Commonwealth v. Bois

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SJC-10725

COMMONWEALTH vs. RYAN BOIS.

Norfolk. January 12, 2016. - November 10, 2016.

Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.1

Homicide. Rape. Armed Home Invasion. Felony-Murder Rule.
Insanity. Jury and Jurors. Practice, Criminal, Capital
case, Assistance of counsel, Jury and jurors, Conduct of
juror, Instructions to jury, Argument by prosecutor.

Indictments found and returned in the Superior Court
Department on August 30, 2007.

The cases were tried before Janet L. Sanders, J., and a
motion for a new trial, filed on October 12, 2012, was heard by
her.

Dennis Shedd for the defendant.
Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.

LENK, J. In 2009, a Superior Court jury convicted the

defendant of murder in the first degree on theories of extreme

atrocity or cruelty and felony-murder. The jury found that, on

1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
 2

August 4, 2007, the defendant broke into his grandmother's house

and then raped and strangled his six-year-old cousin, who was

staying there for the night. The defendant was convicted also

of nine other charges, including home invasion while armed with

a dangerous weapon, G. L. c. 265, § 18C.2 At trial, the

defendant conceded that he had killed the victim, but argued

that he was not guilty by reason of insanity. On appeal from

his convictions and from the denial of his motion for a new

trial, the defendant asserts that (a) trial counsel was

ineffective for failing to present certain evidence relevant to

his insanity defense and to object to the jury charge on the

insanity defense; (b) the judge did not respond adequately to

reports that a juror slept through certain portions of the

trial; (c) the evidence was insufficient on an element of the

home invasion charge, and the judge incorrectly instructed the

jury on that element; (d) the instructions on felony-murder

impermissibly removed from the jury's consideration one of its

elements; and (e) the prosecutor's closing argument was

improper. The defendant asks also that, pursuant to G. L.

c. 278, § 33E, we reduce the murder conviction to murder in the

2
These included two counts of forcible rape of a child,
G. L. c. 265, § 22A, as well as one count each of kidnapping,
G. L. c. 265, § 26; larceny under $250, G. L. c. 266, § 30
(lesser included offense); larceny of a motor vehicle, G. L.
c. 266, § 28 (a); malicious destruction of property, G. L.
c. 266, § 127; reckless driving, G. L. c. 90, § 24 (2) (a); and
failure to stop for a police officer, G. L. c. 90, § 25.
 3

second degree as more consonant with justice, because his

actions were the product of mental illness.

We affirm the conviction of murder in the first degree, and

decline to exercise our power under G. L. c. 278, § 33E, to

reduce the degree of guilt or to order a new trial. With

respect to the charge of home invasion, we agree with the

defendant that the evidence was insufficient, and that his

conviction must be reversed. We affirm the other convictions.

1. Background. a. Facts. We recite the facts the jury

could have found, reserving certain details for later

discussion. In 2007, when the defendant was twenty years old,

he did not have a permanent residence and stayed with various

friends and family members. At one point during the year, he

lived with his grandmother in Weymouth for approximately one

month. After moving out, he asked his grandmother for money to

pay his rent. She agreed, but insisted on driving the defendant

to meet his landlord and to obtain a receipt. When they

arrived, the grandmother handed the defendant the money, and he

ran off. Several weeks later, on the morning of August 4, 2007,

the defendant called his grandmother, asking if he could come to

her house. She refused.

At 2 or 3 P.M. that day, the defendant attended a cookout

at the home of his friend, Megan Phinney, staying there until

late in the evening. At "10 or 10:30" P.M., at the defendant's
 4

request, one his friends drove him from the cookout to his

grandmother's house, approximately one mile away. The victim,

the defendant's six year old cousin, and her four year old

brother were staying with his grandmother that night.3 All three

had gone to sleep by the time the defendant arrived.

After being dropped off, the defendant climbed on top of

his grandmother's white Ford Explorer vehicle, which was parked

in the driveway in front of the house, below a front-facing

second-floor window. He used a "folding" knife with a three-

inch blade to cut a hole in the window screen, and entered.

Somewhere inside, he encountered the victim. He raped and

strangled her in a front bedroom, then wrapped her body in

bedding taken from that bedroom. He took cash from his

grandmother's purse, as well as her cellular telephone and the

keys to the Explorer. He left the house carrying the victim's

body, which he placed on the floor of the Explorer between the

front and rear seats, and drove off.

At 10:57 P.M., the defendant appeared on a surveillance

video recording entering a convenience store approximately one

mile from his grandmother's house. He left the store without

purchasing anything.

3
The children slept in a bedroom in the back of the house,
while the grandmother slept on a porch separated from the
bedroom by a sliding glass door.
 5

Sometime after midnight, on August 5, 2007, the defendant

used his grandmother's cellular telephone to call one of his

acquaintances, Terrence Gandy. He told Gandy that he "had some

money to burn" and "wanted to get some drugs." He drove to

Gandy's house in the Dorchester section of Boston, bought

marijuana, and smoked it with Gandy. He told Gandy that the

Explorer he was driving "was stolen," and asked him, "If I ever

killed anybody, what would I do with the body to get rid of

it[?]" Gandy replied that he should "chop it up." The

defendant left after "fifteen to [twenty] minutes."

At approximately 1:15 A.M., a Weymouth police officer in

the canine unit stopped the Explorer for speeding. When the

officer approached the vehicle, however, it sped off, and the

officer pursued it. During the chase, both vehicles reached

speeds of one hundred miles per hour. The Explorer ultimately

crashed into a taxicab while attempting to turn at an

intersection. The defendant got out of the vehicle and ran

away. When the defendant disregarded the officer's warning to

stop, the officer released his police dog. The dog chased and

subdued the defendant. As the officer approached the defendant,

who was lying face down on the ground with his arms

outstretched, as instructed, the defendant turned to the officer

and started yelling, "Just shoot me in the face. Kill me now.
 6

You don't know what I did. Just kill me now. Shoot me in the

fucking face."

