438 Mass. 498 (2003), SJC-07317, Commonwealth v. Boateng

Docket Nº:SJC-07317.
Citation:438 Mass. 498, 781 N.E.2d 1207
Case Date:January 21, 2003
Court:Supreme Judicial Court of Massachusetts

Page 498

438 Mass. 498 (2003)

781 N.E.2d 1207




No. SJC-07317.

Supreme Judicial court of Massachusetts, Worcester.

January 21, 2003.

October 11, 2002.

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[Copyrighted Material Omitted]

Page 500

INDICTMENTS found and returned in the Superior Court Department on December 9, 1992. The cases were tried before Herbert F. Travers, Jr., J., and a motion for a new trial, filed on December 7, 1998, was heard by Daniel F. Toomey, J.

Kenneth G. Littman for the defendant.

Anne S. Kennedy, Assistant District Attorney, for the Commonwealth.

Present: Marshall, C.J., Greaney, Cowin, Sosman, & Cordy, JJ.


In this opinion we affirm the convictions of the defendant, Henry K. Boateng, on charges of murder in the first degree, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and assault and battery. We reverse the conviction of armed assault with intent to murder. After conducting our own review of the evidence and proceedings pursuant to G.L. c. 278, § 33E, we find no basis to grant further relief.

1. Background.

We recite the facts as the jury could have found them. Boateng and Alecia Moore (Moore) met in Worcester in June, 1991, and began to date. In January, 1992, Boateng briefly moved to Amherst to attend classes at the University of Massachusetts, but soon moved back to Worcester. At about the same time Moore told him that she was pregnant with his child. In the fall of 1992, Moore moved into an apartment and Boateng came to live with her soon thereafter. A week later, their son, Jameel, was born.

As a condition of Boateng's moving in with Moore, she had required him to find a job or go back to school. He was unable to hold steady employment, however, and on both the night of October 24 and the morning of October 25, 1992, she told him that he would have to move out of the apartment.

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The discussion on October 25 occurred in Boateng's bedroom, which was down the hall from where Moore and five week old Jameel slept. As Moore left the room following the conversation, Boateng sprang up, threw Moore to the floor, and yelled, "I'm going to kill you!" as he strangled, hit, and kicked her. Although Moore's memory of the succeeding events was not precise, she testified that over the next two hours Boateng administered a long series of assaults on her, including some with a stick. At some point during this assault, Boateng stated that "I'm going to get the baby," and retrieved Jameel from his crib. He threw Jameel onto the floor and began to kick and strangle Jameel, kicking Moore in the face when she tried to stop him. He then took the baby and put it back in its crib. Jameel died as the result of the injuries suffered in this assault.

Moore managed to crawl to her room and lie on the bed. While she was still lying down, Boateng produced a knife and held it over Jameel in his crib. He then briefly did the same to Moore. Eventually the telephone rang, and Boateng spoke with Moore's mother, who wanted to speak to Moore. Boateng told her that Moore was out doing laundry; he then hung up and ripped the telephone cord out of the wall. As Moore had just been to her house the day before to do laundry, her mother's suspicions were raised and she and her other daughter drove to Moore's apartment to investigate. When no one answered at the door, she contacted the police. She and her daughter also yelled for Moore from outside the house. When Boateng heard them, he became disconsolate, went into the bathroom and drank from a container of bleach, saying that he would not go to jail. He did manage, however, to prevent Moore from going downstairs to reach her mother and sister.

The police soon arrived. Moore was taken to a hospital while a detective read Boateng the Miranda warnings and questioned him about what had happened. Boateng responded that he and Moore had gotten into a fight.

At trial, Boateng's defense was based on insanity. Boateng presented evidence to show that, periodically since 1988, he had been receiving treatment for a psychiatric disorder that had at different times been diagnosed as dysthymia, or mild depression; major depression; major depression with psychotic features

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and schizoaffective disorder; that he had been prescribed and had taken antidepressant and antipsychotic drugs that had had varying effects on his mood and thought processes but that had often controlled his psychosis; and that the combination of medications and illness had prevented him from being able to maintain a job or receive a higher education.

