Com. v. Berry

• Citation: 648 N.E.2d 732,420 Mass. 95
• Parties: COMMONWEALTH v. Christopher BERRY.
• Decision Date: 14 April 1995
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 732

648 N.E.2d 732

420 Mass. 95

COMMONWEALTH v. Christopher BERRY.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Dec. 6, 1994.

Decided April 14, 1995.

Elizabeth A. Lunt, Boston, for defendant.

Robert J. Bender, Asst. Dist. Atty. (Gerald P. Shea, Asst. Dist. Atty., with him) for Com.

Kenneth J. Fishman, Boston, for Mass. Ass'n of Crim. Defense Lawyers, amicus curiae, submitted a brief.

Before WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

A jury convicted the defendant of murder in the first degree and burglary with actual assault, for which he received concurrent life sentences. ¹ On appeal, the defendant challenges (1) the denial of his motion to dismiss, on the ground that the evidence did not support the District Court's transfer order; (2) the denial of his motion to suppress cigarettes and matches as evidence; (3) the admission of certain allegedly inflammatory evidence; (4) the submission of the case to the jury on the theory of felony-murder; (5) the trial judge's refusal to instruct the jury that they must agree unanimously on the theory of culpability in order to convict the defendant of murder in the first degree; (6) the judge's instructions to the jury regarding the effects of the consumption of alcohol and other drugs on the defendant's mental state. The defendant also claims that we should exercise our power under G.L. c. 278, § 33E (1992 ed.), to reduce the murder verdict to a lesser degree of guilt or to order a new trial. We vacate both the conviction and the sentence on the conviction of burglary with actual assault. We affirm, however, the murder conviction and conclude that there is no reason to exercise our power under G.L. c. 278, § 33E.

The jury could have found the following facts. On December 26, 1987, the defendant hosted a small gathering of his friends at the Saugus apartment that he shared with his father and sister. The defendant's father had gone out for the evening. Along with several of his friends, the defendant was drinking beer. In addition, the defendant was smoking marihuana and was ingesting both Xanax and mescaline. The party lasted for several hours until approximately 11 P.M. when the defendant and his friends left the apartment. Soon thereafter, the defendant's father returned to the apartment. When the defendant returned alone at midnight, he proceeded to argue with his father regarding the defendant's drug and alcohol abuse. The argument escalated into a physical altercation and the defendant's father ordered him to leave. The defendant, however, refused. Eventually, the defendant's father physically removed him from the apartment.

The defendant then walked across the street from his own apartment to the victim's home. The victim was an eighty-seven year old widow who lived alone. The defendant had the intention of breaking into the victim's home in order to steal some items and money. The defendant gained entry into the victim's home by breaking a window at the rear of the house. The defendant first went into the kitchen where he ate a piece of pie, drank some vodka, and ripped a telephone from the wall. The defendant also smoked several filtered Camel brand cigarettes, discarding the cigarette butts and matches on the floor. He then climbed the stairs to the second floor and entered the victim's bedroom. Seeing the victim lying in her bed, he began to stab her with a butcher knife. The defendant stabbed the victim eight times in her head, chest, abdomen, upper arms, and hands. During the course of the attack, the defendant perforated the victim's bedspread, blanket, top sheet, and nightgown. After he had finished stabbing the victim, the defendant smoked another cigarette and extinguished it on the victim's forehead.

The defendant then gathered several items from the victim's home. Among other things, the defendant stole a small television set, a pair of binoculars, an alarm clock, and two bottles of prescription drugs. The defendant secreted these items to a wooded area across the street from the victim's house. The defendant then returned home.

When he arrived at his apartment at approximately 2 A.M. on December 27, the defendant and his father resumed arguing. The defendant's father summoned the Saugus police department and requested that they take his son into protective custody. After several minutes' discussion between several Saugus police officers and the defendant's father, the defendant voluntarily agreed to spend the night at the police station. At the time the defendant arrived at the police station, the police officers were unaware that the victim had been killed and that the defendant had killed her. Later that morning, however, the victim's son-in-law alerted the police that the victim had been killed. Based on information that they had gathered both at the crime scene and at the police station, the police arrested the defendant on a juvenile complaint at the Saugus police station early on the afternoon of December 27.

