Commonwealth v. Ashman

• Decision Date: 08 December 1999
• Citation: 723 NE 2d 510,430 Mass. 736
• Parties: COMMONWEALTH v. DENTON A. ASHMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 736

723 NE 2d 510

COMMONWEALTH v. DENTON A. ASHMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

December 8, 1999.

February 9, 2000.

Present: MARSHALL, C.J., ABRAMS, GREANEY, IRELAND, & COWIN, JJ.

Kevin J. Mahoney for the defendant.

Jane A. Sullivan, Assistant District Attorney (David E. Meier, Assistant District Attorney, with her) for the Commonwealth.

COWIN, J.

The defendant, Denton A. Ashman, was convicted of murder in the first degree, based on both deliberate premeditation and extreme atrocity or cruelty. We affirm the conviction and decline to exercise our power under G. L. c. 278, § 33E, to reduce the murder verdict to second degree or to order a new trial.

The jury could have found the following facts. The body of Christine Henry was discovered on the evening of October 13, 1996, lying in a pool of blood on the sidewalk of Norwell Street in the Dorchester section of Boston. The cause of death was multiple stab wounds from a single knife with a flat edge and at least an eight-inch blade. The victim also had two defensive slash wounds, as if she "were trying to fend off a knife."

The victim was last seen leaving her home for work at approximately 6:40 P.M. on October 13. At about 4 or 5 P.M. that day, she had received a telephone call, and talked on the telephone for one and one-half hours. During that call, the victim handed the telephone to her sister, Patricia Williams, but she refused to take the telephone. During that conversation, Williams heard the victim repeat three times: "It's over."

The day before the stabbing, the defendant told an acquaintance that the victim had left him, that he had been depressed since she left and that "he just felt that, like the only way they can be together would be like he would kill her, then kill himself." Later, the defendant left a message for this same acquaintance saying, "he did what he said he was going to do and he just called to tell me bye and he'd see me in the afterlife." On the evening of the murder and the following day, the defendant telephoned a coworker of the victim, the victim's sister, and a friend of the victim, admitting to each of them that he had killed the victim. In one conversation he said that he "loved her to death." In two of the calls he indicated that he had killed the victim because neither she nor her sister would talk with him on the telephone.

The defendant was arrested on the day following the murder. He told the booking officer that he was suffering from mental illness. In a statement to the police, the defendant denied any connection to the victim's death, said that he had not made the incriminating telephone calls, and provided an exculpatory account of his activities on the day of the murder. He also stated that he had tried unsuccessfully to hang himself after he had learned about the victim's death. The officers had no difficulty understanding the defendant and noticed nothing unusual about his appearance or demeanor. He "seemed emotional," but was not crying and was cooperative.

At trial, and in contrast to his statement to the police, the defendant did not contest that he had killed the victim, but maintained that he was suffering from "diminished capacity or mental impairment," and that his severe depression caused him to kill the victim. He sought to obtain a verdict of murder in the second degree. To this end, Dr. Marc Whaley, a psychiatrist, testified that he had interviewed the defendant and concluded that when the defendant killed the victim, he suffered from "major depression without psychosis." The doctor detected no psychotic symptoms and stated that defendant's depression "did not substantially impair ... his ability to appreciate the wrongfulness of his conduct [or] his mental functioning in terms of his ability to control himself according to the requirements of the law [but] ... there was impairment in his mental functioning at the time of the incident that impaired his ability to weigh the pros and cons of carrying out his aggressive wishes towards this unfortunate victim." Dr. Whaley opined that the defendant's "aggressive act was a direct result of his severe depression at the time." The defendant had not been taking his antidepressant medication at the time of the stabbing.¹

The defendant also adduced evidence that he spoke with his brother-in-law, Antonio Green, on October 13, and said that he had killed and stabbed the victim, thought she was dead, and was going to kill himself. Green thought the defendant sounded as if he were "not really in his right state of mind." The defendant spoke to his brother the next day and sounded depressed and frustrated.

1. Voir dire. The defendant claims that the trial judge erred by failing to question members of the venire individually regarding their ability fairly and impartially to consider evidence of mental illness or mental impairment. He argues that such individual questioning is required by Commonwealth v. Seguin, 421 Mass. 243, 249 (1995), cert. denied, 516 U.S. 1180 (1996).

