Com. v. Raymond

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; FRIED
• Citation: Com. v. Raymond, 676 N.E.2d 824, 424 Mass. 382 (Mass. 1997)
• Decision Date: 07 March 1997
• Parties: COMMONWEALTH v. John RAYMOND.

Page 824

676 N.E.2d 824

424 Mass. 382

COMMONWEALTH v. John RAYMOND.

Supreme Judicial Court of Massachusetts Hampden.

Argued Jan. 6, 1997.

Decided March 7, 1997.

Roderick B. O'Connor for defendant.

Elizabeth Dunphy Farris, Assistant District Attorney, for Commonwealth.

Before WILKINS, C.J., and O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

FRIED, Justice.

The defendant, John Raymond, was indicted for forcible rape of a child and murder in the first degree. The jury convicted him on both indictments, and the judge sentenced him to two consecutive life terms. He has appealed from his convictions and has made two motions for a new trial, the first of which was denied and the second of which has not yet been heard. We affirm the convictions and find no reason to grant a new trial or reduce the degree of murder under G.L. c. 278, § 33E. We remand to the Superior Court for consideration of those aspects of Raymond's second motion for a new trial, which have not yet been heard.

I

The body of the fifteen year old victim was discovered floating in the Connecticut River. Her arms were tied behind her back with socks, with another sock tied around her neck and another in her mouth as a gag. The medical examiner reported that her body showed no signs that a struggle had taken place, nor of bruises from strangulation or forced sex, nor of semen. ¹ He determined that the cause of death was drowning.

Raymond Stanislawski, after initially denying involvement in the victim's death, gave a statement to the police in which he implicated himself and the defendant in the murder of the victim. According to Stanislawski, the defendant and he were drinking and ingesting cocaine during the day of the murder. Raymond drove Stanislawski to the victim's apartment where they offered to drive her to a store. Instead, the three drove to Jones Point Park in Holyoke where Raymond and Stanislawski continued to drink. They walked to an isolated area known as "High Rock" near the Connecticut River. Raymond suggested that they rape the victim which they both proceeded to do. Then, Raymond, fearful that she would tell the police, decided that they should kill her. They then tied her up with socks and Raymond choked her with a sock tied around her neck. While "[s]he was still kicking a little," Raymond stopped choking her, and they threw her body into the river.

After hearing Stanislawski's statement, the police asked Raymond to go voluntarily to the station house for questioning, which he agreed to do. At the station house, Raymond received Miranda warnings, and signed a waiver form. The police brought in Stanislawski. The police read his statement to Raymond, and then Stanislawski said to him: "[T]here's no use lying Jackie [Raymond], it's all over." Raymond showed signs of upset, but denied having committed the murder. The police told him that his mother lied to the police on his behalf and that she might therefore be implicated as an accessory after the fact. The officers continued to accuse Raymond as he alternatively denied the charges by shaking his head and lapsed into silence. The officers told Raymond that he should not allow Stanislawski's story, which placed most of the blame on Raymond, to stand as the only account. After approximately twenty minutes of this questioning, Raymond decided to make a statement. Raymond's statement was similar to Stanislawski's in most respects but Raymond indicated that he was so physically impaired by drugs and alcohol that he was unable to rape the victim, and he stated that the rape and murder were both Stanislawski's idea and that Stanislawski had been the one to choke the victim.

Raymond was the first to be brought to trial. Stanislawski testified for the Commonwealth. The Commonwealth introduced Stanislawski's statement to police as well as Raymond's. In addition, the Commonwealth introduced witnesses who had seen Raymond and Stanislawski with the victim on the night she was killed. The defendant maintained an alibi defense with several members of his family vouching for his whereabouts on the night of the murder. He argued that the confession was coerced, fabricated by the police, and that he had signed it without reading it because he was afraid of the police and wanted to protect his mother. Raymond was found guilty, and Stanislawski later accepted a plea bargain in which he confessed to murder in the second degree.

After being sentenced to two consecutive life sentences, Raymond filed a motion for a new trial complaining about the judge's instructions on intoxication and the admission of Stanislawski's written statement, and presenting evidence that Stanislawski had recanted his testimony. Stanislawski refused to testify at the hearing on the motion, invoking his privilege under the Fifth Amendment to the United States Constitution. The judge denied the motion in all respects.

