Com. v. Rasmusen

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation830 N.E.2d 1040,444 Mass. 657
Decision Date13 July 2005

Page 1040

830 N.E.2d 1040
444 Mass. 657
Supreme Judicial Court of Massachusetts, Barnstable.
Argued March 11, 2005.
Decided July 13, 2005.

Page 1041

Greg T. Schubert for the defendant.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.



In the early morning of January 26, 2002, six young men, including the defendant, Zane A. Rasmusen, broke into an apartment in Yarmouth, seeking revenge against another group of young men with whom they had fought at a party earlier in the evening. Rasmusen was armed with a large kitchen knife. Shawn Kimball, a guest in the apartment, was beaten and stabbed several times. Spencer MacLeod, who had not been involved with the earlier fight and was sleeping upstairs when Rasmusen's group forced its way in, joined the fracas and attempted to pull several attackers away from Kimball. He was stabbed in the heart and died. Rasmusen was arrested the next day and later indicted. His principal defense at trial was insanity. A jury convicted him of felony-murder in the first degree for the killing of MacLeod, home invasion, armed burglary, and assault and battery by means of a dangerous weapon for the attack on Kimball. Rasmusen appealed, and we have carefully reviewed the entire record, as is our responsibility under G.L. c. 278, § 33E. Both Rasmusen and the Commonwealth agree that we should reverse Rasmusen's conviction for the felony that underlies the felony-murder conviction as duplicative, and we therefore reverse Rasmusen's conviction for armed burglary. In all other respects, we affirm the convictions.

1. Background. The evidence at trial included the following. The altercation that resulted in the death of MacLeod had its origins in the violent feuding of two groups of young men, all of whom lived in the vicinity of Yarmouth and knew each other. On the evening of January 25, 2002, Rasmusen and several friends attended a party at a large summer home near the beach in West Dennis.1 Earlier, before Rasmusen's arrival, another group, including Germaine Conceptione, had been

Page 1042

denied admission to the party. Insults had flown back and forth and a fight had broken out between this group and Rasmusen's friends.2 The fight was apparently short lived, and Conceptione's group left to assess their injuries and plot strategy at the apartment of a friend on Alewife Circle in Yarmouth, where Shawn Kimball joined them.

The group, now including Kimball, decided to return to the party in West Dennis and get revenge. They arrived back at the home after midnight, unarmed, and entered through the open garage door. A fight ensued, this time including Rasmusen. During the fight, Conceptione put Rasmusen in a headlock, nearly asphyxiating him. Conceptione eventually released Rasmusen and, with the rest of his group, ran to their vehicles and returned to the Alewife Circle apartment. Rasmusen, wielding a knife he had grabbed from a drawer in the home's kitchen, attempted to pursue Conceptione, slashing the tires of one of the fleeing vehicles. Shortly thereafter, he collapsed on the lawn and vomited violently, apparently from the effects of the headlock.

After recovering, Rasmusen telephoned his girl friend, who picked him up from the party in her Chevrolet Suburban sport utility vehicle. When he got into the Suburban, Rasmusen was carrying a long-bladed kitchen knife. They drove to another home, where Rasmusen's friends reconvened and plotted their own revenge, particularly against Conceptione. A witness to this meeting testified that when one of the participants said, "Let's go fuck them up," Rasmusen responded, "I'm not fucking anyone up. I'm going to kill someone."

Rasmusen's group proceeded to gather garden tools (to be used as weapons) and loaded them into the Suburban. They then drove to the homes of other friends, picking up two pit bull dogs at one, and a baseball bat, a golf club, and a crowbar at another. Fully armed, they headed to the Alewife Circle area to look for Conceptione and his friends. As they drove through the neighborhood, someone spotted Kimball through the window of one of the apartments. Rasmusen and five companions got out of the Suburban, armed themselves with the weapons they had brought, and headed for the apartment.

Kimball saw the group approaching and tried to lock the door. Someone threw a brick through the kitchen window, and four of the group, including Rasmusen, stormed the apartment, breaking through the locked door with such force that they destroyed the door frame.3 The four men immediately attacked Kimball with their weapons; one member of the group struck him with a golf club, another struck him with a wooden stick, and another with a crowbar. Wielding the knife, Rasmusen stabbed Kimball four times. During these attacks, Kimball eventually fell to the floor.

Conceptione was not in the apartment during the assault, having left before Rasmusen's group arrived. Upstairs, however, two women were feeding the baby of the apartment owner, who was not at home. MacLeod, the boy friend of one of

Page 1043

the women, was asleep in another room. Awakened by the fighting, MacLeod came down the stairs and attempted to pull the four men off of Kimball. Those men turned their attention from Kimball to MacLeod. Kimball saw Rasmusen stab MacLeod twice in the chest. Rasmusen and his companions then fled the scene in the waiting Suburban. When his girl friend asked what had happened, Rasmusen responded, "I stabbed someone." He also expressed regret that Conceptione had not been at the apartment and said that he "fucked [Kimball] up" and then "fucked [MacLeod] up." Sitting in the front passenger seat, Rasmusen cleaned the blood-soiled knife with a t-shirt and directed his girl friend to drive to a nearby pond where he threw the knife into the water.

