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SJC-11128
COMMONWEALTH vs. CLYDE HOWARD.
Middlesex. February 7, 2014. - October 2, 2014.
Present: Spina, Botsford, Gants, & Lenk, JJ.
Constitutional Law, Admissions and confessions, Voluntariness of
statement, Waiver of constitutional rights, Harmless error.
Waiver. Error, Harmless. Evidence, Admissions and
confessions, Voluntariness of statement, Prior misconduct,
Argument by prosecutor, Intoxication. Practice, Criminal,
Motion to suppress, Admissions and confessions,
Voluntariness of statement, Waiver, Harmless error,
Argument by prosecutor, Instructions to jury.
Indictments found and returned in the Superior Court
Department on March 19, 2009.
A pretrial motion to suppress evidence was heard by Wendie
I. Gershengorn, J., and the cases were tried before her.
Robert F. Shaw, Jr., for the defendant.
Jamie M. Charles, Assistant District Attorney, for the
Commonwealth.
BOTSFORD, J. A Superior Court jury found the defendant,
Clyde Howard, guilty of murder in the first degree on theories
2
of deliberate premeditation and extreme atrocity or cruelty.1
The defendant appeals his conviction, arguing that: (1) the
motion judge erred in denying his pretrial motion to suppress
statements that he made to police both on the day of his arrest
and on the following day during an interview with police; (2)
the Commonwealth impermissibly focused on prior bad acts and
character evidence during trial; (3) statements made by the
prosecutor during his closing argument prejudiced the defendant
and warrant a new trial; and (4) the jury instructions on mental
impairment and the voluntariness of the defendant's statements
were erroneous and warrant reversal of his convictions.
Pursuant to our review of the entire case under G. L. c. 278,
§ 33E, we conclude that the erroneous admission of portions of
the defendant's statement to the police, combined with other
errors, require reversal of the defendant's conviction of murder
in the first degree. On remand, at the Commonwealth's option, a
verdict of murder in the second degree may be entered in lieu of
a new trial on the first degree murder indictment.
1. Background. We recite the facts as the jury could have
found them, reserving other facts for later discussion. On the
morning of January 28, 2009, the victim, Maurice Ricketts, was
1
The jury also found the defendant guilty of unlawful
possession of a firearm; unlawful possession of ammunition; and
discharging a firearm within 500 feet of a building. The
defendant does not contest those convictions in this appeal.
3
shot in the head and killed while at his job at Baystate Pool
Supplies (Baystate), a pool supply distributor located in
Cambridge. He was shot by the defendant, who worked at Baystate
as a handyman.
Earlier that morning, at around 9 A.M., the defendant was
asked by the Baystate branch manager Derek Roczynski and
operations manager Michael Najarian, Jr., to buy breakfast for
them at a local fast food restaurant.2 After breakfast, Najarian
joined the victim in the warehouse known to Baystate employees
as the "chemical building," located directly across the street
from Baystate's offices and other warehouses. Shortly after 10
A.M., the defendant entered the front door of the chemical
building carrying a bag of trash. Singing and joking with
Najarian as he passed, he walked down a pathway toward the back
exit and out to the dumpster. This outdoor area was known to
employees as the "chemical backyard" (chemical yard). After
taking out the trash, the defendant returned through the
chemical building and proceeded to leave through the front door,
but then turned around, reentered, and exchanged words with the
victim who was working nearby. Najarian heard an "explosion of
2
The defendant claimed that after he returned from buying
breakfast, and before the shooting took place, the victim came
at him with a hammer. At trial, Michael Najarian testified that
the only hammers at Baystate Pool Supplies (Baystate) were
located in his office.
4
yelling" between the defendant and victim, and he approached
them, "scream[ing]" for them to stop. Within moments, the
defendant reached into his right pocket, pulled out a gun, and
pointed it at the victim, who turned and ran through the
warehouse toward the back door leading to the chemical yard.
The defendant fired once, missing the victim, and then quickly
followed him. Najarian shouted twice at the defendant to "stop
it"; each time, the defendant responded, "What?", but continued
to pursue the victim while looking straight ahead toward the
back door.
After the two men ran out of the warehouse, Najarian ran to
the company offices across the street where he alerted Roczynski
and assistant manager James McGaffigan before telephoning 911.
Roczynski and McGaffigan immediately ran toward the chemical
building but heard shots coming from the chemical yard before
they reached the building entrance. They ran along the building
toward the chemical yard and peered through an opening in the
locked fence. There, they saw the defendant facing the back of
the dumpster with his arm outstretched and pointed slightly
downward, and then heard two additional shots. After each shot,
Roczynski heard the victim make a grunting sound and, after the
second, also heard the defendant mutter, "I got you." Roczynski
then shouted, "[W]hat the f are you doing"; the defendant
briefly glared at him. McGaffigan saw the defendant walk toward
5
the back door, stop, return to the dumpster area, and fire an
additional shot. Roczynski and McGaffigan returned to the
entrance of the chemical building and Roczynski bumped into the
defendant who was coming out of the door. The defendant
muttered, "I got to get out of here," ran to a white van, and
drove away.
Roczynski, McGaffigan, and other Baystate workers rushed to
the chemical yard where they found the victim behind the
dumpster, wedged between a stack of wood pallets. He had
suffered two gunshot wounds to the head. Shortly thereafter,
paramedics responded to the scene and, finding a faint pulse,
transported him to the hospital. During transport, the victim
went into cardiac arrest, and medics performed cardiopulmonary
resuscitation on him. He was pronounced dead shortly after
arriving at the emergency room.
Later that day, at approximately 4 P.M., Sergeant Thomas J.
Teahan of the Boston police department heard a radio broadcast
to be on the lookout for the defendant in a white van in the
Roxbury area. Teahan, who was driving in Roxbury at the time,
came across a van parked alongside the road that matched the
description of the defendant's vehicle. He called for backup,
parked his vehicle to block the van, and approached the driver's
side door on foot. Teahan observed the defendant apparently
asleep in the driver's seat with a cellular telephone at his
6
ear; he removed the defendant from the van and conducted a pat
frisk to locate weapons. When Teahan asked the defendant if he
was carrying a firearm, he replied, "No, I threw it in the
Charles River." The defendant was then placed under arrest,
handcuffed, and transported to the Boston police department
station in Roxbury for initial booking (Roxbury booking). At
the station, Teahan read the defendant the Miranda rights and
informed him that he was under arrest for murder. During the
booking, the defendant made several unsolicited statements to
Teahan.
Thereafter, State police Trooper Erik Gagnon and two
Cambridge police officers transported the defendant to the
Cambridge police department for further booking (Cambridge
booking). Gagnon detected the odor of alcohol on the
defendant's breath, as well as slurred speech and a slightly
unsteady gait while the defendant was walking, although he was
not slipping, falling, or stumbling. During the twenty-five
minute ride to Cambridge, the officers did not ask the defendant
any questions. Nevertheless, the defendant made several
unsolicited statements about the events that had transpired
earlier in the day. At around 5:15 P.M., the defendant arrived
at the Cambridge police department where he was booked, his
clothing was taken, and he was placed in a cell. Thereafter,
Gagnon and his colleagues decided that because the defendant
7
appeared "somewhat impaired," they would wait until the
following morning to interview him. The next morning, at
approximately 6:30 A.M., Gagnon and Detective Daniel McNeill of
the Cambridge police department interviewed the defendant.
At trial, the defendant did not dispute that he shot and
killed the victim. He did not testify but presented evidence to
show that, because of a mental impairment, he lacked the
capacity to commit murder in the first degree at the time of the
killing. In particular, the defendant introduced the testimony
of Dr. Robert Joss, a certified forensic psychologist, who
opined that at the time of the killing the defendant had an Axis
II personality disorder, not otherwise specified, with obsessive
compulsive, schizoid, and paranoid features. Joss characterized
the defendant as having a "substantial disorder of perception,
particularly the perception of the sort of social interactions
that grossly impaired his judgment." Therefore, whether the
defendant actually was threatened or intimidated by the victim
on the day of the killing was immaterial because the defendant
was "predisposed to perceive [the victim] as threatening."
