Com. v. Keniston

• Decision Date: 26 July 1996
• Citation: 423 Mass. 304,667 N.E.2d 1127
• Parties: COMMONWEALTH v. John A. KENISTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1127

667 N.E.2d 1127

423 Mass. 304

COMMONWEALTH v. John A. KENISTON.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 13, 1995.

Decided July 26, 1996.

William P. Homans, Jr. (Jonathan S. Sales with him) Boston, for defendant.

Jane Woodbury, Assistant District Attorney (Mary Ames, Assistant District Attorney, with her) for the Commonwealth.

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

O'CONNOR, Justice.

A jury found the defendant guilty of murder in the first degree with deliberate premeditation and extreme atrocity or cruelty. On appeal, the defendant argues that evidence was erroneously admitted at trial, cross-examination was unfairly limited, the judge improperly and prejudicially admonished defense counsel in the presence of the jury, and harmful prosecutorial misconduct occurred. The defendant also challenges the judge's instructions to the jury. We affirm the conviction.

We set forth some of the pertinent trial evidence as follows. Kenneth Wythe and the defendant became acquainted in the early 1980's. Soon after they met, they entered into a sexual relationship, following which they did not see each other for several years until the late 1980's when their relationship was casual. On September 1, 1989, Wythe and the defendant met at a bar. The defendant spent that night with Wythe in Wythe's apartment. The apartment was in a house in the Dorchester section of Boston, owned by the victim in this case, Ernest R. Jordan. Jordan lived there with a group of homosexual males. For a period ending a month or month and one-half before September 1, 1989, Wythe was Jordan's lover. By September, Wythe's relationship with Jordan was more of "caregiver" than lover. Wythe testified that, at that time, he "was more involved in trying to help Ernie work out his problems with drinking."

On the morning of September 2, following the night that the defendant spent with Wythe, Jordan, the victim, went to Wythe's third-floor bedroom, where he found Wythe and the defendant. Wythe assisted Jordan, whom he perceived to be inebriated, back to Jordan's bedroom. Thereafter, the defendant stayed at Jordan's house as a paying tenant. He stayed with Wythe in Wythe's apartment.

Several days before Jordan was killed, Wythe heard the defendant and Jordan arguing. The defendant called Jordan an "asshole" and said he would "take care of him."

The defendant talked openly about his relationship with Wythe in front of Jordan and two other tenants, Michael Siler and Ronald Riley. The defendant forcefully said that Wythe belonged to him and that nobody would take Wythe from him. In the week before Jordan was killed, the defendant made such statements in Jordan's presence repeatedly.

On September 2, 1989, William Scott, a friend of Siler, observed a large knife with a long silver handle "stuffed in the back of" the defendant's pants. After taking the knife away from the defendant, Scott asked the defendant what he was going to do with the knife, at which point the defendant grinned at Scott and continued down the stairs. Scott brought the knife to Siler's room and put it under the mattress, and Siler subsequently put the knife on top of his bureau.

Michael Carter testified that sometime around 6 or 7 P.M. on the evening of September 8, the defendant and Siler were upset because some food had disappeared from the house. The defendant stated to Siler, "I'll cut your throat right now."

Jordan was killed on September 8. On that day, between 5 and 6 P.M., Wythe went downstairs to the kitchen where he found Jordan and the defendant. Carter, Siler, and Riley came into the kitchen. Wythe had made plans to visit his friend of many years' duration, Dennis Holland, at Holland's house in Cambridge. He left Jordan's house between 7:30 and 8 P.M. for that purpose. Carter and Siler left at the same time. At 8 P.M., Riley retired to his basement apartment. The defendant and the victim remained in the house. At 9 P.M., Riley heard the defendant and Jordan arguing. Jordan stated, "I know what's going on around here. Don't tell me. I know." The defendant replied in a loud, heated voice, "You don't know shit. You don't know shit. Then tell me what's going on." Wythe returned to Jordan's house at about 9:30 that evening. The defendant told Wythe that Jordan was taking a nap. Carter and Siler returned to the house at 10 P.M. and remained in Siler's upstairs bedroom for three hours. Wythe made drinks for himself and the defendant and carried them to the den on the second floor, where the two watched a movie. Wythe spoke with the defendant while watching the movie and had a normal conversation with him.