Meanwhile, those who remained at the Alewife Circle apartment telephoned 911. Shortly after 3 A.M., paramedics arrived and attended to the badly wounded Kimball and MacLeod. MacLeod had a heart rhythm but no pulse or blood pressure. After MacLeod was transported to a local hospital, the emergency room physician discovered that the stab wound had fatally punctured MacLeod's heart; the physician pronounced him dead. When the police arrived at the apartment, Kimball was screaming, naming the men involved in the attack, including Rasmusen. Kimball was transported to the hospital in a second ambulance. He recovered from his injuries.

The next day, Rasmusen was arrested and brought to the police station. After he was booked, advised of his Miranda rights, and detained in a holding cell, Rasmusen asked to speak with a detective investigating the stabbings, Charles Peterson of the Yarmouth police department. During the interview, which lasted nearly two hours, Rasmusen described the previous night's events. He said that his group had gone to the Alewife Circle apartment "to get" Conceptione, and that he had brought a knife with him for that purpose. He admitted stabbing Kimball, but denied knowingly stabbing MacLeod, offering that it was possible he had stabbed MacLeod when MacLeod had tried to break up the fight.4

Rasmusen's trial was severed from that of the others charged in the Alewife Circle attack. In his defense, Rasmusen offered the testimony of his mother and a forensic psychiatrist about his long history of psychiatric problems to demonstrate that he lacked criminal responsibility for his conduct on the evening of the attack. Rasmusen's mother described his troubled childhood, which involved witnessing her being beaten by an alcoholic husband from the time he was a toddler, and a violent home invasion and assault when he was twelve years old. After the home invasion, Rasmusen began drinking and using drugs, and he was often violent when intoxicated. His mother testified that when she saw him on the morning after the stabbings, he appeared to be drunk or high. The psychiatrist, who examined Rasmusen, his medical records, and court records, testified that Rasmusen suffered from four (previously undiagnosed) psychological disorders — posttraumatic stress disorder, intermittent explosive disorder, substance induced mood disorder, and a nonspecific learning disorder. The psychiatrist opined that as a result of these disorders, at the time of the stabbings at the Alewife Circle apartment, Rasmusen was experiencing an uncontrolled pathological rage precipitated by Conceptione choking him at the West Dennis party. Therefore, the psychiatrist

Page 1044

testified, Rasmusen was unable to appreciate the criminality of his actions and lacked the capacity to conform his behavior to the requirements of law.

2. Criminal responsibility. At trial, Rasmusen did not dispute that he was involved in the attack at the Alewife Circle apartment. As exemplified in defense counsel's closing, Rasmusen argued that (1) there was reasonable doubt as to whether Rasmusen was the one that stabbed MacLeod during the altercation5; (2) if the Commonwealth had demonstrated that he stabbed MacLeod, he should be found not guilty of murder by reason of insanity; and (3) if the Commonwealth had demonstrated that...

To continue reading

Request your trial
18 cases
  • Commonwealth v. Rivera, SJC–10912.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 9, 2013 based on more than one predicate felony, however, only one of the underlying felonies is duplicative. See Commonwealth v. Rasmusen, 444 Mass. 657, 666–667, 830 N.E.2d 1040 (2005). The defendant need not be charged—and thus need not be convicted—on the predicate felony. See Commonwealth v......
  • Com. v. Rivera
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 7, 2005
    ...committed two separate Page 1124 — and potentially predicate — felonies in the course of a killing. Cf. Commonwealth v. Rasmusen, 444 Mass. 657, 666-667, 830 N.E.2d 1040 (2005). Rather, the jury were instructed on two theories of criminal responsibility — attempted armed robbery while maske......
  • Commonwealth v. Alcequiecz, SJC–10699.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 13, 2013
    ...offense and the conviction for that felony, in addition to the conviction of murder, is duplicative.” Commonwealth v. Rasmusen, 444 Mass. 657, 666, 830 N.E.2d 1040 (2005), quoting Commonwealth v. Gunter, 427 Mass. 259, 276, 692 N.E.2d 515 (1998). See, e.g., Commonwealth v. Rivera, 464 Mass.......
  • Commonwealth v. Scott Deschaine., 07-P-791.
    • United States
    • Appeals Court of Massachusetts
    • August 30, 2010
    ...26, 907 N.E.2d 646 (2009). See also Commonwealth v. Groome, 435 Mass. 201, 221 n. 28, 755 N.E.2d 1224 (2001); Commonwealth v. Rasmusen, 444 Mass. 657, 661, 830 N.E.2d 1040 (2005); Commonwealth v. Mercado, 452 Mass. 662, 670 n. 13, 896 N.E.2d 1262 (2008); Commonwealth v. Druce, 453 Mass. 686......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT