Opinion
23-P-1052
08-21-2024
COMMONWEALT v. ADAM LEVESQUE.
Eva G. Jellison for the defendant. Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.
Heard: June 10, 2024
Indictments found and returned in the Superior Court Department on January 25, 2019. The cases were tried before William M. White, Jr., J.
Eva G. Jellison for the defendant.
Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Vuono, & Massing, JJ.
GREEN, C.J.
Following a night of shared heroin use, and a dispute over a quantity of missing heroin from the defendant's "stash," the victim, Lance Correia, died as the result of blunt force trauma injuries to his head. A jury in the Superior Court in Bristol County convicted the defendant of murder in the second degree. On appeal, the defendant assigns error, among other things, to the exclusion by the judge of the victim's statement to a first responder about how he had sustained his injuries. The defendant further contends that the judge should have instructed the jury on the lesser included offense of manslaughter. We agree that, viewed in the light most favorable to the defendant, the evidence supported the requested instruction on manslaughter. We accordingly vacate the conviction.
The defendant was found not guilty of armed robbery.
Background.
We summarize the evidence adduced at trial, reserving detailed discussion of certain factual questions for our discussion of the defendant's claims of error.
In addition to testimony of the responding police officers, and of medical experts, the evidence included testimony by the defendant's girlfriend (who was initially charged in connection with the victim's death and testified under a grant of immunity), and video surveillance footage depicting activity outside the girlfriend's apartment.
In October 2018, the defendant was dating a childhood friend. The victim and the defendant also had been friends since childhood. On the evening of October 9, 2018, the defendant and the victim went to the defendant's girlfriend's apartment. During the course of the evening, all three injected heroin that the defendant had brought. At some point the defendant realized that the remainder of his heroin was missing and announced that he wanted it returned. For the next two hours, often in an agitated state, the defendant and the victim searched the apartment for the missing heroin. During the course of their search, the two men flipped the bed, which had a metal bedframe, up against the wall. The defendant then made a telephone call, and another man arrived at the apartment. The defendant and the other man discussed the missing heroin, and then proceeded to search the girlfriend and the victim by making them pull their shirts up and their pants down. The defendant also searched his girlfriend's vaginal cavity.
The defendant began arguing with the victim about the missing drugs. The victim was standing next to the upturned bed; the defendant's girlfriend was behind the mattress. The girlfriend heard a "thump," "[l]ike someone hit their head," and then a fall. When she came around to the front of the mattress, she observed the victim on the ground, "bleeding heavily," and the defendant holding a hammer in his hand. The defendant said to her, "You can get it too, bitch." The girlfriend stepped over the victim and left the room. At 11:38 ]?.M., the defendant called 911 to request an ambulance for the victim. The defendant and his girlfriend then left the apartment and went to the defendant's uncle's house. They got high and left in the morning, then traveled to Taunton and then to Boston to buy drugs. They then went to New York, where they stayed for about two weeks; while there, the defendant called the victim's mother repeatedly to check on his condition.
The third man, who had arrived at the apartment following a telephone call made by the defendant and assisted the defendant in the search for drugs, left shortly after the defendant and his girlfriend.
Meanwhile, after everyone else had left the apartment, the victim walked out into the hallway and then back into the apartment. Officer Brendan McNerney of the Fall River police department arrived at the apartment around 11:43 P_.M. He found the victim pacing in the apartment. McNerney applied pressure to the wound on the victim's head. The victim was disoriented. Paramedics arrived and began administering treatment; McNerney handcuffed the victim because he was pulling at the cervical collar the paramedics had applied. The victim was able to walk independently, accompanied by police and paramedics, out of the apartment and downstairs to the ambulance. Once in the ambulance, the victim confirmed his name when asked. The victim became more disoriented and combative while in the ambulance. Medical personnel administered Narcan because they were unsure whether his condition was related to drug use or his head injury. While in transit to the hospital, the victim had a seizure.
As noted in our introduction, and discussed in detail below, the judge excluded the victim's response when McNerney asked how he had sustained his injury.
During treatment for his injuries at a hospital in Rhode Island, doctors removed the damaged part of the victim's skull to relieve pressure on his brain. Despite a number of medical procedures, the victim never regained consciousness after the surgery, and he died on November 9, 2018.
An autopsy revealed that the victim died from blunt force trauma to his head. It was not possible to determine the shape of the blunt object that struck the victim's head, because the portion of the skull at the point of impact had been removed. Expert testimony suggested that the injury was the result of "quite a bit of force," and that the injuries were consistent with being struck by a hammer, but that the injuries could have been caused by another instrument or another blunt object.
Discussion.
1. Lesser included offense instruction.
The defendant contends that the judge erred in denying his request to instruct the jury on the lesser included offense of manslaughter. "A manslaughter instruction is required if the evidence, considered in the light most favorable to a defendant, would permit a verdict of manslaughter and not murder." Commonwealth v. Pina, 481 Mass. 413, 422 (2019) . "Involuntary manslaughter is an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct." Commonwealth v. Vanderpool, 367 Mass. 743, 747 (1975). "Voluntary manslaughter is an unlawful killing 'arising not from malice, but "from . . . sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense"'" (citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006).
As both the Commonwealth and the defendant observe, the judge misspoke in commenting that he considered the defendant's request on the basis of the evidence in the light most favorable to the Commonwealth. Neither party appeared to notice the misstatement at trial, and it appears to have been a mere slip of the tongue. In any event, the misstatement has no bearing on our evaluation of the question whether the instruction was warranted.
In his brief on appeal, the defendant primarily argues that the judge should have instructed the jury on involuntary manslaughter. However, he also argues that the evidence alternatively supported an instruction on voluntary manslaughter. The discussion between the parties and the judge at the charge conference focused on an instruction for "manslaughter," without differentiating between voluntary or involuntary manslaughter.
The evidence established that the victim died as the result of blunt force trauma to his head. The evidence was inconclusive, however, regarding the source of the blunt force, the nature of the object that caused the injury, or the manner in which any such object came into contact with the victim's head. No one (other than the defendant, who did not testify, as was his right) observed the impact. The Commonwealth contended, and the judge appears to have agreed, that it was speculative to suggest that the victim's injury was caused by anything other than the defendant striking the victim with the hammer. To the contrary, in the absence of direct eyewitness testimony or more specific forensic evidence concerning the injuries sustained by the victim, any conclusion by the jury about the precise nature of how the injury occurred necessarily rested on inferences from the evidence presented about the circumstances surrounding the encounter. The defendant's girlfriend did not see what happened. She heard the defendant and victim arguing about the missing drugs and then heard a "thump," followed by a fall. The bed, with its metal frame and protruding metal legs, was upturned and against the wall. Both the defendant and the victim were high on heroin. The medical examiner testified that the injuries could have been caused by any blunt object. Viewed in the light most favorable to the defendant, a rational jury could have inferred that the defendant pushed the victim into the bedframe during a physical altercation over the missing drugs, which the jury could consider to be a battery that endangered human life, and wanton and reckless conduct that, in the circumstances, created a high degree of likelihood that substantial harm would result. See Commonwealth v. Simpson, 434 Mass. 570, 590 (2001). Cf. Commonwealth v. Fahey, 99 Mass.App.Ct. 304, 314 (2021) (though evidence that defendant punched victim causing him to fall to floor was overwhelming, proof that defendant stomped victim's head "was critical for demonstrating that the defendant acted with the requisite malice to support a conviction of murder in the second degree"). The evidence was sufficient to support instruction on manslaughter, and it was reversible error not to give it.
As the defendant observes, the defendant, who had spent the preceding day working at his construction job, had been holding the hammer for much of the evening before the incident, including the period before the drugs were discovered missing.
Support for such a scenario would have been even stronger if the evidence of the victim's spontaneous response "bedframe," to McNerney's question about how he had been injured, which we discuss below, had been admitted.
2. Other issues.
We address two other claims raised by the defendant, as they are likely to recur in the event of a retrial.
The defendant's other claims of error largely concern matters that are unlikely to recur in any retrial, including (1) abuse of discretion in refusing to allow impeachment of the defendant's girlfriend by certain extrinsic evidence; (2) late disclosure of captions added to video footage utilized by the Commonwealth as a chalk; (3) prejudice from the captions on the video footage used as a chalk; (4) admission (without objection) of graphic photographs of the victim's injuries and the scene of the incident; and (5) improper closing argument.
a. Spontaneous utterance.
Prior to trial, the defendant moved in limine to admit as a spontaneous utterance a statement of the victim, made in response to a question by McNerney on his arrival at the apartment. Specifically, in response to McNerney's question about how he had been injured, the victim responded "bedframe." The judge excluded the statement, but allowed McNerney to testify that, while he was attending to the victim, the victim "had mumbled something about a backpack and about a bedframe but nothing that identified anybody or really what had happened to [him]." The judge limited the jurors' consideration of those statements to "the level of coherence that [the victim] had at the time."
The judge later allowed defense counsel to elicit from McNerney testimony that he had asked the victim how he sustained his injury, and that the victim responded, but did not allow counsel to elicit what the victim said in response.
