Commonwealth v. Alcequiecz

• Decision Date: 13 June 2013
• Docket Number: SJC–10699.
• Citation: 465 Mass. 557,989 N.E.2d 473
• Parties: COMMONWEALTH v. Spassky ALCEQUIECZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 557
989 N.E.2d 473

COMMONWEALTH
v.
Spassky ALCEQUIECZ.

SJC–10699.

Supreme Judicial Court of Massachusetts,
Essex.

Argued Feb. 7, 2013.
Decided June 13, 2013.

[989 N.E.2d 476]

Dennis Shedd for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, DUFFLY, & LENK, JJ.

DUFFLY, J.

[465 Mass. 558]After entering the home of his former girl friend, the defendant struck her in the head with a car battery “charger pack” and fatally stabbed her new boy friend with a kitchen knife. The defendant was convicted of murder in the first degree on a theory of felony-murder, G.L. c. 265, § 1.¹ He was also convicted of armed burglary, G.L. c. 266, § 14, and assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A ( b ).² Represented by new counsel, the defendant filed a motion for a new trial alleging ineffective assistance of trial counsel. That motion was denied.

The defendant's appeals from his convictions and from the denial of his motion for a new trial have been consolidated before this court. On appeal, the defendant argues that his trial counsel was ineffective in several respects; the prosecutor's closing argument was improper; and that his conviction of armed burglary was duplicative of his conviction of felony-murder. The defendant also seeks relief pursuant to G.L. c. 278, § 33E.

We affirm the convictions of felony-murder and assault and battery by means of a dangerous weapon. Because the armed burglary was the predicate felony for the defendant's felony-murder conviction, it is duplicative and must be vacated. See Commonwealth v. Johnson, 463 Mass. 95, 97, 972 N.E.2d 460 (2012). Having examined the entire record pursuant to our duty under G.L. c. 278, § 33E, we discern no basis on which to grant extraordinary relief.

Background. The jury could have found the following facts. The defendant and Amanda Poisson began dating in 2001. By early 2007, they, their three year old son, and Poisson's nine [465 Mass. 559]year old daughter were living together in a house in Lynn. Carol DeChristoforo, a friend of Poisson's mother, also rented a room in the house. In March, 2007, the defendant, Poisson, and the children were staying elsewhere temporarily while the house was being renovated. During that time, Poisson decided to end her relationship with the defendant, and the defendant moved to an apartment in another city. Poisson and her children moved back to the house owned by her parents. At around the same time, Poisson began dating Carlos Mejia.

After their relationship ended, the defendant and Poisson remained in frequent contact, in part because they continued to share two automobiles, which they exchanged approximately every two days. The defendant first met Mejia in early April, 2007, at a birthday party for Poisson's daughter, but Poisson did not tell the defendant that she and Mejia were dating. One week later, Poisson spent the night at the defendant's apartment, where they engaged in sexual intercourse. The next

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morning, Poisson told the defendant “that [she] still wanted to go [her] separate way,” notwithstanding the events of the prior evening.

Several nights later, on April 19, the defendant spent the evening drinking and using cocaine with friends. Mejia was visiting Poisson that night. At approximately 3:18 A.M. on April 20, the defendant telephoned Poisson, who pretended to have been sleeping. The defendant asked her if he could spend the night at her house. Poisson told the defendant to go home. The defendant told Poisson that “the only reason why [she] wouldn't let him in the house is if somebody was there.” Poisson again told the defendant to go home, and hung up the telephone. The defendant called back immediately, and Poisson reiterated that he should go home. The defendant then said, “Did you forget that I have the keys to the house?” ³ and hung up.

As she was speaking with the defendant, Poisson was headed downstairs. She went to the living room window, looked out, and saw the defendant's automobile parked outside. The defendant, who had been standing on the front porch, unlocked the front door, but was prevented from entering the house by the chain lock on the door. The defendant asked Poisson to come [465 Mass. 560]outside to talk to him. When she declined, he said, “Just tell me if somebody's here, if somebody's here I'll leave.” Poisson then told him that Mejia was inside, and that they were watching a movie.

After learning that Mejia was in the house, the defendant picked up the car battery charger pack that was on the front porch and used it to smash several window panes above the front door. When he told Poisson that he would break down the door if she did not open it, she opened the door. The defendant entered the house and struck Poisson in the head with the car battery charger pack, knocking her backward, and then struck her in the head a second time. The defendant tried to strike a third time, but Poisson blocked the defendant's blow with her arms.

