Com. v. Keohane

• Decision Date: 01 July 2005
• Parties: COMMONWEALTH v. Michael KEOHANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

829 N.E.2d 1125

444 Mass. 563

COMMONWEALTH v. Michael KEOHANE.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 7, 2005.

Decided July 1, 2005.

COPYRIGHT MATERIAL OMITTED

Janet Hetherwick Pumphrey for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

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

COWIN, J.

A jury convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty and also found him guilty of armed assault in a dwelling. The defendant appeals from his convictions and from the denial of his motion for a new trial. Represented by new counsel on appeal, the defendant claims error because the jury were not permitted to consider a verdict of voluntary manslaughter; the trial judge excluded testimony concerning the victim's alleged racial bias; and the judge failed to conduct individual voir dire on the issue of graphic photographs, subsequently admitting several such photographs in evidence. The defendant also maintains that his conviction of armed assault in a dwelling is duplicative of his conviction of murder in the first degree. Finally, he requests that we exercise our extraordinary power under G.L. c. 278, § 33E, to order a new trial or reduce his conviction. We affirm the convictions and the order denying the motion for a new trial and decline to exercise our power under G.L. c. 278, § 33E.

1. Facts. Because the defendant claims that there should have been a charge on voluntary manslaughter, for purposes of that analysis we assume the version of the facts most favorable to the defendant. Commonwealth v. Schnopps, 383 Mass. 178, 179, 417 N.E.2d 1213 (1981), S. C., 390 Mass. 722, 459 N.E.2d 98 (1984). We briefly summarize those facts, leaving further details to the specific segments of the opinion to which the evidence relates. The defendant and the victim, Michael Monahan, had been friends and, in fact, had lived together in the defendant's trailer for a few months prior to the murder. A few weeks before the murder, the defendant borrowed the victim's automobile, and while he was using it, the car was impounded. Although the victim wanted the defendant to pay the cost of the impoundment, apparently the defendant never did so. On Friday, August 28, 1998, the night before the murder, the defendant and several others were socializing in the victim's room at the Salisbury Inn, a motel where the victim was living. The victim's wallet was taken at some point that night, and the victim blamed the defendant for its disappearance.

The next evening, the victim and others were attending a party at a home in Salisbury. The victim was upset because the defendant owed him money for the impounded car and because he believed that the defendant had taken his wallet the night before. One of the men at the party telephoned the defendant and invited him to the house. The invitation was a pretext, however, so that the victim could beat up the defendant. The defendant arrived at the party sometime between 9 and 10 P.M., and the victim carried out his plan. When the defendant accepted the victim's offer of a beer, the victim, a "big," "strong" young man, smashed a bag of beer bottles into the defendant's face, punched and hit him, and bashed his head against a wall. Spitting in the defendant's face, the victim said he wanted his money and his driver's license back, adding, "I'll beat you up every time I see you until I get it," or words to that effect. Bloodied, the defendant left. Witnesses who saw the defendant in the hour following the beating described him as "very upset" and "[a]ngry," saying he was going to "get" the victim with a baseball bat. The beating was followed by another encounter between the victim and the defendant between 10 and 11:30 P.M. At that time, the victim taunted the defendant, and although the victim and his friends had a two-by-four piece of lumber, another piece of wood, and a tire iron nearby in a car, they never used them, and the defendant apparently was unaware of them. The defendant drove away after this confrontation.

Later that night, the defendant went with friends to a party in Exeter, New Hampshire, at the home of Robin Anderson, a friend of the defendant. At the party, the defendant asked for gloves, sought a ride to the Salisbury Inn, and said, "I'm gonna get him.... I'm gonna crack him in the face with a baseball bat." Sometime between 1 and 2 A.M., the defendant and several others, including Michael Hawkins, left the party in Anderson's car. The group drove to the Salisbury Inn. En route, the defendant said that he was "going to beat [the victim] up."