The officer turned around to signal other officers who had

arrived at the scene. When he turned his attention back to the

defendant, he saw that the defendant had tucked his hands

underneath his body. The defendant was holding a folding knife

with a three-inch blade, and was pleading with the officer "to

shoot him, kill him." The defendant eventually released the

knife and was arrested.4 He continued "ranting and raving" until

he was placed in a police cruiser.

After the defendant's arrest, officers conducted an

inventory search of the Explorer, which they intended to have

towed. They discovered the victim's body, naked from the waist

down, wrapped in the grandmother's bedding. Her shorts and

underwear were nearby. Police contacted the grandmother, who

was unaware that the defendant had been in her house, that her

Explorer had been stolen, or that the victim was missing.

During a search of the grandmother's house, police found that

the bedsheets were missing from the front bedroom. They also

found traces of blood and seminal fluid in that room, and bloody

pillows in the victim's bedroom.

4
Police recovered a knife and a small bag containing what
was later determined to be cocaine.
 7

b. Trial proceedings. On August 30, 2007, the defendant

was indicted on charges of murder in the first degree and twelve

other offenses.5 At trial in March, 2009, the Commonwealth

proceeded on the murder charge on theories of deliberate

premeditation, extreme atrocity or cruelty, and felony-murder.

To establish that the defendant was criminally responsible for

his actions, the Commonwealth presented testimony regarding his

behavior on the day of the killing. The defendant's girl friend

testified that she spoke with him around noon that day, and

agreed that he did not "sound any different" than usual. A

friend who had been at the cookout recalled that the defendant

drank beer, played horseshoes, and agreed that he did not

"appear[] different . . . than what [his friends] had known him

to be like in the past."

The Commonwealth also presented expert testimony regarding

fingerprints, blood, and seminal fluid that were recovered from

the grandmother's house and the victim's body. One expert

testified that samples of deoxyribonucleic acid (DNA) recovered

from sperm cells on the victim's body matched the defendant's

5
The other indictments included two counts of forcible rape
of a child, and one count each of home invasion; kidnapping;
assault with a dangerous weapon, G. L. c. 265, § 15B (b);
possession of cocaine, G. L. c. 94C, § 34; larceny over $250;
larceny of a motor vehicle; malicious destruction of property;
reckless driving; operating a motor vehicle with a suspended
license, G. L. c. 90, § 23; and failure to stop for a police
officer.
 8

DNA profile, and another testified that a palm print on the

front window matched that of the defendant.

The defendant conceded that he had raped and killed the

victim, but contended that he was not guilty by reason of

insanity. The defendant did not, however, offer expert

testimony regarding specific mental illnesses from which he

suffered, and did not present any medical or treatment records.

Nor did he offer an expert opinion that he lacked criminal

responsibility for his actions. Rather, he relied on testimony

concerning his behavior immediately following the killing, as

well the nature of the crime itself, to establish his mental

state.6 He also presented testimony from his grandmother, on

cross-examination, that he had been admitted to psychiatric

hospitals numerous times during his adolescence, that he had

been prescribed medications for psychiatric disorders, and that,

because of behavioral issues, he had been placed in the custody

of the Department of Youth Services (DYS).7

In addition, the defendant introduced expert testimony from

a forensic psychologist who had not examined him, concerning the

6
The defendant's acquaintance Terrence Gandy, for instance,
testified that the defendant "didn't seem like he was himself,"
that "he was a little more hyper" than usual, and that "he just
didn't seem like he was in his right mind." The arresting
officer testified that the defendant was "ranting and raving."
7
On direct examination by the Commonwealth, the grandmother
agreed that she never "bec[a]me aware of [the defendant] having
any type of a mental illness."
 9

general standards used to evaluate a defendant for lack of

criminal responsibility, and the general characteristics of a

number of mental illnesses. The expert agreed that someone may

"be in the throes of mental illness and appear normal to lay

observers," and testified that a person "would be admitted to

[a] psychiatric facility only [if] someone . . . as part of the

admission . . . believed that they had symptoms of a mental

illness." The expert did not present any opinion regarding the

defendant's mental state or behavior.

The jury convicted the defendant of murder in the first

degree on theories of extreme atrocity or cruelty and felony-

murder,8 but not on the theory of deliberate premeditation.9

c. Motion for a new trial. In October, 2012, the

defendant filed a motion for a new trial pursuant to Mass. R.

Crim. P. 30, as appearing in 435 Mass. 1501 (2001). He argued,

among other things, that his trial counsel was ineffective for

failing to review and present to the jury records of psychiatric

8
The predicate felonies for the conviction of felony-murder
were rape of a child by force and home invasion.
9
The jury also convicted the defendant of eight of the
other offenses charged, including two counts of rape, home
invasion, kidnapping, larceny of a motor vehicle, malicious
destruction of property, reckless driving, failing to stop for a
police officer. In addition, he was convicted of the lesser
included offense of larceny under $250. The jury acquitted him
of possession of cocaine and operating a motor vehicle with a
suspended license. The judge entered a directed verdict on the
indictment charging assault by means of a dangerous weapon.
 10

treatment he had received as an adolescent. Those records, he

maintained, indicated that the defendant had suffered sexual

abuse as a child, and that he had been diagnosed with several

mental illnesses. He argued also that trial counsel had failed

to present evidence of certain strange behavior he exhibited on

the day of the killing. After a nonevidentiary hearing, the

motion was denied by the Superior Court judge who had been the

trial judge.

