Com. v. Ward

• Decision Date: 17 December 1997
• Citation: 688 N.E.2d 227,426 Mass. 290
• Parties: COMMONWEALTH v. Justin C. WARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 227

688 N.E.2d 227

426 Mass. 290

COMMONWEALTH v. Justin C. WARD.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Sept. 5, 1997.

Decided Dec. 17, 1997.

Carol A. Donovan, Committee for Public Counsel Services, Boston, for defendant.

Julia K. Holler, Assistant District Attorney (Gary Saladino, Assistant District Attorney, with her), for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

FRIED, Justice.

The defendant, Justin C. Ward, was convicted of murder in the first degree and illegal possession of a firearm. He appeals from the murder conviction. Finding error in the judge's jury instruction on deliberate premeditation, we reduce the conviction to murder in the second degree. We decline to grant a new trial or to reduce the verdict to manslaughter under G.L. c. 278, § 33E.

I

In the early morning of April 1, 1994, the defendant loaded two bullets into a five-chamber handgun and, after spinning the chamber, pointed the gun at his companion and pulled the trigger. The victim, twenty year old Erika Epperson, received a single gunshot wound to the head from which she died several days later.

The defendant and Epperson had lived together for several months in the sublet basement room of a duplex apartment in Hyannis rented by Temple Frazier. Sometime in late February or early March, 1994, the defendant began keeping a skunk in the basement, leading the board of health of Barnstable to issue an eviction notice to Frazier in mid-March. Frazier informed the subtenants living in the duplex to move out by April 1, 1994.

On March 31, 1994, the defendant, the victim, and several acquaintances, including Jason Threokeod, Jill Ladd, and Al L'Heureux, spent the evening at the apartment drinking whiskey and vodka and discussing the eviction. At one point the defendant took a gun out of his pocket and showed it to L'Heureux. Shortly after midnight, as the group drove Threokeod home, the defendant began to play "Russian roulette" with the gun. He first pointed the gun at his own head and pulled the trigger. He then asked permission to point the gun at Threokeod, who acquiesced, and the defendant again pulled the trigger.

The group dropped the defendant off at a convenience store, and he then went to visit Michelle Marcotte at approximately 1 A.M. He arrived carrying a bottle of vodka and the gun, which he unloaded and gave to Marcotte. There was some evidence that while at Marcotte's residence the defendant loaded the gun, spun the chamber, and wanted to play Russian roulette again.

At approximately 3:30 A.M., Marcotte took the defendant to the hospital to receive a rabies vaccine, which he needed because his skunk had bitten him. The hospital nurse noted that the defendant smelled of alcohol, but that he did not lean against the counter and was able to sit without falling. The nurse could understand him when he spoke, and he responded appropriately to questions. The defendant left before receiving the vaccination, and he and Marcotte went home independently.

Sometime after 4 A.M. the defendant awakened his neighbor, Michael Rogers, who lived in the other side of the duplex. The defendant had blood on his shirt and face. He told Rogers that the victim had been shot and that he needed to use the telephone to call for help. The defendant dialed 911 and requested medical assistance. He then begged Rogers to help him save the victim, and told Rogers that the defendant and the victim had been playing a game, she had been shot, and he could not find the gun. The defendant left Rogers's apartment shortly thereafter and the police arrived.

The police found the victim lying face down in the basement apartment. She had sustained a gun shot wound to her left temple. On examining the victim, the police saw the gun lying nearby. It was a .32 caliber revolver. It required a continuous "heavy pull" on the trigger to fire; it did not have a hair trigger, and it could not be precocked. The police inspected the gun and found that it contained one live round seated in the next firing position but no spent shell, suggesting that the gun had been emptied before the police arrived. Two spent .32 caliber shell casings were found in the apartment. Forensic evidence indicated that the gun was at least two to three feet away from the victim when it was fired, ruling out a self-inflicted wound.

The defendant was taken into protective custody and transported to the police station. At approximately 5 a.m. the defendant was booked by Officer John Sweeney, who advised the defendant of his Miranda rights. After stating each of the Miranda warnings, Officer Sweeney paused and asked the defendant whether he understood. The defendant stated that he did, and at one point said, "Yeah, cool. Like TV." The defendant stood on his own and was able to answer questions coherently.

