Com. v. Lapointe

• Decision Date: 09 May 1988
• Citation: 522 N.E.2d 937,402 Mass. 321
• Parties: COMMONWEALTH v. Daniel L. LAPOINTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 937

522 N.E.2d 937

402 Mass. 321

COMMONWEALTH v. Daniel L. LAPOINTE.

Supreme Judicial Court of Massachusetts Bristol.

Argued Feb. 1, 1988.

Decided May 9, 1988.

Patricia A. O'Neill, Committee for Public Counsel Services, Boston, for defendant.

Dana A. Curhan, Asst. Dist. Atty., for Com.

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

LIACOS, Justice.

The defendant, Daniel L. Lapointe, was indicted by a Bristol County grand jury for the murder in the first degree of Edward LeBlanc. Following a jury trial, the defendant was convicted of manslaughter and was sentenced to not less than fifteen years nor more than eighteen years at the Massachusetts Correctional Institution (MCI), Cedar Junction. On appeal, the defendant claims: the judge erred in permitting witnesses to testify as to the deceased's reputation for peacefulness; the judge erred in excluding evidence regarding the defendant's post-traumatic stress disorder; the judge erred in his instruction on consciousness of guilt and made several errors in instructions on self-defense; the prosecutor made improper comments during his closing argument; and the judge improperly sentenced the defendant. We transferred the case to this court on our own motion. We affirm.

The facts that the jury could have found on the evidence before it are as follows. On January 12, 1984, the defendant telephoned the home of his ex-wife, Susan, to inquire about the delivery of Christmas presents to their daughter, Jamie. Susan and Jamie were living with, and Susan was engaged to be married to, Edward LeBlanc. LeBlanc answered the telephone and spoke to the defendant. LeBlanc was "a little angry," "upset," and "sick of the situation" ¹ when he left Susan to go to the defendant's house to talk with him.

The defendant was living with Linda Canuel and her daughter, Melissa, in the third-floor apartment of a three-family dwelling. Following his telephone conversation with LeBlanc, the defendant took a tranquilizer or "stomach" pill and lay down on the sofa. Canuel and the defendant anticipated that LeBlanc was coming to the house. Canuel was watching from a window for his arrival. She saw LeBlanc park his automobile about two houses away and heard some glass being broken. ² Canuel heard LeBlanc come into the house and ascend the stairs. She told the defendant that LeBlanc was coming. He got his loaded Walther 380 automatic gun and placed it in the waistband of his pants. Canuel went with her daughter to the daughter's bedroom.

LeBlanc pounded on the front door of the defendant's apartment. Canuel left the bedroom and urged the defendant to open the door. Canuel never saw a gun. When the defendant unlocked the deadbolt and opened the door, an "enraged" LeBlanc rushed in, his arms in the air. LeBlanc said, "You die, ---," and advanced on the defendant. Canuel fled into the bathroom. She heard shots fired. When she emerged from the bathroom, the defendant told her to call the police.

The police arrived at the apartment and found LeBlanc's body on the floor of the living room, covered by a blanket. A knife was in LeBlanc's right hand. There were no signs of a struggle in the apartment. The defendant showed the officers a badge, said he was a constable, and had just shot the man on the floor. The defendant said that LeBlanc had come "charging in with the knife," and that he had shot him a few times and then shot "some more to make sure he was dead ... because that's what they taught him in 'Nam."

The defendant told the police about the problems he had been having with his ex-wife and her boy friend, about the telephone call preceding LeBlanc's arrival, that he had been afraid of LeBlanc, and that, when LeBlanc burst into the apartment, the defendant "saw the flash of something shiny." When interrupted by the police and told that the police could determine whether the knife had been placed in LeBlanc's hand, ³ the defendant admitted putting the knife in LeBlanc's hand. The defendant also said that he was heavily medicated and was being treated at the Veterans' Administration Hospital for post-traumatic stress disorder (PTSD). The defendant indicated that, when Canuel told him that LeBlanc had parked his automobile, he had gotten his weapon. After LeBlanc came through the door, the defendant shot him, first in the arm and then in the chest. ⁴

At trial, the defense was self-defense. The jury returned a verdict, finding the defendant guilty of manslaughter.

1. The defendant contends that the judge erred in permitting prosecution witnesses to testify over objection as to the victim's reputation in the community for peacefulness. The defendant asserts that the issue of the victim's reputation was not raised by the defense, and there was no evidence that the defendant knew of the victim's reputation. The Commonwealth counters that the defense opened the door to evidence of the victim's reputation during opening statements and during the cross-examination of the first of the prosecution's witnesses.

