Com. v. Cosme

• Citation: 410 Mass. 746,575 N.E.2d 726
• Parties: COMMONWEALTH v. Julio COSME.
• Decision Date: 17 July 1991
• Court: United States State Supreme Judicial Court of Massachusetts

Page 726

575 N.E.2d 726

410 Mass. 746

COMMONWEALTH v. Julio COSME.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued May 8, 1991.

Decided July 17, 1991.

Charles K. Stephenson, Granby, for defendant.

Catherine E. Sullivan, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

A jury in the Superior Court convicted the defendant of murder in the first degree of his brother, murder in the second degree of his girl friend, and unlawfully carrying a handgun. Represented by new counsel on appeal, the defendant argues that the prosecutor's closing argument gave rise to a substantial likelihood of a miscarriage of justice. We reject this contention. We also conclude that there is no reason to exercise our power under G.L. c. 278, § 33E 1990 ed.), to reduce the conviction of murder in the first degree to second degree or to order a new trial. ¹

The underlying facts of the crimes are essentially undisputed, and we recount them in brief. The defendant had lived with his girl friend, Carmen Milagro Pineiro, for approximately six years prior to the fall of 1983. Some weeks before the murders, the defendant's brother, Doel Cosme Figueroa, moved into the apartment with the defendant, Carmen, and their children. Difficulties developed between the defendant and Carmen and Doel, the defendant apparently becoming jealous over Doel's relationship with Carmen. About six weeks before the murders, Carmen ejected the defendant from the apartment.

Sometime thereafter (about a week prior to the murders), the defendant purchased a revolver and ammunition. On October 2, 1983, the defendant spent most of the day at the apartment of Carmen's mother, discussing his situation. Carmen's mother tried to persuade the defendant to return to Puerto Rico. As he left, however, the defendant said, "I know what I'm going to do." Later that day, the defendant arrived at Carmen's apartment. Both Carmen and Doel were there. Carmen refused the defendant entry, and angry words were exchanged between the defendant and Carmen and Doel. The defendant then went outside to Doel's truck in the parking lot. He disabled the truck by removing the ignition cables, then went to get his car. Seeing this, Carmen, Doel, and the children went outside.

While the group was gathered around the truck, the defendant returned in his car. Three times the defendant drove around and parked near the group and got out of the car. The first two times, the defendant glared angrily at Doel and Carmen, and Doel told the defendant in substance that the defendant would have to kill both him (Doel) and Carmen. After each of these two confrontations, the defendant temporarily left the area. When the defendant returned the third time, the same confrontation occurred. Rather than leaving this time, the defendant returned to his car, removed his revolver, then approached Doel and shot him four times, including once in the head. The defendant then chased the fleeing Carmen and shot her twice, including once in the head. Both Doel and Carmen died of their wounds.

The defendant's revolver was of single action design, so the defendant had to pull the revolver's hammer back manually each time that he fired it. Three and one-half pounds of pressure was required to pull the trigger. Thus, for each of the six shots fired, the defendant pulled the hammer back fully and exerted the necessary pressure on the trigger.

After the shootings, the defendant fled in his car, discarding the gun, a bag of bullets, and a holster nearby. The defendant spent the hours after the shootings but prior to his arrest with a friend who assisted the defendant in moving his car out of the area and transferring it to another owner. The defendant told his friend that he had shot his brother three times and his girl friend twice, and that he was sure that his brother was dead, but he was not sure about his girl friend. During this time, the defendant appeared "peaceful" and "normal," and there was nothing unusual about his behavior.

In addition to the testimony that established the facts just summarized, there was expert testimony concerning the issue of the defendant's criminal responsibility. In support of his argument that he lacked the ability to conform his conduct to the requirements of the law, the defendant called two expert witnesses.

The defendant's first expert witness was Dr. Vernon Mark. Dr. Mark, a neurosurgeon, testified to the defendant's history and the results of tests that he had administered to the defendant in 1987 and 1989. Dr. Mark indicated that the defendant sustained a head injury as a child, had little formal education, and suffered from chronic, severe headaches. Testing revealed that the defendant had substandard mental function. There also was some evidence of abnormal electrical activity in the brain. From this information, Dr. Mark concluded that the defendant had abnormal brain functions in his frontal lobe, the seat of, among other functions, an understanding of the consequences of one's actions. Dr. Mark expressed no opinion on criminal responsibility.

