Commonwealth v. Alemany

• Decision Date: 04 October 2021
• Docket Number: SJC-12180
• Citation: 174 N.E.3d 649,488 Mass. 499
• Parties: COMMONWEALTH v. Edwin J. ALEMANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

488 Mass. 499

174 N.E.3d 649

COMMONWEALTH

v.Edwin J. ALEMANY.

SJC-12180

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 5, 2021.

Decided October 4, 2021.

Andrew S. Crouch, Boston, for the defendant.

Cailin M. Campbell, Assistant District Attorney (John P. Pappas, Assistant District Attorney, also present) for the Commonwealth.

Present: Budd, C.J., Cypher, Kafker, Wendlandt, & Georges, JJ.

CYPHER, J.

A jury convicted Edwin J. Alemany, the defendant, of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder for strangling and stabbing Amy Lord. He also was convicted of a number of other offenses, including armed robbery, aggravated assault and battery by means of a dangerous weapon, and attempted murder, for the attacks on Lord, Alexandra Cruz, and Kayleigh Ballantyne.¹ The sole issue before the jury was whether the defendant was criminally responsible for his conduct during the three assaults. Following his convictions, the defendant moved for a new trial on the ground that his trial counsel had conceded his guilt and proceeded with an insanity defense over his objection. His request for a hearing and his motion were denied. The defendant's appeal from the denial of his motion for a new trial was consolidated with his direct appeal.

The defendant contends that the judge's instructions on criminal responsibility were erroneous; the prosecutor made several improper remarks in his opening statement and closing argument; and the motion judge, who was not the trial judge,² erred in denying his request for a hearing and his motion for a new trial. He also asks the court to review the case under G. L. c. 278, § 33E. After a thorough review of the record, we decline to exercise our authority under § 33E to grant a new trial or reduce or set aside the verdict of murder in the first degree, and we affirm the judgments.

Background. We recite the relevant facts that the jury could have found. On July 23, 2013, over the course of twenty hours, the defendant committed three separate violent attacks, killing one woman, Amy Lord, and injuring two others, Alexandra Cruz and Kayleigh Ballantyne. There was an overwhelming amount of evidence consisting of victim and witness accounts, out-of-court and in-court identifications, surveillance footage, and forensic evidence.

At 4:23 A.M. , the defendant approached Cruz and hit her on her jaw as she was walking to work in the South Boston section of Boston. The defendant rendered Cruz briefly unconscious and dragged her into a parking lot where he choked her and told her that if she screamed, he would kill her. Cruz pleaded with the defendant to stop and the defendant responded, "Bitch, just know that you're going to die today." When the defendant briefly turned away, Cruz ran across the street. The defendant then told Cruz, "I fucked up," and that he was looking for someone else. He threw her belongings toward her and told her not to call the police because he knew where she worked. Cruz ran to work, and about one hour later, a police officer came to the store. The next day, Cruz identified the defendant in a photographic array as her attacker and later identified him in court.

Around 5:38 A.M. , Amy Lord, when leaving her apartment building, was attacked by the defendant in the vestibule of her building.³ He then forced her into her car, with a mask covering his face, and drove to five different automated teller machines forcing Lord to withdraw $960 in total from her bank account.

The defendant then brought Lord to a secluded area. He took off her clothes, beat her, stabbed her over forty times, strangled her,⁴ and left her naked body lying on an isolated path in a wooded area.

The defendant left the area in Lord's car, and over the next forty minutes he purchased gasoline at a station in the Roslindale section of Boston, drove back to South Boston, and set fire to Lord's car.

The defendant then began to spend Lord's money, paying cell phone bills; buying a new cell phone, lottery tickets, and alcohol; and hiring a livery car to take him to his friend Eric Cataloni's home in Roslindale. The defendant spent the evening eating and drinking with Cataloni, the defendant's brother, and another friend. At around 10:30 P.M. , Cataloni drove the intoxicated defendant to South Boston; and he passed out on the back seat.

When the defendant arrived home, he banged on the front door; his girlfriend, Elisabeth Stephenson, and their toddler daughter were asleep inside. After Stephenson and the defendant began to argue, Stephenson left the apartment with their daughter, fleeing to her nearby car, and driving around aimlessly. When she returned a short time later, she saw the defendant walking away from the apartment.

