Jessica's statements that the defendant had made threatening
comments to her about hurting her and members of her family.
The defendant then moved to a nearby apartment building where he
obtained a job as the building superintendent. Despite the
restraining order, Jessica continued to spend time with the
defendant. She had keys to his apartment, kept some clothes
there, and sometimes stayed overnight; she and her brother used
the laundry facilities in the building.
Jessica and her family returned to New York to visit other
relatives over the Christmas holiday; the defendant made several
telephone calls to her during that period, expressing anger that
he had not been included in the visit and asking to see Jessica.
She refused his requests. The family returned to Springfield
after the New Year.
On the evening of January 7, 2007, Jessica, her mother,
brother, aunt, cousins, and her cousin's boy friend were in the
6
Warner Street apartment. Shortly before 9:30 P.M., the
defendant called Daniel's Nextel cellular telephone, asking to
speak with Jessica. The Nextel device had a "walkie talkie"
feature that allowed everyone in the vicinity to hear the caller
even if the device was not picked up and answered. Daniel did
not answer; the defendant telephoned again a few minutes later,
asking to speak with Jessica and sounding angry. Again, Daniel
did not answer.
Soon thereafter, around 9:30 P.M., there was the sound of
glass shattering, and several family members heard a scream.
They ran into the kitchen and saw the defendant approaching from
the dining room, which led directly into the living room where
the window was broken. A number of family members testified
that the defendant was holding some kind of a bottle or
container, about the size of a one-gallon milk container. Some
said he was squirting or spraying liquid from it; others said he
had a gasoline can with a funnel; and another saw him waving his
arms but did not see if he had anything in his hands. The
family members ran into the middle of three bedrooms and locked
the door. They then realized that Julie Ann was not with them,
and heard her scream and cry out, "Oh, my god." Jessica, Daniel,
and Larry ran through a door between the middle and front
bedrooms, then through another door leading from the front
bedroom to the front hall. They saw the defendant, whose leg
7
was on fire, struggling to unlock the front door; he managed to
get the door open and left the house.
At that point, Julie Ann's bedroom, next to the kitchen,
was on fire. The family saw Julie Ann walking slowly toward
them from the living room to the front door. The back of her
nightgown was in flames. She walked out onto the porch, where
Jessica and Daniel tried unsuccessfully to extinguish the flames
with their hands and a towel. Eventually, Jessica grabbed a
comforter from one of the bedrooms and wrapped Julie Ann in it,
which extinguished the fire.
When police arrived, the house was on fire, and there was a
fire burning in the yard. Julie Ann was lying on the front
porch, wrapped in the comforter, and various family members were
standing on the porch, "hysterical beyond control," according to
one of the first officers to arrive on the scene, and initially
unable to explain what had happened. Directed to the comforter,
one officer then unwrapped a flap and looked inside. Julie Ann's
burns were so severe that he was at first unable to tell if she
was male or female, but she later responded to questions. She
was transported by ambulance to a hospital in Boston. Family
members told police that the defendant had started the fire and
had headed down Longhill Street, towards his apartment, after he
left their house. Four officers (three Springfield police
officers and a State police trooper) drove to Longhill Street in
8
a police cruiser to search for the defendant. The officers
stopped not far from his apartment complex to discuss their
strategy for searching the complex and saw the defendant walking
toward them, with his hands in the air, saying a number of
times, "I'm right here. I'm the one that started the fire. I'm
the one you're looking for." They aimed their weapons at the
defendant and told him to lie on the ground.
The officers noticed that the defendant's hands and face
were seriously burned, and he smelled of gasoline. He was
walking slowly and "gingerly" and was in evident pain; in the
course of handcuffing the defendant, officers observed that his
legs also were burned badly. He said repeatedly, "I didn't mean
to hurt anybody." While the defendant was being frisked for
weapons, one of the officers found money and a book of matches
in the left front pocket of the defendant's pants. The officer
held the matches up to show them to the other officers, saying,
"Look what I found," and the defendant responded, "That's what I
used to start the fire.'"