Dr. David Rosemarin, a psychiatrist, was called as a defense witness. He testified that on the day in question Boateng was likely in the grip of psychosis, feeling under the control of a spirit and hearing voices mocking him and telling him to kill himself. Rosemarin related that Boateng had told him that after he assaulted Moore but before attacking Jameel, he had responded to these voices by mixing all of his antidepressant and antipsychotic medication and taking it in one dose. While Rosemarin could come to no conclusion regarding Boateng's state of mind during his attack on Moore, it was his opinion that Boateng had suffered a hallucination causing him to believe that Jameel was some sort of evil creature or cat who would kill him if he did not kill it first. It was Rosemarin's further opinion that Boateng was not criminally responsible within the meaning of Commonwealth v. McHoul, 352 Mass. 544, 546 (1967).

The Commonwealth called as its expert Dr. Marc Whaley, who acknowledged that Boateng suffered from major depression with possible psychotic features and that antipsychotic drugs had helped him to function. Nevertheless, Whaley opined that Boateng's actions on October 25, 1992, displayed a rationality that belied any claim of actual insanity, and concluded that Boateng had sufficient mental capacity to be criminally responsible for his actions on that date.

The jury convicted Boateng of the murder of Jameel with extreme atrocity or cruelty.1 For the attack on Moore, they convicted him of armed assault with intent to murder, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and assault and battery. Boateng appealed and subsequently filed a motion for a new trial based on ineffective assistance of counsel. The appeal was stayed pending

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the outcome of the motion. The motion judge, who was not the trial judge, conducted an evidentiary hearing at which Boateng's new counsel called three new expert witnesses. Boateng claimed that these witnesses, if they had been called to testify at trial, would have presented a stronger case for insanity and that trial counsel's failure to call them was manifestly unreasonable, constituting ineffective assistance of counsel. Boateng's trial counsel also testified at the hearing and defended his trial tactics and strategy.

The motion judge concluded that trial counsel's conduct had not fallen below the standard of an ordinary fallible lawyer and denied Boateng's motion for a new trial. Boateng appealed from that denial, and we consolidated that appeal with his direct appeal. We consider first Boateng's claims of error at trial, and then his claim of ineffective assistance of counsel.

2. Claims of Error at Trial.

a. Failure to hold a contemporaneous competency hearing.

Boateng's first claim of error is that the judge should have conducted a competency hearing on the day the trial was to start to ensure that he was competent to stand trial. Although a hearing had been conducted one week before trial, at which Boateng had been found competent, he claims that his long history of severe mental illness mandated a renewed hearing. While the judge is sometimes required to conduct a sua sponte inquiry into a defendant's competence, see Commonwealth v. Hill, 375 Mass. 50, 54 (1978), that requirement arises only if there exists a "substantial question of possible doubt" as to that competence. Id., quoting Rhay v. White, 385 F.2d 883, 886 (9th Cir.1967). On the first day of trial, trial counsel withdrew his previously filed motion for a competency hearing as moot, and informed the judge that nothing had occurred within the past week to warrant a new inquiry. In these circumstances there was no substantial question that required the judge's sua sponte action.2

b. Failure to conduct a hearing on voluntariness.

Boateng claims that the judge erred in failing to hold a hearing and make a determination as to whether his statements on the day of the murder, including his statements to Moore, Moore's mother,

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and the police, were voluntary. He points out that a judge is required, sua sponte, to conduct a hearing regarding the voluntariness of statements made by a defendant when voluntariness is at issue, see, e.g., Commonwealth v. Crawford, 429 Mass. 60, 65 (1999), and that a defense of insanity, by raising questions about the defendant's state of mind, always makes voluntariness an issue in the case. See Commonwealth v. Vazquez, 387 Mass. 96, 99 (1982), quoting Commonwealth v. Chung, 378 Mass. 451, 457 (1979) ("if the defendant comes forward with evidence of insanity at the time of his [statements], the judge is obliged initially to determine whether the statements were the 'product of a rational intellect as part of the issue of voluntariness' ").

We first note that Boateng has offered no authority for the proposition that statements made to Moore and her mother during the extended assault on Moore and Jameel enjoy the benefit of a voluntariness analysis.3 We similarly find no authority for such a conclusion. Voluntariness hearings are usually conducted to determine whether...

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