Overall, Joss concluded that at the time of the killing, the
defendant had a diminished capacity to form the intent necessary
to premeditate deliberately or to act with extreme atrocity or
cruelty, as well as more generally the intent necessary for
malice.
8
In rebuttal, the Commonwealth called Dr. Alison Fife, a
psychiatrist, who testified to her opinion that at the time of
the killing, the defendant was not suffering from any mental
illness, mental defect, or personality disorder, and had the
capacity to appreciate the wrongfulness of his acts.
2. Motion to suppress. Before trial, the defendant moved
to suppress statements he made after his arrest on January 28,
2009, on the ground that they were involuntary due to his
intoxication; he also argued that the statements made during his
interview with police on January 29 were obtained in violation
of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436
(1966), and his constitutional right against self-incrimination.3
After an evidentiary hearing, the motion judge, who was the
trial judge, denied the motion. The defendant argues that the
denial constituted error.
a. Standard of review. "In reviewing a ruling on a motion
to suppress, we accept the judge's subsidiary findings of fact
3
The defendant argued as well that his right to a prompt
arraignment under Commonwealth v. Rosario, 422 Mass. 48 (1996),
was violated because the police initially failed to advise him
of this right and later obtained a waiver by "trickery." The
motion judge rejected the argument, reasoning that there was no
Rosario violation because its safe harbor window did not begin
to run until the defendant became sober and, in any event, the
defendant executed a valid waiver of his Rosario rights. See
Rosario, supra at 56-57. The defendant does not challenge the
judge's ruling on appeal. We agree with the judge's analysis,
and do not consider the issue further.
9
absent clear error 'but conduct an independent review of [her]
ultimate findings and conclusions of law.'" Commonwealth v.
Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v.
Jimenez, 438 Mass. 213, 218 (2002). We "make an independent
determination of the correctness of the judge's application of
constitutional principles to the facts as found." Id., quoting
Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). Here, in
addition to testimony, the motion judge considered videotape
evidence of the defendant's Cambridge booking on January 28 and
of his interview with police on January 29. Thus, "to the
extent that the judge based [her] legal conclusions on facts
found by virtue of a video recording, 'we are in the same
position as the judge in viewing the videotape,'" and
independently review it without deference to the motion judge.4
Commonwealth v. Clarke, 461 Mass. 336, 341 (2012), quoting
Commonwealth v. Prater, 420 Mass. 569, 578 n.7 (1995).
b. January 28, 2009, statements. The defendant does not
dispute that the statements he made at the time of his arrest,
transport, and the Roxbury booking were spontaneous and not
4
However, to the extent that the motion judge relied on
testimony and videotape evidence to make credibility
determinations relevant to her subsidiary findings of fact, we
"adhere to the normal standard of review . . . [and] afford such
findings substantial deference, and accept them unless not
warranted by the evidence" (citations and quotations omitted).
Commonwealth v. Clarke, 461 Mass. 336, 341 (2012).
10
obtained through police questioning, and that therefore Miranda
protections did not apply.5 See Commonwealth v. Diaz, 422 Mass.
269, 271 (1996). His sole argument is that, because he was
intoxicated, the Commonwealth did not meet its burden of proving
beyond a reasonable doubt that his statements were voluntary.
"The test for voluntariness is 'whether, in light of the
totality of the circumstances surrounding the making of the
statement, the will of the defendant was overborne to the extent
that the statement was not the result of a free and voluntary
act.'" Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010),
quoting Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998).
Relevant factors "include whether promises or other inducements
were made to the defendant by the police, as well as the
defendant's age, education, and intelligence; experience with
5
The defendant's unsolicited statements made on January 28,
2009, may be summarized as follows. At the Roxbury booking,
after learning from Sergeant Thomas J. Teahan that he would be
charged with murder, the defendant stated: "Oh, the individual
transpired, huh?"; he further told Teahan, "I am not a bad guy.
[The victim] is always fucking with me . . . [h]e's always
grabbing me and slapping me like I'm a woman." The defendant
also said that the victim told him to "[p]ull your knife. I'll
knock you the fuck out," and that the defendant said that he
"just went into a rage. I know I should have known better. He
died, huh? My life is pretty much over, don't you think?"
Thereafter, the defendant was transported to Cambridge, and he
made the following statements to Trooper Erik Gagnon during the
twenty-five minute drive: "I was fed up with the individual";
"My goose is cooked"; "If I thought this out better, I would
have gotten a passport and made a run for it"; and "I know I'm
going to jail, but can we drive around for a while and talk?"
11
the criminal justice system; and his physical and mental
condition, including whether the defendant was under the
influence of drugs or alcohol." Durand, supra at 596. The mere
presence of one or more factors "is not always sufficient to
render the statements involuntary." Commonwealth v. Selby, 420
Mass. 656, 664 (1995). Further, although "special care must be
taken to assess the voluntariness of a defendant's statement
where there is evidence that he was under the influence of
alcohol or drugs, an 'otherwise voluntary act is not necessarily
rendered involuntary simply because an individual has been
drinking or using drugs.'" Commonwealth v. Brown, 462 Mass.
620, 627 (2012), quoting Commonwealth v. Silanskas, 433 Mass.
678, 685 (2001).
Considering these factors, the motion judge found the
defendant's statements to be voluntary. There was no error.
The defendant indisputably showed signs of intoxication.6
However, as the motion judge found (and as the videotape of the
Cambridge booking confirms), the defendant was not so
intoxicated that he was stumbling or falling down -- he followed
6
The officers who interacted with the defendant testified,
and the motion judge credited their testimony, that they
detected the odor of alcohol on the defendant and observed his
slurred speech, unsteady walking, and glassy, bloodshot eyes at
various points from his arrest at around 4 P.M. through his
arrival at the Cambridge police department after 5 P.M. A
review of the videotape of the Cambridge booking corroborates
the testimony.
12
commands, answered questions, carried on conversations, and
stood, walked, and removed his clothing without assistance.
Further, during that booking, the defendant acknowledged that he
had received the Miranda rights earlier and asked questions
about his location, the charges against him, and what would
happen to him next; all of this signifies that he was lucid,
cognizant of his surroundings, and had some appreciation of the
gravity of his situation.7 We agree with the motion judge's
conclusion, "put in different terms by her, that 'although the
defendant may have been somewhat intoxicated when he spoke to
the police, his mind was rational and his faculties were under
control.'" Commonwealth v. Koney, 421 Mass. 295, 305 (1995),
quoting Commonwealth v. Simmons, 417 Mass. 60, 65 (1994).
7
See Commonwealth v. Brown, 462 Mass. 620, 627 (2012)
(although defendant's speech was "sluggish" from influence of
drugs, his statements were voluntary where "there [was] nothing
to suggest that he was acting irrationally or was out of
control, or that his denials were induced by psychological
coercion"); Commonwealth v. Simmons, 417 Mass. 60, 65-66 (1994)
(defendant's speech was slurred due to intoxication, but his
statements were voluntary when police could understand him, he
walked without difficulty, and appeared to understand
situation); Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 80-82
(2011) (although defendant was intoxicated, his statements were
voluntary because he was alert, coherent, understood and
answered questions asked of him, and spoke cogently). Contrast
Commonwealth v. Hosey, 368 Mass. 571, 578-579 (1975) (defendant
did not intelligently waive Miranda rights when his level of
intoxication rendered him "extremely high," "extremely
emotional," and "detached from reality").
13
c. January 29, 2009, statements. The defendant further
argues that his motion to suppress was erroneously denied
because, when police interviewed him on January 29, 2009, the
officers obtained statements from him in violation of his rights
under the Fifth and Fourteenth Amendments of the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights.
(i) Initial Miranda warnings. Finding the defendant awake
and alert in his cell the morning after his arrest, Detective
McNeill and Trooper Gagnon asked him if he would agree to be
interviewed and, after obtaining consent, brought him to an
interview room. He was given coffee and a bagel, and his
handcuffs were removed. At the outset, McNeill, who conducted
the majority of the interview, read the defendant the Miranda
rights. After the defendant indicated that he understood those
rights, the following exchange occurred:
Detective McNeill: "Having these [Miranda] rights in mind,
do you wish to speak to us now?"
Defendant: "Yeah, but -- yes, I'll speak to you but
there's certain things that might be kind of like sensitive --"
McNeill: "Okay."