As the defendant continued to make statements to the
arresting officers, Springfield police Officer Phil McBride gave
the defendant the Miranda warnings. McBride asked the defendant
if he understood the rights he had been given, and the defendant
said that he did. The defendant repeated a number of times that
he had not meant to start the fire and had not meant to hurt
9
anyone. When the defendant continued to speak, McBride told him
to stop talking. The defendant also said a number of times that
his legs were badly burned, he was in pain, and he wanted
medical attention. After officers told him that an ambulance
had been summoned, the defendant asked a number of times when it
would arrive. The defendant continued to make statements to the
officers until he was placed in the ambulance. As the defendant
was being taken to the ambulance, one of the officers in close
proximity to the defendant remarked that the defendant smelled
of gasoline, and the defendant again said, "That's what I used."
Police searched the victim's apartment with an
accelerant-detecting dog. The dog alerted to areas on the
dining room floor, the floor in the hallway outside the
bathroom, the living room floor, and the window sill below the
broken window in the living room. A police laboratory confirmed
that these areas tested positive for gasoline. Officers also
found a burned and melted red plastic gasoline container in the
rear bedroom, and a black plastic nozzle that tested positive
for gasoline in the living room. They saw a white plastic
bottle in the dining room, but did not remove that bottle for
testing. The defendant's clothes -- jeans, T-shirt, shirt,
belt, socks, and shoes -- tested positive for gasoline. A
search of the defendant's apartment revealed a red plastic
gasoline container in the front hall closet.
10
2. Defendant's testimony from first trial. The defendant
did not testify in his own defense, as he had at his first
trial. The defendant's testimony from the first trial, however,
was read in evidence by the Commonwealth. In that testimony,
the defendant said that, despite the restraining order, he and
Jessica continued their relationship through December, 2006; she
had keys to his apartment, and she spent some nights there.
The defendant said that, on the evening of January 7, 2007,
he had locked his telephone and his keys in his apartment when
he was called to fix a "flood" in another apartment in the
building; when he discovered he was locked out, he called Daniel
from a Nextel telephone, not his own, because Jessica had a set
of keys to his apartment. Jessica told him to come pick up the
keys at the Warner Street apartment, where she was staying.
When the defendant arrived there and rang the doorbell, no one
answered. He stood outside smoking, and then "banged" on the
window next to the door, which broke. He removed the glass,
called for Jessica, went inside, and walked through the living
room into the dining room, with the lit cigarette. The lights
were off in those rooms, and he did not see anyone, but there
was light coming from the kitchen. When he found no one in the
kitchen, he headed to the rear bedroom that he had shared with
Jessica. When he entered that room, he was confronted by the
victim, who said, "This shit is going to stop," and threw
11
gasoline in his face from a red gasoline can. The defendant
still had the cigarette in his mouth, and the gasoline ignited.
His hearing "completely left," he banged into the door behind
him, and the flames spread to the victim's nightgown. The
defendant threw the gasoline can to the left side of the room
and pulled the victim out of the room, as the fire became
"intense." They moved from the kitchen into the dining room,
where the victim "shunned" the defendant off. He headed through
the dining room to the front door, where he struggled with the
door lock because his hands were burned and he was unable to
feel them. The defendant finally opened the door, pulled off
and dropped the burning sweatshirt he was wearing, ran down the
stairs and rolled in the grass to put out the remaining flames,
and then ran across the street and continued running down his
own street. He lost consciousness for a few minutes, and woke
up lying in the grass, hearing Jessica screaming. He looked up
to see police standing over him, and told them that he had been
involved in a fire at the victim's apartment, and that someone
there was badly burned and needed help. The defendant denied
walking up to the officers with his hands in the air, or making
any of the incriminating statements. While he was still lying
on the ground, police told him to put his hands behind his back
"for safety measures," searched him, and took cigarettes,
matches, and his wallet from his pocket.