4. Discussion. On appeal, the defendant contends that

(a) trial counsel was ineffective in her presentation of the

insanity defense, (b) the judge did not respond adequately to

reports of a sleeping juror, (c) there was insufficient evidence

on the home invasion charge and the jury were incorrectly

instructed on that issue, (d) the judge's instruction removed an

element of the felony-murder charge from the jury's

consideration, and (e) the prosecutor made certain inappropriate

remarks during closing argument. He claims also that we should

reduce the degree of guilt pursuant to our authority under G. L.

c. 278, § 33E.

a. Claim of ineffective assistance of counsel. As he did

in his motion for a new trial, the defendant argues that

counsel's investigation and presentation of his insanity defense

was constitutionally deficient. He claimed, in particular, that

"counsel failed to adequately investigate [his] history of
 11

treatment for mental illnesses"; "failed to present evidence of

his unusual behavior shortly before the . . . crime"; and

"failed to object to erroneous instructions on the mental health

defense[]."

"Because the defendant has been convicted of murder in the

first degree, we consider [his] contention of ineffectiveness of

counsel to determine whether there exists a substantial

likelihood of a miscarriage of justice . . . , which is more

favorable to a defendant than the constitutional standard for

determining whether there has been ineffective assistance.

Thus, we consider whether there was error during the course of

the trial, and, if so, whether the error was 'likely to have

influenced the jury's conclusion'" (citation omitted).

Commonwealth v. Williams, 453 Mass. 203, 204-205 (2009). "Under

this more favorable standard of review, we consider a

defendant's claim even if the action by trial counsel does not

'constitute conduct falling "measurably below" that of an

"ordinary fallible lawyer."' . . . A strategic decision by an

attorney, however, amounts to ineffective assistance 'only if it

was manifestly unreasonable when made'" (citations omitted).

Commonwealth v. Pena, 455 Mass. 1, 22 (2009).

i. Treatment records. The defendant maintains that

defense counsel erred in failing to read, or to introduce at

trial, treatment records from his psychiatric hospitalizations
 12

and from his commitments to DYS facilities. These records

indicate that the defendant suffered sexual abuse as a child,

and that, during his adolescence, he was diagnosed with several

mental illnesses, including agitated depression, bipolar

disorder, and posttraumatic stress disorder. The records span a

period of twelve years, from 1992, when the defendant was five

years old, to 2004, shortly before his eighteenth birthday. The

defendant contends that, had evidence of these specific

diagnoses been presented to the jury, the insanity defense might

have been successful.

In an affidavit submitted in conjunction with the

defendant's motion, trial counsel explained that she was aware

of the treatment records, and had seen them mentioned in the

defendant's competency evaluation prepared by a forensic

psychologist at Bridgewater State Hospital. She stated further

that, although she herself did not review the records, she had

obtained funds to hire an expert psychologist to review the

documents. Having reviewed the records, and having asked a

colleague to do the same, the expert informed counsel that he

was unable to offer an opinion that, at the time of the offense,

the defendant had not been criminally responsible. Counsel

averred that she therefore decided not to present expert

testimony on the basis of the defendant's medical records. She

did not, however, explain why she chose not to introduce the
 13

treatment records themselves, unaccompanied by expert testimony.

See Commonwealth v. Dung Van Tran, 463 Mass. 8, 20 (2012)

("defendant with prior history of mental disorders and treatment

'may offer evidence of the same through medical records with or

without expert witnesses'" [citation omitted]).

While unexplained in the affidavit, counsel's decision not

to introduce the records appears to have been strategic. See

Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015) (where

ineffective assistance claim is based on tactical or strategic

decision by counsel, defendant may show counsel was ineffective

only if decision was "manifestly unreasonable" when made). At a

pretrial hearing, counsel argued successfully, against the

Commonwealth's opposition, that the Commonwealth was not

entitled to review the defendant's mental health records,

because she was neither presenting them at trial nor seeking to

introduce expert testimony based on their content. Moreover,

during voir dire of the venire, she asked each prospective

juror, "If there is no evidence presented regarding

hospitalization or a diagnosis, would you still be able to keep

an open mind about an insanity defense?" It therefore seems

that, after due consideration, counsel deliberately decided not

to present documentary evidence of the defendant's mental

illnesses. "[S]trategic choices made after thorough

investigation of [the] law and facts . . . are virtually
 14

unchallengeable." Commonwealth v. McMahon, 443 Mass. 409, 425

(2005), quoting Strickland v. Washington, 466 U.S. 668, 690

(1984).

The defendant contends, however, that without having read

the records herself, counsel could not have conducted a

"thorough investigation," Commonwealth v. McMahon, supra, and

was not in a position to make the strategic decision to keep the

records from the jury's consideration. See Commonwealth v.

Baker, 440 Mass. 519, 529 (2003) ("Until [counsel]

commenced . . . an investigation, he simply had no way of making

a reasonable tactical judgment").

We do not agree. Although it would have been preferable

for counsel personally to review the treatment records, she did

not fail to consider them, or to make an investigation of their

contents. Indeed, she reviewed the competency report prepared

by the forensic psychologist at Bridgewater, which summarized

most of the relevant records, and which described the

defendant's treatment history and diagnoses. Contrast

Commonwealth v. Lang, 473 Mass. 1, 11 (2015) (Hines, J.,

concurring) ("defendant's trial counsel did not review the

defendant's psychiatric history"). Counsel also retained two

experts, both of whom reviewed the records and opined that they

did not support the conclusion that the defendant lacked

criminal responsibility at the time of the crime. Contrast
 15

Commonwealth v. Alvarez, 433 Mass. 93, 101 (2000) ("Counsel's

failure to review or provide to the defense expert [relevant]

medical records . . . fell measurably below that of an ordinary

fallible lawyer" [emphasis supplied]). In light of counsel's

knowledge of the substance of the records, and given that the

experts she retained could not endorse an insanity defense after

reading them, counsel's investigation was sufficient to allow

her to make the strategic decision not to present the records to

the jury. This decision was not "manifestly unreasonable."

Moreover, it is unlikely that the exclusion of the records

resulted in any prejudice to the defendant. See Commonwealth v.

