Com. v. Kirwan

• Decision Date: 02 February 2007
• Parties: COMMONWEALTH v. Scott D. KIRWAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 931

860 N.E.2d 931

448 Mass. 304

COMMONWEALTH v. Scott D. KIRWAN.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued December 7, 2006.

Decided February 2, 2007.

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Stephen Paul Maidman for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

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

SPINA, J.

The defendant was convicted of murder in the first degree, on a theory of deliberate premeditation. On appeal he alleges error in (1) the denial of his motion for a required finding of not guilty at the close of the Commonwealth's case, and (2) the denial of the motion to suppress his statement made to police without prior Miranda warnings. The defendant also appeals from the denial of his motion for a new trial in which he alleges (1) error in two evidentiary rulings and related claims of ineffective assistance of counsel based on failure to request curative instructions; (2) ineffective assistance of counsel based on inadequate argument concerning mitigation; (3) prosecutorial misconduct for arguing a critical fact not in evidence, and a related claim of ineffective assistance of counsel for failure to object; (4) error in failing to instruct the jury on "humane practice" and jury discretion in determining the degree of murder, and related claims of ineffective assistance of counsel based on failure to request such instructions; and (5) entitlement to a new trial based on the cumulative effect of all the errors alleged in his motion for a new trial. Finally, the defendant asks us to exercise our power under G.L. c. 278, § 33E, and grant him a new trial or reduce the degree of his conviction, as justice requires. We affirm the judgment and the denial of the defendant's motion for a new trial. We decline to exercise our power under G.L. c. 278, § 33E.

1. Facts. For purposes of the defendant's motion for a required finding of not guilty, the jury could have found the following facts. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

In July, 1999, the defendant lived with his father in Pembroke, in an apartment owned by his father. Brian Perry, a good friend of the defendant, rented an apartment in the same building from the defendant's father. On Friday, July 2, 1999, at about 11 P.M., the defendant and Perry walked to a bar approximately one hundred feet across the street from their apartment building. The bar was crowded, so they stood next to the juke box, drinking and talking to friends.

The defendant had several brief encounters that night with the victim. The first encounter, essentially the continuation of an argument they had a few weeks earlier, ended when Perry told them to "grow up" and "shake hands." During the second encounter, the defendant, who appeared angry, said to the victim that they could "take it outside." The victim walked away.

Shortly before midnight, the defendant left the bar for about fifteen minutes, ostensibly to record a movie that was scheduled to be shown on television at midnight. He also mentioned to Perry that he wanted to get a "shank" (a knife) because he was worried about two men sitting with a former girl friend of the defendant. The men were glaring and snickering at the defendant, and one of them repeatedly walked past the defendant and nudged him. After he returned to the bar, the defendant paced around, appearing nervous and agitated. The two men with the defendant's former girl friend had left the bar and no longer were a concern to him. However, the victim approached the defendant and they had words a third time. Five minutes later the defendant told Perry that he was worried about the victim and a man who was with him.

The victim and his friend left the bar before the last call was announced at 12:30 A.M. As they were leaving, the victim and the defendant again had words. The defendant told Perry that he was worried he was going to have to fight them. Perry tried to keep the defendant inside the bar by ordering another beer and encouraging him to stay. The victim returned to the bar about ten minutes later and again argued with the defendant. After the victim left, the defendant urged Perry to leave, but Perry did not give in. The defendant and Perry left the bar at approximately 1 A.M.

When they reached the street, the victim drove his truck alongside the defendant. They began to argue. The defendant told the victim to get out of his truck. He waited while the victim parked the truck. The two men approached each other in the middle of the street. At the time, the defendant, who was five feet, nine inches tall, and weighed about 230 pounds, said to the victim, who was five feet, eight inches tall, and weighed about 180 pounds, "I'm from Malden, I'll kill you." He then punched the victim in the chin with his right fist. The victim did not strike back. He tried to deflect the blow and said he did not want to fight. The defendant threw a second punch, striking the side of the victim's chest with his right fist. The victim tried to fend off the punch and backed away. The defendant then put his right hand behind his back and gestured with his left hand. He delivered a third punch, striking the victim with a hard right to the front of the chest. He had a shiny, metallic object in his hand. The defendant then shouted that he was going to get his nine millimeter gun and walked about fifty feet to his home.

The victim turned and walked toward his truck. After walking about thirty feet, he fell flat on his face without trying to break the fall. He was bleeding and unconscious; his eyes were rolled back in his head, and his breathing was irregular. He had a puncture wound near his sternum. Police and an ambulance arrived within a short time. The victim was taken to a hospital, where he died. The cause of death was a loss of blood due to a knife wound to the chest. The blade of the knife (found later that night), two inches long, was thrust with substantial force three inches into the victim's body. It passed through the fifth right rib before perforating the right ventricle of the heart.

Based on witness interviews at the scene of the incident, Detective David Hurley of the Pembroke police department and two other officers went to the defendant's apartment. The defendant's father let Hurley inside. The defendant, who was also inside, matched the description given by witnesses as the person who fought with the victim. Hurley asked the defendant if he would tell him about the fight that had just occurred. The defendant said that a kid pushed him and he pushed the kid back. The defendant paused, shrugged his shoulders, then looked down. Hurley asked the defendant "how the kid got a hole in his chest," but the defendant did not respond.¹ On arriving home minutes earlier, the defendant had told his father that he was jumped in the parking lot of the bar and that someone tried to hit him with a beer bottle.

A search of the apartment, for which the defendant's father gave consent, produced no weapon. The defendant was placed under arrest for assault and battery by means of a dangerous weapon. The scene itself was then searched and a small knife with blood on it was found in the street. The knife was consistent with the victim's wound, and deoxyribonucleic acid (DNA) testing performed on the blood on the knife, as well as on blood found on the street, matched the victim's DNA.

None of the witnesses had seen the victim push, punch, or strike the defendant at any time, and the victim did not have a weapon.

2. Motion for a required finding of not guilty. The defendant argues that the trial judge erred by denying his motion for a required finding of not guilty as to the issue of premeditation. In particular, he contends that the dispute between him and the victim inside the bar earlier that night had ended and there was no evidence of premeditation.

There was sufficient evidence from which a jury could find premeditation. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). The defendant announced in the street that he was going to kill the victim. The jury could have inferred that the defendant procured the knife and concealed it for the purpose of killing the victim. See Commonwealth v. Shelley, 374 Mass. 466, 474, 373 N.E.2d 951 (1978), S.C., 381 Mass. 340, 409 N.E.2d 732 (1980). The jury also could have inferred that the defendant lulled the victim into believing he was only involved in a fist fight by throwing two bare-fisted punches to his face and side, and then distracted the victim by waving his left hand in order to have a clear thrust at the victim's heart with the knife concealed in his right hand. The evidence is sufficient to warrant a finding that the defendant acted after the reflection necessary to establish deliberate premeditation. Commonwealth v. McAfee, 430 Mass. 483, 494-495, 722 N.E.2d 1 (1999), quoting Commonwealth v. Chipman, 418 Mass. 262, 269, 635 N.E.2d 1204 (1994). There was no error.

3. Motion to suppress statement. The defendant asserts error in the denial of his motion to suppress the statement he made in his home to Hurley. He argues that Hurley's failure to advise him of his Miranda rights before asking him questions designed to elicit an incriminating response, which he contends is custodial interrogation, violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution, and art. 12 of the Massachusetts Declaration of Rights.

"Miranda warnings are only necessary for `custodial interrogations.'" Commonwealth v. Jung, 420 Mass. 675, 688, 651 N.E.2d 1211 (1995), quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Miranda). Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id...