12
Discussion. 1. Admission of defendant's statements.
Prior to his first trial, the defendant moved unsuccessfully to
suppress his statements to police on January 7, 2007, arguing
that he had not been advised properly of his Miranda rights.
The defendant did not raise any argument concerning the
suppression motion in his prior direct appeal, and, after its
own review of the suppression issue pursuant to G. L. c. 278,
§ 33E, this court stated that it had not identified any issue
with the admission of the defendant's statements. See
Commonwealth v. Bell, 460 Mass. 294, 298 n.10 (2011).
The defendant filed a new motion to suppress prior to his
second trial, arguing that his statements both before and after
Miranda warnings were given should have been suppressed because
he did not knowingly and intelligently waive his Miranda rights
and because his statements were not voluntary. The defendant
argued that he was intoxicated from alcohol and marijuana,
confused and in an "altered" mental state due to carbon monoxide
inhalation from the fire, and, most significantly, his mental
functioning was severely impacted because he was in
extraordinary pain from second and third degree burns and smoke
inhalation injuries. The second trial judge held an evidentiary
hearing over two days at which the defendant's medical records
were admitted, expert medical testimony by the defendant's
expert was introduced on the degree of pain the defendant would
13
have been experiencing and its effect on his mental acuity. Two
of the arresting officers also testified as to the defendant's
obvious pain during his arrest and while awaiting an ambulance.
The judge then denied the motion to suppress.
In reviewing the denial of a motion to suppress, we defer
to the motion judge as to the weight and credibility of the
evidence. See Commonwealth v. Hoyt, 461 Mass. 143, 148 (2011).
We accept the motion judge's findings of fact unless they are
clearly erroneous, see Commonwealth v. Durand, 457 Mass. 574,
596 (2010), and assess the correctness of the judge's legal
conclusions de novo. See Commonwealth v. Baye, 462 Mass. 246,
255-256 (2012). We rely on the second motion judge's findings
of fact about the defendant's mental and physical condition at
the time of his arrest, and the conduct of the arrest; the facts
as found are supported by the testimony at the two-day hearing.
After police were told that the defendant had started the
fire and had been heading toward Longhill Street when he left
the house, four officers drove their cruisers the short distance
to that street and parked near the defendant's apartment
building. While they were discussing how best to approach the
building, they saw the defendant heading towards them, holding
his hands in the air. The officers drew loaded weapons, pointed
them at the defendant, and ordered him to the ground, where he
was handcuffed and searched for weapons. He moved slowly and
14
gingerly while walking, and got down on the ground slowly and
cautiously. When the officers conducted a patfrisk, the
defendant had difficulty moving himself due to his injuries, and
the officers physically rolled him from side to side to complete
the patfrisk. When bystanders started to appear, the defendant
was escorted to a police cruiser, still handcuffed, with
officers holding him on either arm, and moved from the scene of
the arrest to await the arrival of the ambulance.
The defendant's medical records5 indicated that he suffered
second degree burns on his face and lower legs, second and third
degree burns on his hands, and third degree burns on his upper
left leg.6 His corneas were damaged from exposure to flames,
and, due to smoke inhalation, there was soot in his nose. He
had inhaled toxic fumes, including carbon monoxide and cyanide.7
Even after having been administered morphine, the defendant
reported to medical personal later that evening that his pain
level was a ten out of ten. The medical expert testified that
being handcuffed with his hands behind his back, and being
5
From January 7, 2007, through January 29, 2007, the
defendant was treated in the same specialized burn unit in a
Boston hospital as was the victim.
6
At his first trial, a year after the fire, the defendant's
hands were still being treated and both hands were wrapped in
bandages.
7
Photographs of the defendant's injuries were admitted in
evidence.