Dr. Jonathan Lieff, a neuropsychiatrist, also obtained the defendant's history and performed a battery of tests in 1989. Based on his examinations, Dr. Lieff testified that the defendant had a very "rigid and constricted" personality (consistent with his head injury), and lacked the ability to control his conduct when angered and to avoid acting impulsively. Thus, at the time of the shootings, although the defendant appreciated the wrongfulness of his conduct, he was, in Dr. Lieff's view, unable to control his aggression and conform his conduct to the requirements of law.

The Commonwealth presented the expert testimony of Dr. Martin Kelly, a psychiatrist. Based on his review of the defendant's records, including legal records and those examined by the defense experts, and an interview of the defendant, Dr. Kelly concluded that, at the time of the shooting, the defendant did not have a serious mental disease or defect that would impair his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Dr. Kelly explained that neurological damage does not necessarily indicate the existence of a mental disease or defect; the crucial question is whether the person's behavior, thoughts, moods, or interaction with others is affected. Dr. Kelly concluded, based on the defendant's conduct before and after the shootings, that the defendant was able to make choices and was able to conform his behavior and conduct to those choices. In Dr. Kelly's view, the choices may have been unwise, and the defendant might now regret them, but they made sense at the time within his understanding of the situation between his girl friend and his brother. ²

1. The prosecutor's closing argument. During his closing argument, the prosecutor attacked the testimony of the defendant's expert witnesses. The defendant argues that many of the prosecutor's statements were so improper that a new trial is required.

The prosecutor's statements that have been singled out for criticism by the defendant are set forth in the Appendix to this opinion in the context in which they were made. We have added numbers in brackets before each passage in which a criticized remark appears for purposes of more easily identifying matters in the discussion to follow. The statements were not objected to by the defendant's trial counsel. Our inquiry is limited to whether the prosecutor's argument created a substantial likelihood of a miscarriage of justice. Commonwealth v. Sullivan, 410 Mass. 521, 574 N.E.2d 966 (1991). Commonwealth v. Colon, 408 Mass. 419, 444, 558 N.E.2d 974 (1990). Commonwealth v. Roberts, 407 Mass. 731, 736, 555 N.E.2d 588 (1990). Commonwealth v. Glass, 401 Mass. 799, 805-807, 519 N.E.2d 1311 (1988). See also Commonwealth v. Kozec, 399 Mass. 514, 518 n. 8, 505 N.E.2d 519 (1987). In deciding that question, we apply the following standard, recently stated in an opinion considering an allegation of prosecutorial misconduct in a first-degree murder case. "In examining remarks made during closing arguments for overreaching, this court considers the remarks in the context of the entire argument, and in light of the judge's instruction to the jury, and the evidence at trial. Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990). Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984). The prosecutor is entitled to argue the evidence and fair inferences to be drawn therefrom. Commonwealth v. Paradise, 405 Mass. 141, 152 (1989). Lamrini, supra [392 Mass.] at 431 . Counsel may attempt to assist the jurors in analyzing the evidence by suggesting what conclusions they should draw from the evidence. Lamrini, supra at 431 . Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980)." Commonwealth v. Colon-Cruz, 408 Mass. 533, 553, 562 N.E.2d 797 1990). We conclude, for the following reasons, that the defendant has not demonstrated the existence of a substantial likelihood of a miscarriage of justice.

First, the prosecutor was entitled to make fair reply to the argument of the defendant's trial counsel about the weight to be given to the testimony of the defendant's experts. In that argument, defense counsel essentially told the jury not to try to understand the fine points of the testimony of the defense doctors "because a lot of what they said was in medical terms that none of us understand," and he urged them to accept the doctors' conclusions solely because of their impressive credentials. ³ The prosecutor was thus faced with the task of countering the aura of scientific invincibility that defense counsel had tried to create. He attempted to do this by arguing that, although they possessed impressive credentials, the defendant's experts were both fallible and mistaken. In support of that theme, the prosecutor advised the jury that the case was a simple...