Commonwealth v. Anestal

463 Mass. 655

978 N.E.2d 37

COMMONWEALTH

v.Solange ANESTAL.

SJC–10547.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Jan. 9, 2012.

Decided Nov. 6, 2012.

Robert F. Shaw, Jr., Cambridge, for the defendant.

Robert C. Thompson, Assistant District Attorney (Sharon E. Donatelle, Assistant District Attorney, with him) for the Commonwealth.

Present: IRELAND, C.J., BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

The defendant was convicted by a Superior Court jury of murder in the first degree on a theory of deliberate premeditation in the 2003 stabbing death of her boy friend, Baby Petitry. Before us are the defendant's consolidated appeals from both her conviction and the denial of her motion for a new trial. We conclude that, because on multiple occasions, over objection, the trial judge erroneously allowed the Commonwealth to introduce highly prejudicial evidence of the defendant's prior bad acts, and because the judge later declined to provide an instruction as to the excessive use of force in self-defense that was supported by the evidence, the conviction must be reversed and the matter remanded for a new trial.

1. Background. a. The Commonwealth's case-in-chief. We recite the facts as the jury could have found them, reserving certain details for later discussion.

On June 26, 2003, the defendant and Petitry lived together in an apartment in Brockton. Goudy Richemond, a friend of Petitry, was at their apartment repairing a broken baby crib. One of Richemond's friends, Ivens Fouyolle, was also present at the apartment. The defendant's and Petitry's infant daughter and the defendant's son, who was around “five or six years old,” ordinarily would have been home, but the children had been taken into custody by the Department of Social Services (DSS) ¹ eight days earlier because of a complaint against the defendant.²

About ten to twenty minutes after Fouyolle arrived at the apartment, the defendant said that she was leaving to spend the evening out with friends. Petitry refused to let her go, saying that a DSS investigator would be coming the following day to discuss the removal of the children and that he did not want her to spend the night out with other men smoking marijuana. An argument ensued. The defendant made a telephone call and said that Petitry was treating her like a “slave,” and according to Fouyolle, Petitry's “tone of voice was like she's not going out, like, you know, he's telling his woman that she's not going out, and he means it.”

The three men—Petitry, Richemond, and Fouyolle—then went downstairs to smoke cigarettes. From where they were smoking, they could still hear the defendant on the telephone, saying she was a “slave” and that Petitry thought he “own[ed]” her. While Richemond and Fouyolle continued smoking, Petitry went back upstairs.

By the time all three men had returned to the apartment, Petitry had threatened to move out and had started packing his belongings. The pair continued to argue, shutting the bedroom door so Fouyolle and Richemond could not overhear. Through the door, Fouyolle could still make out arguing and swearing, including the defendant saying that Petitry was not leaving her. At some point during the argument, Richemond felt the need to open the door, telling Petitry to “relax” because “[t]he people downstairs [are] going to call the cops.” With the door opened, Fouyolle could see that Petitry was positioned on top of the defendant, holding her down on the bed. She was spitting in Petitry's face, telling him to move. Petitry told the men to “mind [their] fucking business” and Richemond closed the door.

Soon thereafter, Fouyolle heard a sound of breaking glass. The argument continued. When Petitry later left the bedroom,³ the defendant followed “[n]ot even ten seconds” later, holding a sixteen-inch piece of glass. On her way out the door, the defendant said, “Mother fucker, I'm going to kill you,” ⁴ and proceeded to stab Petitry in the chest. The glass entered Petitry's chest under the left mid-collarbone and penetrated four and one-half inches into his left lung. Once Petitry started to bleed, the defendant appeared shocked, pleading, “Don't die, please don't die.” Fouyolle immediately called the police.