15
moved, would have exacerbated the severe pain the defendant was
experiencing. The defendant told police repeatedly that he was
in pain, and the officers testified it was evident that touching
and moving him caused additional pain. The defendant asked
numerous times when the ambulance would arrive, and appeared
anxious to obtain medical assistance.
Extrapolating from the level measured at the hospital, the
defendant's blood alcohol level when he made the statements to
police would have been .115, which the judge described as
approximately one and one-half times the legal limit of .08 for
operating a motor vehicle. The medical expert testified that
that level of intoxication may affect an individual's ability to
make rational decisions. The defendant's urine also testified
positive for marijuana. The expert testified that inhalation of
carbon monoxide affects the processing of oxygen in the blood,
depriving the brain of oxygen, which can cause confusion and
impaired reasoning. Cyanide also impairs an individual's
thought processes. The effects of carbon monoxide inhalation
still would be expected one-half hour after inhaling the gas,
the time at which the defendant encountered the officers. The
expert opined that the defendant's burns were "severe
distracting injur[ies]," and that a physician would be unable to
rely on the accuracy of information reported by a patient with
distracting injuries because the patient's mind would be focused
16
on the pain from the injury.
In his first motion to suppress before his first trial, the
defendant raised the issue of the effect of the burn injuries,
but did not raise any issue concerning the effects of carbon
monoxide and cyanide on his ability to make a knowing,
voluntary, and intelligent waiver of his Miranda rights, and to
give a voluntary statement. The first trial judge denied the
motion after having determined that the Miranda warnings were
adequate, the defendant was not in custody when he made his
initial statement to police, and the pain from his injuries did
not result in the defendant's statements not being voluntarily
made. Although the Commonwealth argued at the hearing on the
defendant's second motion to suppress that the second trial
judge should not conduct a new evidentiary hearing, and should
rely on the first judge's findings as to the degree of pain from
the burn injuries, the second judge considered anew the question
of the burn injuries.
The second judge concluded that the defendant was in
custody when he made the statements to police. The Commonwealth
does not dispute that the defendant was in custody when he was
ordered to the ground. The judge concluded further that the
defendant was not subjected to interrogation or coercion, and
the statements were spontaneous. The defendant knew he was
speaking to police, and appeared eager to do so; while many of
17
his statements were made in an effort to obtain medical care,
police told him almost immediately that an ambulance had been
requested, and did not suggest that receiving medical care was
in any way dependent on the defendant making further statements.
Indeed, rather than attempting to question the defendant, one of
the officers gave him the Miranda warnings and several times
told him to stop talking.
Having concluded that the statements were not the subject
of interrogation or coercion, the judge focused on the question
of voluntariness. The judge determined that, while the
defendant was clearly in pain and suffering from significant
injuries, and may have been confused by alcohol or the
inhalation of carbon monoxide, his injuries did not preclude him
from making a voluntary statement. His statements to police,
and his actions after the fire, demonstrated awareness of the
situation at the scene of the fire, and did not show any great
confusion. Despite the defendant's high blood alcohol level,
the arresting officers did not notice any slurred speech,
stumbling, or other signs of intoxication. Emergency medical
personnel recorded that he was "alert and oriented," and able to
answer questions concerning his injuries and his medical
history; his medical records stated that he was "cooperative and
alert" on arrival at the hospital.
The defendant argues that his statements were not voluntary
18
in part due to his consumption of alcohol and the effects of his
inhalation of toxic fumes, but also, largely due to the pain
from his burn injuries. A statement is voluntary if it is the
product of a rational intellect and a free will. Commonwealth
v. Bins, 465 Mass. 348, 360 (2013) (citation omitted). For a
statement to be voluntary, "the Commonwealth must prove beyond a
reasonable doubt that 'in light of the totality of the
circumstances surrounding the making of the statement, the will
of the defendant was [not] overborne,' but rather that the
statement was 'the result of a free and voluntary act.'"
