Commonwealth v. Levesque

242 N.E.3d 625

104 Mass.App.Ct. 607

COMMONWEALTH

v.Adam LEVESQUE.

No. 23-P-1052

Appeals Court of Massachusetts, Bristol.

Argued June 10, 2024

Decided August 21, 2024

Homicide. Evidence, Chalk drawing, Videotape, Spontaneous utterance, Expert opinion, Hearsay. Practice, Criminal, Hearsay, Request for jury instructions, Lesser included offense.

Indictments found and returned in the Superior Court Department on January 25, 2019.

The cases were tried before William M. White, Jr., J.

Eva G. Jellison, for the defendant.

Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Vuono, & Massing, JJ.

GREEN, C.J.

₆₀₇Following a night of shared heroin use, and a dispute over a quantity of missing heroin from the defendant’s "stash," the victim, Lance Correia, died as the result of blunt force trauma injuries to his head. A jury in the Superior Court in Bristol County convicted the defendant of murder in the second degree.¹ On appeal, the defendant assigns error, among other things, to the exclusion by the judge of the victim’s statement to a first responder about how he had sustained his injuries. The defendant ₆₀₈further contends that the judge should have instructed the jury on the lesser included offense of manslaughter. We agree that, viewed in the light most favorable to the defendant, the evidence supported the requested instruction on manslaughter. We accordingly vacate the conviction.

Background. We summarize the evidence adduced at trial, reserving detailed discussion of certain factual questions for our discussion of the defendant’s claims of error.²

In October 2018, the defendant was dating a childhood friend. The victim and the defendant also had been friends since childhood. On the evening of October 9, 2018, the defendant and the victim went to the defendant’s girlfriend’s apartment. During the course of the evening, all three injected heroin that the defendant had brought. At some point the defendant realized that the remainder of his heroin was missing and announced that he wanted it returned. For the next two hours, often in an agitated state, the defendant and the victim searched the apartment for the missing heroin. During the course of their search, the two men flipped the bed, which had a metal bedframe, up against the wall. The defendant then made a telephone call, and another man arrived at the apartment. The defendant and the other man discussed the missing heroin, and then proceeded to search the girlfriend and the victim by making them pull their shirts up and their pants down. The defendant also searched his girlfriend’s vaginal cavity.

The defendant began arguing with the victim about the missing drugs. The victim was standing next to the upturned bed; the defendant’s girlfriend was behind the mattress. The girlfriend heard a "thump," "[l]ike someone hit their head," and then a fall. When she came around to the front of the mattress, she observed the victim on the ground, "bleeding heavily," and the defendant holding a hammer in his hand. The defendant said to her, "You can get it too, bitch." The girlfriend stepped over the victim and left the room. At 11:38 p.m., the defendant called 911 to request an ambulance for the victim. The defendant and his girlfriend then ₆₀₉left the apartment and went to the defendant’s uncle’s house.³ They got high and left in the morning, then traveled to Taunton and then to Boston to buy drugs. They then went to New York, where they stayed for about two weeks; while there, the defendant called the victim’s mother repeatedly to check on his condition.

Meanwhile, after everyone else had left the apartment, the victim walked out into the hallway and then back into the apartment. Officer Brendan McNerney of the Fall River police department arrived at the apartment around 11:43 p.m. He found the victim pacing in the apartment.

McNerney applied pressure to the wound on the victim’s head. The victim was disoriented. Paramedics arrived and began administering treatment; McNerney handcuffed the victim because he was pulling at the cervical collar the paramedics had applied. The victim was able to walk independently, accompanied by police and paramedics, out of the apartment and downstairs to the ambulance. Once in the ambulance, the victim confirmed his name when asked.⁴ The victim became more disoriented and combative while in the ambulance. Medical personnel administered Narcan because they were unsure whether his condition was related to drug use or his head injury. While in transit to the hospital, the victim had a seizure.

During treatment for his injuries at a hospital in Rhode Island, doctors removed the damaged part of the victim’s skull to relieve pressure on his brain. Despite a number of medical procedures, the victim never regained consciousness after the surgery, and he died on November 9, 2018.