Defendant: "-- that may jeopardize me because my rights
has been read and --"
McNeill: "I understand that."
Defendant: "And then say hey look [inaudible] the rest of
[inaudible]."
14
McNeill: "Again, I'm going to ask you to initial right
here. Right here where it says -- right here under your
previous initials and sign right here on the line. Just sign
your name right there."
The defendant then signed the Miranda waiver form and permitted
the interview to be recorded.
The officers began by asking the defendant about his
upbringing, family, education, and employment. After about
fifteen minutes, McNeill stopped the interview and read the
defendant a form explaining his right to prompt arraignment
under Commonwealth v. Rosario, 422 Mass. 48, 56 (1996). The
defendant signed a Rosario waiver form and agreed to continue
speaking with the officers but also stated that he "would kind
of deviate from the more sensitive matters."
On appeal, the defendant claims that his waivers of the
right to remain silent in response to the administration of
Miranda rights were conditional rather than unequivocal, and as
a result, the officers were obligated to seek further
clarification from him before proceeding with the interview. At
least with respect to the defendant's initial Miranda waiver, we
disagree.8 The motion judge found that the defendant's words,
"Yes, I'll speak with you," and his signature of the Miranda
8
The defendant's second Miranda waiver occurred after he
invoked his right to remain silent; we consider that invocation
in the following section of this opinion.
15
waiver signified an unequivocal, knowing, voluntary, and
intelligent waiver of his right to silence.9 There was no error.
The statement by the defendant that he may want to "deviate"
from more "sensitive" matters merely indicated that he
understood that he could invoke the right to remain silent, and
might choose to do so, in the future. See Commonwealth v.
Bradshaw, 385 Mass. 244, 265 (1982) ("defendant has not only the
right to remain silent from the beginning but also a continuing
right to cut off, at any time, any questioning that does take
place"). Accordingly, the officers were not obligated to seek
clarification, at the time of the defendant's waiver. See
Clarke, 461 Mass. at 351-352.
(ii) Postwaiver statements. After waiving his Miranda
rights, the defendant spoke openly with the officers for
approximately forty-five minutes, answering all questions asked
of him. As questioning progressed, the conversation became
increasingly focused on the defendant's prior relationship with
the victim and the moments leading up to the shooting. After
9
This conclusion has a strong evidentiary basis in the
record: the defendant was alert and showed no signs of
intoxication during the interview, see Commonwealth v. Shipps,
399 Mass. 820, 826 (1987); he had received and acknowledged
understanding his Miranda rights on four separate instances the
prior day, see Commonwealth v. Williams, 456 Mass. 857, 864
(2010); and there is no evidence that the officers engaged in
trickery, coercion, or intimidation to obtain this waiver. See
Commonwealth v. Cruz, 373 Mass. 676, 688-689 (1977).
16
describing how the victim had approached him holding a hammer on
the morning of the shooting, the defendant stated:
Defendant: "Then I went to [buy] the breakfast and stuff
and then I came back. But I would like to stop at that point
because it [be]comes more intricate now and who knows what's
going to happen" (emphasis added).
McNeill: "Okay. But, you know, I just want to say it's
happened."
Defendant: "Yeah."
McNeill: "There are witnesses and the employees."
Defendant: "Yeah. I think --"
McNeill: "You know people -- Mike, Derek, Jimmy."
Defendant: "Yeah, Mike, yeah."
McNeill: "I just want to --"
Defendant: "But I don't know if Jimmy saw anything."
McNeill: "Well, they did, right. But what did [the
victim] say -- what just -- you just had enough of his tactic
[inaudible] of bullying you?"
Defendant: "Yeah. A lot of intimidation, yeah."
The defendant contends that once he stated, "I would like
to stop at that point," he invoked unequivocally his right to
remain silent, and that, rather than honoring his request,
McNeill began pressuring him by emphasizing that "it happened"
and pointing out that there were witnesses to try to get him to
talk about the incident. The motion judge acknowledged the
defendant's statement that he "would like to stop," but
17
determined that at no point during the interview did the
defendant "cho[o]se to cut off questioning."
A defendant who has waived his right to silence may
subsequently invoke that right at any point during questioning.
Bradshaw, 385 Mass. at 265. However, in the postwaiver context,
a subsequent invocation of the right to remain silent must be
clear and "unambiguous[]," see Clarke, 461 Mass. at 342, quoting
Berghuis v. Thompkins, 560 U.S. 370, 381 (2010), such that "'a
reasonable police officer in the circumstances would understand
the statement' to be an invocation of the Miranda right." Id.,
quoting Davis v. United States, 512 U.S. 452, 459 (1994). See
Commonwealth v. Robidoux, 450 Mass. 144, 161 (2007), quoting
Commonwealth v. James, 427 Mass. 312, 314 (1988) (postwaiver
invocation of right to silence requires that defendant show
"expressed unwillingness to continue"). Whether the defendant
has met this burden is a fact-specific determination to be made
based on the totality of the circumstances. Commonwealth v.
Almonte, 444 Mass. 511, 519, cert. denied, 546 U.S. 1040 (2005),
overruled on another ground by Commonwealth v. Carlino, 449
Mass. 71 (2007).
The Commonwealth argues that the defendant's statement
about wanting to stop "reflect[s] nothing more than the
defendant's desire to deviate from questioning touching on the
shooting itself." It is the case that "a suspect's
18
unwillingness to answer questions on a particular topic does not
unambiguously indicate that the suspect is unwilling to continue
speaking with police or obligate them to inquire whether the
suspect would 'like to reassert his right to silence.'"
Commonwealth v. Santos, 463 Mass. 273, 285 (2012), quoting
Robidoux, 450 Mass. at 161 n.7.10 Cf. Commonwealth v. Sicari,
434 Mass. 732, 748-749 (2001), cert. denied, 534 U.S. 1142
(2002) (prolonged silence in response to police questions);
Commonwealth v. Senior, 433 Mass. 453, 463 (2001) (silence).
However, considering the totality of the circumstances here, we
disagree with the Commonwealth that the defendant's statement is
to be read so narrowly. There is nothing in the language of the
defendant's entire statement, "I would like to stop at that
point, because it [be]comes more intricate now and who knows
what's going to happen," that qualifies or limits it to a
particular question.
A defendant's request to halt the questioning at a later
point of an interview, or failure to answer one specific
question, "must be interpreted in the context of his willingness
to talk both immediately prior to and subsequent to" that point.
10
In Commonwealth v. Robidoux, 450 Mass. 144, 160 (2007),
we concluded that there was no postwaiver invocation by the
defendant of his right to silence when he "simply declined to
talk about certain subjects" by stating, "I will not talk about
my family," or stared at the interrogating officers.
19
Senior, 433 Mass. at 463, quoting Commonwealth v. Pennellatore,
392 Mass. 382, 387 (1984). Here, although initially the
defendant had indicated twice that he might want to avoid
"sensitive" matters, in the period immediately prior to his
statement about stopping, he had engaged in conversation with
the officers and willingly answered every one of their questions
without any qualification at all for approximately forty-five
minutes; there was no indication that the defendant was
"pick[ing] and choos[ing]" among which questions to answer.11
See id. In this context, his statement, "I would like to stop
at that point," indicated that he had reached the "sensitive"
areas that he did not want to talk about, and, accordingly, no
longer wanted to proceed with the interview, but as he said,
wanted "to stop." In the circumstances, we conclude that in
stating, "I [want] to stop at that point," the defendant invoked
his right to silence.12
11
As to the period immediately following the statement, the
Commonwealth's claim that it casts doubt on the defendant's
invocation because he resumed answering some questions after
refusing to answer others mischaracterizes what happened. The
defendant did not immediately resume speaking or even answering
questions after indicating that he would like to "stop."
Rather, in response to the next substantive question asked of
him, he stated, "I don't want to answer that question." This
was the first time in the interview that the defendant stated
that he did not want to answer a question posed by the officers.
12
"Each case turns, as it must, on the specific facts."
