Commonwealth v. McDermott

225 N.E.3d 286

COMMONWEALTH

v.William F. MCDERMOTT.

SJC-13394

Supreme Judicial Court of Massachusetts, Norfolk.

Argued October 2, 2023

Decided January 25, 2024

Homicide. Evidence, Cross-examination. Practice, Criminal, Postconviction relief, Conduct of prosecutor, Cross-examination by prosecutor, Argument by prosecutor, Instructions to jury, Sentence. Estoppel. Constitutional Law, Sentence. Due Process of Law, Sentence.

Indictment found and returned in the Superior Court Department on November 30, 1981.

Following review by this court, 393 Mass. 451 (1984), a motion for a new trial, filed on October 27, 2020, was heard by Brian A. Davis, J.

The Supreme Judicial Court granted an application for direct appellate review.

The following submitted briefs for amici curiae:

K. Hayne Barnwell, for the defendant.

Michael McGee, Assistant District Attorney, for the Commonwealth.

Stephen Cook, of California, W. Lydell Benson, Jr., of New York, Eileen Hren Citron, William A. Bejan, & Leslie Epstein Wallace, of the District of Columbia, Radha Natarajan, & Katharine Naples-Mitchell, for New England Innocence Project & another.

Jeremy M. McLaughlin & Andrew J. Wu, of California, Nicholas N. Chan & Krishna Hedge, of Pennsylvania, & Peter W. Shanley, Boston, for Massachusetts LGBTQ Bar Association & others.

Stanley Donald, pro se.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.¹

GAZIANO, J.

In 1982, a Superior Court jury convicted the defendant, William F. McDermott, of murder in the first degree. On direct review, we held that the trial judge had erred in failing to instruct the jury that evidence of intoxication could be considered in determining whether the defendant acted with extreme atrocity or cruelty as to support a verdict of murder in the first degree. See Commonwealth v. McDermott, 393 Mass. 451, 459, 461, 471 N.E.2d 1302 (1984). Rather than ordering a new trial, the court exercised its authority pursuant to G. L. c. 278, § 33E, and reduced the verdict to murder in the second degree "given the entire posture of the case." Id. Mitigating factors included that the defendant was "just seventeen years old at the time of the incident, academically deficient, with some drug and alcohol problems … and [had] a poor relationship with his father." Id. at 460-461, 471 N.E.2d 1302. The court also noted the defendant’s "sexual confusion" and evidence that he killed the victim "following, and in fear of repetition of, an anal rape." Id. at 461, 471 N.E.2d 1302.

In 2020, the defendant filed a second motion for a new trial, raising three issues:² first, the, prosecutor’s cross-examination and closing argument inserted homophobic invective into the case and were otherwise highly inflammatory; second, the judge failed to instruct the jury properly on self-defense, excessive use of force in self-defense, sudden provocation and sudden combat; and third, a sentence of life with the possibility of parole, imposed on an individual seventeen years old at the time of the fatal shooting, is prohibited by the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights. While finding that the prosecutor engaged in misconduct, a Superior Court judge (motion judge) nonetheless denied the motion for postconviction relief without an evidentiary hearing.

We adopt the motion judge’s finding of prosecutorial misconduct. Although the prosecutor had a right to challenge the defense, which focused on the victim’s alleged undisclosed sexual orientation and workplace sexual assault, portions of the cross-examination and closing argument went beyond the bounds of a permissible response. Despite these transgressions, we conclude that the errors arising from the prosecutor’s misconduct, considered in context of the overwhelming evidence against the defendant and its likely influence on the verdict, did not create a substantial risk of a miscarriage of justice. Next, we hold that the defendant’s challenges to the self-defense jury instructions are estopped by prior postconviction rulings, and any error in the provocation jury instructions did not create a substantial risk of a miscarriage of justice. Finally, we conclude that neither the Eighth Amendment nor art. 26 bars the defendant from serving a sentence of life with the possibility of parole after fifteen years for the crime of murder in the second degree. Accordingly, the denial of the defendant’s motion for a new trial is affirmed.³

Background. 1. Facts. a. Commonwealth’s case. In the fall of 1981, the seventeen year old defendant met Robert Kemp, the manager of the Cohasset Golf Club (club). Kemp, sometime in October 1981, hired the defendant as a maintenance worker. At the time, Kemp owned a .22 caliber Sentinel revolver with a capacity of nine rounds. He kept the firearm in a filing cabinet in his office. The filing cabinet also held a box containing petty cash in an amount ranging from one hundred dollars to $500.

