Com. v. Johnson

Page 578

711 N.E.2d 578

429 Mass. 745

COMMONWEALTH v. Ervin JOHNSON.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 2, 1999.

Decided June 21, 1999.

Harry L. Miles, Northampton, for the defendant.

Stephen D. Fuller, Assistant District Attorney, for the Commonwealth.

Present: WILKINS, C.J., ABRAMS, LYNCH, FRIED, & IRELAND, JJ.

LYNCH, J.

The defendant was convicted of murder in the first degree by reason of extreme atrocity or cruelty (G.L. c. 265, § 1) and of violating an abuse prevention order (G.L. c. 209A, § 7). ¹ On appeal, ² the defendant contends that (1) the prosecutor engaged in improper conduct; (2) the judge's alleged misconduct denied him a fair trial; (3) the judge erred in refusing to reinstruct the jury regarding the evidence of the defendant's mental impairment; and (4) defense counsel rendered ineffective assistance. The defendant further urges that we exercise our power under G.L. c. 278, § 33E, and order a new trial or reduce his murder conviction to a lesser degree of guilt. We affirm the conviction and conclude that there is no reason to exercise our power under G.L. c. 278, § 33E.

Facts. We summarize the evidence in the light most favorable to the Commonwealth. The defendant and the victim lived together. In May, 1995, four months before the victim's murder, she gave birth to their son. In the course of their relationship the defendant physically abused the victim and isolated her from her family. On September 11, 1995, after the victim obtained a protective order against the defendant, two Boston police officers accompanied the victim back to her apartment, where they served the defendant with the protective order. The defendant became extremely angry, collected some of his belongings, and told the victim that he would be back. The officers reminded the defendant that, if he returned, he would be placed under arrest.

After staying a few days with her sister, the victim moved back to her apartment with a male friend. On September 19, 1995, at approximately 5:45 P. M., police officers, responding to a radio call, arrived at the victim's apartment where they found the victim half conscious, lying on the kitchen floor, bleeding profusely from several stab wounds. The victim's son was crying in a swing seat in the living room. As one of the officers was trying to stop the victim's bleeding, she indicated that her former boy friend was the one who injured her.

The victim was taken to a hospital emergency room where, after one hour and forty minutes of surgery, she was pronounced dead. An autopsy revealed that the victim suffered twenty separate wounds, which could have been inflicted with a knife found in her apartment.

The defendant, after being arrested on an unrelated charge and receiving his Miranda rights, admitted stabbing the victim. He said he had gone to the apartment to see his son and to see whether he and the victim had a future together; when he saw men's clothing in the bedroom closet, "something happened" and he "lost it."

At trial, the defendant admitted that he killed the victim. He argued that he was only guilty of manslaughter or, at most, murder in the second degree because of an alleged mental impairment. In support of this theory of defense, the defendant's mother testified that, when the defendant was nine months old, he received an injury which caused him to stop breathing and necessitated his being taken to a hospital where he was resuscitated. The defense also presented a forensic pathologist who testified that the defendant had an I.Q. of sixty-eight, or "the intellectual level of a person with mild mental retardation." He also testified that the defendant suffered mild to moderate brain damage including frontal lobe damage, which, he opined, was consistent with the incident recounted by the defendant's mother. The witness further stated that frontal lobe damage impairs a person's ability to control his impulses, such that once a person started acting on that impulse, he would be unable to stop himself.

1. Alleged prosecutorial misconduct. The defendant argues that the prosecutor created reversible error by inflammatory argument, stating facts not in evidence, and inappropriately commenting on the defendant's failure to produce evidence. The defendant objected to the prosecutor's opening statement and to the admission of a photograph, but failed to object to the other errors raised on appeal. We review those objections which were made at trial to determine whether the alleged errors constituted prejudicial error. Commonwealth v. Santiago, 425 Mass. 491, 500, 681 N.E.2d 1205 (1997), S. C., 427 Mass. 298, 693 N.E.2d 127 (1998). With respect to those objections raised for the first time on appeal, "our review is limited to determining whether there has been a substantial likelihood of a miscarriage of justice." Commonwealth v. Lyons, 426 Mass. 466, 471, 688 N.E.2d 1350 (1998).

a. Inflammatory statements and evidence. The defendant maintains that he was so prejudiced by the prosecutor's improper appeal to the jury's sympathy in her opening statement, in the introduction of improper evidence, and in her closing argument, that a new trial is required.