"In reviewing whether an out-of-court statement comes within [the spontaneous utterance] exception [to the rule against hearsay], courts consider 'whether there was an exciting event that would give rise to the exception,' and then 'whether the declarant displayed a degree of excitement sufficient to conclude that [the] statement was a spontaneous reaction to the exciting event, rather than the product of reflective thought.'"Commonwealth v. Brum, 492 Mass. 581, 595 (2023), quoting Commonwealth v. Santiago, 437 Mass. 620 624-625 (2002). A serious physical injury qualifies as an exciting event. See Brum, supra. See also generally Mass. G. Evid. § 803(2) (2022). We review the judge's evidentiary ruling for abuse of discretion. See Commonwealth v. Brea, 488 Mass. 150, 159 (2021) .
On appeal, the Commonwealth does not contend that the foundational requisites for the spontaneous utterance exception were not met; instead, it asserts that the victim's statement was inadmissible because the victim was incompetent (by virtue of his severe head injuries) at the time he made the statement.The Commonwealth did not raise that argument at the hearing on the motion in limine, and nothing in the judge's ruling suggests that he excluded the statement on that basis. In any event, the authorities cited by the Commonwealth do not support its argument. While it is of course true, as the Commonwealth observes, that for a spontaneous utterance to be admissible "[a]s with any other witness, the declarant . . . must be competent," Commonwealth v. King, 436 Mass. 252, 255 (2002), "[t]he bar for competency that has been set [even for a witness at trial] is not a high one. '[U]nder the modern trend, a judge may accept as competent for testimony a witness whose reliability is, in her judgment, at most, marginally sufficient.'" Commonwealth v. Tang, 66 Mass.App.Ct. 53, 63 (2006), quoting Demoulas v. Demoulas, 428 Mass. 555, 564 (1998), Spontaneous utterances have been ruled admissible in several cases involving declarants suffering from severe head injuries. See Commonwealth v. Don, 483 Mass. 697, 707 (2019) (victim's answer to "Who shot you?" admitted despite officer's testimony that victim, who had been shot in head, "was not responding appropriately to many of his questions"); Commonwealth v. Harrison, 100 Mass.App.Ct. 376, 390 (2021) (excited utterance admissible from victim with heavily bleeding gunshot wound to head who appeared dazed); Commonwealth v. Napolitano, 42 Mass.App.Ct. 549, 553 (1997) (victim's head was hit onto rock and was bleeding; statements made while victim visibly injured and hysterical were admissible). "[I]t is the circumstances of the excited utterance that confer the requisite reliability," and questions such as those raised by the Commonwealth generally go to the weight rather than the admissibility of the evidence. King, supra at 256. Rather than excluding testimony in such circumstances, "[i]t is the tendency ... to let the witness testify and have the trier of fact 'make any proper discount for the quality of the understanding of the witness" (citation omitted). Commonwealth v. Doucette, 22 Mass.App.Ct. 659, 661 (1986), S.C., 400 Mass. 1005 (1987) .
We note that McNerney was allowed to testify that the victim identified himself as "Lance Correia" while in the ambulance, in response to McNerney's question. McNerney previously had determined the victim's identity based on tattoos he observed on the victim's arms.
Indeed, Tang, 66 Mass.App.Ct. at 65, quotes 2 McCormick on Evidence § 272, at 209-210 (J.W. Strong ed., 5th ed. 1999), in observing that
"[o]n the theory that there is a countervailing assurance of reliability in the excitement of the event, the other aspects of competency are not applied. Thus, an excited utterance is admissible despite the fact that the declarant was a child and would have been incompetent as a witness for that reason, or the declarant was incompetent by virtue of mental illness."
It is unclear from the record whether defense counsel made a proffer describing the proposed evidence with particularity, or whether they addressed with particularity the factors supporting its admission, nor does it appear that the defendant requested a voir dire. We trust that thorough presentation and consideration of the question will accompany any request at a retrial for admission of the statement.
b. Prosecutor's use of a video compilation as a chalk.
The defendant also claims error in the Commonwealth's use of a video compilation during presentation of its case. "As a general matter, a compilation of video or other evidence summarizing voluminous materials for convenient review by the jury is permissible, subject to the sound discretion of the trial judge. Annotations or captions appearing on any such compilation must be neutral." (Citations omitted.) Commonwealth v. Francis, 104 Mass.App.Ct. ____, ____ (2024). "Even where a chalk is overstated or even inaccurate, a judge has discretion to permit its use where the other party can effectively bring out any problems with the chalk in cross-examination." Commonwealth v. Lavin, 101 Mass.App.Ct. 278, 296-297 (2022). We discern no abuse of discretion in the judge's allowance of the use of the chalk in the present case. The defendant had ample opportunity to highlight any claimed inaccuracies in the captions, or to propose interpretations other than those expressed or implied by the captions applied by the Commonwealth. Defense counsel reviewed the video compilation with his own expert, and he was able to cross-examine the Commonwealth's expert who had created it. He also argued against the Commonwealth's interpretations in his closing argument.
Conclusion.
The judgment is vacated, and the verdict is set aside.
So ordered.