Subsequently, in 1988, a judge of the juvenile session of the Lynn Division of the District Court Department conducted a transfer hearing pursuant to G.L. c. 119, § 61 (1988 ed.). After the hearing, the judge dismissed the juvenile complaint. Criminal complaints were issued against the defendant charging: (1) murder, and (2) breaking and entering with the intent to commit a felony. An Essex County grand jury subsequently indicted the defendant for murder in the first degree and actual assault committed in the course of burglary. A judge in the Superior Court denied the defendant's motion to dismiss based on alleged errors in the transfer hearing. ² The defendant then filed a motion to suppress physical evidence. A judge in the Superior Court denied that motion without a hearing. The defendant then filed a motion to reconsider. Before the jury were sworn, the trial judge conducted an evidentiary hearing and denied the motion. A jury convicted the defendant on both the murder charge and the burglarious assault charge.

1. Propriety of the transfer. The defendant argues that the evidence presented at the transfer hearing did not support the District Court judge's conclusion that the defendant presented a significant danger to the public and was not amenable to rehabilitation as a juvenile. The defendant claims that transfer of his case was improper under the standards of G.L. c. 119, § 61, and our case law. There was no error.

General Laws c. 119, § 61, sets forth the requirements governing a transfer hearing. At the hearing, the judge must determine that probable cause exists to believe that the child has committed the offense before addressing the transfer issue. G.L. c. 119, § 61. The judge then must enter written findings, based on clear and convincing evidence, that: (1) "the child presents a significant danger to the public as demonstrated by the nature of the offense charged and the child's past record of delinquent behavior, if any" and that (2) the child "is not amenable to rehabilitation as ajuvenile." ³ G.L. c. 119, § 61. See Ward v. Commonwealth, 407 Mass. 434, 437, 554 N.E.2d 25 (1990). "The judge must consider, but shall not be limited to, evidence of the following factors: '(a) the seriousness of the alleged offense; (b) the child's family, school and social history, including his court and juvenile delinquency record, if any; (c) adequate protection of the public; (d) the nature of any past treatment efforts for the child; and (e) the likelihood of rehabilitation of the child.' " Id.

"We have stated that '[a] judge who makes the two written findings required by G.L. c. 119, § 61, must also make subsidiary findings indicating the basis for his conclusions concerning the two statutorily required findings. A Juvenile v. Commonwealth, 370 Mass. 272, 282 (1976). These subsidiary findings may show consideration of the five enumerated statutory factors and the factors identified in our guidelines, id. at 282 n. 14, although any single factor will rarely, if ever, be controlling. ⁴ Cf. A Juvenile v. Commonwealth, 370 Mass. 272, 282 (1976).' " Ward v. Commonwealth, supra, quoting Two Juveniles v. Commonwealth, 381 Mass. 736, 741, 412 N.E.2d 344 (1980). The judge, however, does not have to make written findings regarding each factor. Ward v. Commonwealth, supra, 407 Mass. at 437-438, 554 N.E.2d 25, citing Two Juveniles v. Commonwealth, supra. Instead, we have concluded that "a judge has considerable discretion, within this statutory framework, to determine whether a child should be treated as an adult." Commonwealth v. Matthews, 406 Mass. 380, 383, 548 N.E.2d 843 (1990), quoting A Juvenile v. Commonwealth, 370 Mass. at 282, 347 N.E.2d 677. Despite this discretion, however, a "[s]erious deficiency in the [judge's] subsidiary findings ... count[s] as a faulty step in the process of transfer...." A Juvenile v. Commonwealth (No. 1), 380 Mass. 552, 558, 405 N.E.2d 143 (1980).

In the present case, the judge made extensive findings of fact following a hearing. In addition, the judge thoroughly considered each statutory factor listed in G.L. c. 119, § 61. Finally, each of the judge's findings and conclusions has a basis in the record. We conclude, therefore, that the judge adhered to the guidelines set forth in our cases and satisfied the statutory requirements necessary for a transfer. The defendant argues, however, that there were serious deficiencies in the judge's subsidiary findings which constituted a faulty step in the process of transfer. See id.

A. The defendant's behavioral history. The defendant claims that the evidence did not support the judge's finding that he had an aggressive, antisocial, and delinquent behavioral history. We disagree. One psychiatrist testified that the defendant had exhibited "a relatively [ingrained] pattern of behavior" and that he had "chronic behavior pattern" with "poor social functioning"; and "truancy, substance abuse and anti-social...