In her remarks to the entire venire, the judge explained that evidence might be introduced "concerning the defendant's mental condition and, specifically, about mental illness ... and its impact on his ability to commit the crime of murder." She asked if any prospective juror had "any opinions about mental illness or about evidence concerning mental illness on the part of a defendant that you think might interfere with your ability to listen to the evidence and to be a fair and an impartial juror, deciding the case based only on the evidence and the instructions of law that I will give to you."

The jurors who responded affirmatively were questioned individually. The judge inquired if the juror could listen to the evidence with an open mind and consider fairly whether the defendant did or did not have the capacity to form the necessary specific intent to commit the crime of murder. If any prospective juror had difficulty understanding the question or hesitated in answering, the judge inquired further. The defendant is not concerned with the impartiality of those jurors who responded to the question to the entire venire; they were questioned individually. The defendant maintains that individual voir dire of those members of the venire who did not respond to the question addressed to the group as a whole was necessary for the judge to ascertain the impartiality of any venireperson who might be reluctant to admit publicly to bias against mental impairment.

If it appears that a juror might act in whole or in part on issues extraneous to the case, the judge must conduct individual voir dire. See G. L. c. 234, § 28; Mass. R. Crim. P. 20 (b) (2), 378 Mass. 889 (1979). A judge has considerable discretion as to whether the circumstances present a substantial risk that an extraneous influence might affect jurors. See Commonwealth v. Seguin, supra at 247, citing Commonwealth v. Duddie Ford, Inc., 409 Mass. 387, 392 (1991); Commonwealth v. Kendrick, 404 Mass. 298, 303 (1989). The defendant must show that there is some basis for finding that a substantial risk of extraneous influences on the jury exists, Commonwealth v. Boyer, 400 Mass. 52, 55 (1987), citing Commonwealth v. Campbell, 378 Mass. 680, 696 (1979), and that there is a substantial risk that jurors would be influenced by such considerations. Commonwealth v. Seguin, supra, citing Commonwealth v. Prendergast, 385 Mass. 625, 628-629 (1982).

In Commonwealth v. Seguin, supra at 249, we decided that "[i]n all future cases in which the defendant indicates that his or her lack of criminal responsibility may be placed in issue and so requests, the judge shall inquire individually of each potential juror, in some manner, whether the juror has any opinion that would prevent him or her from returning a verdict of not guilty by reason of insanity, if the Commonwealth fails in its burden to prove the defendant criminally responsible."

In this case, there is no question that the defendant sought to obtain a verdict of murder in the second degree. This was made clear to the judge before trial began. We decline to expand the Seguin rule to encompass cases in which evidence of mental illness or mental impairment is presented. The Seguin rule applies only to cases in which the defendant seeks a verdict of not guilty by reason of insanity. In other cases, it is within the judge's discretion to question the jurors as the judge did here.

The judge followed the requirements of our cases. Her question addressed to the venire and her further individual questioning were sufficient to ensure that no juror was biased against the defendant because of the juror's reliance on the evidence of diminished capacity or mental impairment. She carefully questioned each prospective juror who had affirmatively answered the general question on mental illness about whether that juror could fairly decide if evidence of mental illness affected the defendant's capacity to intend to commit a crime. There was no basis in the record to require the judge to determine that there was a substantial risk of extraneous influences on the jury. Indeed, even defense counsel stated immediately prior to empanelment: "[A]lthough criminal responsibility is not going to be raised as an issue, I think the question your Honor is asking [to the entire venire] covers the issue fairly well, but again, I'm just not sure at this time, Judge, whether or not by doing it in the general venire is the right way to do it."

The trial judge assured that prospective jurors who might have difficulty accepting the impact of evidence of mental impairment on intent were excluded from the jury. The process "adequately produced a jury unbiased against reliance on [mental impairment evidence] in this case." Commonwealth v. Seguin, supra at 245.

2. Prior bad acts evidence. The defendant argues that the judge committed reversible error by admitting evidence of two instances of prior...