(1) The opening. The defendant points to the prosecutor's remarks during her opening statement regarding the presence of the victim's child stating, "Baby Matthew in his little swing seat in the living room, right nearby, and [the victim] underneath her kitchen table, whimpering." He also points to the prosecutor's characterization of the case as one of " 'domestic violence'; of an abusive relationship; of a battered and bruised woman." The defendant contends that these remarks overstepped the bounds of zealous advocacy and appealed excessively to the jury's sympathy.

"Generally, a prosecutor in a criminal action may state anything in [her] opening argument that [she] expects to be able to prove by evidence." Commonwealth v. Cohen, 412 Mass. 375, 382, 589 N.E.2d 289 (1992). "The prosecutor may argue inferences from the evidence favorable to [her] case." Commonwealth v. Lyons, supra at 472, 688 N.E.2d 1350. The prosecution's theory of the case was murder in the first degree based on deliberate premeditation and extreme atrocity or cruelty. The prosecutor's remarks concerning the presence of the victim's son and the viciousness of the crime were not improper because this evidence was relevant to the determination whether the defendant's actions constituted extreme atrocity or cruelty. Commonwealth v. Wilson, 427 Mass. 336, 351, 693 N.E.2d 158 (1998) ("the prosecutor's references to the gruesomeness of the crime[ ] were not improper here, because the gruesomeness of the crime[ ] and the suffering of the victim [ ] were relevant to the issue whether the defendant's actions constituted extreme atrocity or cruelty"); Commonwealth v. Murphy, 426 Mass. 395, 402, 688 N.E.2d 966 (1998) ("[t]he evidence that the victim's young son was in the [room] and possibly witnessed her assault and death was relevant to establish the victim's own emotional suffering"). See Commonwealth v. Lyons, supra at 472, 688 N.E.2d 1350.

(2) The closing. Similarly, the defendant's contention that the prosecutor's closing argument excessively appealed to the emotions of the jury is also unavailing. Because defense counsel did not object to the prosecutor's closing argument, our review is limited to "whether there is a substantial likelihood that a miscarriage of justice has occurred." Commonwealth v. Payne, 426 Mass. 692, 697, 690 N.E.2d 443 (1998), quoting Commonwealth v. Barros, 425 Mass. 572, 582, 682 N.E.2d 849 (1997). "Under that standard, we assess the [statement] at issue 'in light of the entire argument, the judge's instructions, and the evidence at trial.' " Commonwealth v. Payne, supra, quoting Commonwealth v. Fryar, 425 Mass. 237, 250, 680 N.E.2d 901, cert. denied, --- U.S. ----, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997), and cases cited.

The defendant points to the prosecutor's description of the murder as a "bloody massacre." As we have noted previously " '[t]o the degree the recitation of the evidence was inflammatory, that was inherent in the odious ... nature of the crime[s] committed.' Commonwealth v. Sanchez, 405 Mass. 369, 376, 540 N.E.2d 1316 (1989).... The prosecutor's remarks were characteristic of 'enthusiastic rhetoric, strong advocacy, and excusable hyperbole,' and did not cross the line between fair and improper argument." Commonwealth v. Lyons, supra at 472, 688 N.E.2d 1350, and cases cited. Moreover, the judge instructed the jury that they, as the fact finders, must determine the facts solely based on evidence produced at trial, and that they were not to be swayed by prejudice or sympathy, fear, or personal likes or dislikes toward either side.

(3) The evidence. The defendant further argues that the prosecutor improperly introduced inflammatory evidence by having the victim's sister read a statement by the victim from her application for a protective order against the defendant, where she stated: "I asked the defendant to leave. He became very violent and threatening. And he said, if I left, don't ask him for child support.... And, when I come inside the courthouse, I won't be walking home alive." The defendant neither objected to the admission of the application for the protective order nor to the witness's reading from it.

The application for a protective order was inadmissible hearsay. See Commonwealth v. Cormier, 427 Mass. 446, 449 n. 1, 693 N.E.2d 1015 (1998) ("no hearsay exception for statements of deceased persons in criminal cases"). The Commonwealth fails to point to any hearsay exception making the statement admissible. The improperly admitted hearsay does not create a substantial likelihood of a miscarriage of justice, however, where the evidence was largely cumulative of other admitted evidence regarding the relationship between the defendant and the victim and where the evidence...