At the motel, the defendant and Robin Anderson left the car and went into the victim's room,¹ the defendant entering through the window and then opening the door for Anderson. The defendant handed her a steak knife that was near the victim's bed. She told the defendant not to do anything stupid but he said, "It's too late." The defendant struck the victim several blows about the head with a baseball bat, after which he and Anderson returned to the car. The defendant was carrying a bloody bat, seemed upset, and said, "Oh, my God, I think I killed him." Anderson was still holding the knife. The group returned to the party in Exeter, stopping en route to discard the bat and knife in an area off the highway.

The victim's body was discovered by one of his friends who also noticed that the window was open and the curtain "was hanging off." The cause of death was blunt trauma to the head and face; the victim had no defensive wounds. The police eventually arrested the defendant. Robin Anderson and Michael Hawkins, members of the group who drove to the Salisbury Inn, led the police to the location of the bloody bat and the knife.

There was no forensic evidence connecting the defendant to the killing. A defense theory was that another person had committed this crime.

2. Manslaughter instruction. No manslaughter instruction was requested in this case, and none was given. The defendant claims in his motion for a new trial and again on appeal that the evidence warranted a manslaughter instruction, and that the failure of the judge to give such an instruction, sua sponte, relieved the Commonwealth of its burden of proving all elements of the case against him. When we review the denial of a motion for a new trial, we examine the judge's conclusions "to determine only whether there has been an abuse of discretion or other error of law," and in doing so, we give "special deference to the decisions of a judge who was [also] the trial judge." Commonwealth v. Murphy, 442 Mass. 485, 499, 813 N.E.2d 820 (2004), citing Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). The judge concluded correctly that he was not required sua sponte, to instruct on lesser included offenses, see Commonwealth v. Berry, 431 Mass. 326, 338, 727 N.E.2d 517 (2000), and that, in any event, the evidence did not warrant an instruction on voluntary manslaughter.

A killing may be rendered a voluntary manslaughter if it is the result of "a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat." Id. at 334, 727 N.E.2d 517, quoting Commonwealth v. Walden, 380 Mass. 724, 727, 405 N.E.2d 939 (1980). An instruction on voluntary manslaughter is appropriate if, viewing the evidence in the light most favorable to the defendant, "there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused's temper to cool." Commonwealth v. Andrade, 422 Mass. 236, 237, 661 N.E.2d 1308 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180, 417 N.E.2d 1213 (1981). "The evidence must be sufficient to create a reasonable doubt in the minds of a rational jury that a defendant's actions were both objectively and subjectively reasonable. That is, the jury must be able to infer that a reasonable person would have become sufficiently provoked and would not have `cooled off' by the time of the homicide, and that in fact a defendant was provoked and did not cool off." Commonwealth v. Groome, 435 Mass. 201, 220, 755 N.E.2d 1224 (2001), quoting Commonwealth v. McLeod, 394 Mass. 727, 738, 477 N.E.2d 972, cert. denied sub nom. Aiello v. Massachusetts, 474 U.S. 919, 106 S.Ct. 248, 88 L.Ed.2d 256 (1985).

In ruling on the motion for a new trial, the judge found that at least three and one-half hours elapsed between the victim's attack on the defendant at the home in Salisbury and the time of the murder.² Even assuming that the attack on the defendant amounted to adequate provocation,³ the evidence did not warrant a finding that a reasonable person would not have cooled off during that time. As the judge found, "under any view of the evidence," the defendant had more than sufficient time to cool off. There was undisputed testimony that the attack on the defendant occurred between 9 and 10 P.M. The earliest that the defendant arrived at the victim's motel was about 1:30 A.M. Action in response to an event that occurred three and one-half hours earlier is the very antithesis of action in the "heat of passion." Such a time period between the precipitating event and the murder is far longer than what we ordinarily recognize as appropriate to support a voluntary manslaughter instruction. See Commonwealth v. McLeod, supra at 738-739, 477 N.E.2d 972 (although fifteen to thirty minutes "significantly longer cooling off period than is usually the situation in manslaughter cases," court assumes, without deciding, manslaughter instruction required where defendant "severely beaten" and lost consciousness at least once); Commonwealth v. Coleman, 366 Mass. 705, 707-708, 715, 322 N.E.2d 407 (1975) (manslaughter in "heat of passion" sense not plausible where defendant had time...