Williams, 453 Mass. at 204-205. As the judge noted in her

decision on the defendant's motion for a new trial, although the

records contained sympathetic information, such as the

defendant's history of abuse and mental illness, and while they

would have prevented the prosecutor from arguing that the

defendant's hospitalizations were not the result of a

diagnosable disease, they also contained information that would

have painted the defendant in a negative light. For example,

the records indicated that the defendant had a criminal record10

and was a member of a gang, and stated also that he "attempt[ed]

10
They indicate, for instance, that the defendant was
adjudicated delinquent for, among other things, committing
assault by means of a dangerous weapon and malicious destruction
of property over $250.
 16

to manipulate situations by avoiding responsibility for his

behavior" and "display[ed] little remorse for his [violent]

actions."11

In addition, the records contained information that might

have undercut the insanity defense. The most recent of the

records, from three years before the crime, indicated that the

defendant was "doing well," that he was employed and had a girl

friend, and that he "recently discontinued his medication

[(impliedly with medical approval)]."12 Had these records been

presented to the jury, the prosecutor likely would have used

them to support the argument that the defendant was capable of

rational, calculated thought, and that the killing was the

result of such thought, rather than of mental illness.

In sum, counsel's decision not to introduce the defendant's

treatment records was not manifestly unreasonable, and did not

result in prejudice to the defendant.

11
Counsel was aware from the competency evaluation that the
records described the defendant's history of delinquent and
criminal behavior, and contained other potentially damaging
information.
12
The defendant contends that some of these details, if not
relevant to his diagnosis and treatment, could have been
redacted. See Commonwealth v. Irene, 462 Mass. 600, 616, cert.
denied, 133 S. Ct. 487 (2012) (medical records admissible as
business records only to extent they are "germane to the
defendant's treatment or medical history"). On their face,
however, the records suggest that many of these details were, in
fact, relevant to the defendant's psychiatric treatment --
focused, as it was, on his behavioral issues -- and thus
unlikely to have been subject to redaction.
 17

ii. Defendant's behavior earlier on day of killing. In

August, 2007, a State trooper interviewed Cynthia Phinney, the

mother of the defendant's friend who had hosted the cookout that

the defendant attended on the day of the killing. Phinney

reported seeing the defendant at the cookout, and told the

trooper that he was "in a funny mood . . . he was sad." She

added that

"at one point [the defendant] took a shower in the
house. . . . [A]fter [he] took a shower, he remained in her
laundry room for about ten minutes. . . . [S]he walked into
the laundry room and found [him] just standing there
naked."

The defendant contends that trial counsel was ineffective for

not calling Phinney to testify about this incident, as it would

have suggested that the defendant exhibited "behavior . . .

consistent with that of a person suffering from bipolar

disorder."13

The record does not indicate whether counsel considered

calling Phinney. We are persuaded, however, that, overall,

Phinney's testimony was not "likely to have influenced the

jury's conclusion" [citation omitted]. See Commonwealth v.

Williams, 453 Mass. at 206. Before describing the defendant's

mood and behavior, Phinney told the trooper that the defendant

"showed up with a thirty-pack of beer," that he became

13
The defendant's expert described to the jury the expected
symptoms of bipolar disorder.
 18

"trashed . . . and [that he] needed to sober up." Thus, it is

likely that the jury would have attributed his mood to

consumption of alcohol, rather than as a symptom of mental

illness. In addition, Phinney testified before the grand jury

that, earlier that afternoon, the defendant "was fine. He's

always happy-go-lucky, always singing, dancing, and always just

a happy kid." Had Phinney testified, such statements could have

undermined any testimony that the defendant was "sad" or in a

"funny mood." Given the potentially harmful impact of Phinney's

statements on the defendant's insanity defense, no prejudice to

him resulted from counsel's decision not to call her to testify.

iii. Jury instructions. The defendant argues that counsel

was ineffective for failing to object to two specific jury

instructions.

A. Instruction on insanity. In instructing the jury on

the insanity defense, the judge stated:

"To summarize then, if the Commonwealth fails to prove
beyond a reasonable doubt that the defendant possessed the
substantial capacity to appreciate the criminality or
wrongfulness of his conduct, and also that the defendant
possessed a substantial capacity to conform his conduct to
the requirements of the law, you must return a verdict of
not guilty by reason of insanity" (emphasis supplied).

The defendant contends that this instruction was erroneous,

because it implies, in his view, that a verdict of not guilty by

reason of insanity was required only if the Commonwealth failed

to prove both that the defendant "possessed the substantial
 19

capacity to appreciate the wrongfulness of his conduct," and

that he "possessed a substantial capacity to conform his conduct

to the requirements of the law." If, however, the Commonwealth

were able to prove only one of these two prongs, the defendant

argues, this instruction implied incorrectly that the jury

should return a guilty verdict. As the defendant asserts, the

Commonwealth must prove both a defendant's ability to understand

the wrongfulness of his conduct and his capacity to conform his

conduct to the law; failure to prove either prong requires a

verdict of not guilty by reason of insanity. See Model Jury

Instructions on Homicide 51-52 (1999).

Trial counsel did not object to the instruction as given.

The defendant claims that counsel's failure to object

constituted ineffective assistance. This claim is unavailing.

While the language at issue might, in isolation, be understood

in the manner the defendant suggests, a more natural

interpretation is that a verdict of not guilty by reason of

insanity was required if the Commonwealth failed to prove either

one of the prongs, by failing to show both that "the defendant

possessed the substantial capacity to appreciate the criminality

or wrongfulness of his conduct, and that the defendant possessed

a substantial capacity to conform his conduct to the

requirements of the law." We are persuaded that the jury

understood the instruction in this way, since, as the defendant
 20

concedes, the judge explained the standard correctly, clearly,

and without ambiguity earlier in her instructions.14 See

Commonwealth v. Young, 461 Mass. 198, 207 (2012) ("When

reviewing jury instructions, '[w]e evaluate the instruction as a

whole, looking for the interpretation a reasonable juror would

place on the judge's words.' . . . We do not consider bits and

pieces of the instruction in isolation" [citations omitted]).