Twenty minutes later, at around midnight, Ballantyne saw the defendant on the opposite side of the street as she walked toward her apartment. As she entered the passcode to her front door, she felt a person -- the defendant -- directly behind her. The defendant pushed her and she hit her head on the floor. The defendant stood over her and stabbed her left arm five times, her left breast two times, her left rib once, and the left side of her face. Ballantyne pleaded with him to take the contents of her purse and her cell phone, and she screamed for help and kicked the defendant. One of her kicks knocked the defendant over, and he fled. Ballantyne crawled to her apartment, used her keys to open the door, and got her roommates’ attention. Her roommates and neighbors who had heard Ballantyne's screams called 911.

Before she was taken to a hospital, Ballantyne described her attacker as a Hispanic male, five feet, eight inches tall, medium build, with a "buzz cut," and wearing a dark shirt and a Boston Red Sox baseball cap. Ballantyne's roommate went to the hospital with her and encountered the defendant, who had his hand wrapped and was upset because he was not receiving treatment. Ballantyne's roommate noticed that the defendant matched the description of the attacker and texted their other roommate, who was still at their apartment with law enforcement, regarding the defendant's presence at the hospital.

The defendant was taken into custody at the hospital, read Miranda warnings, and questioned by police after waiving his Miranda rights. The defendant told the police that he had injured his hand trying to defend himself during an altercation with a man at a gasoline station. Detectives obtained the surveillance video recording from the gasoline station; although it captured the defendant, it did not show any such attack.

After he was interviewed, the defendant was arrested for the stabbing of Ballantyne. Subsequent investigation revealed that the defendant was included as a contributor to blood stains found in a trail leading from where Ballantyne was attacked, and that Lord was included as a contributor to blood stains found on the defendant's sneakers. At trial, defense counsel conceded that the defendant had attacked Cruz, Lord, and Ballantyne, but argued that he was not guilty by reason of insanity.

The defendant's expert, Dr. Keith Ablow, testified that, at the time of the three attacks, the defendant had been suffering from a major mental illness. According to Ablow, the defendant had been diagnosed with a dissociative disorder, major depression, alcohol use disorder, and borderline personality disorder. The defendant's mother had schizophrenia and the defendant reported that when he was around twelve years old, he had been abused sexually by an older male. The defendant also began using drugs at around age thirteen, and, at fourteen, he was hit on the head by a brick and rendered unconscious. The defendant had spent much of his adolescent years in the custody of the Department of Youth Services, where he had had six hospitalizations, with reports of suicidal and homicidal thoughts. After turning eighteen, he was in and out of jail, and when not incarcerated, he would self-medicate with alcohol and drugs. Ablow opined that, at the time of the incidents, the defendant substantially could not appreciate the wrongfulness of his actions, nor could he conform his behavior to the requirements of the law.

By contrast, the Commonwealth's expert, Dr. Martin Kelly, who also interviewed the defendant, opined that the defendant only suffered from an antisocial personality disorder. In Kelly's opinion, the defendant had had no mental disease or defect at the time of the crimes, or at any other point, that resulted in the lack of substantial capacity to appreciate the criminality or wrongfulness of his conduct, or the lack of substantial capacity to conform his conduct to the requirements of the law. Kelly opined that the defendant seemed guarded and careful throughout his interview, reflecting on answers, and never distracted. The defendant had not had any recent hospitalizations, and there was no evidence that he had been treated for a suicidal act.

Discussion. 1. Jury instructions. The defendant argues that the judge's instructions on criminal responsibility were erroneous because when explaining the third possible method of proof open to the Commonwealth, the judge stated that even "if the defendant lacked substantial capacity to appreciate the wrongfulness or criminality of his conduct and to conform his conduct to the requirements of the law, the lack of such capacity was solely the result of voluntary intoxication," when he should have said that "if the defendant lacked substantial capacity to appreciate the wrongfulness or criminality of his conduct or to conform his conduct to the requirements of the law, the lack of such capacity was solely the result of voluntary intoxication." The defendant argues that use of the word "and" instead of the word "or" varied from the 2018 Model Jury Instructions on Homicide (2018 model jury instructions) and reduced the Commonwealth's burden of proof, creating a substantial likelihood of a...