Commonwealth v. Baye, 462 Mass. at 256, quoting Commonwealth v.
Durand, supra at 594-596.
"Statements that are attributable in large measure to a
defendant's debilitated condition, such as . . . drug abuse or
withdrawal symptoms, [or] intoxication . . . are not the product
of a rational intellect or free will and are involuntary"
(citations omitted). Commonwealth v. Allen, 395 Mass. 448, 455
(1985). Nonetheless, an "otherwise voluntary act is not
necessarily rendered involuntary simply because an individual
has been drinking or using drugs." Commonwealth v. Brown, 462
Mass. 620, 627 (2012), quoting Commonwealth v. Silanskas, 433
Mass. 678, 685 (2001). See Commonwealth v. Shipps, 399 Mass.
820, 826 (1987). That a defendant is suffering from a serious
and painful injury, such as a bullet or knife wound, does not
19
necessarily preclude a statement being made voluntarily. See
Commonwealth v. Stroyny, 435 Mass. 635, 646-647 (2002)
(statement to nurse and police officer voluntary although
defendant was being treated for slashed wrists and was crying
and moaning in pain); Commonwealth v. Clark, 432 Mass. 1, 12
(2000) (statement to police voluntary although defendant was
suffering from newly received gunshot wounds to head and arm).
Even where one or more factors could suggest that a statement
may have been made involuntarily, see Commonwealth v. Selby, 420
Mass. 656, 664 (1995), or that a defendant was in a disturbed
emotional state, see Commonwealth v. Perrot, 407 Mass. 539, 543
(1990), that does not automatically render the statement
involuntary. Id.
A determination whether the Commonwealth has proved beyond
a reasonable doubt that a statement is voluntary is made in
light of the totality of the circumstances, including, inter
alia, the "conduct of the defendant, the defendant's age,
education, intelligence and emotional stability, . . . physical
and mental condition, . . . and the details of the
interrogation, including the recitation of Miranda warnings."
Commonwealth v. Hilton, 450 Mass. 173, 177 (2007), quoting
Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). We discern
no error in the second motion judge's conclusion that,
notwithstanding his serious injuries and his consumption of
20
intoxicants, the defendant knowingly, intelligently, and
voluntarily waived his Miranda rights, and spoke voluntarily to
police, continuing to talk despite their statements that he
should stop talking. The defendant's coherent and appropriate
responses to medical personnel, his evident understanding that
Julie Ann had been seriously injured and his efforts to get help
for her, and his statements to police about the fire and his own
injuries indicate a rational understanding of the situation and
a voluntary decision to speak to police.
2. Admission of graphic photographs. The defendant argues
that the admission of six photographs of the victim, taken while
she was being treated in the hospital, was an abuse of
discretion, and that the photographs were irrelevant to prove
extreme atrocity or cruelty, as the extent and severity of the
victim's burns was evident from other, extremely graphic, trial
testimony, and the photographs were highly inflammatory.
A determination whether particular graphic photographs may
be admitted is within the sound discretion of the trial judge.
Commonwealth v. Stockwell, 426 Mass. 17, 20 (1997). "[I]f the
photographs possess evidential value on a material matter, they
'are not rendered inadmissible solely because they are gruesome
[or duplicative] or may have an inflammatory effect on the
jury.'" Commonwealth v. Keohane, 444 Mass. 563, 573 (2005),
quoting Commonwealth v. Ramos, 406 Mass. 397, 407 (1990). The
21
trial judge must exercise his or her discretion to "determine
whether the inflammatory nature of a photograph outweighs its
probative value." See Commonwealth v. Cardarelli, 433 Mass.
427, 431 (2001), citing Commonwealth v. Vizcarrondo, 431 Mass.
360, 362 (2000). While a defendant bears a "heavy burden" to
show an abuse of that discretion, "special caution is warranted"
in some circumstances, such as where the body has been altered
after the injuries were inflicted. See Commonwealth v.