B. Instruction on diminished capacity. The judge

instructed the jury that they could convict the defendant of

murder in the first degree on a theory of extreme atrocity or

cruelty if they found that the defendant had so-called "third-

prong malice," i.e., "intent to do an act which, in the

circumstances known to the defendant, a reasonable person would

have known created a plain and strong likelihood that death

would follow." The defendant argues that the judge erred in not

instructing the jury that, in determining whether the defendant

had such an intent, "they should consider the extent of the

defendant's knowledge of the circumstances at the time of the

killing and, in that regard, they should consider the evidence

of his mental impairment." See Commonwealth v. Delaney, 418

14
For example, the judge stated that a "person is not
criminally responsible for his conduct if he suffers from a
mental disease or defect, and as a result of that mental disease
or defect lacks a substantial capacity either to appreciate the
criminality of wrongfulness of his conduct or to conform his
conduct to the requirements of the law" (emphasis supplied).
 21

Mass. 658, 663-64 (1994). The defendant maintains also that

counsel was ineffective for failing to object to the absence of

this language. The instructions as a whole, however, do not

support this claim. Shortly after giving the now-challenged

instruction, the judge explicitly told the jury that they must

consider the defendant's mental state in determining the extent

of the defendant's knowledge.15

b. Report of sleeping juror. Before the jury charge, a

juror reported that another juror had been sleeping during

closing arguments. The judge conducted a hearing on what should

be done in response to the juror's assertion. Defense counsel

stated, "I think we [should] leave it alone. I didn't notice

it, and I think we were both looking at the jurors during our

closing argument." She added, "I'm more concerned about [the

reporting] juror than I am the juror who may have been falling

asleep. It sounds like that juror has an agenda of some type."

The prosecutor also said that he had not noticed the juror had

15
The judge instructed:

"In determining whether the Commonwealth has proved
this third meaning of malice, you must consider the
defendant's actual knowledge of the circumstances at the
time that he acted.

"Again, in determining whether the Commonwealth has
proved that the defendant had the intent required to
constitute malice in any one of these ways, you may
consider any evidence regarding the defendant's mental
condition at the time of the alleged events."
 22

been sleeping, and suggested that no action was required in

response to the report.

The following day, a juror who had been designated as an

alternate16 sent the judge a note stating that he had observed

the same juror "f[a]ll asleep during trial on several occasion's

[sic]." Defense counsel responded,

"I just wanted to say that I watched this particular
juror yesterday during Your Honor's very lengthy . . .
charge . . . because it was brought to our attention that
this particular juror had been falling asleep. . . . What
I noted is that she occasionally closed her eyes, but would
move her hands and turn her head and open her eyes. I was
confident yesterday in observing her during Your Honor's
charge that she was not sleeping."

As requested, the judge took no further action. The defendant

now argues that the judge erred in taking no action, and should,

at a minimum, have conducted a voir dire of the juror in

question. See Commonwealth v. Dyous, 79 Mass. App. Ct. 508,

512-514 (2011) (judgment reversed because of sleeping juror

although defendant's trial attorney urged judge to take no

action).

The defendant's argument is not persuasive. "[N]ot every

complaint regarding juror attentiveness requires a voir

dire. . . . Rather, if a judge receives a complaint or other

information suggesting that a juror was asleep or otherwise

16
It is not clear if the juror making this report was the
same one who had reported suspicions of a sleeping juror the
previous day.
 23

inattentive, the judge must first determine whether that

information is 'reliable.' . . . In making this determination,

the judge must consider the nature and source of the information

presented, as well as any relevant facts that the judge has

observed from the bench. . . . The burden is on the defendant

to show that the judge's response to information about a

sleeping juror was 'arbitrary or unreasonable'" (quotations and

citations omitted). Commonwealth v. McGhee, 470 Mass. 638, 644

(2015).

Here, the defendant has not met this burden. On both

occasions, the judge immediately conducted a hearing on the

juror's report. At those hearings, both defense counsel and the

prosecutor stated that they had not noticed that the juror was

asleep, and defense counsel provided specific information to

explain both the basis of the report (the juror had closed her

eyes) and why there was ultimately no cause for concern (the

juror was actually awake). In light of this, there was no error

in the judge's decision that the report of a sleeping juror was

not "reliable," id., and that no further action was required.

c. Armed home invasion. In instructing the jury on the

elements of home invasion, the judge stated that the

Commonwealth must prove "that the defendant at the time of the

entry was armed with a dangerous weapon[.]" See G. L. c. 265,

§ 18C. She then instructed that, as a matter of law, "[k]nives
 24

are inherently dangerous." The defendant contends that this was

error, and that the jury should have been instructed to

determine whether the knife he had in his possession was

dangerous as used. He contends also that, even if a correct

instruction were given, there was insufficient evidence that the

knife was dangerous as used, and that a directed verdict on this

charge should have entered. We agree.

Conviction under the home invasion statute requires the

Commonwealth to prove the defendant entered the dwelling "while

armed with a dangerous weapon" and "use[d] force or threaten[ed]

the imminent use of force upon any person within such

dwelling[.]" See G. L. c. 265, § 18C. The "phrase 'dangerous

weapon' has a defined meaning under the common law that is

routinely applied to those statutory crimes that have a

dangerous weapon element." Commonwealth v. Wynton W., 459 Mass.

745, 749 (2011). See Commonwealth v. Mattei, 455 Mass. 840, 846

n.12 (2010) (applying common-law definition of dangerous weapon

to home invasion statute). Under this common-law definition, a

determination whether a weapon is "dangerous" is based on a

distinction between weapons that are dangerous per se and those

that are dangerous as used. See Commonwealth v. Appleby, 380

Mass. 296, 303 (1980). A weapon is "dangerous per se" if it is

an "instrumentality designed and constructed to produce death or

great bodily harm" and "for the purpose of bodily assault or
 25

defense." Weapons of this type include "firearms, daggers,

stilettos and brass knuckles" but not "pocket knives, razors,

hammers, wrenches and cutting tools" [quotations and citations

omitted]. Id.