Raymond recently filed a second motion for a new trial based on a letter written to Raymond's sister which he claims implies that, contrary to Stanislawski's claims and the Commonwealth's position at trial, Stanislawski's testimony was elicited through an offer of a lesser sentence by the Commonwealth. This second motion has not yet been heard by a motion judge. The relevant part of the letter states:

"I thought you knew I was doing a second degree life sentence. Yes I knew I was gonna [sic ] get that when I testified."

II

A

Raymond challenges the judge's instructions to the jury on two grounds: that they were confusing and in violation of Commonwealth v. Sama, 411 Mass. 293, 582 N.E.2d 498 (1991), and that the judge improperly charged the jury on intoxication. The judge began by defining murder in the second degree and describing the three prongs of malice, one of which must be met for the jury to find murder. He then moved on to define murder in the first degree where he described each of the three theories of first degree murder: premeditation, extreme cruelty or atrocity, and felony-murder. He stated that the jury must find an unlawful killing done with malice and then the jury must additionally find premeditation, extreme atrocity or cruelty, or felony-murder in order to constitute murder in the first degree. The judge discussed voluntary intoxication in his instructions on premeditation and extreme atrocity or cruelty.

Raymond first claims that the judge's instructions were erroneous under our decision in Commonwealth v. Sama, supra. In that case, "[t]he judge repeatedly instructed the jury to consider first whether the defendant was guilty of murder in the second degree under one or more of the three alternative forms of malice, and then decide whether the evidence supported an additional finding of deliberate premeditation or extreme atrocity or cruelty, which would increase the verdict from second to first degree murder." Id. at 299, 582 N.E.2d 498. We concluded that this approach "did nothing more than invite confusion and error" because "[m]urder in the first degree and murder in the second degree cannot coexist." Id. at 299-300, 582 N.E.2d 498. We went on to say that it would be better if "[a] jury should be instructed first to decide whether the defendant is guilty of murder and, if so, then to decide whether the defendant is guilty of murder in the first degree. If so, the jury should say so by their verdict. If not, they should find the defendant guilty of murder in the second degree...." Id. at 300, 582 N.E.2d 498.

Raymond did not object to the instructions at trial so we consider them under the substantial likelihood of a miscarriage of justice standard. G.L. c. 278, § 33E. We look to the charge as a whole to determine whether it fairly instructs the jury. Commonwealth v. Blanchette, 409 Mass. 99, 105, 564 N.E.2d 992 (1991). We base our judgment on what a "reasonable juror could have interpreted the instruction" to mean. Commonwealth v. Nieves, 394 Mass. 355, 360, 476 N.E.2d 179 (1985). Although the instructions did not commit the error we identified in Sama, we agree with the defendant that the instructions did not conform to our suggestion in Sama because the judge instructed on murder in the second degree first. ² The instructions, however, were correct as to each of the elements that must be satisfied for murder in the first degree. Furthermore, even though the judge instructed the jury on murder in the second degree first, he did not direct the jury to make a decision on second degree murder before considering murder in the first degree, which was the critical error in Sama. Therefore, while we adhere to our suggestion in Sama, we see no possibility that a reasonable juror could have misunderstood the instructions simply because the judge reversed the correct order of instruction on murder in the first degree and murder in the second degree.

The defendant also contends that the instructions on intoxication were in error because the judge did not specifically inform the jury that voluntary intoxication could be considered to reduce the verdict from murder in the first degree to murder in the second degree. ³ The defendant did not object to the instructions on intoxication at trial. While the judge did not state explicitly that voluntary intoxication could be the basis of reducing the degree of murder, he correctly instructed the jurors that they could consider voluntary intoxication on the premeditation and extreme atrocity or cruelty theories of murder in the first degree. We have never required more than a simple instruction that the jury may consider voluntary intoxication when considering state of mind. See Commonwealth v. Sires, 413 Mass. 292, 299-301, 596 N.E.2d 1018 (1992); Commonwealth v. Morgan, 422 Mass. 373, 376-378, 663 N.E.2d 247 (1996). We do not think that an explicit statement that intoxication could be the basis for reducing the degree of murder from first to second degree becomes more important because the judge described murder in the second degree before...