Commonwealth v. Sicari, 434 Mass. 732, 748 (2001), cert. denied,
534 U.S. 1142 (2002). However, it is instructive to consider
20
We appreciate that an appellate court reviewing a police
interview after the fact -- generally aided by a written
transcript and, often, a videotape of the interview, both of
which can be reviewed more than once -- is in a different
position than the police officers who are conducting that
interview and acting in the moment.13 Here, the testimony at the
motion to suppress hearing reflected that at least one of the
interrogating officers, Gagnon, and perhaps also the officers'
supervisors who were observing the interview through a two-way
mirror, had some question about whether the defendant's
statement about wishing to "stop at that point" meant he was
other cases, and the defendant's words about wanting to stop are
more in line with the facts of cases in which an invocation was
found than with those concluding the opposite. Compare, e.g.,
Commonwealth v. Santana, 465 Mass. 270, 282 (2013) (postwaiver
statement that defendant could not "say any more" was clear
invocation, precluding any further interview of defendant for
remainder of evening, although not permanently); and
Commonwealth v. Santos, 463 Mass. 273, 285 (2012) (postwaiver
statement that "I'm not going on with this conversation" was
clear invocation), with Commonwealth v. Leahy, 445 Mass. 481,
488-489 (2005) (postwaiver statement -- "Not right now, in a
minute. I need to figure some things out" -- in response to
question whether defendant wanted to talk, was not clear
invocation).
13
Nonetheless, we take the word "stop" to mean what it
says. A suspect's or defendant's use of the word "stop," or the
phrase, "I would like to stop at that point," in this context
should raise a red flag for an interrogating police officer -- a
signal that it is necessary at the very least for the officer
immediately to pause in order to reflect on what the defendant
has just said, and to consider whether the defendant is seeking
to invoke his right to remain silent. As discussed in the text,
that is not what happened here.
21
terminating the interview altogether or only expressing a wish
not to talk specifically about the actual shooting incident.14
See Santos, 463 Mass. at 286. Assuming this to be the case, the
uncertainty would have permitted the officers to ask a direct
question designed to clarify the defendant's intent. See id.
("The question . . . should be brief, worded only to elicit an
affirmative or negative response concerning whether the suspect
wants [to stop] and should not be designed to keep the suspect
talking"). The officers here did not follow such a course,
however. Rather, when the defendant stated he "would like to
stop at that point," McNeill, who was questioning the defendant
at the time, immediately pressed on with arguments for why the
defendant should keep speaking about the shooting incident. It
was only a bit later, following a series of questions by McNeill
about the gun the defendant had used, that Gagnon abruptly
announced a "two minute" break that actually lasted fifty-one
minutes. During the break the defendant was brought to the
restroom, but otherwise kept in the interview room alone,
14
Gagnon testified at the hearing on the motion to suppress
that the fifty-one minute break taken in the interview at his
behest was taken in part because Gagnon did not "fully
understand" what the defendant meant when the defendant said he
wanted to stop (i.e., he did not understand whether the
defendant meant to invoke his rights to remain silent and to
counsel), and Gagnon wanted to "clarify" that point -- and to
"regroup, to talk to our supervisors" who were watching the
interview through a two-way mirror.
22
although he was given reading glasses and a drink. At some
point before the break ended, Gagnon apparently returned to the
room and asked the defendant in substance about whether he
wanted to continue. According to Gagnon, this conversation,
which was not audio recorded, lasted about three minutes, but
there is no indication that Gagnon specifically sought
clarification about the meaning of the defendant's earlier
statement about wishing to stop, or that he referenced that
earlier statement at all.15
In these circumstances -- where McNeill did not seek to
clarify but sought to keep the defendant talking, where a break
occurred before any effort at all was made to inquire about the
defendant's wishes about speaking to the police, and where no
reference ever was made to the defendant's statement about
15
At the motion to suppress hearing, Gagnon testified to
his memory of the substance of his conversation with the
defendant about wanting to continue. After this unrecorded
conversation, the audio-recorded interview resumed with both
officers present, and the following exchange occurred:
McNeill: "Since the time we took a break, there's probably
been about a half hour break or so. You told us you don't have
a problem talking to us."
Defendant: "No."
McNeill: "Is that correct?"
Defendant: "Yes."
The defendant was then given a fresh set of Miranda
warnings and signed a waiver form.
23
wanting to stop -- we conclude that the officers "exceeded the
narrow scope that was permitted [to clarify], and intruded into
the defendant's invocation of his right" to remain silent. See
Santos, 463 Mass. at 287.
When a person in custody has exercised his right to cut off
police questioning, this does not "create a per se proscription
of indefinite duration upon any further questioning by any
police officer on any subject[.]" Michigan v. Mosley, 423 U.S.
96, 102-103 (1975). Rather, once such a person invokes this
right, we must inquire "whether the person's right to be free
from interrogation, once exercised, was 'scrupulously honored'
before questioning resumed." Commonwealth v. Atkins, 386 Mass.
593, 598 (1982), quoting Mosley, supra at 104. To do so, we
consider factors such as whether "the police (1) had immediately
ceased questioning; (2) resumed questioning 'only after the
passage of a significant period of time and the provision of a
fresh set of warnings'; and (3) limited the scope of the later
interrogation 'to a crime that had not been a subject of the
earlier interrogation'" (Mosley factors). Clarke, 461 Mass. at
344, quoting Mosley, supra at 106.
In this case, the first and third Mosley factors
unmistakably favor the defendant. As to the first, when the
defendant invoked his right to silence, the officers did not
immediately cease questioning. Id. Instead, in an obvious
24
effort to "overcome the defendant's resistance to
interrogation," Commonwealth v. Brant, 380 Mass. 876, 884-885,
cert. denied, 449 U.S. 1004 (1980), McNeill immediately reminded
the defendant that the crime already had happened and that there
were numerous witnesses, and persisted in questioning the
defendant about the gun he had used. Although Gagnon called for
a break shortly thereafter, by that point, McNeill had already
pressured the defendant to talk and had obtained additional
substantive statements from him.16 With respect to the third
16
The pressure on the defendant to answer questions about
the shooting incident continued in force after the break. At
that time, the defendant was given a fresh set of Miranda
warnings and signed a waiver. Shortly thereafter, McNeill
broached the topic of the shooting itself, stating, "[W]hat's
happened happened. We just need your side of the story on how
and why so we can put closure to this ordeal." The defendant
then made a series of general inculpatory statements about the
circumstances, and his feelings, in the moments leading up to
the shooting. Thereafter, the officers' questions focused on
the shooting incident. When asked how he and the victim had
ended up in the chemical yard together the defendant stated:
"Can I let this one go by, this question" and McNeill responded,
"Absolutely." The defendant then indicated that he was willing
to talk from the point when he left the scene of the shooting,
and the officers respected that request for about six minutes
before McNeill resumed questioning the defendant about the
shooting itself. The defendant then stated -- at least four
times -- that he did not want to answer or that he wanted to
leave parts out, but McNeill persisted, telling the defendant
that his answers would allow McNeill "closure and just to put an
end to it" and to "learn from it and understand it." After this
exchange, the defendant again said that he would talk only about
the period after the shooting. The officers respected this
directive for about four minutes before McNeill once more urged
the defendant to describe the incident from his perspective. At
that point, the defendant spoke openly about the shooting,
describing what had occurred in the chemical yard, how the
25
Mosley factor, the officers plainly did not limit the scope of
the later interrogation "to a crime that had not been a subject
of the earlier interrogation." Clarke, 461 Mass. at 344,
quoting Mosley, 423 U.S. at 106. Here, there was no separate
crime ever at issue.17 Compare Mosley, supra at 105 (no
violation when second interrogation focused on "a crime
different in nature and in time and place of occurrence" from
subject of first interrogation), with Commonwealth v. Taylor,
374 Mass. 426, 435 (1978) (when subsequent "questioning of the
defendant was not restricted to an unrelated crime, the police
had departed from the procedure approved in Mosley, and . . .
the judge was warranted in finding the defendant's Miranda
rights to have been violated").
Assessment of the second Mosley factor is less clear. The
second factor looks at the passage of time between the
individual's invocation of the right to remain silent and the
resumption of police questioning. There is no bright line that
victim's "survival instincts kicked in," how the victim was
trapped because the gate was locked, the number of shots fired,
and how the defendant had fled the scene. The defendant also
stated that, ever since an incident with the victim involving a
forklift several months earlier, discussed infra, he brought his
gun to work "every day" without anyone else knowing.