Cardarelli, supra, citing Commonwealth v. Bastarache, 382 Mass.
86, 106 (1980). See, e.g., Commonwealth v. Keohane, supra at
573-574; Commonwealth v. Jackson, 428 Mass. 455, 464-465 (1998).
"If the judge determines, after careful assessment, that
photographs depicting an altered body are apt to be inflammatory
or otherwise prejudicial, he [or she] should exercise his [or
her] discretion to admit them only if they are important to the
jury's resolution of any contested fact in the case."
Commonwealth v. Cardarelli, supra.
The prosecutor proffered twelve photographs in conjunction
with her motion to allow the introduction of what she described
as "horrific" photographs. Describing the photographs as
"gruesome," the defendant objected, and the trial judge
conducted a hearing on the motion. The judge allowed the
admission of six of the twelve proffered photographs, two taken
at the emergency room where the victim was first transported,
22
and four taken while she was undergoing treatment at a Boston
medical center. The judge also allowed, over the defendant's
objection, introduction of a photograph of the victim before her
injuries. During the hearing, the judge decided the photographs
were sufficiently disturbing that the members of the venire were
informed during voir dire that the trial would include the
introduction of "graphic" photographs; in response to their
answers, some members of the venire were asked at sidebar about
their ability to decide the case fairly and impartially in light
of the planned introduction of the graphic photographs. In his
charge, without specific reference to the photographs, the judge
gave a general instruction that "[e]motion or sympathy, passion
or prejudice have no place in your deliberations."
The photographs are indeed graphic and disturbing. One
shows the victim's severely burned, swollen, and distorted face,
with various tubes attached, while she was being treated in the
emergency room. Several show the victim's legs, and other parts
of her body, that had been sliced open in multiple locations as
part of surgery performed to relieve swelling. Another shows
her face and head, almost entirely covered in bandages, with a
breathing tube protruding from the bandages.
The Commonwealth is entitled to a full presentation of its
case. See Commonwealth v. Keohane, supra at 573; Commonwealth
v. Bradshaw, 385 Mass. 244, 269B270 (1982). Here, because the
23
Commonwealth proceeded on all three theories of murder in the
first degree, it bore the burden of establishing that the
killing had been done with extreme atrocity or cruelty. The
admitted photographs are relevant; they clearly bear on the
question of the pain the victim suffered as a result of the
burns, and the fact that extensive testimony had been introduced
describing the injuries and the victim's suffering would not,
alone, preclude the introduction of graphic photographs. See
Commonwealth v. Ramos, supra. Nonetheless, to be admissible,
the probative value of the evidence must not be substantially
outweighed by its prejudicial effect. See Mass. G. Evid. § 403
(2015). See also Commonwealth v. Toro, 395 Mass. 354, 358
(1985).
"[E]ven relevant evidence may not be admitted if 'its
probative value is substantially outweighed by the danger of
unfair prejudice.'" Commonwealth v. Carey, 463 Mass. 378, 387-
388 (2012), quoting Mass. G. Evid. § 403 (2012). The judge
clearly was cognizant of the concern that these photographs were
highly disturbing and there was a risk that they might be too
prejudicial. The prosecutor was equally aware of that concern,
as is evident from the discussion at the hearing on the motion
to introduce the photographs. Defense counsel pointed out that
all of the photographs involved medical procedures, rather than
showing the injuries inflicted. He also argued that the victim
24
had been on a monitored pain management program, so that the
injuries as seen in the photographs did not reflect the level of
pain she actually experienced, particularly where she was
unconscious during much of her hospitalization. In addition,
defense counsel commented that the trial already was going to be
extremely "emotional" and the photographs were unduly
prejudicial and would serve only to "sway the jury by
emotionality" and be a "distraction" from their duty. The judge
then allowed the introduction of six of the photographs to
establish extreme atrocity or cruelty.