On the record here, the evidence was insufficient for a

determination that the defendant's knife was dangerous per se.

The knife that the defendant had in his possession when he was

arrested was a three and one-half inch "folding" knife that was

on his person, but was not in his hand, when he was apprehended.

See id. ("pocket knives" are not dangerous per se). Such a

determination cannot be made absent "information regarding the

design, purpose, and construction of the knife." See

Commonwealth v. Wynton W., 459 Mass. at 755. The judge noted in

her decision on the defendant's motion for a new trial that the

requisite determination could not be made on this record. Thus,

the jury should have been instructed not that the knife was

inherently dangerous, but that they must determine whether it

was dangerous as used.17 See Commonwealth v. Delaney, 442 Mass.

604, 615 (2004) (because "[a] pocket knife of the type the

defendant described is not a dangerous weapon per se, as it is

not 'designed for the purpose of bodily assault or defense'"

17
The judge, however, declined to disturb the home invasion
conviction, concluding that there was sufficient evidence that
the knife was dangerous as used, such that a correct instruction
would not have led to a different result.
 26

[citation omitted], judge should have instructed jury to

determine whether knife was dangerous as used and not that it

was dangerous per se); Commonwealth v. Appleby, 380 Mass. at 303

(pocket knives not classified as dangerous per se).

Such an instruction, however, would not have obviated the

need to vacate the defendant's conviction of this charge, as the

evidence was also insufficient to support a finding that the

defendant's knife, which he had in his possession when he

entered his grandmother's house, was dangerous as used. The

evidence suggests only that the defendant used the knife to gain

entry to the house; there is no indication that he used it

thereafter. There was no evidence or argument that the victim

was stabbed, or that any item inside the house was cut or

slashed. In addition, while displaying the knife in a

threatening manner might have rendered it dangerous as used, the

Commonwealth adduced no evidence that such a display occurred.18

See Commonwealth v. Mattei, 455 Mass at 846 n.12 (whether weapon

is dangerous as used in home invasion depends on its "apparent

ability to inflict harm" and "whether the victim reasonably so

perceived it" [citation omitted]). Accordingly, the defendant's

conviction of armed home invasion must be vacated and set aside,

18
The argument that the defendant may have used the knife
to threaten the victim is speculative and not supported by any
evidence introduced at trial.
 27

and, on remand, a directed verdict in favor of the defendant

must be entered.19

d. Instruction on felony-murder. The defendant claims

also that the judge's instruction on felony-murder impermissibly

removed from the jury's consideration the critical factual issue

whether the intent to commit the predicate felony exhibited a

"conscious disregard" for human life. "[T]he felony-murder rule

is based on the theory that the intent to commit the felony is

equivalent to the malice aforethought required for murder." See

Commonwealth v. Matchett, 386 Mass. 492, 507 (1982).

Accordingly, "[f]or this theory to be tenable the nature of the

felony must be such that an intent to commit that crime exhibits

a conscious disregard for human life" [citation omitted] Id.

In instructing the jury on felony-murder, the judge said

that the Commonwealth must prove that the defendant killed the

victim in the course of committing a felony "inherently

dangerous to human life." She then instructed that, "as a

matter of law, the crime of home invasion with a dangerous

weapon and rape of a child by force are felonies which are

inherently dangerous to human life."

19
While armed home invasion was one of the predicate
felonies on which the conviction of felony-murder was based, we
need not reverse the felony-murder conviction, as the jury also
found that the defendant committed a second predicate felony,
viz., rape of a child by force. See note 23, infra.
 28

Contrary to the defendant's argument, this instruction was

in accordance with well-established case law. See Commonwealth

v. Wadlington, 467 Mass. 192, 208 (2014) (judge did not relieve

prosecution from its burden of proving "conscious disregard"

element of offense of felony-murder" because "[i]t is not the

province of the jury to determine whether a felony is inherently

dangerous" [citation omitted]); Commonwealth v. Scott, 428 Mass.

362, 364 (1998) (whether felony is inherently dangerous is "a

matter of law" to be decided by judge; where felony is

inherently dangerous, "[t]here is no need to show a 'conscious

disregard for human life because the risk is implicit in the

intent required for the felony'" [citation omitted]). See also

Commonwealth v. Matchett, 386 Mass. at 505 n.15 ("common law

felonies of arson, rape, burglary, and robbery" are "inherently

dangerous"). We decline the defendant's invitation to revisit

this issue.

e. Closing argument. i. Whether inferences were

permissible. In his closing, the prosecutor argued that the

defendant was not mentally ill, and that his actions reflected

calculated thinking by a "criminal mind." The prosecutor noted,

in particular, that the defendant had broken into his

grandmother's house with the intention of stealing her money and

her vehicle, and that he had been spotted by the victim. The

defendant then killed the victim to prevent her from revealing
 29

his presence, removed her body and clothing to conceal what had

happened, and went immediately to the convenience store to

establish an alibi. Once he had been caught by the canine

officer, the prosecutor asserted, the defendant contemplated

killing the police dog with his knife and, when that effort was

unsuccessful, feigned insanity. The prosecutor maintained also

that the defendant's hospitalizations were the result, not of

mental illness, but of "acting out" or "a substance abuse

problem." The prosecutor suggested that the defendant had

concocted the insanity defense because he knew that the evidence

against him was strong, and that he had no other viable defense.

The defendant objected to these factual assertions as lacking

support in the evidence. His objections were overruled. The

defendant raises the same arguments on appeal.