17
Although the defendant ultimately was convicted of
various firearms offenses in addition to murder in the first
degree, those charges all stemmed from the same shooting; there
is no evidence that the officers ever were investigating the
defendant's involvement in a separate criminal episode.
26
divides what would be a permissible break from one that is too
short to be acceptable.18 Nonetheless, because there was no
meaningful change in circumstances before and after the fifty-
one minute break between the defendant's invocation and the
officers' return to questioning -- the defendant remained in
police custody, was returned to the same room, and did not
reinitiate questioning on his own, and when questioning resumed
the same officers continued with the interview on the same
subject -- the fifty-one minutes likely did not constitute a
"significant period of time" sufficient to honor the defendant's
invocation of his right to silence, even with the administration
of a fresh set of Miranda warnings. See Commonwealth v.
Callender, 81 Mass. App. Ct. 153, 158 n.5 (2012) (thirty-five-
minute break between interrogations insufficient, particularly
in light of officers' violation of other Mosely factors).
18
Compare, e.g., Commonwealth v. Brant, 380 Mass. 876, 882-
883, cert. denied, 449 U.S. 1004 (1980) (fourteen minutes
between interrogations impermissible), with Commonwealth v.
Woodbine, 461 Mass. 720, 729-730 (2012) (no violation seventeen
hours after invocation); Commonwealth v. Rivera, 424 Mass. 266,
269 (1997) (no violation three and one-half hours after
invocation, fresh Miranda warnings given, and defendant never
questioned by booking officer in first interview); Commonwealth
v. Santo, 375 Mass. 299, 304 (1978) (no violation where
invocation was previous day, fresh Miranda warnings given, and
second interview was in different city); Commonwealth v.
Avellar, 70 Mass. App. Ct. 608, 616 (2007) (no violation two
hours after invocation and fresh Miranda warnings given).
27
In sum, considering the totality of the circumstances, the
officers did not "scrupulously honor" the defendant's invocation
of his right to silence. The question is whether that error was
harmless beyond a reasonable doubt. See Chapman v. California,
386 U.S. 18, 24 (1967); Commonwealth v. Santos, 463 Mass. at
287. To make this determination, we consider factors such as
"the importance of the evidence in the prosecution's case;
the relationship between the evidence and the premise of
the defense; who introduced the issue at trial; the
frequency of the reference; whether the erroneously
admitted evidence was merely cumulative of properly
admitted evidence; the availability or effect of curative
instructions; and the weight or quantum of evidence of
guilt."
Commonwealth v. Tyree, 455 Mass. 676, 701 (2010), quoting
Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).
The Commonwealth contends that any error in this case was
harmless beyond a reasonable doubt because the erroneously
admitted statements were largely cumulative of other evidence,
and the evidence of the defendant's guilt was overwhelming. The
defendant disagrees, arguing that the prejudicial impact of his
image and words on the video was too strong to be considered
harmless. The Commonwealth's points are not without merit:
there is overlap between a good number of the defendant's
statements after he invoked his right to end the interview and
properly admitted evidence of statements he had volunteered to
police the day before the interview, and the evidence of the
28
defendant's guilt was indeed extremely strong. But for reasons
we explain infra, we conclude that the erroneous admission of
the defendant's postinvocation statement, when considered in
combination with (1) the prosecutor's use in his closing
argument of that statement and other improper aspects of the
closing, and (2) errors in the judge's final instruction on
mental impairment, was not harmless and reversal of the
defendant's murder conviction is required. Because the issue
bears on our consideration of the closing argument and may arise
at a new trial, we first consider the defendant's claims of
error relating to the admission of prior bad act evidence.
3. Prior bad acts. The defendant argues that the
prosecution improperly introduced prior bad act and character
evidence for which the unfair prejudice substantially outweighed
its probative value. The Commonwealth counters that the
evidence complained of was properly admitted because it
"established a pattern of workplace violence and hostility
towards co-workers," and therefore was relevant and admissible
to show the defendant's capacity to form the intent required for
conviction; and that because the defendant touched on these same
topics in his interview with the police, he "opened the door" to
most of the prior bad act evidence admitted at trial.
The general rule governing prior bad act evidence is well
settled:
29
"The prosecution may not introduce evidence that a
defendant previously has misbehaved, indictably or not, for
the purpose of showing his bad character or propensity to
commit the crime charged, but such evidence may be
admissible if relevant for some other purpose. . . . Such
evidence can be highly prejudicial to the defendant, and
therefore must be excluded unless it comes within one of
the permitted uses, such as to show a common scheme,
pattern of operation, absence of accident or mistake,
identity, intent, or motive [or state of mind]."
(Citations omitted.)
Commonwealth v. Helfant, 398 Mass. 214, 224–225 (1986). Accord
Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009).
Additionally, to be admissible, a defendant's prior bad acts may
not be too remote in time. (Citation omitted.) Commonwealth v.
Butler, 445 Mass. 568, 574 (2005). Here, the prior bad act and
character evidence the defendant complains of includes: (1) a
previous incident between the defendant and the victim over a
forklift; (2) a previous incident between the defendant and
another Baystate employee, Miguel Carballido, over a forklift;
and (3) derogatory comments about Haitian women that the
defendant allegedly made in the victim's presence. We consider
each separately.
(i) Prior forklift incident with victim. The Commonwealth
presented evidence of a confrontation between the defendant and
the victim over the use of a forklift at work that occurred in
November, 2008, approximately three months before the victim was
killed. The evidence came in through the testimony of other
Baystate employees as well as from the portion of the
30
defendant's statement to police that was properly admitted at
trial.19 There was no error in the admission of this evidence.
It tended to show the antagonistic character of the defendant's
and the victim's relationship, was not too remote in time, and
was probative of the defendant's motive, state of mind, and
intent. See, e.g., Commonwealth v. Rosenthal, 432 Mass. 124,
126-128 (2000) (evidence of violent relationship between
defendant and victim, including two black eyes sustained by
victim, admissible to demonstrate motive, intent, and rebut
defendant's claim of lack of criminal responsibility);
Commonwealth v. Ashman, 430 Mass. 736, 741-742 (2000) (evidence
of altercation between defendant and victim in month preceding
murder properly admitted to show defendant's state of mind,
intent, and relationship with victim). See generally
Commonwealth v. Morgan, 460 Mass. 277, 289 (2011), quoting
Robidoux, 450 Mass. at 158 ("Determinations of the relevance,
probative value, and prejudice of such evidence are left to the
sound discretion of the judge, whose decision to admit such
evidence will be upheld absent clear error").
19
Specifically, in his interview with police, the defendant
described this series of events: when the defendant used the
forklift, the victim, who claimed to be using it, approached the
defendant, grabbed him, "jacked him up," and said, "I'll F --
you up" while threatening to "knock [the defendant] out." After
this occurred, the defendant "got into a stinking rage" and
backed his own vehicle into the victim's car.
31
(ii) Prior forklift incident between defendant and
Carballido. The prosecutor elicited testimony from Baystate
employee Miguel Carballido, who was Mexican, that for at least
three years, the defendant, who was from Trinidad, would "always
bother" him at work in various ways, including calling
Carballido a racist and making comments about Mexicans.
Carballido testified that in June, 2008, approximately six
months before the killing, the defendant took a forklift that
Carballido was using. On realizing that the defendant had done
so, Carballido physically pulled the defendant from the
forklift, and the defendant "pulled a knife" on Carballido. In
response, Carballido picked up a stick and challenged the
defendant; the defendant walked away, and the confrontation
ended. The day after this incident, the defendant threatened to
shoot and kill Carballido.
Throughout the defendant's statement to police, including
the properly admitted portion, he portrayed himself as the
victim of harassment and intimidation by both Carballido and the
victim, and implied that they acted together to antagonize him.
Admission of the forklift incident with Carballido served to
rebut the defendant's assertions about the source of his hostile
relationships with both men, thereby providing the jury with a
complete picture of those relationships. See Commonwealth v.