A defendant who claims he killed in self-defense may offer evidence of a victim's reputation as a violent and quarrelsome person. Commonwealth v. Gibson, 368 Mass. 518, 526, 333 N.E.2d 400 (1975), and cases cited therein. Commonwealth v. Connolly, 356 Mass. 617, 625-626, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79 (1970). However, the evidence of the victim's reputation is relevant only if the defendant knew of the reputation at the time of the crime. Commonwealth v. Tircinski, 189 Mass. 257, 258, 75 N.E. 261 (1905). Commonwealth v. Connolly, supra, 356 Mass. at 626, 255 N.E.2d 191. P.J. Liacos, Massachusetts Evidence 415 (5th ed. 1981 & Supp.1985).

Once the defense has opened the door as to the issue of the victim's character, the prosecution can, on rebuttal, introduce evidence of the victim's reputation in the community for peacefulness. 2 J. Wigmore, Evidence § 246 (Chadbourn rev.ed.1979). At the time the question regarding the victim's reputation for peacefulness was posed by the prosecutor on redirect, there was no evidence indicating that the defendant knew of the victim's reputation. Furthermore, before reputation for peacefulness is admissible, the defense must open the door by presenting some evidence of the victim's violent character. Opening statements by the defense attorney are not evidence, see Commonwealth v. Hartford 346 Mass. 482, 486, 194 N.E.2d 401 (1963), Commonwealth v. Fazio, 375 Mass. 451, 454-455, 378 N.E.2d 648 (1978), and the questions posed during cross-examination by defense counsel ⁵ did not open the issue of the victim's character. Thus, the judge erred in allowing the testimony about the victim's reputation for peacefulness. The error, however, was not prejudicial. Our review of the record as a whole, omitting the reputation testimony, indicates that the evidence to convict the defendant of manslaughter was overwhelming.

2. The defendant argues that the judge erred in excluding evidence that the defendant suffered from PTSD. Before trial, the defendant filed a notice pursuant to Mass.R.Civ.P. 14, as amended, 385 Mass. 1216 (1982), that the defendant would "offer expert testimony that ... at the time the first shot was fired ... and that from the moment the first shot was fired the Defendant suffered ... Post-Traumatic Stress Disorder, chronic with intrusive recollections; that such evidence shall be offered as it is relevant to the issue of post-homicide consciousness of guilt, [reflexive] acts, and other actions of the Defendant occurring subsequent to the shooting." During motion hearings in the absence of the jury, defense counsel argued that the experts on PTSD would testify as to "why so many shots may have been fired into the victim rather than just one.... That the state of mind because of the stress disorder, the multiple shots were reflexive acts rather than evidence of deliberation and premeditation."

The judge stated: "I would be inclined to exclude any evidence of this Vietnam syndrome except as it pertains to evidence of consciousness of guilt after the incident took place" (emphasis added). Later, the judge said: "Perhaps we can have a voir dire on your psychiatrist.... I would be tending to exclude [the psychiatrist's testimony as to PTSD] insofar as it pertains to the general issue of self-defense and number of bullets" (emphasis added). Still later, the judge stated: "I would be ruling that if it's admissible at all, it's admissible on the issue of consciousness of guilt." The prosecutor then requested a voir dire before the defendant's opening statement to "have the Court at that time make a judgment on whether or not the [PTSD] testimony is admissible and to what extent it's admissible." The Commonwealth also filed a motion in limine seeking to prevent the introduction of PTSD evidence. The following day, the judge asked defense counsel whether his PTSD experts would be available. Defense counsel informed the judge that he had not called them in and assured the judge that the subject would not come up during opening statements. No further action was taken by defense counsel, and the subject of PTSD was not pursued at trial.

Although the issue was discussed, the judge was never called upon to rule whether PTSD evidence would, or would not, be allowed. The judge made a number of preliminary statements as to what his ruling might be, but the issue was never presented directly by the defendant to the judge. No witnesses were brought to testify, no voir dire was held, and no offer of proof was made. Because there was no ruling by the judge on this issue, there is nothing for this court to review. See Commonwealth v. Zion, 359 Mass. 559, 564, 270 N.E.2d 395 (1971). Cf. Commonwealth v. Mulica, 401 Mass. 812, 520 N.E.2d 134 (1988).

3. The defendant takes issue with the self-defense instructions given in this case. Specifically, the defendant contends that the instructions...