At 11:30 P.M. Wythe dialed Holland's telephone number at the defendant's request, and the defendant told Holland that he "took care of the problem." Neither Wythe nor Holland knew the meaning of the defendant's statement. Deciding that he wanted to visit Holland at 1:30 A.M., Wythe knocked on Jordan's bedroom door to obtain some cologne. Receiving no response, Wythe walked into Jordan's room to discover Jordan in his bed, lying still, with his head "smashed open" and blood splattered on the bedroom wall.

Wythe telephoned the police from a public telephone booth because he feared for his safety. Police officers responded to Wythe's call and went to Jordan's house. A detective videotaped the scene in Jordan's bedroom. Blood, hair and skull fragments were on the corner of the nightstand within a foot of Jordan's head. An officer "lifted" five fingerprints from Jordan's bedroom, three of which were later identified by a latent fingerprint examiner as the defendant's. Detective Charles M. Horsley observed the defendant seated on the loveseat in the den with his head back and eyes closed. The defendant's white mesh shirt, shorts, legs and sneakers were splattered with blood containing the B antigen, which was consistent with the victim's type B blood. As a result of the medical examiner's determination that a cutting instrument caused some of Jordan's injuries, Horsley began to search the premises for a large-bladed knife. Officers ordered the defendant to stand up from the loveseat. Lifting the cushions on which the defendant had been seated, the officers discovered a knife with a stainless steel handle. The knife's long blade was stained with blood containing the B antigen. The medical examiner saw eleven stab wounds in Jordan's torso and three lacerations on the left side of Jordan's head. The cause of the victim's death was determined to be multiple traumatic injuries.

The defendant argues that the evidence did not warrant a finding that he, rather than Wythe, killed Jordan. Relying to a large degree on Commonwealth v. Salemme, 395 Mass. 594, 481 N.E.2d 471 (1985), and Berry v. Commonwealth, 393 Mass. 793, 473 N.E.2d 1115 (1985), the defendant contends that the evidence showed that Wythe and he had equal opportunity and the same disposition toward Jordan, and that one or the other of them killed him, but it leaves the matter of who did it to conjecture. We disagree. Unlike the situation in Berry v. Commonwealth, supra, the evidence set forth above, if believed, not only demonstrated the defendant's sole opportunity to cause the death as it occurred, but also showed the defendant's intense hostility, not shared by Wythe, toward Jordan. That there also may have been contrary evidence is without significance in measuring the legal sufficiency of the evidence to warrant the jury's determination of guilt. In addition, here, unlike the cases on which the defendant relies, there was evidence that the defendant's clothing bore blood that was consistent with the victim's blood type and police discovered the defendant seated on cushions concealing a blood-stained knife that the defendant had carried on his person shortly before the killing. Finally, the jury could have believed Wythe's testimony that he was "scared" and "confused" when he discovered Jordan's body surrounded by blood and left the house to call the police out of fear for his own safety. See Commonwealth v. Avellar, 416 Mass. 409, 415, 622 N.E.2d 625 (1993) (holding nothing further was needed to reach the threshold of sufficient evidence to support the defendant's conviction of first degree murder than physician's testimony that fatal injuries were inflicted on the infant victim during a twelve-hour period when only the defendant and three other persons had access to the victim, and the three other individuals' testimony that they did not "do anything" to the victim).

We turn briefly to the defendant's argument that his conviction should be reversed because the trial judge erred in admitting in evidence (1) Carter's testimony that he overheard the defendant threatening to cut Siler's throat; (2) Riley's testimony that he overheard the defendant threaten an unknown person; and (3) Riley's testimony that he overheard the defendant and Jordan arguing on the night of Jordan's murder. The defendant did not object at trial to the introduction of this evidence. His unsuccessful motion in limine, through which he attempted to exclude testimony about his threat to cut Siler's throat, is "insufficient to preserve appellate rights where ... there was no objection at trial to the introduction of evidence." Commonwealth v. Boyer, 400 Mass. 52, 57, 507 N.E.2d 1024 (1987). See Sandler v. Commonwealth, 419 Mass. 334, 338 n. 3, 644 N.E.2d 641 (1995); Adoption of Carla, 416 Mass. 510, 515, 623 N.E.2d 1118 (1993) (assertion of privilege in motion in limine insufficient to preserve appellate rights absent attempt to exercise privilege at trial); Commonwealth v. Shea, 401 Mass. 731, 740, 519 N.E.2d 1283 (1988). "In considering issues argued on direct appeal as to which the defendant's appellate rights were not preserved by an objection or in some other manner, we must apply the standard of G.L. c. 278, § 33E (1990 ed.). We must decide whether there is a substantial likelihood...