McCowen, 458 Mass. 461, 479 (2010) (defendant's cross-
32
examination of police officer "opened the door" for prior bad
act evidence on redirect to rebut implications raised by defense
counsel); Commonwealth v. Maimoni, 41 Mass. App. Ct. 321, 327-
328 (1996) (prior bad acts admissible, in part, to rebut
defendant's testimony). See also Commonwealth v. Young, 382
Mass. 448, 463 (1981) (prior bad act evidence admissible to show
full picture of entire relationship between defendant and
victim). Further, although it presents a close question,
evidence of the defendant's state of mind toward another
Baystate employee was arguably probative of his state of mind
and intent toward the victim. Cf. Commonwealth v. Riley, 467
Mass. 799, 818 (2014) (defendant's abuse toward other children
probative of his state of mind toward child who was victim of
murder). As such, the trial judge did not abuse her discretion
in admitting the Carballido evidence.
(iii) Defendant's comments about Haitian women. Baystate
employee Shane Nixon testified that, in the summer of 2008, he
and the victim were having a conversation about the women they
were dating, both of whom were Haitian or of Haitian descent.
The defendant interjected, "You'd pretty much be a fool to date
a Haitian woman." Nixon also related that after that initial
comment, the defendant purposely made additional negative
remarks about Haitian women in the victim's presence and that
these comments upset the victim. The comments illustrated a
33
facet of the defendant's relationship with the victim -- a
proper nonpropensity purpose -- and we cannot say that the trial
judge abused her discretion in admitting evidence of them.20 See
Commonwealth v. Mendes, 441 Mass. 459, 464-465 (2004) (verbal
fights between defendant and victim admissible to demonstrate
defendant's hostile relationship with victim). See also
Commonwealth v. Thomas, 448 Mass. 180, 188 (2007); Commonwealth
v. Robertson, 408 Mass. 747, 750-751 (1990).
4. Prosecutor's closing argument. The defendant complains
that the prosecutor's closing argument prejudiced his trial and
warrants reversing his convictions. He specifically argues that
the prosecutor: (1) impermissibly commented on the defendant's
invocation of his right to silence; (2) misused -- for character
and propensity purposes -- the prior bad act evidence that had
been admitted solely on the issues of motive, intent, and
relationship between defendant and victim; and (3) affirmatively
misrepresented certain evidence. We agree that the closing was
improper.21
20
In connection with each instance of prior bad act
evidence, the trial judge gave a thorough instruction to the
jury about the limited purpose for which they could consider the
evidence, and she repeated this limiting instruction in her
final jury charge.
21
The defendant did not object to the prosecutor's closing
and therefore, the closing argument is subject to review under
the substantial likelihood of a miscarriage of justice standard.
Commonwealth v. Jenkins, 458 Mass. 791, 796 (2011). To the
34
We summarize the critical portions of the prosecutor's
closing. Near the beginning of his argument, the prosecutor
told the jury that "this case started back in November of 2008"
with the "forklift incident":
"[A]fter [the forklift incident,] . . . the gun's
coming to work. . . . My gun, a loaded gun, it's coming
with me because at some point sometime I'm going to use it.
And this day, January 28th, was the time. Premeditation
can be a matter of seconds, and the Court will tell you, or
it can be longer. In this case you have both. He was
thinking about taking out [the victim] since early
November."
. . .
"[D]on't ever get in his face. Don't ever confront
him like Miguel [Carballido] did[,] or he'll pull a knife
on you."
The prosecutor then reprised the forklift incidents with the
victim and Carballido as well as the defendant's comments to the
two men as follows:
"He jumps on the forklift. He does it just to
irritate people when they're using it. That's why he
talked to [the victim] about, you shouldn't go out with
Haitian women. That's why he called Miguel a Mexican.
It's the world of Clyde Howard."
"Knife to Miguel; violent, rams the car in a stinking
rage."
Shortly thereafter, the prosecutor discussed the defendant's
January 29, 2009, statement to the police, saying,
extent that the defendant did not raise all of the errors
contained in the prosecutor's closing argument, we consider them
in the following discussion as part of our review pursuant to
G. L. c. 278, § 33E.
35
"Defense counsel says, oh, he really can't remember
the details. Kind of having a bad day. It's a . . .
little fuzzy. What did he tell the police? I'll talk to
you guys, but there are certain things I'm not going to
talk about because they might incriminate me. And the
police say[], okay, whatever. Those are your rights. And
he never wanted to go there. He didn't want to talk about
the gun. He didn't want to talk about where it was. He
didn't want to talk about the shooting because it might
incriminate him. No kidding, Clyde. He's a violent man."
Toward the end of the closing, the prosecutor turned to
testimony from the defense expert Joss, using it to undercut the
defendant's theory of diminished capacity. The prosecutor
stated:
"Defense counsel says there's only one Clyde Howard.
That's not what Dr. Joss said. He agreed with me; there
are two sides to him. He wants to please his superiors,
Roczynski, Najarian, McGaffigan. He looks down to people
he feels are inferior to Clyde Howard and makes derogatory
comments towards them and is arrogant towards them. That's
what that fancy little test showed.[22]
"Do you know what else it showed? He has a history of
intimidating his wife and his children -- intimidating.
That's the other side of Clyde Howard. He's a mean man,
he's an intimidating man, he's a violent man who took a
life with no justification, no reason."
"He deserves no sympathy. He didn't snap. You don't
snap when you bring a gun to work [f]or over two months
loaded."
These excerpts from the closing reflect essentially two
categories of impropriety: (1) use of portions of the
22
The "fancy little test" is a reference to the
psychological testing performed by Joss as part of his
examination of the defendant.
36
defendant's statements that were obtained in violation of his
Miranda rights; and (2) propensity-based argument.
a. Miranda rights. The prosecutor referred to the
defendant bringing a loaded gun to work for several months at
the beginning and the end of the closing, and also referenced
the defendant’s unwillingness to discuss with the police either
the shooting itself or the gun he used in the shooting. Each of
these references was to the portion of the defendant's statement
that followed his invocation of the Miranda-protected right to
cut off questioning and remain silent -- the portion that should
not have been admitted in evidence.
By including the two references to the defendant's decision
to bring a loaded gun to work for months preceding the shooting,
the prosecutor directly connected it to the defendant's capacity
to form the necessary intent for deliberately premeditated
murder. Moreover, by making these references at the beginning
and close to the end of the argument the prosecutor created
bookends that served to highlight the premeditation theme.23 See
23
It bears emphasis that although, as the Commonwealth
contends, there was substantial, properly admitted evidence --
including the volunteered statements of the defendant to the
police the day before his custodial interview -- that the
defendant possessed a gun on the day of the killing, apart from
the defendant's erroneously admitted statement, no evidence was
before the jury that the defendant had been bringing the gun,
loaded, to work every day for two or three months before the
killing. See note 16, supra.
37
Tyree, 455 Mass. at 702-704 (prosecutor's use of
unconstitutionally admitted evidence as organizing theme of
closing rendered error harmful).
As for the comments about the defendant's desire not to
answer questions about the gun or the actual shooting incident,
by arguing, "He didn't want to talk about the shooting because
it might incriminate him," the prosecutor in effect connected
the defendant's invocation of his right to remain silent to the
issue of his substantive guilt. Using the invocation of Miranda
rights to comment on a defendant's substantive guilt is strictly
prohibited. See Doyle v. Ohio, 426 U.S. 610, 619 (1976);
Commonwealth v. Mahdi, 388 Mass. 679, 694 (1983), citing United
States v. Hale, 422 U.S. 171, 175, 181 (1975). In addition,
this section of the prosecutor's argument sought to emphasize
the rational thought process of the defendant during the
interview to undercut defense's theory that he suffered from
diminished capacity at the time of the crime. Cf. Wainwright v.
Greenfield, 474 U.S. 284, 295 (1986) (defendant's post-Miranda
silence inadmissible to prove criminal responsibility); Madhi,
supra at 694-695 (same).
b. Prior bad acts and propensity. As discussed, the trial
judge did not abuse her discretion in admitting evidence of
certain prior bad acts committed by the defendant. But, as the
judge explained to the jury both when the evidence was admitted
38
and in her final charge, this evidence was only to be used for
the limited purpose of evaluating the defendant's motive,
intent, state of mind, or, in some instances, the nature of the
relationship between the defendant and the victim -- not for
assessing the defendant's character. See Part 3, supra. In his
closing, the prosecutor repeatedly and quite blatantly ignored
the judge's evidentiary limitation; the argument is laced with
remarks describing the defendant as a "mean" and "violent man"
likely to commit violent acts -- i.e., using the bad acts
directly as propensity evidence and negative character evidence.
