Commonwealth v. Durand

475 Mass. 657

59 N.E.3d 1152

COMMONWEALTH

v.Eric J. DURAND.

SJC–11221.

Supreme Judicial Court of Massachusetts, Bristol.

Argued May 6, 2016.

Decided Oct. 7, 2016.

Gary G. Pelletier (Timothy J. Bridl with him) for the defendant.

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

Present: GANTS, C.J., CORDY, DUFFLY, LENK, & HINES, JJ.¹

HINES, J.

The defendant was convicted by a jury in 2006 of murder in the first degree and assault and battery with a dangerous weapon, in connection with the October, 2003, death of a four year old child. Because of errors in the defendant's first trial, this court reversed those convictions and remanded the case to the Superior Court for a new trial. Commonwealth v. Durand, 457 Mass. 574, 601, 931 N.E.2d 950 (2010). On August 29, 2011, a jury again convicted the defendant of murder in the first degree by extreme atrocity or cruelty, and assault and battery by means of a dangerous weapon. The judge sentenced the defendant to life in prison without the possibility of parole on the murder conviction to be served concurrently with a term of from two to four years in State prison on the assault and battery conviction.

On appeal, the defendant asserts error in (1) the limitation of his right to cross-examine the medical examiner; (2) the denial of his motion to suppress statements; (3) the denial of the motion for a mistrial after the jury were exposed to inadmissible evidence; (4) the admission of hearsay testimony by one of the Commonwealth's expert witnesses; (5) the denial of the motion for a mistrial related to improper statements made during closing arguments; (6) the denial of the motion to dismiss on double jeopardy grounds for prosecutorial misconduct; and (7) the denial of a requested jury instruction. Although we conclude that the Commonwealth's closing argument improperly referenced inadmissible evidence, this error alone does not require a new trial or other relief. We also have conducted a review pursuant to G.L. c. 278, § 33E, and we discern no basis to grant relief.

Background. We summarize the facts the jury could have found, reserving certain details for later discussion. At around the time of the victim's death, the defendant was the boy friend of the victim's mother. The mother lived with her children, the victim and his twin brother, in the basement of a friend's home. The defendant was a frequent overnight guest. Although the defendant had a good relationship with the victim's twin brother (twin), his relationship with the victim was strained. The defendant often called the victim “pissy pants” or “piss pants” because the child “sometimes” urinated in his pants and was not as large as his older twin. The defendant did not like that the victim was “clingy” with his mother and antagonized the child and called him “Mama's boy.” This conduct intimidated the victim and occasionally caused him to cry.

On October 20, 2003, the date of the victim's death, the mother departed early in the morning for work and left the victim and his twin with the defendant. A roommate who lived in one of the basement rooms, and who often took care of the twins, was also home. Later that morning, the victim urinated on himself and the defendant told him to stand in the corner as punishment. When the victim asked to use the bathroom, the defendant refused. The defendant called the victim “piss pants.” When the victim turned around in response, the defendant threw a toy shark at the child's face. The roommate, who was present, later testified that the defendant threw the toy “kind of hard,” and that he “looked a little angry or mad” as he did so.

When the defendant began to take care of the victim's wet clothes, the victim urinated on the defendant's pants. The defendant showed the roommate the wet spot on his pants, and although she thought that the defendant seemed upset, he stated that it was “no big deal” because he could just go home and get another pair of pants. The defendant took the victim into the upstairs bathroom to wash him while the roommate went upstairs to the kitchen. The roommate saw the defendant walk by the kitchen with the victim and assumed they were returning to the basement. She came across the twin while she was upstairs and took him back downstairs to the twins' room. She noticed that the victim was lying on the bed, not moving, but also that he did not look to be in any distress. She returned upstairs.

