Com. v. Burgess

• Decision Date: 11 January 2008
• Docket Number: SJC-09473.
• Citation: 450 Mass. 422,879 N.E.2d 63
• Parties: COMMONWEALTH v. Steven J. BURGESS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

879 N.E.2d 63

450 Mass. 422

COMMONWEALTH v. Steven J. BURGESS.

SJC-09473.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued November 9, 2007.

Decided January 11, 2008.

Kathleen M. McCarthy, Boston, for the defendant.

Robert J. Bender, Special Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & CORDY, JJ.

COWIN, J.

The defendant, Steven Burgess, was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity and cruelty. He was also convicted of violation of a protective order. The defendant appeals from his convictions. He raises several issues concerning two sets of statements made by the victim to police. He alleges that (1) these statements were "testimonial" and thus rendered inadmissible by the confrontation clause of the Sixth Amendment to the United States Constitution¹; (2) one set of the statements was admitted improperly in violation of the rule against hearsay; (3) the judge's failure to instruct regarding the victim's statements created a substantial likelihood of a miscarriage of justice; and (4) trial counsel's failure to request a limiting instruction regarding the statements deprived the defendant of his right to effective assistance of counsel. The defendant maintains also that the Commonwealth's hypothetical questions to expert witnesses improperly invaded the jury's role in assessing the evidence, and that the judge erred by denying defense counsel's request for jury instructions on voluntary manslaughter and on involuntary manslaughter. Finally, the defendant urges that, if the conviction for murder in the first degree is not reversed, we should exercise our extraordinary power under G.L. c. 278, § 33E, to order a new trial or direct the entry of a verdict of a lesser degree of guilt. We affirm the convictions, and we see no basis for exercising our power under G.L. c. 278, § 33E.

Facts and background. We recite the facts the jury could have found, reserving further details for discussion in conjunction with the specific issues raised. In the early morning of May 1, 2000, the defendant walked into the Plymouth police station and reported that he had stabbed his father during a fight the previous night, and that his father was dead. Police officers were dispatched to the house that the defendant shared with his father; there, they found the body of the defendant's father, James Burgess, in the bathtub. The two stab wounds on the victim were consistent with the victim having been attacked from behind. Either of the stab wounds would have been fatal, and death likely occurred within five to ten minutes. Evidence suggested that the victim was stabbed in or near the kitchen area of the house and then made his way down a hall to the bathroom, where he died. The murder weapon, a kitchen knife, was found on the edge of the bathroom sink; the defendant's fingerprints were on the handle. Although the defendant claimed that he and his father had fought physically in the kitchen, there were no obvious signs of a struggle there, and the defendant had no bruises on his body save for a small cut on his right index finger and two marks on the side of his neck. One of the neck abrasions was consistent with a person having been scratched.

The defense at trial was that the defendant's father had been the aggressor and that the defendant acted in self-defense. The judge instructed the jury on self-defense and voluntary manslaughter on the theory of excessive force in self-defense, but refused to instruct on voluntary manslaughter on a theory of reasonable provocation or sudden combat and also on involuntary manslaughter.

During trial, the Commonwealth moved to introduce testimony from two police officers who had been called to the Burgess residence in the months before the murder, one on February 10, and the other on February 23, 2000.² After conducting a voir dire of both police officers, the judge ruled that the victim's statements on both occasions were admissible as spontaneous utterances.³ Before the jury, Officer William Borriello testified that, on February 10, 2000, he responded to what was described as an "unwanted guest" call at the Burgess home. The victim answered the door and told the officer that he was concerned for his son and for himself, and that he wanted his son to "get some type of medical evaluation." The victim looked "very concerned" and the defendant seemed "very agitated." The officer observed the defendant pacing back and forth, gesturing with his hands, and saying that he was being followed and that he believed his father was having him watched. The officers saw no sign of any physical altercation. The defendant was removed from the house.

Officer Dennis Hassan, Jr., testified that on February 23, 2000, he was dispatched to the house in response to a 911 hang-up call.⁴ He heard "loud yelling and arguing coming from the home" as he approached the house, and could distinguish "two voices." Hassan knocked on the door; it was opened by the victim, who appeared "very upset" and "was shaking." The officer asked him "if everything was okay"; the victim answered, "No, it's not." The officer asked "what was going on"; the victim answered that "he and his son were arguing," "arguing over [the defendant] and [that the defendant] needed counseling, professional help," but refused. The officer saw the defendant near the hall in a corner of the living room by the kitchen. The victim told the officer that they had been arguing about the defendant's "living at the home," and the defendant "became very angry" with his father. The victim said that the defendant "clenched his fists and started to advance towards [the victim], stating that he'd fucking kill [the victim]." The victim said he told the defendant he had to leave the home, and that the defendant responded "that he'd come back with a gun and shoot him dead." Hassan testified that the victim indicated that he was afraid of the defendant, and told Hassan that he "felt that [the defendant] was very capable of coming back and doing something to him." The officer spoke with the defendant, who acknowledged that he and his father had been arguing over the defendant. As on the previous occasion, the defendant was removed from the home; on this occasion, the victim obtained a restraining order against the defendant, requiring him to vacate the house and refrain from abusing the victim. The order was later modified to allow the defendant to move back into the victim's house.

Discussion. Confrontation clause. The defendant contends that the admission in evidence of the victim's statements to police on February 10 and 23, 2000, violate his right to confrontation under the Sixth Amendment to the United States Constitution. In particular, the defendant maintains that statements made by the victim to police were "testimonial" under the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Crawford), and there had been no opportunity to subject those statements to cross-examination.

The defendant was tried eleven months before the decision in Crawford, supra, in which the Court announced a "new rule" concerning the confrontation clause. Whorton v. Bockting, ___ U.S. ___, 127 S.Ct. 1173, 1181, 167 L.Ed.2d 1 (2007). The Commonwealth concedes that the Crawford principles govern the disposition of the defendant's Sixth Amendment claims. Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication").

In Crawford, the Supreme Court held that a witness's out-of-court "testimonial" statements were inadmissible at trial except where the witness was unavailable and the defendant had prior opportunity for cross-examination. Crawford, supra at 59, 124 S.Ct. 1354 The Court stated that the confrontation clause applied to "witnesses" against the accused, "in other words, those who `bear testimony.'" Id. at 51, 124 S.Ct. 1354. "`Testimony,' in turn, is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Id., quoting 2 N. Webster, An American Dictionary of the English Language (1828). By barring testimonial statements from evidence except in limited circumstances, the Sixth Amendment sought to avert the "principal evil [of the] civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. at 50, 124 S.Ct. 1354. The Court declined to provide a "comprehensive definition" of testimonial statements, id. at 68, 124 S.Ct. 1354, but discussed various formulations of the "core class" of testimonial statements:

"[1] `ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially' . . .; [2] `extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions', White v. Illinois, 502 U.S. 346, 365[, 112 S.Ct. 736, 116 L.Ed.2d 848] (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); [or, 3] `statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'"

Id. at 51-52, 124 S.Ct. 1354. The Court held that statements "taken by police officers in the course of interrogations" are testimonial "under even a narrow standard." Id. at 52, 124 S.Ct. 1354. "Interrogation" was used colloquially, rather than in any technical legal sense. Id. at 53 n. 4, 124 S.Ct. 1354. The Court concluded that a...