The defendant submitted to a breath analysis, which showed a blood alcohol content of .39. This is several times the legal limit for the operation of a motor vehicle. The defendant was then seated in a holding room. While there he initiated a conversation with Officer Mark Palmer, who was present to supervise the defendant. Palmer reminded the defendant of his Miranda rights, and the defendant said, "I don't care. I'll tell you anything you want to know." The defendant told Palmer that on arriving home in the early hours of April 1, 1994, the defendant had loaded the gun with one bullet, spun the barrel, and pointed the gun at his own head. The defendant said that he pulled the trigger, the gun clicked, and he then placed the gun on a table. The defendant then told Palmer that the victim picked up the gun and, pointing it at her own head, pulled the trigger, shooting herself. When Palmer asked whether the defendant had held the gun to the victim's head, the defendant denied that he had.

At approximately 2 P.M. on the next day, the defendant was interviewed by Detective John Murphy. Murphy had known the defendant for several years. Murphy repeated the Miranda warnings, and the defendant stated that he understood his rights. The defendant then said that he remembered loading two bullets into the gun, and he repeated the story that he had told Palmer previously. When Murphy asked the defendant whether he, rather than the victim, had held the gun, the defendant stated that it was "possible." When pressed on this issue, the defendant indicated that he no longer wanted to talk with the detective and the interview stopped.

At trial, evidence was presented that the defendant was a heavy drinker and had consumed up to one-half a gallon of alcohol a day for many months prior to April 1, 1994. The Commonwealth's expert, Nancy Burns, testified that a tolerant alcoholic who daily ingests large quantities of alcohol will often manifest few cognitive impairments from drinking, even with a blood alcohol content of .39. The evidence also showed that the defendant had a familiarity with guns and had pointed guns at various acquaintances on several occasions in the months prior to April 1, 1994. In addition, the defendant's landlord testified that the defendant was extremely possessive about the victim. The Commonwealth introduced evidence that the defendant marked what he considered his "territory" with a graffiti tag consisting of the word "NO." On the night of the killing this graffiti was found on the walls of the defendant's basement room and on the abdomen of the victim. The defendant's expert, Dr. Marc Whaley, testified that such graffiti could be used to suggest ownership. These graffiti were not on the walls earlier on the night of March 31, 1994, when the defendant's friend L'Heureux was at the apartment. Dr. Whaley also testified that the defendant displayed a history of attention deficit disorder with hyperactivity which could affect his ability to weigh the pros and cons of carrying out intended actions and impair his abstract reasoning.

II

A

The defendant first seeks a new trial on the ground that the Superior Court judge erred by refusing to suppress the defendant's April 1, 1994, statements to the police. We accept the judge's findings of fact absent clear error and give substantial deference to his ultimate conclusions. Commonwealth v. Fernette, 398 Mass. 658, 662-663, 500 N.E.2d 1290 (1986). We make an independent determination about the correctness of the judge's application of constitutional principles to the facts. See Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 1241-42, 51 L.Ed.2d 424 (1977); Commonwealth v. Magee, 423 Mass. 381, 384, 668 N.E.2d 339 (1996).

The defendant first claims that his extreme intoxication precluded the Commonwealth from proving beyond a reasonable doubt that his statements to the police were voluntarily made as the product of a "rational intellect" and a "free will." See Commonwealth v. Edwards, 420 Mass. 666, 673, 651 N.E.2d 398 (1995); Commonwealth v. Tavares, 385 Mass. 140, 145, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). There is no question that the defendant was intoxicated. He had been drinking for several hours, he smelled of alcohol, and a breath analysis revealed a blood alcohol content of .39. Evidence of intoxication alone, however, does not compel a finding that statements were involuntary. Commonwealth v. Mello, 420 Mass. 375, 385, 649 N.E.2d 1106 (1995). ¹ The defendant was a tolerant alcoholic who was often intoxicated but nevertheless able to make apparently rational decisions. Just prior to the shooting on April 1, 1994, the defendant interacted with a hospital nurse in a rational fashion and did not appear incapacitated. Immediately after the shooting he sought help from his neighbor Rogers in a lucid and coherent manner. The police officers who booked and detained the defendant testified that, although the defendant was intoxicated, they could readily understand and converse with him. At the police...