"A prosecutor must limit comment in closing statement to

the evidence and fair inferences that can be drawn from the

evidence. . . . Nonetheless, a prosecutor may argue zealously

in support of inferences favorable to the Commonwealth's case

that reasonably may be drawn from the evidence" [quotation and

citations omitted]. Commonwealth v. Carriere, 470 Mass. 1, 22

(2014). In determining whether impermissible statements in a

prosecutor's closing argument require reversal, "we consider (1)

whether the defendant seasonably objected; (2) whether the error

was limited to collateral issues or went to the heart of the
 30

case; (3) what specific or general instructions the judge gave

the jury which may have mitigated the mistake; and (4) whether

the error, in the circumstances, possibly made a difference in

the jury's conclusions." Commonwealth v. Kater, 432 Mass. 404,

422-23 (2000), quoting Commonwealth v. Kozec, 399 Mass. 514, 518

(1987).

Here, the challenged arguments were based largely on such

reasonable inferences. The assertion that the defendant broke

into his grandmother's home intending to steal her money and her

vehicle is supported by evidence that the defendant entered the

house by climbing on his grandmother's Explorer, and then

cutting through a window screen on a second-floor window, at

night and while the occupants were sleeping, and that he

actually stole these items, which were found in his possession

after the motor vehicle chase. See Commonwealth v. Maia, 429

Mass. 585, 587-588 (1999) ("intent to steal may be inferred

where a person enters a building by force at night").

The argument that the defendant was discovered by the

victim, somewhere in the house, is supported, in part, by

reasonable inferences that could be drawn from the evidence.

Although she slept in a room adjacent to the victim's and

separated from it only by a sliding glass door, the grandmother

was not aware, until hours later, that the defendant had been in

the house, or that the victim was missing. Both the victim's
 31

bedroom and the room where the grandmother was sleeping were at

the back of the house, while the defendant broke in through a

front window, and committed the rape in a front bedroom. Based

on this, the jury reasonably might have inferred that the

defendant encountered the victim not in her bedroom, but

elsewhere in the house.20

In any event, "the line separating speculation and

inference is often a fine one," and we "recognize that closing

argument is identified as argument," and that the jury

understand from the judge's instructions that closing arguments

are not evidence. See Commonwealth v. Bresilla, 470 Mass. 422,

437-438 (2015), quoting Commonwealth v. Kozec, 399 Mass. at 516.

Moreover, any impermissible inference in the prosecutor's

suggestion as to the defendant's motive for the killing could

not have resulted in prejudice to the defendant. The

defendant's motive was a collateral issue that the Commonwealth

was not required to prove. See Commonwealth v. Kozec, supra

at 518 (distinguishing "collateral" errors in prosecutor's

closing argument that did not go to "the heart of the case").

The jury also reasonably could have inferred that the

defendant's actions after the killing were a conscious attempt

to cover his tracks, demonstrating rational thought rather than

20
There was also evidence, however, that bloody pillows
were found in the victim's bedroom. There was no evidence whose
blood it was.
 32

insanity. That the defendant removed the victim's body and

clothing from the house could be viewed as an attempt to delay

discovery of the crime. Similarly, the defendant's visit to the

convenience store, where he walked around but did not buy

anything -- despite having just stolen cash from his

grandmother -- might suggest that he went to the store for some

purpose other than to shop, and that this purpose was to

establish an alibi. Such an inference could have been bolstered

by the defendant's question to Gandy, a few hours later, about

how he might dispose of a body. The high-speed police chase and

the defendant's flight on foot further support the inference,

suggested by the prosecutor, that the defendant was trying at

all costs to avoid capture and punishment. In addition, the

jury could have inferred that, when the defendant reached for

his knife after the officer turned his back, the defendant

intended to attack the police dog. The evidence also supported

an inference that, when the defendant realized escape was not

possible, he began "ranting and raving" to establish an insanity

defense. See Commonwealth v. McColl, 375 Mass. 316, 323 (1978)

(prosecutor allowed to argue "that the defendant was dissembling

in his claim of insanity").

Finally, based on the grandmother's testimony, the jury

reasonably could have adopted the prosecutor's suggestion that

the defendant's psychiatric hospitalizations were related to
 33

substance abuse rather than another mental illness. Several

witnesses testified that the defendant used marijuana or had

possessed cocaine. Thus, the prosecutor's argument "seems to

have been based properly on reasonable inferences that could

have been drawn from the evidence." Commonwealth v. Carriere,

470 Mass. at 22.

ii. Appeals to juror sympathy. In his closing, the

prosecutor asked the jury to recall that "one of the greatest

fears of little kids are monsters that come out in the night."

He said that, on the "night of August 4th, 2007, a monster came

in the night. A monster came into the life of [the victim], and

the monster looked like [the defendant]." The prosecutor

repeated this comment, almost verbatim, five times. At the end

of his closing, the prosecutor was crying. The defendant

objected to the display of emotion, and to the refrain regarding

monsters, as impermissible "appeal[s] to the sympathy of the

jurors." The judge overruled the objection.

Prosecutorial "appeals to sympathy . . . obscure the

clarity with which the jury would look at the evidence and

encourage the jury to find guilt even if the evidence does not

reach the level of proof beyond a reasonable doubt."

Commonwealth v. Santiago, 425 Mass. 491, 501 (1997), S.C., 427

Mass 298 and 428 Mass. 39 (1998). Here, the prosecutor's

display of emotion, and his characterization of the defendant as
 34

a monster, were "unprofessional," "wholly inappropriate[,] and

should not have occurred." Commonwealth v. Rosario, 430 Mass.

505, 515 (1999) (prosecutor "called the defendant a 'monster'").

Coming from a prosecutor who twice previously has been rebuked

by this court -- and reversed -- for similar types of

inappropriate argument, the remarks are particularly troubling.