Thereafter, the defendant came upstairs to tell the roommate that the victim had fallen down the stairs. The roommate remained at the computer she was using; the defendant returned to the basement. Soon thereafter, the defendant returned upstairs and told her that the victim was “acting weird.” Again, she remained at the computer and the defendant went back to the basement. Moments later, the defendant returned a third time and said that something was “seriously wrong.” The roommate ran downstairs to the twins' bedroom and found the victim lying in bed, not moving, with his eyes rolled back. She telephoned the mother, who spoke to the defendant and told him to telephone 911. He did so. During both telephone calls, the defendant explained that the victim had fallen down the stairs. Emergency medical technicians arrived and found the victim “cool, cold” to the touch. They were not able to resuscitate the victim, who was later pronounced dead at a hospital.

That same day, detectives from the New Bedford police department asked the defendant if he would accompany them to the police station for an interview. The defendant agreed. His six-hour interview was recorded with the defendant's consent. During that interview, the defendant alternately told police that he had carried the victim down the stairs and that the victim had been injured by falling down the stairs. He also denied throwing anything at the victim. However, he admitted to police that while he was in the bathroom with the victim, he noticed that the victim appeared “scared” and was shaking while using the toilet. The detectives informed the defendant that the victim had died and that the victim's injuries were not consistent with a fall down the stairs. Despite aggressive questioning, the defendant repeatedly denied any involvement in the victim's death. After the defendant left the police station, he telephoned the roommate and told her not to say anything to the police about his throwing the toy shark at the victim because “they didn't need to know.”

The following day, the mother went to the defendant's home. During the conversation, the defendant claimed that the victim fell down the stairs. The police arrived, requested another interview, and the defendant agreed. He went to the police station, and this interview also was recorded. Detectives informed him that an autopsy report showed that the cause of death was a blow to the victim's stomach. The defendant again denied involvement in the victim's death. The police arrested the defendant for murder. While being transported for his arraignment, the defendant tearfully confessed to a security officer that he had tripped on the stairs and fallen on the victim.

The medical testimony was that the victim died as a result of blunt force trauma to the abdomen, resulting in a rupture of the duodenum and a transection of the pancreas. The fatal injuries were not consistent with a fall down a flight of stairs or with a blow delivered by a child of the same age as the victim's brother. The defendant's theory, that the victim's injuries were caused by his twin brother during horseplay, was supported by an expert witness who opined that the injuries could have resulted from the twin jumping on the victim's stomach.

Discussion. 1. Confrontation and due process. The defendant argues that the judge's limitation of his right to cross-examine the Commonwealth's expert, Dr. Abraham Philip, regarding an electronic mail (e-mail) message violated his right to confrontation as guaranteed by the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. More specifically, the defendant contends that the e-mail message was the basis of the witness's termination from his position with the office of the chief medical examiner and, therefore, it was probative of the expert's competence and bias. He claims that his right to cross-examination on the issue was expressly protected under Bullcoming v. New Mexico, 564 U.S. 647, 652, 662, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) (confrontation clause implicated where “surrogate testimony” of scientist who did not certify, perform, or observe laboratory test precluded opportunity for defendant to cross-examine testing scientist removed from employment for undisclosed reasons). The judge denied the request to impeach Dr. Philip with the e-mail message and ruled that any probative value it might have had on the issue of the witness's bias or competence was outweighed by its potential for misleading the jury.² There was no error.

We agree that under the Sixth Amendment and its cognate provision, art. 12, a central purpose of the right of confrontation is “to weed out not only the fraudulent analyst, but the incompetent one as well.” Melendez–Diaz v. Massachusetts, 557 U.S. 305, 319, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The “lack of proper training or deficiency in judgment may be disclosed in cross-examination.” Id. at 320, 129 S.Ct. 2527. However, “trial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues ... or interrogation that is repetitive or only marginally relevant.” Commonwealth v. Woodbine, 461 Mass. 720, 751, 964 N.E.2d 956 (2012), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). We review a judge's imposition of such limits for abuse of discretion. See Commonwealth v. King, 445 Mass. 217, 245, 834 N.E.2d 1175 (2005), ...