An autopsy revealed that the victim died from blunt force trauma to his head. It was not possible to determine the shape of the blunt object that struck the victim’s head, because the portion of the skull at the point of impact had been removed. Expert testimony suggested that the injury was the result of "quite a bit of force," and that the injuries were consistent with being struck by a hammer, but that the injuries could have been caused by another instrument or another blunt object.

[1–3] Discussion. 1. Lesser included offense instruction. The defendant contends that the judge erred in denying his request to instruct ₆₁₀the jury on the lesser included offense of manslaughter. "A manslaughter instruction is required if the evidence, considered in the light most favorable to a defendant, would permit a verdict of manslaughter and not murder." Commonwealth v. Pina, 481 Mass. 413, 422, 116 N.E.3d 575 (2019).⁵ "Involuntary manslaughter is an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct." Commonwealth v. Vanderpool, 367 Mass. 743, 747, 328 N.E.2d 833 (1975). "Voluntary manslaughter is an unlawful killing ‘arising not from malice, but "from … sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense" ’ " (citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 443, 845 N.E.2d 274 (2006).⁶

[4] The evidence established that the victim died as the result of blunt force trauma to his head. The evidence was inconclusive, however, regarding the source of the blunt force, the nature of the object that caused the injury, or the manner in which any such object came into contact with the victim’s head. No one (other than the defendant, who did not testify, as was his right) observed the impact. The Commonwealth contended, and the judge appears to have agreed, that it was speculative to suggest that the victim’s injury was caused by anything other than the defendant striking the victim with the hammer.⁷ To the contrary, in the absence of direct eyewitness testimony or more specific forensic evidence concerning the injuries sustained by the victim, any conclusion by the jury about the precise nature of how the injury occurred necessarily rested on inferences from the evidence presented about the circumstances surrounding the encounter. The ₆₁₁defendant’s girlfriend did not see what happened. She heard the defendant and victim arguing about the missing drugs and then heard a "thump," followed by a fall. The bed, with its metal frame and protruding metal legs, was upturned and against the wall. Both the defendant and the victim were high on heroin. The medical examiner testified that the injuries could have been caused by any blunt object. Viewed in the light most favorable to the defendant, a rational jury could have inferred that the defendant pushed the victim into the bedframe during a physical altercation over the missing drugs, which the jury could consider to be a battery that endangered human life, and wanton and reckless conduct that, in the circumstances, created a high degree of likelihood that substantial harm would result.⁸ See Commonwealth v. Simpson, 434 Mass. 570, 590, 750 N.E.2d 977 (2001). Cf. Commonwealth v. Fahey, 99 Mass. App. Ct. 304, 314, 165 N.E.3d 1057 (2021) (though evidence that defendant punched victim causing him to fall to floor was overwhelming, proof that defendant stomped victim’s head "was critical for demonstrating that the defendant acted with the requisite malice to support a conviction of murder in the second degree"). The evidence was sufficient to support instruction on manslaughter, and it was reversible error not to give it.

2. Other issues. We address two other claims raised by the defendant, as they are likely to recur in the event of a retrial.⁹

[5–7] a. Spontaneous utterance. Prior to trial, the defendant moved in limine to admit as a spontaneous utterance a statement of the victim, made in response to a question by McNerney on his arrival at the apartment. Specifically, in response to McNerney’s question about how he had been injured, the victim responded "bedframe." The judge excluded the statement, but allowed McNerney to testify that, while he was attending to the victim, the victim "had mumbled something about a backpack and about a bedframe but nothing that identified anybody or really what had ₆₁₂happened to [him]." The judge limited the jurors’ consideration of those statements to "the level of coherence that [the victim] had at the time."¹⁰

"In reviewing whether an out-of-court statement comes within [the spontaneous utterance] exception [to the rule against hearsay], courts consider ‘whether there was an exciting event that would give rise to the exception,’ and then ‘whether the declarant displayed a degree of excitement sufficient to conclude that [the] statement was a spontaneous reaction to the exciting event, rather than the product of reflective thought.’ "

Gommonwealth v. Brum, 492 Mass. 581, 595, 213 N.E.3d 1144 ...