When the police arrived at approximately 10:40 p.m., they found the defendant visibly upset, “shaking and crying.” When paramedics stated that they would cease cardiopulmonary resuscitation, the defendant started to thrash uncontrollably; she slammed her head against the wall and headboard of the bed and screamed that “if [Petitry] dies, [I] want[ ] to die.” Petitry's heart stopped before the paramedics could get him out of the apartment.

b. The defendant's claimed lack of criminal responsibility. The defendant largely conceded the sequence of events but argued that she was not criminally responsible for her actions because, due to a mental disease or defect—specifically posttraumatic stress disorder (PTSD) resulting from years of physical and emotional abuse—she lacked the substantial capacity at the time of the stabbing both to appreciate the wrongfulness of her conduct and to conform her conduct to the requirements of the law. See Commonwealth v. McHoul, 352 Mass. 544, 546–547, 226 N.E.2d 556 (1967). In support of this claim, the defense offered the testimony of two expert witnesses; the Commonwealth did the same in response.⁵

The evidence admitted at trial indicated that the defendant suffered from a long history of abuse.⁶ Born in Haiti in 1980, she was one year old when her father left her family. During her early childhood, she lived with her mother and stepfather; “[t]here was abuse all through that period.” At the age of ten, she left Haiti to come to the United States. When she arrived, she lived in a number of shelters before her father was located and she was placed with him in Florida. Her father's wife, with whom she also lived, was physically abusive toward her. At the age of fourteen, someone in the defendant's neighborhood sexually assaulted her. After her father's death in 1996, she went to live with her aunt and uncle, where she encountered another abusive household.

While she was living in Florida, she became involved with a man, Claudel Gellete, who would become the father of her first child, a son. Her relationship with Gellete was marked by violence. Police reports from Florida, dated September, 1998, indicate that, on one occasion, officers noticed broken blood vessels in her eyes, as well as swelling and bruising around her face. She told the officers that Gellete had caused the injuries by punching her multiple times. Florida hospital records indicate that, seven months later, in April, 1999, the defendant was hit over the head by a beer bottle so hard that it caused the skin on her scalp to split apart, requiring staples to repair the damage. On that trip to the hospital, she reported that she did not know where she was. She returned to the hospital yet again, complaining of pain in her stomach and reporting that Gellete had hit her. She also reported that she suffered black eyes and migraine headaches from his beatings. According to these reports, he had also threatened to kill her.

After her relationship with Gellete ended, the defendant moved to Massachusetts. In 2001, the defendant was hospitalized after a suicide attempt and was diagnosed with major depression. While living in Massachusetts, she began a relationship with a man named John Colson. According to the defendant, Colson too was abusive—the defendant described this relationship as “like being in hell”—particularly when he was drinking or smoking marijuana. The abuse was so extreme that the defendant and her son moved into a shelter hotel in June, 2002, to get away from him. When Colson tracked her down at the shelter, he attempted to suffocate her with a pillow. During this attack, the defendant suffered swollen temples and cheeks, as well as having a mole bitten off the side of her head.

After this incident, from “June 2002 into July 2002,” the defendant sought counselling at New Bedford Child and Family Services and was diagnosed with major depression and PTSD. She described herself as depressed, irritable, and prone to angry outbursts. The same diagnoses were later made at South Bay Mental Health Center (South Bay), where she was treated for several months beginning in July, 2002. At the time of this diagnosis, the defendant was also reported to have made bizarre statements to mental health professionals, including that she believed she would become president of Haiti before she turned thirty years old, and that she had been baptized by the Pope himself. Clinicians at South Bay continued to treat her, describing the defendant as “very depressed” before the birth of her daughter, “tired and stressed” after the birth, and increasingly stressed by the defiant behavior of her son.⁷ While being treated at South Bay, the defendant was “on low doses of antidepressants intermittently,” which she ceased during her pregnancy and did not resume until after the date of the stabbing.⁸

After she began dating Petitry, apparently in mid to late 2002, the defendant described herself as “helpless and powerless” in the relationship. The defendant stated that his abuse was primarily verbal, but that he would punch her repeatedly on occasion. She reported that he would become “aggressive and verbally abusive” when he was drinking.⁹ A police report stated that, on one occasion, in April, 2003, several months before the stabbing, the defendant had called the police because Petitry had been abusive, and “it took the police to get him out of the house.” Attorney Thomas D. Lawton testified that, in the course of representing the defendant in the Juvenile Court in relation to the complaint filed by DSS, he witnessed an incident on June 23, 2003 (three days before the stabbing), in which Petitry stood over the defendant with his fists clenched, cursing and screaming that he was...