The defendant went up the stairs to the hallway on the second floor of the house, which led to four bedrooms. Poisson's bedroom was the same one that she had shared with the defendant when he lived there. DeChristoforo and the two children each occupied one of the other three bedrooms. The defendant found Mejia in Poisson's bedroom and told him, “This is what I wanted to see. I wanted to see you here in my house, in my bedroom.” DeChristoforo heard the commotion and telephoned 911. The defendant went back downstairs and briefly left the house.

While the defendant was outside, Poisson staggered upstairs, dizzy and bleeding from her head. When she heard the defendant reenter the house, she hid in her daughter's bedroom. The defendant again went upstairs. He told DeChristoforo that there was no need to telephone 911, and said that he wanted to take his son with him. The defendant took his son, left the house, put the boy in the automobile that Poisson had been using, which was parked in the driveway, and locked it.⁴

Poisson heard the defendant leave the house, and joined her daughter, Mejia, and DeChristoforo in DeChristoforo's bedroom. Poisson told DeChristoforo that she needed an ambulance, and DeChristoforo

[989 N.E.2d 478]

placed a second 911 telephone call. When Poisson heard the defendant coming back upstairs, she hid in DeChristoforo's closet. This time, as the defendant ascended the [465 Mass. 561]stairs, he was holding a thirteen inch kitchen knife.⁵ He tried to force his way into DeChristoforo's bedroom, as Mejia pressed his body against the bedroom door in order to prevent the defendant from entering.

Through continuous pressure, the defendant managed to crack the door open just enough to permit his right arm, which was holding the knife, to reach into the bedroom. The defendant swung the knife at Mejia as Mejia continued to push against the door. At first, Mejia had DeChristoforo's jacket wrapped around his arm for protection. As the defendant continued to swing the knife, Mejia dropped the jacket. The defendant managed to push his upper body through the partially open door into the room. He looked at Mejia, swung the knife one last time, and pulled his arm out. Covered in blood, Mejia slid down against the bedroom wall and onto the floor.

After the defendant had descended the stairs, DeChristoforo heard him shout, “Yeah, I did it. Yeah, I did it.” Still carrying the knife, the defendant encountered two police officers entering the house; they commanded that he stop and put down the knife. He tossed the knife onto the couch, next to a second knife that was lying there.⁶ Poisson attempted to assist a police officer who had come upstairs in attending to Mejia's wounds⁷ and then went downstairs, where she saw the defendant in handcuffs. As one of the officers was escorting the defendant from the house, Poisson told the defendant that he probably had killed Mejia, and the defendant replied, “You cheated on me. You're a whore.”

En route to the police station, the defendant asked one of the police officers, “What would you do if you found your girl with someone else in your home?” Answering his own question, the defendant said that he would do “whatever it took,” even if it put him away for “the longest time.” He also said that he “just cut him once a little bit.”

Medical evidence established that Mejia had suffered four [465 Mass. 562]stab wounds. One of the stabbings had perforated Mejia's subclavian artery, which caused Mejia to die from blood loss. The blows to Poisson resulted in a laceration on the left side of her head that required seventeen staples.

At trial, the defendant did not contest the evidence showing that he had assaulted and battered Poisson and killed Mejia. He introduced evidence to support his claim that he had been under the influence of alcohol and cocaine at the time of the events. He argued that the jury could consider this evidence in deciding whether the Commonwealth had met its burden of proving his state of mind beyond a reasonable doubt. The defendant argued also that he had stabbed Mejia while in the heat of passion after learning that Poisson was romantically involved with Mejia. In addition, the defendant maintained that he had a lawful right to enter Poisson's home,⁸ and therefore that he could not be

[989 N.E.2d 479]

guilty of armed burglary and could not be guilty of felony-murder predicated on the armed burglary.

Discussion. 1. Ineffective assistance of counsel. “Where the claim of ineffective assistance is raised in a motion for a new trial that has been denied, and where the appeal from the denial of that motion is raised in conjunction with a direct appeal under G.L. c. 278, § 33E,” we review the claim of error to determine whether there exists a substantial likelihood of a miscarriage of justice. Commonwealth v. Morales, 453 Mass. 40, 44, 899 N.E.2d 96 (2009). See Commonwealth v. Stewart, 460...