"[E]vidence that poses a risk of unfair prejudice need not
always be admitted simply because [it is admissible]; the judge
still needs to weigh the probative value of the evidence and the
risk of unfair prejudice, and determine whether the balance
favors admission." Commonwealth v. Gray, 463 Mass. 731, 753
(2012), quoting Commonwealth v. McCowen, 458 Mass. 461, 479 n.15
(2010). "[A] judge's discretionary decision constitutes an
abuse of discretion where we conclude the judge made 'a clear
error of judgment in weighing' the factors relevant to the
decision." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9,
15 (1st Cir. 2008).
All of the proffered photographs showed medical
intervention and medical equipment. They depicted, in large
25
part, graphic aspects of the victim's injuries as a result of
medical procedures while the victim was being treated at the
hospital. See Commonwealth v. Bastarache, supra at 105-106.
The photographs were indeed disturbing, and had a tendency to
arouse the jury's emotions. "[T]rial judges must take care to
avoid exposing the jury unnecessarily to inflammatory material
that might inflame the jurors' emotions and possibly deprive the
defendant of an impartial jury." Commonwealth v. Berry, 420
Mass. 95, 109 (1995).
While it is a close call, and we might have reached a
different result had the question been de novo before us, we are
unable to conclude that the judge abused his discretion in
deciding to allow the introduction of the photographs.
3. Exclusion of one of defense counsel's closing
arguments. The theory of the defense was that police officers
did not conduct an adequate investigation of the events of
January 7, 2007. Defense counsel claimed that the officers were
so affected by the victim's injuries that they focused only on
the defendant and disregarded or did not seek other evidence
that would have supported his claims that the victim, not the
defendant, threw the gasoline; that the gasoline might have come
from someone who lived in another apartment in the building;
that police did not attempt to determine the source of the
gasoline; that someone else in the building might have owned the
26
gasoline can; or that the fire was not intentional.
In closing, defense counsel emphasized that officers did
not collect a white plastic bottle found on the dining room
floor in the victim's apartment; did not bring the accelerant
detecting dog into the back bedroom where an investigator
concluded that the fire had started, or into the back hall or
the back stairs that were shared with other apartments in the
building; and did not have the dog search the perimeter of the
house to determine whether there were traces of gasoline.
Defense counsel argued also that the family was confused and saw
the defendant as he was leaving the house, not as he entered.
Counsel contended that the defendant had a bottle of drain
cleaner in his hand (from his job maintaining his apartment
building), not gasoline. Counsel suggested also that family
members inadvertently influenced each other's statements to
police, by discussing the events at the police station while
waiting to be interviewed. All of these arguments were
permissible based on evidence introduced at trial.
Defense counsel argued also that officers had moved,
repositioned, or "planted" a gasoline can found in a closet in
the defendant's bedroom in an effort to implicate the defendant.
Counsel based this argument on the fact that photographs taken
at different times during the night and morning following the
execution of a search warrant for the defendant's apartment
27
showed the gasoline can facing in different directions.8 Arguing
that it was an extension of the inadequate police investigation,
defense counsel claimed that the police photographer who took
the photographs in the early morning hours after the fire had
moved or planted the gasoline can.9 The prosecutor objected.
The judge allowed the objection and ordered that part of the
argument struck. In ordering the statements struck, the judge
instructed the jury to
"disregard that argument. It's improper for counsel to
make an argument based purely on speculation. There's been
no testimony that gasoline was planted. It is an improper
argument. You will disregard it."
After a hearing the following morning on the defendant's
motion to reargue, defense counsel offered evidence in support
of his position, including pointing to the different direction
the can was facing in different photographs. The judge
commented that, presented in that fashion, the argument might
have been acceptable, but not in the form that defense counsel
8
The police photographer testified that he may have
inadvertently replaced the can incorrectly after it was moved
during the course of the search.