On November 20, 1981, at around 1 p.m., one of Kemp’s friends visited him at work. When the friend left, between 2:30 p.m. and 3 p.m., he observed Kemp’s car parked in the parking lot. An hour later, a club member arrived to pick up meat he had purchased from the club. While Kemp and the club member spoke in the kitchen, the defendant carried two boxes of meat to the club member’s car, placing the boxes behind the car. The defendant then returned to work. The club member described the defendant as a considerate and polite young man.

At approximately 4 p.m., Kemp called his wife, who expected him home at around 5:30 p.m. When Kemp did not come home that evening, his wife searched for him all night and into the early morning hours without success. Meanwhile, at 8:30 p.m., Marshfield police observed Kemp’s car parked near a burned-down church in the Green Harbor section of town but had no reason at the time to investigate. The car remained parked there overnight.

The club’s chef reported for work the next morning. He observed blood droplets on the kitchen floor, a towel soaked in blood under the sink, a bloody squeegee beside the sink, and Kemp’s eyeglasses on the floor behind a pan rack. The chef alerted the police. Responding police officers noticed additional blood, spots near the stairs leading into the club and bloody drag marks on a hallway carpet. They located Kemp’s revolver outside the kitchen atop a stone wall below a deck. It contained three spent cartridge casings (one casing within the chamber directly under the hammer and the other two side-by-side) followed by six consecutive empty chambers. The officers observed two bullet holes in the kitchen -- one projectile had passed through a wooden door and the other impacted a concrete block wall.

That afternoon, a neighbor discovered Kemp’s body in a ditch within a wooded area near the eighteenth hole of the golf course. Kemp was fully clothed with the pockets of his pants turned inside out. Missing were, his wedding band, gold watch, and wallet. Police found four spent 22 caliber cartridge casings on the ground near Kemp’s body. Kemp died from eleven or twelve gunshot wounds: four to the right side of his head, one to his right cheek, two to his chest, four to his back, and one that exited his torso and lodged into his right elbow. A State police ballistician opined that the eleven projectiles removed from Kemp’s body, as well as the spent cartridge casings found in the revolver and near the body, were fired from Kemp’s revolver.

While searching Kemp’s car, investigators found the club’s petty cash box and bloodstains on the back seat. Outside the vehicle in a wooded area, police also located two sets of keys to the car and Kemp’s bloodstained jacket, which had six bullet holes in the upper body area.

At the time of the shooting, the defendant lived with his parents approximately two miles from the church parking lot. In a search of the defendant’s bedroom, various bloodstained articles of clothing -- including jeans, underwear, shoes, and a jacket -- were discovered. On November 23, 1981, the defendant was arrested at his sister’s house in Pennsylvania, where he had fled the day after the fatal shooting.

b. Defendant’s version. The defendant testified that he met Kemp in September 1981 while he was hitchhiking to a party in Marshfield. Later that day, Kemp offered the defendant a "big money" maintenance job at the club. Within a few days, the defendant called Kemp to follow up on the job offer. Kemp picked up the defendant at a fast-food restaurant, bought him alcohol, and offered the defendant thirty dollars if Kemp could perform oral sex on him. The defendant agreed, and they drove to a nearby cemetery. The defendant was unable to become aroused during the sex act, but Kemp paid him anyway.

On October 2, 1981, the defendant, accompanied by his girlfriend, filled out a job application at the club. Afterward, the three of them went to a bar, where Kemp got the defendant alone and begged to perform oral sex on him. After dropping off the defendant’s girlfriend, Kemp and the defendant snorted cocaine purchased by Kemp and attempted to have oral sex. Kemp, once again, paid the defendant thirty dollars.

The pattern continued over the next three weeks or so: Kemp supplied the defendant with alcohol and narcotics, placed his mouth on the defendant’s penis, and gave him thirty dollars each time. Kemp also pressured the defendant for anal sex, asking the defendant to let Kemp "put it up [his] bum." One time, Kemp bragged about knowing "people in Rhode Island" who break legs, cut off "pricks," and stuff them in their victim’s mouths.

On November 20, 1981, the defendant telephoned Kemp to see if he was needed at work. Kemp told the defendant to finish painting the women’s bathroom and that he would pay his taxicab fare. The defendant arrived at around 1:80 p.m. Kemp was inside his office talking to a friend. The defendant consumed a mixed drink, served by Kemp, and...