This use is forbidden and prejudicial. See Helfant, 398 Mass.
at 224-225. See also Commonwealth v. Anestal, 463 Mass. 655,
672 (2012) ("It is implicit in the general rule regarding the
inadmissibility of prior bad acts evidence that admission of
such evidence carries with it a high risk of prejudice to the
defendant" [citation omitted]).
The prosecutor's attempt to paint the defendant in a
negative light reached its nadir with the reference to the
defendant's intimidation of his family -- a reference that also
misrepresented the evidence at trial. The prosecutor asserted
that the psychological testing performed by Joss showed the
defendant had a history of intimidating his wife and children.
Although Joss had stated at trial, in response to the
prosecutor's question on cross-examination, that the defendant
39
had had, in the past, a history of being intimidating, there was
no suggestion by Joss that this "history" of intimidation was
revealed by a psychological test of the defendant.24 More to the
point, the prosecutor transformed Joss's reference to a past
"history" into a current character trait of the defendant,
summarizing: "Intimidating. That's the other side of Clyde
Howard. He's a mean man, he's an intimidating man, he's a
violent man who took a life with no justification, no reason."
In sum, the prosecutor's extensive use of propensity-based
argument in his closing was improper. It remains to evaluate
the impact of these improprieties and the prosecutor's erroneous
use of portions of the defendant's statement in the argument.
We do so in conducting our review of the entire case under G. L.
c. 278, § 33E. See Part 6, infra.
5. Jury instructions. The defendant claims error in the
judge's final charge on mental impairment, the voluntariness of
the defendant's statement, and the inference of malice the jury
were permitted to draw from the intentional use of a dangerous
weapon.25
24
That the defendant had a (past) history of "intimidating"
his wife and children came from Joss's report; the specific
quotation from the report that the prosecutor elicited during
cross-examination was that, "[the defendant] did have a history
from years back of being intimidating to his wife and children."
25
The defendant's claim relating to the permissible
inference of malice from intentional use of a dangerous weapon
40
a. Mental impairment. The judge instructed the jury on
mental impairment following her full instructions on the
elements of murder in the first degree committed with deliberate
premeditation and committed with extreme atrocity or cruelty.
The instruction is reproduced below.26
appears to be that the judge's repetition of this instruction
immediately following each separate definition or explanation of
a prong of malice, without any concomitant explanation that the
mental impairment claimed by the defendant also could be
considered in relation to each of the prongs, constituted error
in the circumstances of this case. See Commonwealth v. Miller,
457 Mass. 69, 72-76 (2010). Given our conclusion that the
judge's instruction on mental impairment, in itself, was
erroneous, we need not decide this point.
26
The judge stated:
"Now, when considering and determining whether the
Commonwealth has proven beyond a reasonable doubt the
elements in first degree murder by deliberate premeditation
and/or first degree murder by extreme atrocity or cruelty,
you may consider the following. In determining whether the
Commonwealth has proven beyond a reasonable doubt the
defendant's intent to commit first degree murder by
deliberate premeditation or by extreme atrocity or cruelty,
you should consider all the credible evidence relevant to
the defendant's intent, including any credible evidence of
the defendant's mental impairment on the defendant.
"In determining whether the Commonwealth has proven
beyond a reasonable doubt the defendant's knowledge at the
particular time, you should consider all the credible
evidence relevant to the defendant's knowledge, including
any credible evidence of the defendant's mental impairment
on the defendant."
The judge repeated essentially the same mental impairment
instruction at the end of her instruction on murder in the
second degree.
41
The instruction in itself is confusing, given its
suggestion that the Commonwealth was required to prove "intent
to commit first degree murder by deliberate premeditation or by
extreme atrocity or cruelty." The Commonwealth does not have
such a burden. Rather, the Commonwealth's obligation is to
prove "malice" -- a term that certainly focuses on intent, but
each of its prongs has a meaning distinct from "intent to commit
murder by deliberate premeditation" or "by extreme atrocity or
cruelty." But of greater significance, and similar to
Commonwealth v. Gonzalez, ante 410, 421-422 (2014), insofar as
the judge's explanation of mental impairment focused solely on
intent (and associated knowledge), the instruction never
explained that the jury might consider the defendant's mental
impairment in weighing whether the defendant more generally
committed the crime with extreme atrocity or cruelty, an
instruction that was required in substance.27 See id.;
Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011);
Commonwealth v. Gould, 380 Mass. 672, 685-686 & n.16 (1980).
See also Model Jury Instructions on Homicide 62 (1999); id. at
27
The judge similarly failed to explain to the jury that
they could consider the defendant's mental impairment in
determining whether the Commonwealth had proved the defendant:
(1) acted with malice -- any one of the three prongs; and (2)
deliberately premeditated the victim's killing -- i.e., whether
he thought before acting, and whether his decision to kill was
based on reflection for some period of time. See Model Jury
Instructions on Homicide 62 (1999; id. at 40-41, 46 (rev. 2013).
These omissions, too, constituted error.
42
49 (rev. 2013).28 Particularly where the defendant's entire
defense was based on his allegedly impaired mental state, the
omission of these instructions was error.29
b. Voluntariness. Concerning the judge's instruction on
the voluntariness of the defendant's statements. The judge
stated:
"You may consider whether the statements, if any, made by
[the defendant] were calculated to exculpate or mitigate
his actions, such as an inference might be drawn that he
knew his statements to the police could have adverse
consequences, and therefore, you may draw an inference that
he made the statements voluntarily. Or you may not draw
28
The 1999 version of the Model Jury Instructions on
Homicide (1999) reflects this point, and the 2013 version does
so even more clearly. See Model Jury Instructions on Homicide
49 (rev. 2013) ("You may consider the defendant's mental
condition at the time of the killing, including any credible
evidence of mental impairment . . . in determining whether the
Commonwealth has proved beyond a reasonable doubt that the
defendant committed the killing with extreme atrocity or
cruelty"); Model Jury Instruction on Homicide 62 (1999) ("More
particularly, you may consider any credible evidence of the
defendant's mental impairment in determining . . . whether the
defendant acted in a cruel or atrocious manner in causing the
death of the deceased"). We urge trial judges to use these
instructions on mental impairment in their complete form.
29
During the charge conference that the judge held the day
before instructing the jury, the defendant's counsel in
substance raised the points we have just discussed in objecting
to the Commonwealth's proposed instruction on mental impairment.
After the judge charged the jury, however, defense counsel
simply stated his objection "to not providing the mental
impairment instruction that I submitted." Because we consider
the errors in the mental impairment instruction in combination
with other errors in conducting the review required by G. L.
c. 278, § 33E, see Part 6, infra, we need not decide whether the
defendant's objection to the mental impairment instruction was
preserved.
43
that inference and you may determine that that inference is
not reasonable."
As the Commonwealth points out, there are cases that offer
support for considering the fact that a defendant made an
exculpatory statement in the course of a police interrogation in
determining whether statements were voluntary. See, e.g.,
Commonwealth v. Davis, 403 Mass. 575, 581 (1988); Commonwealth
v. Vasquez, 387 Mass. 96, 99-100 (1982). These cases, however,
did not involve jury instructions but were reviews of denials of
motions to suppress. In a case such as this, where a claim of
mental impairment is made and is central to the case, there is a
potential for misuse by a jury, that is, a risk that the
exculpating nature of the defendant's words or statements will
be used as evidence of his mental capacity. A jury instruction
such as the one given is better left unsaid.
6. Review under G. L. c. 278, § 33E. "Our duty under
G. L. c. 278, § 33E, is to consider broadly the whole case on
the law and the facts to determine whether the verdict is
'consonant with justice.'" (Citation omitted.) Gould, 380
Mass. at 680.