9
Counsel described the law enforcement investigation as
"grossly incompetent", pointing out that police did not collect
the white bottle from the area where the dog had alerted in the
dining room. Counsel then stated that officers entered the
defendant's apartment "under the dead of night," before they had
obtained the search warrant, and that officers "snuck into [the
defendant's] apartment so they could . . . put a gas can there."
Counsel argued that one of the photographs showed the gasoline
can before officers decided where to place it.
28
had presented it to the jury. In denying counsel's motion, the
judge commented to counsel that it "completely eluded me that
you were intending to argue the gas can had been placed, and in
fact it still does." The judge concluded that counsel's
argument was impermissible because it relied on matters not in
evidence, misstated the evidence, invited the jury to speculate
beyond the evidence, and contained counsel's own opinions as to
the credibility of certain witnesses. The judge determined that
the inferences that counsel suggested the jury make were not
reasonable, and that the argument that the police photographer
had moved or planted the gasoline can was improper.
As presented in counsel's argument to the jury, we agree.
See, e.g., Commonwealth v. Johnson, 463 Mass. 95, 114 (2012),
and cases cited (closing arguments must be limited "to facts in
evidence and the fair inferences to be drawn therefrom"). The
officer testified that the gasoline can had been moved during
the search, and that he might have placed it back in a different
position for the photograph. There was absolutely no evidence,
however, that police engaged in any planting of evidence in an
effort to implicate the defendant.
4. Relief pursuant to G. L. c. 278, § 33E. The defendant
did not seek a reduction in the verdict or other relief pursuant
to G. L. c. 278, § 33E. Nonetheless, we have reviewed the
entire record pursuant to our duty under G. L. c. 278, § 33E.
29
Although the defendant raises no issue in this regard, we have
considered carefully whether there was sufficient evidence to
support a conviction of felony-murder, with armed home invasion
as the predicate felony. The jury found that, after breaking
into the victim's apartment, the defendant threatened imminent
harm to Jessica, her brother, Key, and her aunt Caroline.10
Viewing the evidence in the light most favorable to the
Commonwealth, we conclude that there is sufficient evidence to
support this finding.11 We discern no reason to reduce the
10
At his first trial, the defendant was acquitted of
assault and battery by means of a dangerous weapon (gasoline)
against Key, the Commonwealth filed a nolle prosequi on two
charges of assault by means of a dangerous weapon against Julie
Ann and Tiffany, and the first trial judge allowed the
defendant's motion for entry of a required finding of not guilty
on a charge of assault and battery by means of a dangerous
weapon against Julissa. See note 1, supra. At the outset of
the defendant's second trial, the Commonwealth acknowledged that
the felony-murder charge could be supported only on a finding of
armed home invasion by means of a threat, not an actual use of
force.
11
Jessica testified that, when she first saw the defendant
in the entrance between the kitchen and the dining room, he was
angry, talking in a loud voice, and "charging" at her; she
thought he was "coming after" her and intended to hurt her, but
no one else. She turned and ran.
Key testified that, when the defendant was standing in the
entrance between the two rooms, he was in a "rage," "upset," and
"loud," saying, "I got you. I got you. You think it's a joke
now." Key tried to position himself between the defendant and
the other family members, who were heading into the room where
Jessica had gone. Key also testified that the room in question
was Caroline's room. Caroline was in the room, and, when
everyone was inside it, Caroline was holding the door closed so
the defendant could not enter.
30
verdict of murder in the first degree or to order a new trial.
Judgment affirmed.
In addition, Key testified that the defendant was spraying
gasoline with a bottle he was carrying, sprayed some at Key, and
some of that gasoline landed on Key's shirt. Testing of the
shirt before the defendant's first trial, however, revealed no
evidence of gasoline, and, at that trial, the defendant was
acquitted of assault and battery by means of a dangerous weapon
for spraying Key with gasoline. See note 10, supra.