See Commonwealth v. Lewis, 465 Mass. 119, 128, 133 (2013) (where

same prosecutor "unjustifiably demeaned the defense, the

defendant, and defense counsel in his closing argument," court

concluded that "prosecutor's argument was highly improper");

Commonwealth v. Williams, 450 Mass. 894, 902-907 (2008) (same

prosecutor improperly vouched for witness and "improperly urged

the jury to do something beyond impartial fact finding"). See

also Matter of Nelson, 25 Mass. Att'y Discipline Rep. 413, 413-

414 (2009) (public reprimand of prosecutor for argument in

Commonwealth v. Williams, supra).21

That being said, whether the argument requires reversal

depends not only on whether it was improper, which it plainly

was, but "whether the improper statements made by the prosecutor

21
We observed in Commonwealth v. Williams, 450 Mass. 894,
906 n.10 (2008), and reiterate here, that the prosecutor was "an
experienced member of the district attorney's staff. To say
that he knew or certainly should have known better than to offer
the wholly improper argument is a gross understatement." Here,
the "judge should have interrupted the prosecutor when he began"
making such inappropriate remarks, and should have provided a
"curative instruction." See id.
 35

'constituted prejudicial error.'" See Commonwealth v. Santiago,

425 Mass. at 500, quoting Commonwealth v. Daggett, 416 Mass.

347, 352 n.5 (1993). As the defendant notes, a timely objection

was lodged, and the argument "went to the heart of the case."

See Commonwealth v. Kater, 432 Mass. at 422. The assertion that

the defendant was a "monster" was, in context, an attempt to

convince the jury that the defendant was not mentally ill but,

rather, a calculating killer. Nevertheless, we are persuaded

that reversal is not required in the circumstances here.

First, the judge instructed the jury, both before and after

the closing arguments, that such arguments "are not evidence."

She also gave the standard instruction that the jury should "not

be swayed by prejudice, by bias, by sympathy or anger," and

should not "be influenced by any personal likes or dislikes that

[they] have come to feel toward any party." See id. (we examine

"what specific or general instructions the judge gave the jury

which may have mitigated the mistake"). See also Commonwealth

v. Camacho, 472 Mass. 587, 609 (2015) ("Although none of the

errors was addressed specifically, the judge instructed the jury

that closing arguments are not evidence and that the jury were

not to be swayed by emotion, sentiment, sympathy, or

prejudice").

Second, given the gruesome nature of the crime, it is

unlikely that the prosecutor's argument had an inflammatory
 36

effect on the jury beyond that which naturally would result from

the evidence presented. See Commonwealth v. Kater, 432 Mass. at

423 ("a certain level of emotion on the part of the jurors could

be expected from this type of trial"). In addition, it is clear

that the jury did not blindly accept the prosecutor's arguments,

as they rejected the Commonwealth's theory that the defendant

had committed the killing with deliberate premeditation,

acquitted him of drug possession and driving without a valid

license, and convicted him of a lesser included offense on the

larceny charge. These "verdicts show that the jury were able to

distinguish wheat from chaff. We ordinarily assume that jurors

are reasonably sophisticated and capable of sorting out

hyperbole and speculation. . . . The verdicts bear out this

assumption."22 Commonwealth v. McLaughlin, 431 Mass. 506, 510-

512 (2000) (reversal not required although prosecutor "erred

egregiously," where defendant claimed lack of criminal

responsibility, by telling jury "to ignore the question of

[defendant's] mental condition").

f. Review under G. L. c. 278, § 33E. We address two

additional issues in conjunction with our review under G. L.

c. 278, § 33E.

22
The jury also sent a note to the judge asking whether
"each charge [is] to be considered independent of other charges
regarding the defendant's sanity." This suggests that, the
prosecutor's inflammatory remarks notwithstanding, the jury
properly considered the defendant's insanity defense.
 37

i. Request for reduction of verdict to murder in the

second degree. Analogizing the facts of this case to those in

Commonwealth v. Colleran, 452 Mass. 417, 422, 430-434 (2008),

the defendant asks us to reduce his conviction to murder in the

second degree. In that case, we reduced the degree of guilt to

murder in the second degree where, suffering from psychotic

depression, the defendant strangled her child, because her

"conduct, although culpable, was very much driven by her mental

condition." Id. at 434. The evidence that the killing was

"driven by [the defendant's] mental condition" in that case,

however, was strong. See id. The defendant there presented

unrebutted expert testimony that she "lacked substantial

capacity to conform her conduct to the requirements of the law

due to a serious mental illness." See id. at 422. Here, by

contrast, there was no expert testimony that the defendant's

actions were the product of a mental illness, and the

Commonwealth's evidence that the defendant did not lack criminal

responsibility was strong.

In this case, we discern no reason to exercise our power

under G. L. c. 278, § 33E, to modify the jury's verdict.

ii. Lack of statistical context for DNA evidence. We note

one other point not raised by the defendant. The Commonwealth

presented testimony from a laboratory technician that DNA

samples recovered from sperm on the victim's body "matched the
 38

DNA profile from [the defendant] and his paternal relatives."

Such testimony should not have been admitted "without

accompanying testimony explaining the statistical relevance of

those . . . results." See Commonwealth v. Mattei, 455 Mass. at

846. This error did not give rise, however, to a substantial

likelihood of a miscarriage of justice, as the factual

proposition for which the evidence was admitted -- that the

defendant raped the victim -- was undisputed. Moreover, the

technician's testimony was cumulative of other evidence that the

victim was raped by the defendant. See Commonwealth v. Linton,

456 Mass. 534, 560 (2010) ("Considering the limited probative

value of the DNA evidence when considered in the context of the

evidence as a whole, we are satisfied that admission of

the . . . evidence without qualifying statistical measures . . .

did not result in a substantial likelihood of a miscarriage of

justice").

3. Conclusion. The conviction of home invasion is vacated

and set aside, and a required finding of not guilty shall be

entered on that charge. The convictions of murder in the first

degree, and of the remaining charges, are affirmed.23

So ordered.

23
Because the defendant was convicted of murder on theories
of felony–murder and extreme atrocity or cruelty, the judgment
on the indictment charging aggravated rape is not duplicative.
See Commonwealth v. Bizanowicz, 459 Mass. 400, 421 (2011),
citing Commonwealth v. Felder, 455 Mass. 359, 370–371 (2009).