We have discussed previously that the admission of the
defendant's postinvocation statement constituted error, in
violation of the defendant's constitutional right to remain
silent; and that, because the defendant objected to the
44
statement's admission, the error must be shown to be harmless
beyond a reasonable doubt. Chapman v. California, 386 U.S. at
24; Santos, 463 Mass. at 287. Although many of the defendant's
postinvocation remarks were cumulative, evidence that the
defendant had been carrying a gun to work every day for two to
three months distinctly was not, and as described in Part 4,
supra, this admission by the defendant became an important focal
point of the prosecutor's closing argument. Furthermore, the
admission of the defendant's postinvocation statement placed
before the jury the defendant's repeated requests to the
officers not to answer questions about the shooting itself or to
leave parts of the narrative out, and two instances of damning
explanation as to why the defendant chose this path: because it
left him appearing "guilty" (Gagnon's word)30 and as "the
culprit" (the defendant's word).31 The jury obviously could view
30
At about twelve minutes after the postinvocation portion
of the interview began, the officers' questioning zeroed in on
the actual shooting. As indicated, see note 16, supra, when
asked how he and the victim ended up in the chemical yard
together, the defendant stated: "Can I let this one go by, this
question" and McNeill responded, "Absolutely." The conversation
resumed and shortly thereafter the defendant stated, "That's not
what happened so I want to leave that part out." Gagnon
responded: "So you want to cut a certain part out because that
leaves you guilty, and you don't want to talk about that, and I
have no problem with that . . . . We'll skip that section,
okay? That's not a problem." (Emphasis added.)
31
Later than the point in the interview described in note
30, supra, Detective McNeill asked:
45
the defendant's reluctance to speak about the details of the
shooting as reflecting repeatedly his consciousness of guilt,
brought home even more clearly by the "guilty" and "culprit"
remarks, which was stressed by the prosecutor in his closing.
McNeill: "At this time, is there anything else you want to
share with us on the event because, again, it will allow us
closure on the events and -- because we've already had the
statements from the four employees. But again to hear your side
of the story and then how it got into the middle of the
warehouse and out to the [d]umpster, because there's still a
little gap there that we need to know and for my own self. It's
not going to affect anyone else, but it just gives me a closure
why -- . . . ."
Defendant: "That part is [inaudible]. Can I leave that
part out?"
McNeill: "Well, it's happened. If you want to leave it
out, leave it out, but it would allow me closure and just to put
an end to it, just to get it off your chest and say, hey, here
it is, this is what happened. It's over and done with."
Defendant: "I know, but that part I'd like to leave because
-- "
McNeill: "But you understand my point? So I can, you
know, learn from it and understand it."
Defendant: "Well, it's just that that point -- I mean,
that part I want to leave out because -- "
. . .
Gagnon: "Clyde, what is it? Is it the intimate details
that's bothering you, like you don't want to talk about the
intimate details here or like what -- let us know what's going
on in your head as far as this."
Defendant: "Well, there's certain details I would like
to leave out there because I'd have to -- I mean not to give the
other, but this particular part here it could be construed as
though I -- well, I'm the culprit" (emphasis added).
46
In addition, the specific details about the shooting incident
and his own appreciation of the victim's state of mind (see note
16, supra), which the defendant finally supplied to the officers
near the end of his statement, were chilling and could certainly
be understood by the jury as evidence of deliberate
premeditation as well as extreme atrocity or cruelty. The
potential for prejudice to the defendant arising from the
admission of the statement -- both in itself and then as used by
the prosecutor in the closing -- is obvious.
The defendant was convicted of murder in the first degree
committed with deliberate premeditation and also committed with
extreme atrocity or cruelty. Although the evidence of the
defendant's guilt under both theories was very strong, with
respect to deliberately premeditated murder, we cannot say that
the erroneous admission of the defendant's postinvocation
statement, and its use by the prosecutor in his closing, was
harmless beyond a reasonable doubt.32 See Commonwealth v.
32
As for the closing argument, the defendant did not object
to it, despite his objection to various portions of evidence
that became the basis for errors in the prosecutor's closing.
It also is true that the prosecutor's argument contained
substantial sections that were entirely proper. Nevertheless,
"[t]his is not a case in which a fleeting, isolated, improper
statement in an otherwise proper argument could, in the context
of the entire closing argument, be deemed nonprejudicial."
Commonwealth v. Lewis, 465 Mass. 119, 132 (2013). The
prosecutor's comments –- those concerning the erroneously
admitted postinvocation evidence and the improper propensity
statements that in part found their source in the postinvocation
47
Perrot, 407 Mass. 539, 549 (1990) (in determining whether error
was harmless beyond reasonable doubt, "[t]he essential question
is whether the error had, or might have had, an effect on the
jury and whether the error contributed to or might have
contributed to the verdicts").
Turning to murder committed with extreme atrocity or
cruelty, we similarly conclude that a combination of errors
created sufficient harm to require reversal on that theory. As
discussed, a number of the defendant's postinvocation statements
that were admitted in error provided support for the jury to
find extreme atrocity or cruelty, as did the propensity-based
descriptions of the defendant in the prosecutor's closing
argument. It is true that in contrast to deliberate
premeditation, the prosecutor did not use postinvocation
evidence in his closing explicitly to build the case for a
finding of extreme atrocity or cruelty. At the same time,
however, the errors in the judge's instruction on mental
impairment had a particularly prejudicial effect. In relation
evidence -- permeated the closing, and as earlier discussed, the
prosecutor's erroneous bookend references to the postinvocation
evidence that the defendant was carrying a gun for several
months before the killing focused explicitly on the defendant's
capacity to deliberately premeditate -- an issue at the heart of
the defense: the defendant's argument to the jury at the end of
the case was that he was guilty of murder in the second degree,
not first. Further, although the judge explained to the jury
that closing arguments were not evidence, her charge did not
contain any targeted instructions designed specifically to
mitigate the effect of the argument errors. See id. at 131.
48
to extreme atrocity or cruelty, the judge's mental impairment
instruction, which focused solely on intent and knowledge,
missed the mark: "Intent and knowledge are not aspects of
extreme atrocity or cruelty." Rutkowski, 459 Mass. at 797-798.33
Rather, as was true in that case, "[i]t should have been made
clear to the jury that they could consider evidence of mental
impairment on the specific question whether the murder was
committed with extreme atrocity or cruelty." Id. at 798. "A
jury could have found the defendant's act intentional, yet not
extremely atrocious or cruel, due to the defendant's [mental
impairment]. . . . [T]he jury should reflect the community's
conscience in determining what constitutes an extremely cruel or
atrocious killing." Commonwealth v. McDermott, 393 Mass. 451,
458 (1984). See Gould, 380 Mass. at 685-686. See also
Gonzalez, ante at 422-423.
7. Conclusion. The defendant's conviction of murder in
the first degree on the theories of extreme atrocity or cruelty
and deliberate premeditation is vacated. The Commonwealth has
33
The potential for prejudice arising from the
concentration on intent and knowledge of an instruction on
mental impairment appears to be less in relation to the theory
of deliberate premeditation. In contrast to extreme atrocity or
cruelty, intent is an aspect of deliberate premeditation, which
requires the Commonwealth to prove both an intent to kill as
well as at least some intentional reflection on the part of the
defendant. See Commonwealth v. McMahon, 443 Mass. 409, 418
(2005). See also Model Jury Instructions on Homicide 39-40
(rev. 2013).
49
the option of either retrying the defendant on the murder
indictment or accepting a reduction of the verdict to murder in
the second degree, which was the verdict urged by the defendant
at his first trial.34 See Gonzalez, ante 424; Commonwealth v.
Thomas, ante 531, 532 (2014). See also Commonwealth v. Bell,
460 Mass. 294, 310 (2011). The Commonwealth shall inform this
court within fourteen days of the date this opinion issues
whether it will retry the defendant for murder in the first
degree or move to have the defendant sentenced to murder in the
second degree. After the Commonwealth so informs us, we will
issue an appropriate rescript to the Superior Court.
So ordered.
34
Throughout this case, the defendant consistently has
admitted that he killed the victim. In his opening statement to
the jury, the defendant's counsel appeared to suggest that the
jury should find the defendant guilty of manslaughter, and
counsel later requested a manslaughter instruction as part of
the final charge to the jury. The judge denied the request,
however, because she found it lacking support in the evidence.
The defendant does not press the point on appeal, and review of
the trial evidence leads us to agree with the judge's
conclusion.